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#18284
INSURANCE DEDUCTIBLE changes - Jim Davidson alerts to a potential bombshell in Bill 106 2015/10/04 13:06  
Ottawa condo law specialist Jim Davidson ( Nelligan O'Brien Payne LLP ) has drawn attention to what may be an overlooked bombshell in Ontario's condo law reform Bill 106 !

( Worth listening closely to Jim Davidson who has written extensively over the years about Ontario insurance deductibles. Some call him the father of Ontario's deductible scenario, but he has been quick to alert that the 1998 Legislature disregarded some of his crucial recommendations.)

Would that bomb even invalidate Ontario insurance deductible by-laws widely passed after May 4 2001 to slope-shoulder deductibles onto individual unit owners ?

Those post 2001 by-laws shifted the (legislated )"default" master policy deductible burdens, wider & heavier onto individual unit owners.

( Section 105 in 1998 contained limits on slope-shouldering master policy deductibles, notably for non blameworthiness and/or damage other than within an owner's "source unit". The wording was open-ended enough to be construable to include downloading for much more than mere 'blameworthy' damage onto individual owners.

Bill 106's default setting now would be (only) an owner's blameworthy damage incurred anywhere.

But unlike possibly in some post 1998 by-laws, it would leave to amended or brand new Declarations, the heavier shift of non-blameworthy damage somehow triggered by some act or omission of an owner. eg the first unforeseeable owner waterline rupture or valve failure.

Some 1998 by-laws could have purported to do so. But a BIGGY : what is their status now ? )

The 1998/2001 by-law changes were "sold" as cost-reducers overall. Master policy deductibles were peanuts compared to what they are now. But defensible as DISCIPLINE to punish the careless just like sub-metering was supposed to reduce overall utility costs. . .

But have those claims proved correct ? Where are unit owners as consumers in all this ?

Alberta Judgment Exposes Deductibles Abuse

In sharp perspective from ALBERTA, a coincidental brand new ALBERTA legal judgment (below) shows just how owners & Boards need to take a VERY sharp second look at downloading master policy deductibles onto unit owners.

How such might get subsequently & grotesquely mis-applied by skillset-challenged thrifty Boards & management, is a troubling issue discussed elsewhere at this CAFCOR Forum.

The ALBERTA judgment (below) shows there could be a big flipside /downside to what many Ontario condo communities have elsewhere by-lawed after May 4 2001. Is even Alberta more protective of condo owners as consumers than Ontario ? ! It is more recent than lawyer Jim Davidson's alert about Bill 106 ( & and as an Alberta judgment not direct ).

Ho v Security National Insurance Co ( & Riverwest CC # 0313153 ) 2015 ABPQ 202 issued Sep 23 2015. Justice D.B Higa http://canlii.ca/t/glblg .

( INSURANCE DEDUCTIBLE extortion wars after insurable damage & Alberta’s statutory limits on master policy deductible )

In the ALBERTA jurisdiction with condo fines backed by condo liens, co-defendant condo corp is ordered :

1 - to refund to flooding source upper-floor owner plaintiff Ho, $20 K coerced out of Ho (without prejudice) to repair Sept 2014 damage to lower floor unit. The condo corp failed its own onus to here prove as negligent the non-foreseeable rupture in Ho’s fridge’s ice-maker water supply line; and

2 - to compensate Ho for uncompensated flood damage to Ho’s own upper-floor unit location of water escape rupture unit up to $ 25K balance of that court’s jurisdiction.

FACTS : Its master policy being subject to a $ 35,000 insurance deductible here judicially ruled unreasonably excessive, the losing condo corporation illegally ( & without being able to prove such here ) decided that the one-off fridge water line rupture in Ho’s upper-floor unit had been an act of owner negligence. This was despite lack of prior indicators / prudent predictors of failure. Both the condo corp and its insurers would thus duck the costs.

The condo corp then was in position - with statutory fine & lien powers - to coerce Ho under protest into paying for flood damage downstairs - almost $ 20 K.

