VOL. 14, NO.4 • SUMMER 2010
P U B L I C AT I O N O F T H E C A N A D I A N C O N D O M I N I U M I N S T I T U T E - T O R O N T O & A R E A C H A P T E R P U B L I C AT I O N D E L’ I N S T I T U T C A N A D I E N D E S C O N D O M I N I U M S - C H A P I T R E D E T O R O N T O E T R É G I O N
2010 Condominium of the Year
Quarter Finalist Plus: ■ ■ ■
Cost Effective “Waste Management” Strategies Nominating and Electing Condominium Directors Fix it Before it Breaks – How Proactive Equipment Replacement Can Reduce Your Energy and Avoid Costly Repairs Reserve Fund Investments: Condo Equality with Social Housing
Ontario’s New Workplace Violence and Harassment Laws: The Effect on Condominium Corporations Between a Rock and a Hard Place: You’ll Reap What You Don’t Read! Boarders and Roomers in Residential Units: Can you Get Rid of Them?
… and more
Canadian Condominium Institute / Institut canadien des condominiums Toronto & Area Chapter 2175 Sheppard Ave. E., Suite 310, Toronto, ON M2J 1W8 Tel.: (416) 491-6216 Fax: (416) 491-1670 E-mail: firstname.lastname@example.org Website: www.ccitoronto.org
2009/2010 Board of Directors PRESIDENT Armand Conant, B.Eng., LL.B., D.E.S.S. (Co-Chair, Legislative Committee, Co-Chair, Conference Committee) Heenan Blaikie LLP
VICE-PRESIDENTS Mario Deo, LL.B. (Member, Public Relations Committee Member, Conference Committee) Fine & Deo LLP Bill Thompson, BA, RCM, ACCI (Vice -Chair Membership Committee and Chair Education Committee) Malvern Condominium Property Management
SECRETARY/TREASURER Bob Girard, B.Comm, RCM, ACCI, FCCI (Chair: Special Projects Committee, CAI Liaison) AA Property Management & Associates
9 14 17
Cost Effective “Waste Management” Strategies by Doug King
Nominating and Electing Condominium Directors by Lou Natale
Fix It Before It Breaks - How Proactive Equipment Replacement Can Reduce Your Energy Costs and Avoid Costly Repairs by Brian Purcell & Tim Stoate
Reserve Fund Investments: Condo Equality with Social Housing by Gordon J. Chong
Ontario’s New Workplace Violence and Harassment Laws: The Effect on Condominium Corporations by Brian Horlick
Boarders and Roomers in Residential Units: Can You Get Rid of Them? by Michael Pascu
PAST PRESIDENT John Warren, C.A. (Member, Education Committee Member, Legislative Committee) Adams & Miles LLP
by Lavonne McCumber Eals
BOARD MEMBERS Gordon Chong, DDS (Member, Legislative Committee) MTCC # 0620 Brian Horlick, B.Comm., B.C.L., LL.B., ACCI (Co-Chair, Legislative Committee, Member, Conference Committee) Horlick Levitt Barristers & Solicitors Jeff Jeffcoatt - P.Eng, RCM (Member, Education Committee) Construction Control Inc. Lisa Kay, BA (Member, Public Relations Committee and Conference Committee) Morrison Financial Limited Julian McNabb, BA (Chair, Public Relations Committee and Member, Membership Committee) Simerra Property Management Ltd. Vic Persaud, BA (Chair, Membership Committee, Member Special Projects Committee) Suncorp Valuations Ltd. Sally Thompson, P.Eng. (Member, Education Committee Member, Legislative Committee) Halsall Associates Ltd.
OPERATIONS MANAGER - Lynn Morrovat ADMINISTRATOR - Maria Galati ADMINISTRATIVE ASSISTANT - Josee Lefebvre
Between a Rock and a Hard Place: You’ll Reap What You Don’t Read
The Legal Mine Field of Condominium Rule Enforcement by Barrie R.N. Attzs
Terminating a Superintendent by Rhonda Shirreff
CCI News 5 8 30 34 46 47 49 50 53 61
President’s Message From the Editor Condo of the Year - 4th Quarter Finalist CCI National Spring Meetings CCI Events: Presidents’ Club Dinner ACCI Member Profile - Yehudi L. Hendler ACMO President’s Award - Armand Conant The Condo of the Year Award - Why is Your Condominium a Great Place to Live? New Members Upcoming Events
President’s Message he arrival of summer and the warmer weather is now upon us – which means that it is ‘membership renewal season’ at CCI! Many members have recently renewed their membership for the 2010-2011 year and we are confident that all remaining members will recognize the value in their CCI membership and will soon follow suit.
