Chapter 12—The Registrar

The Kealey Commission was not just interested in all the ways the condominium industry and condo living itself failed condo owners, it wanted to recommend changes that would solve these problems and the heart of their report was the establishment of a Registrar of Condominiums that would:

a.	Create a registry on Ontario's condo corporations.
b.	Be a source of information on condominiums.
c.	Insure full disclosure of all important information to buyers & owners.
d.	Create a set standard language for condo declarations and by-laws.
e.	Educate owners and potential buyers on all aspects of condominium living.
f.	Provide a two-tier system for quick and inexpensive dispute resolutions between owners and their board or between two or more owners.

The Condominium Study Group
Chapter 12—The Registrar
During the course of the public hearings, one of ·the most repeated suggestions was for a central government office, which would be accessible to all persons involved in condominium living and development.

The first question to ask when considering a recommendation for a Registrar of Condominiums is why is it necessary? In particular, why should the sale of a condominium unit be treated any differently from the sale of a new house? The reason that a higher degree of consumer protection is necessary when condominiums are sold is, it is alleged, that the condominium concept is more complex and less understood by the buying public. A condominium has the unique combination of units and common elements which results in two proprietary regimes in one building, a concept foreign to most home buyers. Thus, the condominium combines independence with interdependence in a way that is not present in any other kind of housing. The administrative framework for managing the affairs of the condominium (a corporation with an elected board of directors) and the necessity of a property management company to maintain the property (the costs of which are paid out of the common expenses of each owner) are both unfamiliar concepts to most purchasers. The existence of by-laws apart from municipal by-laws for condominiums, the problems of insurance for both the units and the common elements, and termination of the condominium will also be new to purchasers.

Therefore, the fact that the purchaser of a condominium is buying something completely different from anything he has ever lived in before and which is far more complex legally, requires that the relationship between the vendor and purchaser be regulated in a way that is not present in the purchase of a new house. Without better regulation, the likelihood is greater that a condominium purchaser will face some of the unpleasant experiences described in many of the briefs, that he may realize one month after moving into a condominium that he is not living in what he expected, but in something he doesn't even understand. Thus, the complexity of the transaction and the nature of the risks assumed by a purchaser demand that some greater form of protection be offered the condominium purchaser.

It could be argued that "interference" in the condominium market by a government body should not be permitted, that if a developer is willing to sell a condominium unit and a buyer is willing to buy, then the transaction should not be interfered with. Rather than the government having to regulate the market, some may contend that the forces present in an open market will ensure that fair prices and services are provided. This philosophy clearly has not worked in the condominium market, as evidenced by the briefs presented at the public hearings and by the growing media coverage of the problems in the condominium field.
 
Securities
Assuming, then, that a condominium purchaser requires some sort of protection, what sort of protection is required? One possibility is the treatment of the condominium unit as a security similar to those regulated by the Ontario Securities Commission.

The question of whether a condominium unit is a "security" has been discussed by numerous legal writers. Jurisdictions in the United States treat the sale of condominium units as the sale of securities by deeming a condominium unit to be a security for the purpose of regulation by a state securities or real estate commission. For example, New York State's Condominium Act deems all condominium units to be "co-operative interests in realty" within the meaning contained in New York's General Business Law, which requires that an offering statement or prospectus be filed with the Attorney-General of New York prior to the sale of certain securities, including "co-operative interests in realty". Therefore, the question of whether a condominium unit is a "security" does not arise because the legislation deems it to be a security. Florida, Virginia, and Michigan have also legislated a condominium unit to be a security or have enacted a procedure identical to that in which a security is sold to the public, therefore treating a condominium unit as a security without expressly naming it as such.