It also refused to pay for water damage in Ho’s own upper-floor unit - more than $6 K.

Under protest Ho had paid lower floor damage.

OUTCOME : But at trial the condo corp is unable meet an onus to justify its unsupported refusals nor the quanta of $ 35 k deductible such amount ruled challengeable under a specific provision in Alberta condo law & excessive.

Ho litigates successfully with claim that the loss had NOT been his negligence and should have been treated as an insurable loss subject to all owners sucking up any deductible not reimbursed by corporation's master insurance.

Court agrees, also reviewing & challenging the $ 35 K deductible under Alberta’s condo provision which expressly requires the master policy deductible to be ‘reasonable”. There is glaringly no such Ontario provision.

* * * * * * * * * * * * * * * * * * * * *

Ottawa lawyer Jim Davidson's ( bombshell ? ) concern about ONTARIO'S Bill 106 :

( authorized quotation : ) excerpted from Jul 22/15 “Concern #1 with ONTARIO'S Bill 106 http://www.condolawnews.ca/e/concerns-proposed-condo-act-amendments-concern-1.cfm by Jim Davidson LLB ( Nelligan O'Brien Payne LLP;Ottawa & Kingston )

Concerns re. Proposed Condo Act Amendments - Bill 106 - http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=3399

"Responsibility for the Deductible on the Corporation’s Insurance Policy"

. . . The proposed amendments to the Act include the following proposed changes to Section 105 :


b. The obligations of owners (in relation to the Corporation’s deductible) could be changed by a provision in the declaration.

A proposed amendment to Section 107 of the Act would also say that any amendment to the declaration - to add such a provision - would require consents from the owners of 90% of the units.

This would appear to eliminate all existing and future insurance deductibles by-laws.

I don’t understand why this is being proposed. Such by-laws are passed with the support of the owners of a majority of all units. I don’t see any good reason for insisting that these reasonable provisions respecting responsibility for insurance deductibles be contained in the declaration.” - unquote. ( authorized quotation )
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#18287
If Bill 106's eventual 3rd reading will end mere BY-LAW "slope-shouldering" of deductibles ? 2015/10/05 10:47  
. . . Would that mean for section 105 situations, that it's back to whatever the new Condo Act's 'default setting' will be from time to time ? ie Regardless of any by-law passed already, will it be "legislative defaults" for section 105 deductibles unless a FULL Declaration amendment is consented by 90 % of owners ( & registered etc) ?

. . . For a 90 % full Declaration proposal to thereby restore or confirm slope-shoulderings, will these next debates be as naive as maybe some by-law ones were ?

OR BEFORE 3RD READING will Bill 106 itself be revised to validate /invalidate existing by-laws and to thereby resolve uncertainty about the former by-lawing power being removed ?

Are the past by-laws invalid ? And how would they be amended or updated in future if the power to do so is only by FULL Declaration amendment now ? :

- "We bought this car while the highway speed limit was 70 miles an hour.

But now that the Province has lowered the speed limits, why shouldn't I keep on expecting forever to drive up to 70 miles per hour without being ticketed ?"

- "We bought and owned this slave before the 14th Amendment outlawed slave-owning. Why shouldn't I continue to enslave my plantation workers ?"

BUT the contrary argument ? : The existing by-laws ARE STILL VALID, parallel to the following scenarios :

"Your marriage vows are not magically erased now just because decades later the presiding clergy-person has just been disbarred but had been lawful when you got married !"

"Your university degrees are not voided just because the degree granter has just lost its university status "


Whatever the better legal view, the Province's legislative drafters should avoid any uncertainty by now adequately confirming - within the text - either the validity or invalidity of past, validly enacted deductible-shifting by-laws.

They somewhat messed up last time in 1995-1998.

* * *

The insurance deductibles issue has been discussed many times here ( see some topic links below ).