CCI Toronto has worked hard over the past year on behalf of all members. CCI Committees generally meet at least monthly to discuss current issues and to look for ways to represent the needs of members with the ultimate goal of enhancing the condominium lifestyle.
The Government Relations Committee has had an especially busy year – meeting with senior Provincial officials to try to ease the looming financial burden on condo owners, which will come about with the implementation of the HST on July 1st, 2010. This Committee will remain busy in the coming year – not only to push for additional HST relief for condos, but also to meet with both Provincial and Municipal politicians to ensure that the best interests of condo owners are incorporated into each party platform for upcoming elections.
The Education Committee is nearing completion of major revisions to the Level 300 condominium course undertaken earlier this year and work will begin soon on updating the Level 200 course material. Work is also underway to begin offering some of our courses in webinar format – visit the CCI Toronto website at www.ccitoronto.org for details on this exciting new educational tool!
Highlights of other accomplishments over the past year include – completion of a Condo 101 Training DVD, recognizing the first ever CCI Condo of the Year, YCC # 510 – The Harbourside, hosting the 2010 CCI National Spring meetings in May 2010, offering three President’s Club Networking Dinners, organizing the highly successful annual Condominium Conference and Trade Show, and holding a meeting with other Ontario CCI Chapters to revive the Ontario Caucus – to deal at a Provincial level with issues such as Municipal Taxation.
Your feedback and suggestions are always welcomed and we can be reached at email@example.com or at (416) 491-6216. I wish you all a happy and safe summer. Relax, renew and enjoy! Cheers!
Armand Conant, B.Eng, LL.B., D.E.S.S. (Sorbonne) President, CCI Toronto & Area Chapter
Contributors “TheCondoVoice” is published 4 times per year – Spring, Summer, Fall and Winter, by Taylor Enterprises Ltd. on behalf of the Canadian Condominium Institute Toronto & Area Chapter.
EDITOR: Mario Deo MAGAZINE DIRECTORS: Gordon Chong, Lisa Kay, Julian McNabb ADVERTISING: Marie McNamee COPY EDITOR: Ruth Max COMPOSITION: E-Graphics All advertising enquiries should be directed to Marie McNamee at (905) 852-2802 or firstname.lastname@example.org
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The authors, the Canadian Condominium Institute and its representatives will not be held liable in any respect whatsoever for any statement or advice contained herein. Articles should not be relied upon as a professional opinion or as an authoritative or comprehensive answer in any case. Professional advice should be obtained after discussing all particulars applicable in the specific circumstances in order to obtain an opinion or report capable of absolving condominium directors from liability [under s. 37 (3) (b) of the Condominium Act, 1998]. Authors’ views expressed in any article are not necessarily those of the Canadian Condominium Institute. All contributors are deemed to have consented to publication of any information provided by them, including business or personal contact information.
Consider supporting the advertisers and service providers referred to in this magazine, recognizing that they have been supporters of CCI.
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BARRIE R. N. ATTZS, LL.B. (HONS), (The Legal Mine Field of Condominium Rule Enforcement, page 36.) practices in all areas of condominium law and litigation. He is a graduate of King’s College, University of London in England , and articled and practiced commercial litigation at a major national business law firm. Barrie has practiced law with Keyser, Mason and Ball LLP since 2009. Barrie frequently writes and speaks about current issues impacting condominium communities. Barrie can be contacted by email at firstname.lastname@example.org. GORDON CHONG, (Condo Equality with Social Housing, page 20.) is Founding Chairman [ret’d] SHSC & SHSCFI; Current Condo Corp. President.
LAVONNE MCCUMBER EALS B.A., M.E.S., (Between a Rock and a Hard Place, page 30.) is a trained mediator on the roster for the Ontario Mandatory Mediation Program. She has 26 years mediating issues relating to communities in multi-unit buildings. Lavonne is a professional member of the Canadian Condominium Institute and sits on their Membership Committee as well as the Property Standards Committee for the City of Toronto and East York.
BRIAN HORLICK, B.COMM., B.C.L. LL.B., ACCI (Ontario’s New Workplace Violence and Harassment Laws: The Effect on Condominium Corporations, page 23). Brian has been successfully engaged in the practice of law for 25 years. He is a senior partner with the law firm of Horlick Levitt and is an expert in the area of condominium law. He is a director on the CCIToronto Board, Co-Chair of the CCI Legal & Governmental Affairs Committees, Chair of the ACMO Associates Executive Communications Committee.