If Ontario's Condominium Act is amended so as to either deem a condominium unit a "security" or treat it in the same way as a security, should a condominium purchaser be treated any differently than the purchaser of shares of a corporation pursuant to prospectus filing and approval under The Securities Act? There is a fundamental difference between the typical purchaser of a condominium unit and a person buying shares in a corporation. A condominium purchaser is not the sophisticated kind of investor who buys shares in anticipation of future gain; rather, he is buying with the prospect of a long-term investment which he does not necessarily intend on disposing of when its value rises. In other words, the kind of risk-taking inherent in the sale of most securities is not present in the purchase of a condominium unit. In addition. purchasers of securities in corporations usually consult independent brokers to get their advice before buying shares whereas many condominium purchasers only rarely consult a lawyer as to the viability of a project before signing an agreement of purchase and sale. Therefore, the level of regulation of the vendor-purchaser relationship would have to be greater than that of the sale of shares of a corporation.

Recently in an attempt to circumvent The Condominium Act and The Co-operative Corporations Act, 1973, a few developers have begun marketing a new form of "home ownership" in Ontario. In a condominium a purchaser buys a unit find a share in the common property. In a co-operative a purchaser buys shares in a company and with those shares he gets a right to occupy a unit for as long as he owns those shares. The new scheme being sold is different in that purchasers buy a share of the property itself and receive a lease to a unit for 21 years less a day. This form of ownership combines elements of both condominium and co-operative owners.hip in that the purchaser owns only a proportionate interest in the whole of the property, he only has a renewable lease on his unit, and he shares in the taxes and mortgage payments covering the entire property. There is no legislative protection either to ensure that the building meets municipal standards, as would a condominium conversion before it is sold or to assist purchasers in enforcing their rights against other owners.

Neither the province nor the municipalities can approve such projects under either The Condominium Act or The Co-operative Corporations Act, 1973 and some form of disclosure is necessary for protection of purchasers.

Recommendation No. 105:
The Ontario Securities Commission treat the sale of interests in property, where the attempt is to circumvent condominium or co-operative legislation, as a security interest; and require the developer to issue a prospectus.

It is interesting to note that the Ministry of Consumer and Commercial Relations has a Foreign Land Sates section in the Real Estate and Business Brokers branch which approves the sale in Ontario of all non-Canadian properties. Members of this branch not only visit the developments but also review the documentation relating to the property before a foreign developer is permitted to advertise his property for sale in Ontario.

One particular condominium development in Florida has not been permitted to advertise or sell units in Ontario because it has an escalating lease for recreational facilities which each purchaser is bound by. We have no objection to the branch's refusal to license the developer for sales but we should point out that recreational leases, while not in use in Ontario, are not prohibited by Ontario law. We are of the opinion that the Foreign Land Sales section has greater authority to disallow sales of foreign property to Ontario consumers than the Ontario government has over a sale of Ontario property to Ontario!o consumers.

The Condominium Act was amended in 1975 to require that a developer provide to a purchaser copies of the declaration, description, by-laws, rules and regulations, statement of recreational amenities, budget statement, insurance trust agreement and management agreement. This has not proven to be effective as a means of making purchasers aware of the condominium concept. This is because the developer fails to supply the documents, or the purchaser fails to read the information when supplied, or the purchaser fails to see an independent solicitor before executing the agreement of purchase and sale.

In the chapter on Approval Process, recommendations have been made to reduce the time period now required to register a condominium.

As part of the new process, a Registrar's office could approve documents prior to a developer obtaining draft approval from the municipal government to ensure greater consistency and clarity in condominium documentation. Too often, purchasers buy their condominium units without an understanding of what a condominium is, how it operates and what the rules are.

Concept of full disclosure
Inherent in a Registrar's function of document approval is the principle of "full disclosure". By requiring full disclosure in developers' documents, the Registrar could attempt to ensure that purchasers are informed of what they are buying and that there is no misrepresentation or fraud on the part of the developer. A procedure such as this would not impede developers who deal honestly and fairly with the public, but would only adversely affect unscrupulous developers, a result which companies in the former category would not object to because it is the latter category of developers that can give condominiums a bad name.