One of the discussions even examined many years of voodoo ongoing insurance throttling practice. Under this voodoo, even without a deductibles by-law in place one condo corporation believed it could randomly withhold claiming under its master insurance policy for insurable loss involving any particular 'factuals'.

Without such a Section 105 deductibles by-law in place the condo corporation was apparently able to coerce false 'confessions of blame-worthiness' out of owners ( and potentially even 3rd party lower floor flood victims, whose potential targetability was an early topic ).

Then the "confessed" source unit owner ( like Ho above in Alberta ) & even lower floor flood victims would have to suck up the corporation's insurance deductible just to trigger insurance funds required by law, regardless of negligence or not. ie Just like Ho in Alberta : "it broke, so you are automatically at fault!"

There are reports that despite later enactment of a deductibles by-law, the earlier abuses caught up with that condo corporation in court.

Some - but not all - of those past topics are url'd below including Jim Davidson's section 105 Matrix to understand the lawful way section 105 was legislated.

* * * *

The Davidson Matrix first URL may have to be "manually pasted" due to some technical issue.

Other topics can be located via the Search Forum function upper right ( try "insurance deductible" or in combination with "section 92" ( work done for owner/Windsor)

http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=15207&catid=9

http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=17584&catid=9#17584

http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=16740&catid=2&limit=20&limitstart=0

http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=16738&catid=2#16738
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#18288
Condo-ology commenters on INSURANCE DEDUCTIBLE changes - Jim Davidson's bombshell ? (Bill 106) 2015/10/05 20:58  
Commenters at Condo-ology weigh in.

https://www.linkedin.com/grp/post/4660329-6056539633431384068?trk=groups-post-b-title

Unit owners ignoring insurance requirement or unable to afford $35 K deductibles.

Units left damaged without underwritten repair funding ?

a $100,000 residential deductible reported !
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#18289
whether MORTAGEES' /CHARGEES' security is at risk with ballooning deductibles & uninsured units ! 2015/10/06 13:59  
Another side of the Ontario issue :

lender security potentially compromised as lienable deductibles leap ahead of first mortgages / charges amidst crushing borrower costs to insure giant deductibles.

( US readers please note : unlike Ontario many U.S. states legislate priority to FIRST mortgagees OVER condo / HOA lien claims. But NOT SO here except pre-registration POTL mortgages for Part 10 CECC condo corporations under Ontario's Condominium Act 1998. Ontario has no HOA Act such as Florida's ch 720 )

This following insight ( among others') by Tom LePage at his Condo-ology site :

" . . . What I don't know is if the mortgage companies realize this is concurring. A $35,000.00 or worse a $100.000,00 liability is collectible prior to a mortgage.

I am assuming this is one of the criteria for a Condo Corp to be placed on a black list of tier one mortgage companies. . . "
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#18290
simplifying INSURANCE DEDUCTIBLE potential bombshell in Bill 106 ? 2015/10/06 22:32  
But making this simple ain't easy : Sections 105, 107 & 56(1) i changes :

Alerted by Jim Davidson, Bill 106 is currently worded to INCREASE the 1998 default burden on individual unit owners. BUT also to make it FAR tougher for the new default to be over-ridden locally. And what about an apparent zinger loophole ?

The 1998 'legislated default' burden on an owner - blameworthy insurable damage only within the damager’s unit in absence of new "circumstance extending" by-law - would now become heavier.

Current 2nd reading Bill 106 would increase an owner's automatic (default) master deductible burden to now include ‘blameworthy insured damage caused ANYWHERE’. The proposed burden under proposed 105(2) could be imposed for blameworthy damage anywhere by the owner, occupant or such future-prescribed others ( ? guests ? agents ? visiting animals ? )

BUT further ‘extending’ ( making heavier ) such will now require a huge 90 % Declaration amendment if a condo corporation wants for eg - to return to also making an owner responsible for NON-BLAMEWORTHY damages TOTALLY within own unit.

Same for NON-blameworthy but "claimed" somehow to be legally ascribable to an owner ANYWHERE else in the complex eg within accidental pipe rupture's lower floor victim units or common elements ) .