DOUG KING, (Cost Effective “Waste Managment” Strategies page 9.)
LOU NATALE, B.A., LL.B., (Nominating and Electing Condominium Directors, page 14.) is a senior member of the Condo Law Group at Fogler Rubinoff LLP which services the condominium industry throughout the Greater Toronto Area, the Golden Horseshoe and Cottage Country.
MICHAEL PASCU, B.A., LL.B (Boarders and Roomers im Residential Units, page 27) Michael has been with Fine & Deo since his call to the bar in 1998 and practices primarily in the area of condominium law. He has represented condominium corporations on a variety of matters and is widely published in various industry publications. Michael is also a frequent lecturer and is a member of ACMO’s Ethics Committee. BRYAN PURCELL, (Fix it Before it Breaks, page 17.) received his HBA from the University of Toronto in 2005 and his MA from McMaster University in 2008. He has worked extensively in the field of sustainability, most recently coordinating energy conservation programs with the University of Toronto Sustainability Office. He currently manages the TowerWise and LightSavers programs for the Toronto Atmospheric Fund.
RHONDA SHIRREFF (Terminating a Superintendent, page 49) is a lawyer with the firm Heenan Blaikie LLP where her practice is focused exclusively on management-side labour and employment law. Rhonda writes and speaks regularly on issues related to workplace privacy, cross-border employment, human rights and employment standards. As an advocate, Rhonda represents employers at mediations, grievance arbitrations, human rights proceedings and various industry Boards. TIM STOATE (Fix It Before It Breaks, page 17) Tim Stoate is Director, Mandate-related Finance for the Toronto Atmospheric Fund, which has developed the TowerWise highrise energy efficiency program.
Cover photo – Condo of the Year 4th Quarter finalist, Durham Condominium Corp. #87 & #96, Edengrove Beach. Photo courtesy of Debbie Auchterlonie
CCI-Toronto welcomes responses and comments from members. Please forward your comments to the attention of the Editor at email@example.com
From the Editor here are very serious issues affecting hundreds of thousands of condominium unit owners in Ontario, and particularly in Toronto. Boards and lawyers are dealing with an increasing number of administration applications. The frequency of these applications is a clear indication of the ever increasing number of financially troubled condominiums.
The system works reasonably well for a majority of condominium unit owners that have satisfactory governance standards in their communities. The system is failing, where, for a number of reasons, the board does not or cannot govern. In these condominiums, leadership is completely absent or handcuffed by petty politics and corruption. The system has proven time and time again that certain boards must be kept in check to ensure proper management of their condominium. Currently, there is no mechanism to evaluate these boards. It is urgent that this problem be addressed at a legislative level as it is a growing, and alarmingly ignored problem. The steady and multiplying decline of the communities in question also causes a deleterious effect on surrounding communities and homeowners, and even the municipality in which these buildings are located. As we all know, condominium corporations are governed by a board of directors. In the unfortunate communities that I am addressing, the directors are completely unable to govern. There are different reasons for this, but the results are as follows: 1. A steady decline in the standard of the community to the point of dilapidation and urban blight, which is preventable by simple legislation;
2. Continual harassment of residents and owners with community propaganda, proxy solicitations, and misrepresentations making it impossible to live peacefully in these communities;
3. Owners suffering catastrophic (not an exaggeration) decline in the maintenance standard of the building;
4. Steep reductions in values and a corresponding reduction in real estate tax assessments of the community at large and its surrounding properties;
5. Massive special assessments imposed on unit owners who, typically, are unable to pay them, resulting in units being sold under power of sale and the displacement of individuals; and,
6. The creation of an environment so devoid of good governance, that in some communities, the conditions are ripe for exploitation by corrupt directors and contractors.
The province must immediately consider a very simple solution to this issue. Presently, the legislation mandates reserve fund (repair fund) contributions to be collected and deposited in a corporationâ€™s bank account. The goal in amending the legislation is to force corporations to take the necessary steps to maintain the community properly and prevent decline, with special assessments to be the rare exception, not the rule. For the group of condominiums described above, the current legislation addressing reserve funds is essentially prescribing aspirin for a serious infection that otherwise requires
a more direct restorative treatment. The present reserve fund legislation has failed these owners miserably and will continue to fail them, since there is no legislative mechanism to force boards to correct bad governance in the early stages of decline. A condominium that reaches the stage for the appointment of an administrator to treat its problem, is like waiting until a patient suffering from the infection is in intensive care. Earlier treatment of the problem only makes basic common sense.
