Freaking Awful

There’s no sugar-coating it. The new prescribed forms under the amended Condo Act regulations are generally terrible.

After spending more than 95 days working with these new forms and counselling and consoling condo owners, directors, managers across Ontario, we present this compilation of observations and suggestions. They are mostly critical but intended to be constructive. More ideas will likely flow from an ACMO educational luncheon next week entitled “Condo ConFORMity – coping with the new prescribed forms” featuring GMA associate Andrea Lusk and condo managers Babak Ardalan and Jason Riddle. This may be the condo manager educational event of the year. A cash bar is available but expected to be very busy with commiserating condo managers and lawyers.

Context

Things started going wrong from the start. There was zero leadup before the new forms came into force, which was an ominous sign. The amended regulations became effective November 1, 2017, but the 15 new, mostly-mandatory forms were nowhere to be seen until afternoon of October 31, the day before the “in force” date. As further and final proof of the last minute of the last-minute introduction, the Ministerial Order mandating these forms on or after November 1 was itself dated November 1!

Despite the forms coming online at the 11th hour for mandatory use the following day, condo managers were still enthusiastic and eager to start working with them. When the forms were released, the managers and condo lawyers started to read the forms.

Then the wheels came off.

Can’t open them!!

Within 24 hours of the new forms coming online, an outcry went up as to how the forms would not open in many types of browsers and devices. Users everywhere received this weird error message, which caused many condo mangers and lawyers to monkey around with their Adobe and browser settings, mostly to no avail:

The document you are trying to load requires Adobe Reader 8 or higher. You may not have the Adobe Reader installed or your viewing environment may not be properly configured to use Adobe Reader.

For information on how to install Adobe Reader and configure your viewing environment please see http://www.adobe.com/go/pdf_forms_configure.

The difficulty was so widespread that MGCS issued an email blast on November 9 to explain “how to view the new Condo Act forms.” The short answer is to use Microsoft Internet Explorer rather than a more popular browser like Chrome, Safari or Firefox.

This first major hiccup out of the gate was not a good omen and still presents a major challenge to the forms’ usefulness.

Can’t find them!!

While the initial email blast from government helpfully contained a listing of the 15 new forms and direct links to them, finding the forms otherwise has been spotty at best and remains a serious problem.

We first reported in 2011 that government buggered up what used to be an excellent numbering system and repository for Condo Act forms. Despite the Act having been impressively overhauled by late 2015, the form repository has not improved since late 2011 and has only worsened.

If you are curious to see how the first 26 Condo Act forms appeared, back in 2010, see here. The items were all appended to the regulations in sequential numbering.

Take a look at where the government and Condo Authority websites lead you if you’re looking for Condo Act forms today. The problems are immediately apparent, including that the list of 53 forms (most of which relate to condo development, not condo operation) may be sorted only by newest or oldest and not by alphabet or by type. Keyword search is possible but is useless if you cannot recall enough words in the name of the precise form you need.

The way forms are now presented on the Ontario government website is not user-friendly and is woefully less useful than the pre-2011 arrangement, where forms were numbered, sorted and listed in a chart. Court forms are still presented in this way, making them very easy to find and deal with, and to find the effective date at a glance.

If government mandates the use of forms and requires users to periodically check that they use the most recent version, the forms must be readily found and accessed. Right now, they are neither.

Given that more new forms will likely accompany forthcoming changes to the Condo Act regulations, it is essential that forms be presented in a way that’s easy for owners, directors and managers to find and use.

On its resource page, the newly-created Condo Authority merely provides a link to that lousy government forms page with no assistance or commentary.

Dynamic, shynamic!

While using the dynamic features of the Adobe pdf format makes these forms very robust, the richness of this feature may be too much, too soon for most people today.

The flexibility of the format may also have led bureaucrats to cram even more detail into these forms, to the point they include too much information. Some of the wording of the preliminary notice and notice of meeting forms could have been broken out to a separate form for a requisitioned meeting. Especially since, buried at the end of the regulation, is a 15-day requirement for preliminary notices of meeting for requisitions (once you reference back to the Act, of course). The fully-expanded printable version of the Records for Request form is 9 pages(!) long. So a person requesting a single-page record may need to file a 9-page form.

Can’t figure them out!!

While MGCS helpfully blasted out some plain language guides on the Condo Act regulatory changes and the new management licensing regime in January 2018, we have yet to see guides on how to complete the forms.

Guides for the more complex forms are desperately needed. The proxy is a prime example of a really difficult form, thanks to:

1. Unusual layout (intended to permit easy separation to create an anonymous voting instrument).
2. Including too any different possible uses (which are not relevant to most meetings) that do not disappear if they are not selected (meaning that the portion to vote for the removal of a director is always available to be filled out, regardless of whether director removal is valid business or not. Hell, why don’t we make a removal vote part of every condo meeting?!
3. Including confusing options like authorizing the proxy holder vote on “routine business” only, or on “all matters” at the meeting. It was always recommended that government make it an option that a proxy be used for quorum only. Was that too simple?
4. Without pinpointing, it’s hard to navigate the form.
5. It’s unclear where owners must sign or initial, and there are many places to sign or initial. Too many.
6. There’s not much space to insert owners’ names or addresses or identify the unit correctly.
7. The form doesn’t easily lend itself to scenarios where the proxy grantor owns multiple voting units.