( Mr. Davidson writes that in the case of any insurable damage within the unit, the post 2001 by-laws typically have purported to transfer the master deductible onto an owner for both blameworthy AND for non-blameworthy causes alike, as long as not provably caused by the corporation itself.

He also comments that such typical by-laws could burden an owner for negligent damage ANYWHERE by the owner, by other unit occupants or by a guest or agent of the owner.

These clearly were heavier than what the Legislature now is prepared to tolerate. Without the Regs. still to be released it is also unknown if guests or agents damage could still burden the owner. )


'Loose-ends' in 2nd reading Bill 106 seem to include :

What about those by-laws ? Who will suck up what deductible and for what reason after the next insurable loss under those (possibly voodoo) by-laws passed between May 5/01 and whatever the future date of applying Bill 106 ?

Are such by-laws KILLED FOR GOOD - as Jim Davidson raises ? : “This would appear to eliminate all existing and future insurance deductibles by-laws.” - unquote

OR would these already enacted by-laws FULLY SURVIVE as if ‘grand-fathered’ site by site and be valid to apply to both old & newly occurring, insurable damages alike but only on those sites ?

OR are they FROZEN on each site, to be applicable but only to PAST damages incurred between the by-laws’ enactment & the new Bill 106’s eventually taking effect ?

What to do :

Respectfully, the legislative drafters need to address the above.

While doing so maybe the Legislature ought to look at the consumer protection issues better. Is Alberta shockingly more consumer-friendly than Ontario ?

* * * * * *

SEE the 2nd reading text of Bill 106
http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=3399

SEE Jim Davidson's comment about deductibles in there
http://www.condolawnews.ca/e/concerns-proposed-condo-act-amendments-concern-1.cfm

SEE in Province's Backgrounder to Bill 106 - "Owner's Liability for damage" https://www.ontario.ca/page/proposed-condo-changes
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#18293
WHAT ABOUT condo UNDERWRITING & CLAIMS if Bill 106 loophole is ignored ? 2015/10/08 11:03  
If lawyer Jim Davidson is again correct - and 2nd reading text of Bill 106 seems to support him bigtime - what will Ontario's condo insurers, managers & damage claimants do ?

How and when would insurers have to adjust the product & pricing, just for starters ?

In 1998 some sizable ambiguities in section 105 were left unaddressed by 3rd reading & passage. Despite articles by Jim Davidson in ACMO's CM magazine, these have been left ambiguous for 17 years.

Will the same thing happen again ?

If so maybe worse than 1998. The 2001 transition was less extreme, liberalizing management powers with master deductibles far lower eg $5 K.

The 1998 changes ( effective May 4/5 2001 ) were also made into a much more primitive Ontario condo insurance environment that had just been framed by STEVENS v SIMCOE C.C. # 60 1998 canlii ( Ont Court General Division) issued Sep 25 1998 http://canlii.ca/t/g1hsz

This was the ‘biggy’ insurance deductible judgment under the prior 1970's/1990 Act. Reversing a lower court decision, the Ontario Court's General Division upheld a Declaration-contained insurance deductible slope-shouldering the master deductible onto the negligent upper-floor damage causers Stevens. Their improperly installed window air conditioner damaged the unit below.

The then new Condo Act 1998's Section 105 (effective May 4/5 2001) quickly arrived to lower the bar for condo corporations to use mere by-laws to substantially set their own "local" deductible arrangements.

Current Bill 106 however suggests that the Ontario Legislature has heard some horror stories about how that unfolded later.

Hope someone is listening to Jim Davidson.
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#18305
questioning 1998; a BC 'black hole' coverage denial dispute ( INSURANCE DEDUCTIBLES ) 2015/10/18 12:02  
1- Transcripts of FINAL STAGE 1998 submissions to the Legislature - just 2 months before its 1998 Bill got 3rd Reading approval - hint there was minimal legislator understanding of how the deductibles proposals MIGHT work out for condo owners as 'consumers'.