The legislative solution would require an evaluation report from an independent third party at the same time that a reserve fund study is obtained (every three years). There will be a requirement for boards to obtain an evaluation, which is essentially a report card reflecting the boardâ€™s governance over the condition of the condominium. The evaluation will state, in its conclusion, whether the board has or has not passed in its governance of the building by evaluating financial, maintenance, service and aesthetic standards in the condominium. In order to ensure independence from the board, the evaluating firm will be selected by the owners, in the same way that auditors are presently selected.
If the report is satisfactory, then the board will be permitted to continue to govern the condominium. If the report is not satisfactory, then the board will be placed on notice and given a period of time (say 6 months) to correct the deficiencies in the first evaluation and obtain a new evaluation. If the second evaluation is also not satisfactory, then the board will be immediately dissolved and a new board will be elected by the owners. The new board will have a further specified period of time in which to correct the evaluation deficiencies, and if it fails in its attempt, then an administrator will be automatically appointed using the procedure already set out in the present legislation. There are many examples of administrators being appointed in Ontario in situations where the appointment comes too late and the condominium in question is too far along down the road of decline. The proposed amendments to the legislation would identify and start the process for correcting the decline much earlier, inexpensively, automatically, more effectively and without government involvement.
Municipalities would benefit tremendously from this amended legislation on a number of fronts, because condominiums will be better maintained, more compliant with legal standards, safer, and more valuable. The municipality will not have to deal with orders to comply for garage repairs and fire code issues as it does now, because these issues will generally be addressed before they come to the municipalityâ€™s attention. Most importantly, however, owners would benefit most, since the standard of their building would be guaranteed to be consistent throughout the years. No director would have to contemplate staying on a board out of the concern of what will happen without good leadership. That director (and owners alike) can have a sense of comfort knowing that board actions will no longer go unchecked.
Mario Deo, LL.B.
Cost Effective “Waste Management” Strategies Reducing your building budget & environmental impact BY DOUG KING, METRO GROUP OF COMPANIES ow can a Board predict and control costs, while understanding and complying with regula-
Over the past couple of years there has been substantial change in the managing of waste materials. In Toronto buildings, implementation of a “fee for service model” targeted at garbage removal (a.k.a. – “The Waste Levy”) has increased operational budgets substantially. The fee model will change soon (to be approved by council in July) providing greater budgeting clarity. The revised model changes to per unit / per year formulas. An allowable .852 cubic yards will be introduced & and the rebate increased to $175.00 (up from $157.00). The previously assumed compaction ratio of 3:1 is reduced to 2:1 saving costs by one third. Together these measures will reduce costs, which will be closer to Private Sector options, particularly if the building is taking advantage of all associated “free” city services.
The Province has also initiated substantial legislative changes focused on Waste Diversion and targeting “Municipal Special Hazardous Wastes” (MSHW). These programs remove costs from local property taxes – passing them on to producers, creating incentives to reduce packaging. For general MSHW Program info:
www.dowhatyoucan.ca / Electronics www.ontarioelectronicstewardship.ca Toronto has initiated the most substantial evolution, creating the need for a timely, priority response. They have updated program information online http://www.toronto.ca/garbage/multi/in dex.htm and plan to begin two new free MSHW collection services soon.
The implementation of Organics Diversion will require a clever strategy for a successful outcome. Other jurisdictions are undergoing changes on various timetables, while observing the Toronto model.
Rather than reacting to mandatory program and equipment changes on a short timetable a proactive informed board can; assess predictable future needs; create a comprehensive solution and eliminate poorly considered, piecemeal short term investments. What changes to waste management programs should be introduced and on what timetable?
Where to start? – A building review What are Boards, residents, management, maintenance and cleaning staff roles going to evolve to, going forward? Resident populations require clear, con-
cise, repeated communications. Revised accountable staff protocols, are key elements for success. Behavioral changes do not happen overnight.
The need to amend unique “limited space” infrastructure is the other key for your building.
How should your system(s) change? What can be done to insure you control short and long term costs?
Boards that have succeeded in effective cost control have undergone a thorough review understanding several variables and then developed a comprehensive strategy. There will be growing pains. Try to allow for flexibility and minor adaptations. Repeated understandable communications are a must to ensure you achieve your goals and targets. Your program implementation timetable may be complete or phased, depending on the reviewed elements. Ignored “Levy Fees” will remain high. The opposite can be your reality with a thorough, focused effort.
