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#18703
Is Ontario QUIETLY moving to GRAND-FATHER Insurance Deductible BY-LAWS ? 2017/03/31 00:00  
1 - Those multi-story condo owners who have been flooded 2 or 3 times in 5 or 6 years by stoppered bathtub overflows from an upper unit, may have LITTLE SYMPATHY for carelessness.

Downloading master policy deductibles is easy to see as a way to discipline carelessness and - according to the insurers - to reduce OVERALL insurance expenses. Directly or indirectly, why should general owners suck up the costs of blameworthiness ?

But is it so easy when damage is not otherwise blameworthy but merely coincident or vicarious ? Or even unproven ?

The first private pipe-split ? ( Should the unit owner of a 'first time' plumbing rupture be denied a defence by a condo corporation itself after the first pinhole leak ? Or the defence available to any property owner after a healthy looking, well-maintained, properly planted young tree drops a big branch ?

How about an unproven allegation of unwitnessed damage to a garage structure ? Or a new dishwasher randomly spews water despite sound professional manufacture & installation ? Who was last to be thought to have used the elevator before damage was noticed ?

Such sometimes trigger voodoo findings of fact & law . . . and sometimes bitter fights over who should suck up growing Master Insurance policy Deductibles.

2 - Bill 106 promoting Condo Owners 2015 will default to end the enactment of NEW 'deductible extending mere by-laws'.

BUT is silent as to grandfathering existing by-laws to do so enacted after May 4/5 2001.

NEW EXTENSIONS BEYOND BLAMEWORTHINESS EVERYWHERE IN COMPLEX , will require a Declaration amendment.

Lawyers Jim Davidson & Pat Greco urged legislative Hearings to clarify. But zilch at the Hearings or in the Act itself.

3 - Being re-tweeted March 27/17 amidst timeframe of O Reg 48/01 proposals, out of the blue comes “March 2017 by P Greco LLB ( Miller Thomson) :

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

The author states that "On February 27", Ontario released a proposed Regulation to grand-father insurance deductible by-laws passed by a condominium corporation prior to the repeal of section 56(1)(i) of the Act (which is anticipated to take place on July 1, 2017).

For deductible downloading fans it urges quick action to beat the easier by-lawing deadline.

4 - But where's the Feb 27th proposal ?

( Query March 28/17 To Registry ( Proposed Regulations ) Feedback registryfeedback@ontario.ca : " . . .But there is nothing such at the Registry. Has it gone astray ?" - BD

5 - The xcrpted email 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 "

6 - So interested parties respectfully should stay tuned please.
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#18705
Is Ontario QUIETLY moving to GRAND-FATHER Insurance Deductible BY-LAWS ? 2017/04/04 22:41  
As we noted elsewhere, the only findable reference ( in the current OReg 48/01 proposals of Feb /17 ) to survivability of existing insurance deductible by-laws seems to be as follows below *

I am unable to see HOW IF AT ALL such literally and specifically perpetuates the by-laws.

The Province's reply above indicates something is missing and will be addressed by further proposed Regulations.( Or else the Province has finally awakened to the issue it had ignored despite the shouting.)

* 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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#18706
Does this GRAND-FATHER Insurance Deductible BY-LAWS ? 2017/04/04 22:46  
Highly respected Ottawa condo specialist Rod Escayola LLB ( Gowling WLG )finds POSSIBLE perpetuation for the by-laws in the Periodic Info :

April 4/17 xcrpted “
: Major Changes to Condo Insurance and Repair Obligations”

http://condoadviser.ca/2017/04/major-changes-to-condo-insurance-and-repair-obligations/condo-law- blog-Ontario


" . . .existing Insurance deductible by-law appear to be grandfathered under the proposed regulations.

This grandfathering provision is “hidden” in the draft regulation being circulated by the province, under the section providing for what to include in the corporation’s Periodic Information Certificates.

A corporation having an existing Insurance deductible by-law must advise the owners of this and of the maximum amount they may have to pay towards the deductible.

This seems to indicate that existing Insurance deductible by-laws will continue to apply. . . . "
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#18708
Will some sort mere REGULATORY process succeed in GRAND-FATHERING Insurance Deductible BY-LAWS ? 2017/04/05 16:46  
( Echoing the casual tolerance for ambiguity in 1995-8 ) the Legislative Hearing stage in 2015 - & apparently the Province - ignored credible professional recommendations that the ACT itself address the 'grand-fathering' issue. That is IF it wanted such pre-existing ones to be prolonged .

Looks like the 'grand-fatherers' pin their hopes on something from the Regulations under review or purportedly still to come.

But expect this :

As soon as an Ontario condo unit owner without her or his own unit insurance and for non-blameworthy damage, gets GRAND-FATHER by-law targetted to suck up a $35 K, $50 K or $100 K master deductible, the legality of that Regulatory grand-fathering attempt will be worth challenging in court !