Consistently & whatever one's hindsight about the deductibles issue, the eventual 1998 Act wording also would show a lack of drafting precision in addressing it.

October 1998's central presentation about insurance deductibles was by Jim Davidson himself. The transcripted discussion actually contains his concerns dared to be expressed ( ! ) about whether the legislators had really understood the legalities, much less accepted what the industry "leading players" were seeking in 1998!

Presenters Loeb & Danks separately cited in 1998 the then-recent appeal decision Stevens v Simcoe CC #60 http://canlii.ca/t/g1hsz. It legitimized slope-shouldering deductibles using the Declaration, meaning : "doesn't face any reasonability test". . . . . .

( Ironically the 2015 text would return to the same Declaration override requirement - and again "no reasonability test". )

After the 1998 Act became law, did buck-saving blind owners ( at By-law votes ) instead of properly understanding any downsides of those by-laws ? How many owners heard anything at all - or even understood anything - after the claim : "This deductible bylaw will be cheaper over-all & will punish the careless ones !"

2 Flashing forward to 2015 :

IF there is another big loophole getting ignored ( as 1998 legislative drafting ), there could be some rocky times ahead.

IF - IF ? - the existing bylaws turn out to get cancelled including retroactively, the next Owners debate will be a Declaration amendment decision.

But those new amendment decisions will arrive now contemplating 2016 deductibles maybe 20 times higher than submitted casually in 1998. ( in October 1998 presented as $250 to $5 K cited by several 1998 FINAL STAGE presenters ).

This new debate will arrive with condo owners paying high premiums, sucking up their own deductibles for coverage against master policy deductibles.

Maybe some will have been hit by punitive premiums if historically their unit had been the source of enough damage whether blameworthy or through purely non-blameworthy accident.

What about cost-conscious landlords facing premium increases against tenant-caused damage, with master deductibles now 10 or 20 times higher than in 1998 ? See below :

3 - Totally uninsured or coverage-refused losses are going to be sucked up by somebody or litigated.

In some cases the damage may even hang around for years as unrepaired 'black holes' - almost abandoned amidst repair funding disputes.

The Ontario Condominium Act 1998 DOES obligate condo corporations to repair damaged units 'within a reasonable time', backed by charge-back liens. But if the 'black-hole' is stabilized out of sight without much risk to other units' values . . .

Worth a read :

Recent BC decision about a 6 year ongoing unrepaired black hole - coverage denial. . . This judgment has been picked up by giant US HOA/CONDO site www.HOATalk.com after Vancouver media reports.

Louie v. The Owners of Strata Plan VR-1323 et al, 2015 BCSC 1832 issued Oct 8 2015 http://canlii.ca/t/gljlr

BC Supreme Court orders Vancouver LANDLORD strata owner LOUIE to suck up $50 K master insurance deductible after her tenant’s meth lab fire damaged unit & common element in 2008. Strata unit has been a black hole for 7 years.

Not surprisingly landlord LOUIE also failed in claim apparently against her own insurer too.

Tenant meth-producer : now long gone . . . maybe looking for careless condo or strata landlords to chose him without proper diligence. . . .
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#18369
Re:INSURANCE DEDUCTIBLE changes - Jim Davidson alerts to a potential bombshell in Bill 106 2015/11/01 21:19  
Oct 22/15 ; Bill 106 Legislative Committee Hearing hears presenter lawyer Pat Greco raise unanswered concerns :

about By-laws : where and what happens to existing deducible bylaws ?