Step 1 – Immediate Cost Mitigation Strategies - (Pick the low hanging fruit…now!) Maintenance / Cleaning staff
GARBAGE BIN QUANTITY SET OUT FOR COLLECTION
Historically, on the scheduled days, staff placed every bin with any garbage in it out for collection.
If each bin is not full you are paying too much! Create a log to track this activity.
Compactor bins must be outfitted with an adjustable “lid lock-down bar” keeping the bin closed to ensure they are filled. A pair of “adjustable” bars and larger bin will extend the time period prior to removing a full bin. This often solves short staffed weekend anomalies. Implementing these changes often
ed “web based / wireless” control panel enhancement, which will maximize operational disciplines and monitor accountability.
The system sends alerts to handheld PDA’s advising when bins are full and ready for removal. It also notifies of equipment disruption events with troubleshooting tips thus saving third party service costs.
The website offers secured access for designated users facilitating team achievements and data monitoring. The information acts as an audit tool to reconcile collection invoices and predict the ideal time for repairs or replacement thus limiting your expenditures on obsolete equipment.
Enhancing waste diversion is facilitated with the export of Excel spreadsheet information. Create dynamic reports and newsletters – keys to successfully motivating everyone in waste diversion. requires a “bin mover” so staff can move heavier bins properly.
Monitoring - Suppliers can outfit your compactor with a Pressure Gauge, helping staff know when the bin is full. Recent advancements offer an automat-
Deal effectively with this issue and you will have achieved the surest way to reduce costs. Step 2 – ASSESS - Resident mix / Building infrastructure & Program options
With the reduced garbage bin savings realized, it is time to establish further “waste diversion targets” and a revised budget.
Plan a meeting to assess current issues; conduct a building tour; create key program options; then summarize your preferences so that an action plan can be engaged.
There is no exact science to this process. Often CCI member peers or consultants can offer timely advice, helping to focus your key options. 2A – Resident mix?
Who are your neighbours and what can be done to motivate their cooperative participation?
Know the primary languages spoken and communicate using them. Municipalities have free multi-lingual key information items online or in printed form. Use what is available; flyers, posters, container stickers, superintendants manual, etc. Toronto also has an “Ambassadors Program” where city staff works with your building volunteer(s). Educational session presentations from Spring Fest & PM Expo conferences
are posted online and offer insight & “Case Studies”. http://www.ccitoronto .org/Links/otherwebsites.asp (select ACMO)– News & Media Releases
Within the building there will be various containment; location and resident / staff service alternatives.
How can the current convenient “garbage chute cultural behavior” be redefined and improved?
To begin, understand what containers you will need and where resident access will be.
Containers • In-Suite containers It starts here, try to ensure each suite has the ability to separate and accumulate the “3 primary material streams”.
The primary options are outlined in 2C: Depot; Automated Chute Sorter OR Staff Managed Operation. Board/Management Assessment
Assess predictable program changes and outline how best to communicate and implement changes.
Create a checklist before observing the “various building space options”. At the conclusion you should determine your diversion program(s) preferences, building alteration and equipment needs. Building Tour
To begin a building layout review, grab a note book (maybe digital camera) and do an investigative “retrofit tour”. Residents need convenient disposal options for all materials.
• Truck collection containers In the end, most sites will transform to steel truck collection bins (i.e., the steel garbage type). With this in mind, a comprehensive program; internal containment system assessment and decisions are required.
Avoid piecemeal short term changes. Reversing these decisions is often costly!
• Various Internal / External building containers
Can residents directly deposit into these bins or will staff have to “transfer” from inside bins into them? How will Organics work; with bins in the chute room on each floor (less messy) or taken downstairs by residents?
Part 2B - Building infrastructure – what can be changed and how? (Comprehensive planning) Each building has unique space configurations, storage issues and various bin requirements!
bins” located? Will these change to steel bins, like the garbage type (both recycle & organic)?
There are additional MSHW streams you should also consider! (Building Depot with collections OR Offsite program information only?) Part 2C – Program Options – Goal / Budget / Timetable
A - Depots - Low Cost; Convenience; Diversion & Savings.
This is the most common starting point, often “added to” in an evolutionary “depot only” program system. Additional cleaning protocols for Organics should be planned for and budgeted.
Review potential for installation of an inside chute style door, enabling direct deposit into steel bins, saving staff costs.
• Do the current site conditions help residents “do the right thing” and separate recyclables?