In examining full disclosure, it is helpful to look at the experience of other jurisdictions where this approach has been successful. One example of the full disclosure approach to condominium sales is in the New York State legislation. As noted earlier, condominium units are deemed to be "cooperative interests in realty" and therefore fall under the New York General Business Law. Under this law, it is illegal to sell "cooperative interests in realty" unless and until an offering statement or prospectus is with the Attorney-General's office, which ensures that the required documentation is included in the application and issues a letter indicating "deficiencies" which must be answered before the developer's plan will be approved. However, if the documentation is in order and the information required to be in the prospectus is present, the Attorney-General must file the prospectus. The statute gives the Attorney-General very narrow grounds to reject the offering plan, and any offering plan that is approved must contain the following statement on the outside cover in bold type: "The Attorney-General Of The State Of New York Does Not Pass On The Merits Of This Offering", The courts in New York State have also concluded that the purpose of the legislation is to provide full disclosure to potential purchasers, rather than have the government "pass on the merits" of the offering statement.

The assumption that full disclosure is an adequate means of protecting consumers has been followed in the Florida and Virginia acts as well. However, Virginia does move a step beyond mere full disclosure in that it gives the following power to its state Commission:

"Whenever the Commission finds that the significance to purchasers of certain information requires that it be disclosed more conspicuously than by regular presentation in the summary of important considerations, it may provide, by order, that a summary statement of the information shall be underscored, italicized and/or printed in larger or heavier or different colour type than the remainder of the public offering statement."

Such a summary statement helps combat one of the problems of relying on full disclosure. That is, as the terms and conditions of sales become more complex, the transactions may exceed the understanding of the average purchaser and of lawyers unfamiliar with the nature of condominiums, thus causing full disclosure to lose its effectiveness.

Michigan seems to be part way between a full disclosure position and a regulatory position. The Michigan Horizontal Real Property Act forbids the sale of condominium units by a developer prior to the issuance by the Michigan Corporation and Securities Commission of a permit to sell. The Act sets out the following approach that the Commission must take for each application:

"Upon receipt of the application for a permit to sell units in any condominium project the commission shall promptly investigate, and if satisfied that the proposal to sell is consistent with the master deed as approved and recorded for the project and clearly and fairly represents the property offered for sale and will not tend to work a fraud or imposition on purchasers or the public, shall issue its permit to sell."

Of all jurisdictions treating condominium units as securities, the system which is the most "regulatory" is that found in California. California's Subdivided Lands Act deems a condominium to be a "subdivision" and requires that a prospective developer file certain documents with a Real Estate Commission before offering the units for sale. No person can offer any parcels of a subdivision for sale until a "public report" is issued by the Commission, and a copy of the Commission's report must be given to a prospective purchaser prior to the execution of a binding contract. The Act sets out grounds upon which a Commission may refuse to issue a public report:

"(a)	Failure to comply with any of the provisions in this chapter (The Subdivided Lands Act) or the regulations of the commissioners pertaining thereto;
(b)	The sale or lease would constitute misrepresentation to or deceit or fraud of the purchasers or lessees;
(c)	inability to deliver title or other interest contracted for;
(d)	Inability to demonstrate that adequate financial arrangements have been made for all offsite improvements included in the offering;
( e)	Inability to demonstrate that adequate financial arrangements have been made for any community. recreational or other facilities included in the offering;
(f)	Failure to make a showing that the parcels can be used for the purpose for which they are offered;
(g)	Failure to provide in the contract or other writing the use or uses for which the parcels are offered, together with any covenants or conditions relative thereto;
(h)	Agreements or bylaws to provide for management or other services pertaining to common facilities in the offering, which fail to comply with the regulations of the commissioner;
(i)	Failure to demonstrate that adequate financial arrangements have been made for any guaranty or warranty included in the offering."

Thus, under the California system, the sale of a condominium is regulated by what can best be described as a form of a "feasibility and fairness" test. Such a system provides not only that a purchaser must receive full disclosure of what he is getting into, but the purchaser is also assured that what he is buying has been investigated by a Commission and found to be reasonable, fair and feasible.