about 90 % Declaration change - a huge hurdle
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#18370
INSURANCE DEDUCTIBLES : Legislature gets ANOTHER alert to potential bombshell in Bill 106 2015/11/01 21:19  
Oct 29/15 2nd Legislative Hearing Bill 106 : another alert to the deductible issue, this time from from CCI president lawyer Mario Deo :

see CAFCOR topic :

http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18371&catid=2


The transcripts from Oct 29th/15 :

http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?Date=2015-10-29&ParlCommID=8997&BillID=3399&Business=&locale=en&DocumentID=29662
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#18381
WHAT US WORRY ? Committee nonchalantly passes by . . . 2015/11/19 18:25  
The Legislative Committee now giving its own text-vetting to Bill 106 ( Act revisions only ), FLIES PAST ( or 'bulk-approves' ) the group of Sections containing section 105 insurance deductibles. ( See transcript URL below )

. . . . As if they never heard nor understood the concerns raised separately to the Committee by lawyers Jim Davidson & Mario Deo & Pat Greco ( see above ).

Another 1998 ? Not smart to leave this potential bombshell to the courts nor Regulations to be re-prescribed later.

Begs the question now of who should insure what. How will insurers underwrite and price this uncertainty ? How will condo management & Board ?

Sort of like much condo/HOA Board decision-making.

Will the provisions of any once validly - enacted current bylaw, now survive the legislative extinguishment of such by-law scope ?

Or will existing by-laws be left intact & valid, only by-law lacking or brand new condo corporations now to be affected & requiring a Declaration provision ?

Allegedly reducing insurance bucks overall. But is the Legislature's bigger fear uninsured units without owner-obtained insurance proceeds ?

The Committee’s Nov 5/15 clause by clause Committee recommendations - Act only

" . . . . . . . I note that there are no amendments proposed to schedule 1, sections 100 through 110, inclusive. If there is no objection, I recommend that we deal with them as a block.

Seeing no objections, is there any comment or debate on schedule 1, sections 100 through 110, inclusive? Seeing none, shall schedule 1, sections 100 through 110, inclusive, be carried ?

All those in favour ?

Opposed?

These sections are carried. . . . "


Nov 5 /15 transcripts

http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=2015-11-05&ParlCommID=8997&BillID=3399&Business=&DocumentID=29714
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#18382
wotan ()
User Offline
Re:Condo-ology commenters on INSURANCE DEDUCTIBLE changes - Jim Davidson's bombshell ? (Bill 106) 2015/11/22 13:08  
Bob Driscoll wrote:


Unit owners ignoring insurance requirement or unable to afford $35 K deductibles.


Well, that's why it should be mandatory for owners to carry owners' insurance. Then their own insurance would pickup most of the $35,000.
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#18383
INSURANCE DEDUCTIBLE changes - Jim Davidson's bombshell ? (Bill 106) 2015/11/22 19:51  
Hi wotan :

hope all is well.

1- Are there reliable stats showing how many condo/co-op/HOA owners ignore prudently insuring their risks ? Or how many unit owners have such a bad damage record that their premiums would be astronomical ?

Until a multistory unit's insurable loss occurs, how would condo management even know which units are uninsured nor what to try to do about it ?

Some lawyers claim as many as 50 % of the owners in some buildings are uninsured or grossly under-insured.


2 - Whether or not the Legislative Committee directly understood, the 1998 version of deductibles Section 105 left still unrepaired a downside for multistory units & linked homes after unit damage.

It did so while reducing compulsory insurance trustee oversight. Maybe few condo corporations knew nor cared.

Without charge-backs for lawful condo corp repair interventions, rogue uninsured/un-repaired units are risks to safety & overall community property values.

3 - Today maybe the Legislature finally put those together / now wants to plug the holes with what it thinks is "certainty".

So the "certainty" arriving is the Bill 106 default scenario.

Or for brand new Declarations being registered ( anything different but otherwise consistent with the Condo Act)

Or anything different but consistent after Declaration amendment with 90 % consents obtained by existing condo corporations.

4 - But apparently still left up in the air ( on the verge of 3rd Reading ) by the Committee :

What about hundreds of Ontario condo corporations with post May 2001 deductible extending by-laws that will have to show up on status certificates etc ?

What happens if these old by-laws substantially divurge from the new Bill 106 "default" ?