INSTEAD of being buttressed by an express statutory exemption in section 105 of the revised Condominium Act 1998 - ( eg "subject to validly enacted deductible extending by-laws in force as of XX/XX/XX . . . " ) - the allegedly 'grand-fathered' by-laws will then get some scrutiny.

Such scrutiny will target just how much a mere Regulation can contradict / overwrite a statute ?

Without something more tangible, there will be an argument that the mere Periodic Info Certificate above by itself does not literally 'resurrect' an existing deductible by-law. Nor prolong it even though no new by-laws can validly become enacted ( after eg July 1/17 target ).

But instead that the Info Certificate merely warns that there may for some years be historical claims hanging around for still-unsettled insurable loss pre-dating the changes . . . like ghosts from the past before the death of the by-law enacting platform.

. . . .ie like a warning that particular units may be dragging along potential liability from the past when deductible bylaws were still enactible . . .

Will the existing mere By-laws survive ? ?
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#18723
MISSING IN ACTION - Regs - to LEGISLATE ? - GRAND-FATHERING Insurance Deductible BY-LAWS ? 2017/05/02 10:37  
Ontario & American condo/HOA websites - & the few interactive Forums - show lots of frustration about this issue. Misinformation abounds & some bitter disputes occur .

Wherever Ontario's phantom 'by-law grand-fathering Regs" may be . . . whether they even exist . . . and whether such will be ultimately held lawfully valid to adequately address the apparent unresolved issue within Ontario's revised condo statute . . . the Province at least displays an internet 'proposed regs' Registry.

Such purportedly allows the public to track/submit input, whether or not listened to . . . .

( The Province recently promised something will be coming. BUT WHERE IS IT ? )

Looking for it ? That Proposed Regulation site unfortunately seems to have NO alphabetical index.

Nor any way to search for a particular Regulation other than month by month.

The new deductible default will require a Declaration amendment to override. So despite some condo lawyers urging Ontario condo corporations to hurry up by-lawing if not yet done, as of May 2 2017 that site still apparently does not yet show a BY-LAW RECONCILING Regulation about such insurance deductibles by-laws.

Simply 'Giving Notice' of the existence of a particular condo corporation's historically past-enacted by-law, perhaps may only address possible claims thereunder & possibly 'hanging around' for years while such claims may be progressing . . . .

Just will notify prospective or current owners /investors/ lenders etc that before the eventual Act amendments will have arrived, any by-lawed deductible situation used to be : etc

Month by month the Province's REGS index - anyway - is at :

http://www.ontariocanada.com/registry/quickSearch.do?searchType=past&year=2017&month=4#

MAY 10/17 UPDATE:

Awaiting a Provincial clarification, Ottawa condo lawyer Jim Davidson has just opined online that the former deductible-extending by-laws MAY NOT PROSPECTIVELY SURVIVE the incoming Act amendments :
http://davidsoncondolaw.ca/insurance-deductibles-by-laws-will-existing-by-laws-be-grandfathered/ ( ? Will they be “grandfathered”? My answer to this question is: Maybe; but I don’t think so. . . . The bottom line is as follows: For insured events that occur after Section 105 is amended, I don’t see how a by-law can have any effect on responsibility for the corporation’s deductible . . " )

If so, then last minute new by-law rushes to beat the clock may be futile.

Seems to follow the argument above about MERE historical NOTICE of already-triggered loss factuals that occurred while the old by-laws were still lawful . . .

Too bad the Legislative Hearings seem to have blissfully ignored the warnings about this & the disputes that may be coming . . .
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#18734
How soon will courts or Tribunal hear dispute about new insurance deductible litigation ? 2017/06/24 00:30  
1- But now having received Provincial reply, Mr Davidson 's later May 23 2017 blog opines that the existing by-laws at date of new Act applicable, "MIGHT be grandfathered" after all. http://davidsoncondolaw.ca/insurance-deductibles-by-laws-a-continuation/

2 - Awaiting an uncertain future process - never ? - so what's next ? : How will the courts or Tribunal answer that same question as soon as the first master policy deductible dispute hits them ?

They might be held speaking to insurable losses that FACTUALLY OCCURRED BEFORE the general Act amendments will take effect.

But what about insurable losses occurring thereafter ?


3 - What exactly is the Province/ M.G.S. now telling the universe saying about the issue ?

From my own reply just received ( thank you MGS ) :

xcrpted ( June 22 2017; signed for “Michele Sanborn Director , Policy & Governance Branch”; Ministry of Government & Consumer Services ) :


“. . . There are no plans for the amendments to section 105 of the Condo Act, to come in to force when the current first phase of regulation changes under the Act come into force on November 1, 2017.

The first phase of regulation changes has been finalized and the regulation changes are now available on the e-laws website .

The amendments to the Condo Act will be implemented in phases .

The section 105 amendments, and any potential transitional matters relating to insurance deductible by-laws , are planned to be part of future phases of regulation development and consultation . . . “


4 - With the issue suspiciously looking legislatively side-stepped so far, is the whole thing really being left to the courts or Tribunal at the next dispute ?
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