Lack of standard provisions in documents
Much of the documentation currently governing Ontario's projects is ambiguous and misleading. Some examples of document deficiencies are—the provision for elevator maintenance as a common expense in a low-rise project; lack of clarity as to the responsibility for repair between the corporation and unit owners; and provisions regarding leasing animals and use of premises which may be in violation of the Condominium Act.

Another major problem lies in the fact that although certain forms of documents are commonly used, such as those of the Urban Development Institute and more recently those of the Canadian Bar Association, there is no standard condominium declaration or by-law.

Because of the variations in the wording used in condominium documents, each corporation is required to seek interpretations of their documents on an individual basis. This leads to confusion, as can be seen in the recent cases brought before the courts on document interpretations, such as York Condominium Corporation No. 42 vs. Melanson involving a pet by-law. Standard provisions, where possible, coupled with an approval process for documents as outlined earlier. will eliminate provisions in the documents which are inconsistent with the Act or inappropriate for the project (for elevator and balcony maintenance in a townhouse development). This will be of great assistance to corporations in simplifying the administration of their affairs.

Some examples of items which could be dealt with a standard declaration are items (a) to (d) inclusive of Section 3 (1) (see chapter on Condominium Corporation section on voting majorities). The use of this approach would require developers' solicitors, for example, to complete the blanks with respect to ownership interests and contribution to common expenses in the declaration. The standard declaration and by-law would still allow room for additional provisions, providing they were only necessary to accommodate the individual features of the protect.

Since members of boards of directors are often inexperienced in interpreting these legal documents, it becomes a matter of trial and error for many. Most people reading the documents assume that since a provision is included and the project has been approved and registered in a Land Registry Office, it must be valid. The truth is that, at present, no government office reviews the documentation for validity.

Recommendation No. 106:
Condominium Act be amended to prescribe certain sections of declarations and by-laws.

For the standard documents to be effective, they must be coupled with a document approval process within government.

Establishment of a central office is perhaps the most significant and far-reaching recommendation in this report. Unlike any existing provincial government body, such an office would provide central services and information or direction to those in the condominium field, thus enabling it to properly deal with consumer and industry inquiries that are currently being directed through various ministries at various levels.

Recommendation No. 107:
The Condominium Act be amended to establish a control organization called The Office of the Registrar of Condominiums.

Recommendation No. 108:
The Registrar of Condominiums approve all condominium documents which a developer is required to provide to a purchaser under Section 24b.

Review procedure
This review process would involve two elements. The first would be a review of the documentation to ensure fair and accurate disclosure; the second would be to ensure that the summary statement of those elements of the project which make it different from other condominiums is provided to purchasers.

The Registrar's review of the first element of disclosure statements would check the following items from the developer to ensure full disclosure, removal of inconsistencies, and obtaining of statements from the developer and professionals he employs that the documents presented to the Registrar represent full and accurate disclosure of those matters which will affect the purchasers in that project: declaration, description, by-laws, rules and regulations, budget statement, recreational amenities statements, maintenance schedule, life span table of capital equipment, insurance trust agreement, management agreement, and agreement of purchase and sale.

Some of this review may involve questions of feasibility. As an example. there is the question of the occasional use of different percentages applicable to a unit for common expense contributions and common element interests, Section 9(17) provides that a judgment against the corporation is a judgment against each owner at the time the cause of action arose in the same proportions as specified in the declaration for sharing common expenses.

However, under section 9(18) a judgement in favour of the corporation is an asset and by section 9(16) is shared in the same proportions as the common interests. Where common interest and common expense allocations to a unit differ, an owner would be liable for a different proportion than he would benefit from.

A similar problem exists with regard to the provision in section 7(9) of the Act. There a unit owner may discharge his unit from an encumbrance which attaches to all the units by paying his share as determined by his proportionate share of the common expenses. As he is really benefiting his share of the properly, it should be his share of the common interests.