Imagine trying to explain that to new or current owners . . . And what should their Boards & insurers understand ?



Anyway, keep in touch wotan.
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#18384
Act reform passes DEC 3 2015 ignoring concerns about existing INSURANCE DEDUCTIBLE by-laws 2015/12/04 00:10  
Bill 106 3rd reading passes / ignores warnings about existing deductible by-laws

Dec 3 2015 : Royal Assent received for S.O. 2015 C.28 Bill 106, Protecting Condominium Owners Act, 2015

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=3399&detailPage=bills_detail_status
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#18611
Gerry Hyman's advice : INSURANCE DEDUCTIBLE bombshell in Bill 106 2016/10/18 01:32  
Toronto Star condo law columnist lawyer Gerry Hyman's most recent Q&A column (Oct 15 2016 ) offers a clue where Ontario condo ( master policy ) insurance deductible disputes may now be headed before lawful solutions.

That direction may unfortunately include more disputes involving illegal liening and /or unit doorstep coercion of 'false confessions' of blameworthiness extorted just to obtain insurance payouts after unit damage.

That could be one response if & when defiant condo corporations can no longer lawfully slope-shoulder deductibles on a NO-FAULT BASIS just because of the location of an unforseeable pipe rupture or other non-blameworthy source of insurable loss.

It just won't be legal without a full Declaration amendment. But still have a powerful lien weapon. Some may still insist on using it to lien for NO-FAULT damage where originating from within an individual unit owner's unit boundary

The backstory summarized :

Despite disregarded warnings of over a year ( see above ), Bill 106 did NOT address any continuation of "insurance deductible-extending BY-LAWS as applicable to claims under the corporation's master policy. Many such former deductible by-laws were widened to potentially hit the NON-BLAMEWORTHY owner too and for damages suffered outside their own unit.

1 - Now kaput without a full Declaration amendment, if Gerry Hyman's approach prevails widely. IF - IF - Gerry Hyman's latest advice is a predictor, the former insurance deductible by-laws have turned to dust.

2 - The new legislative default will mean that although BLAMEWORTHY individual owners will now have to suck up master policy insurance deductibles for their BLAMEWORTHY damage which they wrongly cause & suffered ANYWHERE, it's now different :

For NON-BLAMEWORTHY insurable damages. without an actual Declaration amendment individual unit would no longer legally have to do so - despite the existence of a post 2001 insurance deductible 'extending' By-law.

3 - Looking wider, did the Legislature also intend this to restrain the huge increases in master policy deductibles ? ( ? wanted the deductibles restrained ? ). Without a full Declaration amendment condo corporations / ALL owners are left to now suck up lots more master policy deductibles for NON-BLAMEWORTHY damages previously By-lawed onto the 'source of damage' unit owner.

Of course some may still try to totally refuse to submit claims under the master policy/refuse repairs. Halting that still won't be easy. And there may be disputes headed to the new Condo Athority or to Small Claims to attack liens where illegally registered & already collected by coercion.

Oct 15/16 Toronto Star :

A questioner complains of allegedly being ( unlawfully ) liened for a non-blameworthy water pipe rupture.

Gerry Hyman's answer ignores totally the existence of the post-2001 insurance deductible bylaws. (But he doesn't advise the questioner what to do now about the illegal lien ).

Tells Oct 2016 questioner that the ONLY determinant is whether or not the physical cause had been owner's blameworthiness ! https://www.thestar.com/life/homes/2016/10/01/pet-ban-is-not-always-valid-condo-law.html
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#18700
Toronto lawyer claims grandfathering :INSURANCE DEDUCTIBLE (potential bombshell in Bill 106) 2017/03/28 11:41  
Via lawyer's tweets, it has come to light that Toronto lawyer Pat Greco has alerted to a deductible by-law 'grand-fathering' regulatory proposal said posted for comments "on February 27". URL is below.

IF Mr Greco's article is true and such proposal is ultimately prescribed, such would grand-father by-laws downloading master policy deductibles onto individual unit owners for grounds wider than mere blameworthiness.