In fact, thanks to the convoluted wording of the form and a failure to account for recent legislative changes, the form of proxy now does the very opposite of what government had likely intended. The proxy now permits proxy holders who are given a broad authority to be issued election ballots. A recent piece on the Davidson blog nicely explains the paradox. I agree with their conclusions and have had no hesitation ruling (as a condo meeting chairperson) that holders of such proxies be issued voting ballots for director elections. Unbelievably, the world has not come to an end as a result.

Unhelpfully, the forms themselves contain instructions, sometimes at the top of the page with further instructions and interpretations interspersed throughout. This only makes matters worse.

A good model for government to follow would be the small claims court forms, which contain tear-off instruction sheets. See, for example, this plaintiff’s claim with a guide at the end and this defence with instructions at the front.

Can’t pinpoint!!

Unlike income tax forms that numbers each and every box (making it easy to guide someone to precise boxes to check or lines to insert details), most of the new condo forms have no pinpointing. Helping someone complete a form (like the proxy form) by telephone or by email is a difficult matter if you can’t accurately and quickly identify the correct box to check or insert details.

The Preliminary Notice of Meeting is a notable exception and contains lots of pinpointing. The Proxy is the poster child of a terrible form to navigate, made even worse by the fact that its number of pages changes depending on what options are selected in the dynamic version.

In the AGMs I have chaired since the new form of proxy has been mandatory, the number of proxies submitted by owners has sunk like a stone. If government intended to help corporations address owner apathy by making it easier to participate in meetings, it appears that the opposite effect has been achieved. The form is dreadful and owners may be excused for wishing to avoid wasting their time to deal with it.

Can’t rationalize!!

Astonishingly, none of the 15 mandatory forms (some of which deal with issues we’ve never encountered or considered to be problematic) deal with the concept of director disclosure, which is among the more complex new developments in the regulation and will squarely arise each and every time a condo director is nominated, elected or appointed. Why government did not create a mandatory form to help people navigate the complex disclosure obligations is a headscratcher, as most law firms and management firms have had to prepare and deploy their own forms to address this major operational impact on condo governance.

Can’t compute!!

There are several glaring errors and oversights in some of these forms that leave us wondering. For instance:

“Agreement to Receive Notices Electronically” and the “Notice related to Mortgagees” do not provide a spot for the owner or mortgagee to indicate which unit(s) the document relates to.

“New Information Certificate” contains a box by which one could presumably upload an information certificate, but the feature doesn’t function.

In PICs, what “legal obligation” might a condominium corporation have to maintain insurance, aside from the insurance it is legally required to maintain under the Act?

In PICs, what requires a condominium corporation to make an insurance claim in respect of damages, compensation or costs claimed against it? If you click that the corporation has not made an insurance claim in respect of an outstanding judgment, you’re asked to explain his is classified as a “failure to comply.”

Many of the forms contain no issue dates, which will create lots of mysteries as to when they were prepared and sent to owners.

Can’t modify!!

While some earlier pdf versions of the forms may permit editing, the newer versions are secured against editing and flattening. It seems clear that government intends to permit no modification of these forms.

Can’t read!!

Though many thousands of condo owners and residents speak languages other than English or French, the forms new forms are available no other languages. And as stated above, the forms easily can’t be modified to add any helpful translations.

Much of the wording these forms and the concepts they try to express are far too complex for people whose native language is English, let alone for people whose those whom English is a second language.

Can’t breathe!!

Having a coronary is a perfectly plausible outcome when unit owners receive the new super-duper official-looking government-logoed “preliminary notice” and “notice of meeting to owners” in the mail without a cover letter bearing the name or familiar logo of their condo corporation or its management firm. Several owners reported their initial impressions of receiving these unaccompanied forms as “the government has taken over my condo!!”

It’s not clear why government thinks it’s a good idea to add their logos all over these forms. Will government logos be added to notices of lien and power of sale notices, too?

Can’t believe it!!

It’s incredibly disappointing that after such a comprehensive and thoughtful review of the Condo Act that condo owners, directors and managers are saddled with, impractical and rigid forms.

We can appreciate that the ministry staff were forced to prepare and issue forms in a hurry to meet an arbitrary political deadline set, and that this rush led to a rather noticeable lack of quality control that has been the hallmark of their work to date. That said, we must not be complacent in waiting months or years for these forms to be fixed. To allow lousy forms to inform the public perception as to the quality of the condo law reforms as a whole is a travesty and a disservice to the hard work of the ministry staff and the various stakeholders who participated in the process.

Can’t wait!!

These forms are not acceptable. Improvements are needed now, before the next round of regulatory changes and, presumably, another batch of new forms comes out.

At the very least, government should be learning lessons of what has gone wrong with this first batch of forms and should try to avoid those pitfalls.

Admittedly, this critique is not particularly well-balanced and we have failed to point out any positive features of these forms (likely because we have also failed to find many positive features). What we have found in abundance is frustration, from working with convoluted, confusing and unappealing forms; from counselling managers and directors with the same questions and concerns about the forms; and from having no good explanation for the many failings and shortcomings of the forms.

What are your biggest pet peeves about these forms?