Thus the Registrar may require proof that there is an overriding interest when the developer proposes to use different percentages on each schedule.

The Registrar will not bear responsibility for the accuracy of the material.

Recommendation No. 109:
The Condominium Act be amended to provide for:

A.	A fine of $50,000 for misrepresentation in material provided the Registrar.
B.	A specific right to unit owners and the condominium corporation to sue the developer for misrepresentation.

The second element of the Registrar's disclosure statement review would be to ensure that the developer prepares a summary disclosure statement outlining those matters which distinguish this corporation from others.
 
For example, is there a sales quota in the mortgagee's commitment?
Are pets allowed?
Are the recreational facilities a unit, part of the common elements or shared?
Is the superintendent's suite a unit or part of the common elements?
Who has the right to assign parking spaces?
Are parking spaces units, exclusive use common elements or common elements?
Is the purchaser required to occupy the unit?
Is the builder registered with the HUDAC New Home Warranty Program?
Are the boundaries of the units and common elements fixed or will they require amendment because custom work is being done?

The fine for failure to notify the condominium corporation of the renting of a unit is a maximum of $2,000 for an individual and $25,000 for a corporation.

Although the initial approval of documentation will at an early stage in the process, amendments to the documents may be required during the course of a project's construction. Any amendments to the documents filed with the Registrar will require the Registrar's approval. If the Registrar, in his discretion decides that the amendment is substantial, he may refuse to allow the change, or may require the developer to notify all those with whom he has entered into agreements of the change and advise them that they have the right to terminate their agreements. If the Registrar decides the change is not substantial, it will be processed with notice to the owners. A refusal by the Registrar to approve documents is subject to appeal to the tribunal.

Prior to the issuance of the building permit, the developer will only be able to enter into a non-binding reservation agreement with a purchaser, which the purchaser can terminate at any time up to 10 days after he receives his copy of the filed documents. After the documents are approved by the Registrar, the municipality can issue the building permit (see chapter on Purchasing a Condominium.)

Recommendation No. 110:
The Condominium Act be amended:

A.	To prohibit a developer from entering info a binding agreement of purchase and sale or any agreement in which he is entitled to retain a prospective purchaser's deposit, until the Registrar's approval has been issued.
B.	To require the developer to notify purchasers that they have the right to terminate their agreements with the developer if the developer's documents do not receive approval.

Recommendation No. 111:
The Condominium Act be amended to provide that a developer who fails to comply with, the Act be subject to a fine.

When the developer has the building permit he will be in a position to build. Upon completion, to the satisfaction of the Ministry of Consumer and Commercial Relations and the municipality, registration can take place. It should be noted that the municipality's final approval must be made in accordance with the site plan agreement. By having the developer disclose his intention and enter into a site plan agreement, the municipality will be required to issue final approval on the basis of the developer having first met the terms of the site plan agreement (see chapter on Approval Process). The actual registration of the condominium will be effected by filing the declaration and description in the local Land Registry Office and with the Registrar of Condominiums office.

Information role
To provide a central organization which will be able to monitor and assist those in the condominium field, the Office of the Registrar of Condominiums should be charged with numerous responsibilities, including maintaining the following information: all condominium corporations in Ontario, type of development, number of units in each development, members of the boards of directors, municipal address of each corporation, address of service, if different, of each corporation.

It is difficult and time consuming at present to locate the several hundred condominium projects now in existence in Ontario. The Study Group had to combine searches in the local land registry offices with searches of the municipal assessment rolls in an attempt to notify the corporations of the public hearings in the various areas. Even at this time, there is no complete address list of all of Ontario's condominium corporations and their locations.

The Registrar would supervise an annual filing by all condominium corporations, including a list of directors and their addresses and any changes in the address for service. The Registrar will also have the right to request proof that audited statements have been provided by the corporations in accordance with the Act.