Summary of background : The Province's enacted Bill 106 - without formal Declaration amendment - restrictively reduces the default to blameworthiness anywhere in the complex. ( If the by-laws survive, then blameworthiness be damned & management might for example lay a $25 K deductible onto a unit merely because it believes that unproven or otherwise non-blameworthy damage merely physically originated in such unit. Worse still is uncertainty about those by-laws. )

Unfortunately the Province's Regulatory Registry ( http://www.ontariocanada.com/registry/quickSearch.do?searchType=current ) seems to have missed such proposal. I alerted them.

Pretty important to pass without consumer input . . . ( The Province has acknowledged an alert about the possible oversight )

http://www.millerthomson.com/en/publications/communiques-and-updates/mtcondolaw-ontario/march-2017- mtcondolaw/insurance-deductible-laws-clock-ticking/
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#18701
IS the Province actually proposing to grand-father deductible downloading BY-LAWS ? 2017/03/29 10:42  
The proposal MAY be unlocatable.

In one way the O'Reg 48/01 proposal itself is 'plain language summarized' to indirectly address the issue : it would require Periodic Owner Disclosure that includes those by-laws. http://www.ontariocanada.com/registry/view.do?postingId=23688&language=en

BUT what can be found online literally does NOT seem to grand-father them. I see no Feb 27/17 posting about deductible by-laws.

Even if there would be NO grand-fathering, the disclosure is prudent because owners in theory could for years be facing a legacy scenario of 'historical' claims & deductible download situations.

The following by itself does NOT grand-father the by-laws :

( Proposed periodic Info Certificates will be required under )

Part 3 Corporation

Periodic information certificate

11.1 (1) In addition to the material specified in clause 26.3 (a) of the Act, a periodic information certificate of a corporation shall contain

. . . . . (g) if an insurance policy obtained and maintained by the corporation in accordance with the Act contains a deductible clause that limits the amount payable by the insurer, a statement that,

(i) describes any such deductible clause, including the portion of a loss that would be excluded from coverage,

( ii ) clearly identifies, for any such deductible clause, the maximum amount that is to be added to the common expenses payable for an owner’s unit under section 105 of the Act or as a result of a by- law passed under clause 56 (1) (i) of the Act before the repeal of that clause came into force , and

(iii) warns owners of their liability as described in subclause (ii)
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#18702
HAS A PRESCRIBED GRAND-FATHERING actually been proposed ? OR PROPOSED YET ? 2017/03/30 23:32  
* Cross reference topic March 30 2017 :

Is Ontario QUIETLY moving to GRAND-FATHER Insurance Deductible BY-LAWS ?

http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=2&id=18703#18703

********

FROM An exchange of e-mail correspondence:

Query March 28/17 To Registry ( Proposed Regulations )Feedback registryfeedback@ontario.ca :

"A Toronto lawyer`s article has cited an alleged Regulatory change claimed posted `On February 27`` alleged to address condominium insurance deductible issues .

http://www.millerthomson.com/en/publications/communiques-and-updates/mtcondolaw-ontario/march-2017- mtcondolaw/insurance-deductible-laws-clock-ticking/

But there is nothing such at the Registry.

Has it gone astray ?" - BD


Reply- March 30/17

"March 30/17 Thank you for your email.

To date, the ministry has posted two regulatory proposals regarding the implementation of amendments to the Condominium Act, 1998 (Condo Act) for public comment on Ontario’s regulatory registry. These proposals are part of the first phase of regulations to implement the amendments to the Condo Act.

. . . . . The ministry intends to start future phases of regulations development, including regulations development related to insurance, later this year.

sincerely, Jacqueline Perlin
Policy Advisor ; Ministry of Government and Consumer Services | Policy, Planning and Oversight Division 56 Wellesley St. W., Toronto ON M5S 2S3 | 6th floor; Phone: 416-326-8732
Email: jacqueline.perlin@ontario.ca "
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