The Registrar would have the role of information-gathering and dissemination far various reasons: so that condominium owners could communicate with other condominium corporations: so that those doing business with condominium corporations could gain some knowledge of the project; so that those involved in the condominium field could have access to general condominium information; so that the Registrar might better deal with matters in which there may be a need to contact a member of a particular condominium corporation; and most importantly so that government could communicate any changes in laws and regulations governing condominiums.

Recommendation No. 112:
The Condominium Act be amended to provide that a condominium corporation's failure to file information with the Registrar will make it subject to a penalty up to a maximum of $2,000.

Those working within the office would be responsible for communication with owners, developers, property managers, lending institutions and others involved in condominiums, both within and outside Ontario, It should improve the condominium environment through various forms of education and, where applicable, by suggesting policy changes and legislative amendments. The Registrar's office should also include a central resource centre.

Effective public relations forms an integral part of the administration of the Acts and programmes, including such duties as:

1.	communicating any changes resulting from the Study Group's recommendations.
2.	establishing productive relationships with industry associations.
3.	informing the general public and condominium community members via the media, pamphlets, speeches. and educational materials of all important aspects of condominium living.

Transition
In light of the recommendations made in this report, the Condominium Act of Ontario should undergo major revisions; a new statute may be necessary. The Office of the Registrar of Condominiums will have a significant function during the transition period.

In the chapter on Condominium Corporations, there is a recommendation that many of the provisions which are currently included in condominium documents be either prescribed in standard documents in the regulations of The Condominium Act or included in the legislation itself. Acceptance of this recommendation will require major revision to the documents of the condominium corporations already in existence, because new statutory or prescribed provisions will result in conflicts.

Revisions in the legislation will only benefit existing condominium corporations if they have the ability to amend their declarations and by-laws to conform also to the standards forms proposed by the Act. When enacted into legislation, these recommendations will greatly assist Ontario's condominium owners in the day-to-day problems with which they are confronted.

A period of grace of two years should be established within which those condominiums created before the date of the new amendments would have an opportunity to amend their declarations with a more than 70 per cent vote of owners present or by proxy, so that they can adopt the new standardized documentation. Those corporations in existence, however, would not be entitled to remove provisions in their declaration dealing with ownership of the common elements.

Recommendation No. 113:
The Condominium Act be amended to provide that for the purpose of changing the provisions of an existing declaration to the standard provisions in the Act a special vote of 70 per cent of the owners be allowed, and for the by-laws 50 per cent of the owners be allowed.

Once approved by the Registrar, existing condominiums will automatically be governed by the new Condominium Act. Corporations unwilling to make these changes will remain governed by their old documents, and will only benefit from the new provisions of the Act where compulsory.

Recommendation No. 114:
The Condominium Act be amended to provide that the Registrar must approve these amendments to declarations and by-laws.

Dispute resolution
At present where a dispute arises between a unit owner and the corporation or between two unit owners, arising out of the act, declaration, by-laws or rules and regulations, the parties are required to resort to the courts for a resolution under Section 23 of The Condominium Act.

A review of Ontario's condominium case law shows that private individuals are not availing themselves of the relief available. This is the case because the individual owner simply cannot afford the costs of having the courts decide the matter, nor the delays that going to the courts entail.

Condominium owners feel a great need for a non-adversial dispute resolution mechanism. The benefit of such a system would be a forum to which the parties can come for assistance without the need for lawyers, legal documents, an adversary approach, lengthly delays and high costs.

It is obvious that dispute resolution through the courts is neither practical nor satisfactory for Ontario's condominium owners. Since condominium living is communal in nature, the requirement that owners and boards meet each other in a courtroom to settle their differences creates unnecessary tension and hostility between people who must continue living together.

The Ontario and Federal governments have encouraged Ontario residents to buy condominium homes. Most of these purchasers bought condominiums without understanding that they were part of a unique community, and that if differences arose which could not be settled amicably they were going to have to face a court battle. Because condominium units are usually built with high densities and require close social interaction, problems which might cause some discomfort between neighbours in single family or semi-detached homes become magnified in the condominium environment.

Most purchasers of condominium units fit into two categories, those who believe that their home is "their castle" to do with as they please and those who think everything will be looked after by their landlord. It takes compromise and adjustments before both groups come to the realization that condominium ownership is a balance between these two extremes.

Unfortunately, some purchasers never reach this stage and for the other members of the community, life can be intolerable.

The close proximity of condominium dwellers who are not "getting along" necessitates arriving at a speedy resolution of disputes. Unlike a rental where noisy neighbour can be evicted, there is no such remedy in a condominium. An owner who fences off part of the common elements and thereby restricts the access of the other Owners to those common elements, will create antagonism and must be dealt with speedily. These types of incidents are minor examples of the day to day problems facing the typical condominium owner.

Dispute resolution in other jurisdictions
Many other jurisdictions have dispute resolution systems for condominiums. The most extensive are those in British Columbia, Florida, and New South
Wales. Several American jurisdictions are examining the mechanisms for resolving disputes with even greater intensity as it appears to be the most complicated problem facing condominium communities.

In Canada, British Columbia is the only jurisdiction which has any form of dispute settlement. B.C. allows condominium corporations the power to fix and collect fines for the contravention of the by-laws or regulations, and provides that where a dispute arises between an owner and a corporation or between two or more unit owners in respect of any matter relating to the corporation, the corporation or any owner may refer the matter to arbitration. There are four kinds of disputes which can be referred to arbitration: 1) failure to contribute to common expenses; 2) levying fines for breach of the by-laws or rules and regulations; 3) liability for damage to the common elements or other assets of the corporation; 4) decisions of the corporation.

The hearing held by the arbitrator is informal and evidence which is otherwise not acceptable in a court of law may be admissible at the hearing. Each party is given adequate opportunity to present evidence and rebut the other party's evidence. The hearing itself is open to members of the corporation.

The arbitrators may make whatever award they consider just and equitable, including an order in the nature of a mandatory or prohibitive injunction, or for payment of damages. The arbitrators also make an order in respect of the contribution of each of the parties to the costs of the arbitration and remuneration of the arbitrators.

The Florida Condominium Act created an advisory board, the purpose of which is to assist and advise in residential condominium problems and to arbitrate controversies between unit owners and their corporations.

One of the most detailed administrative procedures for resolving condominium disputes is the scheme that exists under the New South Wales Strata Titles Act. There are three levels involved: a hearing officer, an appeal tribunal and the courts.

A hearing officer has the power to prohibit someone from doing a specified act, and to make orders for the settlement of a dispute or the rectification of a complaint. The hearing officer may refer the application directly to a tribunal for any of the following reasons: (1) the application raises matters of legal complexity; (2) the importance of the subject-matter of the application or the possibility of the frequent recurrence of like applications warrants a reference to a tribunal; (3) any other reason which convinces the Commissioner that the application should go to the tribunal. The hearing officer has a wide power of investigation and can enter tho property of the corporation involved for the purpose of carrying out any investigation. The decision of the hearing officer is based on the written submissions he receives and the investigations he makes. The hearing officer's decision may be appealed to the tribunal. The tribunal is required to make a thorough investigation, but need not hold a hearing prior to deciding. The decision of the tribunal may be appealed to the Supreme Court of New South Wales on a question of law. Any person who contravenes an order of a hearing officer or a tribunal shall be fined $100 and a further $10 a day, up to a maximum fine of $500. An applicant who uses the courts rather than the dispute resolution system must pay the defendant's court costs.

To assist the Ontario condominium owner in dealing with disputes, a tribunal should be created. Such a body would be non-adversarial and informal in nature, and those coming before the tribunal could do so without legal assistance and be assured that rules of evidence and formal! procedure would not govern the hearing.

Recommendation No. 115:

A.	The Condominium Act be amended to provide a system of dispute resolution structured as a two¬tiered system composed of local hearing officers and a tribunal.
B.	The administrative responsibility for the system should rest with the Registrar of Condominiums. (The Registrar should be responsible for processing the applications for hearing end keeping accurate records of the decisions made.) Since there are condominium corporations in almost every medium to large-sized city in Ontario, there will be a need for personnel in four or five major centres to deal with the disputes on either a local or where necessary regional basis. Since many areas do not have a need for full-time personnel we recommend that these personnel be utilized on a part-time basis. These Hearing Officers must be fully conversant with the principles underlying condominium living and must have a thorough knowledge of The Condominium Act, declarations, by-laws, rules and regulations. They could hear matters in person or make decisions based on written applications and responses by the parties. Local Hearing officers are the key to successful condominium dispute resolution.   The Tribunal would consist of three persons, with at least one being a lawyer and all knowledgeable in the condominium field. The Tribunal would be the body of highest authority in any condominium dispute, those involved must first appeal to it before going to the courts.
C.	The jurisdiction of the Hearing Officers and the Tribunal encompass the right to make decisions with respect to the collection of common expenses, the enforcement of the Act, declaration, by-laws and rules and regulations, damage to the common elements, and the right to award costs. A Hearing Officer should have the right to refer matters directly to the Tribunal, where the matters involve legal complexities or where the settlement of the matter by the Tribunal would prevent the same issue arising before several Hearing Officers or where the Hearing Officer feels the matter would be better handled by the Tribunal's expertise. Any application for a hearing be submitted to the Registrar together with a fee of at least $25.00.
D.	Decisions of the Hearing Officers and the Tribunal be enforceable in the same manner as a decision of the courts.

A dispute resolution system will assist condominium owners and boards of directors with issues which are currently insoluble. A properly functioning, well¬staffed, two-tiered mechanism is the most appropriate body for dispute resolution.

Transitional  office
In order to facilitate an orderly transition to a new condominium act and a new framework within which the condominium field will be operating, an administrative office should be established to prepare the way for the official office of the Registrar by:

1.	compiling a list of all existing condominium corporations: the type of development and number of units, board of directors, municipal addresses, and addresses of service.
2.	preparing information to be available to the condominium community on changes in legislation and policy emanating from this report.
3.	developing a resource centre.
4.	creating the administrative framework for the Condominium Tribunal and training its staff.
5.	preparing standardized documents and improved forms for disclosure, including prescribed detailed budget statements, recreational and amenities statements, insurance forms, estoppal certificates, and other forms which may need improvement.
6.	establishing and formulating any programs, administrative methods and procedures within the frame-work of the accepted recommendations, to carry out effectively the intent and purpose of the recommendations.

Recommendation No. 116:
Before the legislation creating the Office of the Registrar comes into effect, an administrative office be established that will eventually become the Registrar's office.

Location within the government
The Registrar's office requires adequate staff and funding to ensure that it effectively carries out those functions which this Report recommends it undertake. No purpose can be achieved by creating Registrar's Office which does not have the resources to perform properly.

Representations were made that the jurisdiction for condominiums should be in the Ministry of Housing. Since the Ministry of Housing, through the Ontario Housing Corporation and the Ontario Mortgage Corporation, is involved in building and financing condominium projects, there is an inherent conflict of interest. It is preferable that The Condominium Act be administered by the Ministry of Consumer and Commercial Relations. It has consumer experience in the area; it already has local offices in which condominiums are registered; and most importantly, it administers The Condominium Act, which is evolving into a consumer protection statute, father than a registration statute.

The Office of the Registrar of Condominiums would be somewhat similar in its scope to the Ontario Securities Commission. Since the Ministry of Consumer and Commercial Relations has experience in the securities area and in business practices, it is the most appropriate location for the Office of the Registrar of Condominiums.

Recommendation No. 117:
The Registrar's Office be located in the Ministry of Consumer and Commercial Relations and that, in its establishment, the Ministry look to its other consumer protection bodies and the Ontario Securities Commission for guidelines and assistance.

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