Review all common areas: mailroom / laundry / party “recreational” rooms, entrance & exit areas. Are these areas equipped with only “garbage bins” and no waste diversion options?
What currently unused areas might be better utilized? “High traffic area” depot bins are essential to compliment any primary system - increasing diversion.
• Where are final “truck collection
Before selecting this preferred “default option” review Options B & C – steel container investments are irreversible and elevator usage has imbedded costs. B - Staff Managed Chute Room Operations – Medium / Low Cost High Convenience: Diversion & Savings.
Many buildings have containers in the Summer 2010
“New Toronto Chute Closing By-law” (Condo Voice article Spring 2010). This concept may be integrated to monitor and create fully “equal convenience”.
garbage chute rooms on each floor.
It is also possible to consider additional streams (i.e., MSHW). C - Automated “Push Button” Chute Sorters - High Cost; Convenience; Diversion & Savings.
Staff collects recyclables (Organics?) taking them down the elevator, then loading them into steel bins.
Most newly constructed buildings are outfitted with Tri-sorters. Is retrofitting your garbage chute wise?
Alternatively, the chute may be used exclusively by staff on a timetable saving time and elevator use.
A retrofit at the bottom of the chute where the compactor is, needs to be undertaken. This could involve a “deflector” or new “overhead compactor” with interchangeable bins. A revision of staff operations and time is required.
Considerations include: service routines (weekends); schedule to insure no overflowing bins (no elevated fire risk); suitable bin selection to fit in rooms and potential to “create space” by reversing the hallway door (opening outward).
There are various key elements to assess when a retrofit is being considered:
• Will it fit properly and not create excessive maintenance costs?
• Quality; functionality and warranty of the unit and control system.
• Door replacements, i.e. “lockout and flapless” design features.
have “Secondary Depot Plans”?
Have you budgeted for a comprehensive plan? Will implementation be phased or immediate as you “set changes in motion”? Will the plan meet all Board goals and
targets? Are a few additional Committee/Board meetings or conference calls required? The task ahead is challenging. Take a comprehensive approach and invest once wisely! ■
Step 3 – DECISION TIME - The System - Board; Management & Resident Participation - Staff Protocols Resident empowerment; Team interaction & System design
Waste Diversion experts use the “as convenient” expression, when referring to program creation. While true, this is easier said than done. Try to be mindful of this concept as you develop strategies and select your primary options!
The “Real Estate axiom” location; location; location also holds true for your infrastructure design choices. Of equal, if not greater importance… communications!
Having assessed your site and team considerations, budget and funding issues now need to be integrated. Reserve funds or low interest financing options need to be balanced with the operational budget. Obtain budget pricing for equipment and building alterations to ensure you can calculate the payback period. Would your CCI peer’s or a consultant’s experience be helpful at this point?
Summary What messages, infrastructure and material handling protocols, now exist? What will be improved? How are the roles that residents, staff & management play now, going to be impacted? What various bins will be needed – Inside; Outside (on each floor?) Do you Summer 2010
Nominating and Electing Condominium Directors BY LOU NATALE B.A., LL.B, FOGLER RUBINOFF LLP fair and open election process is fundamental in any so-called democratic society. Such is also the case in condominium communities. Too often unit owners become very cynical and mistrusting of the entire process involved with nominating, voting for and electing condominium directors. As such, it is critical for property managers and Boards of Directors to implement and follow procedures which are intended to give owners the confidence and assurance that the nomination and election process is conducted fairly.
Avoid the perception that the Board of Directors is an “old boys club” which sets out each year to get their “buddies” elected or re-elected in order to ensure that control and status quo remains in tact. This negative perception can potentially cause two very undesirable situations in a condominium. On the one hand, fewer people may decide to run for a position on the Board of Directors if they think that their chances of getting elected are stacked against them, thereby resulting in a small group of owners maintaining control of the Board year after year. On the other hand, the perception of a “closed” and unfair election process can create deep divisions among groups of owners resulting in a power struggle — allegations of dirty politics, slanderous comments and intense lobbying tactics — all of which are highly undesirable. 14
The following is a brief overview of some basic elements that should be considered when setting up procedures for nominating and electing condominium directors.
The Nomination Process Allowing interested unit owners ample opportunity to submit their names as candidates is essential to an open and fair election process. In anticipation of Owners’ Meetings at which one or more directors will be elected, it is appropriate (but not legally required) for a condominium corporation to provide written notice to all unit owners in advance of calling the Owners’ Meeting to inform them that there will be an election held and that anyone who is interested and qualified to be a director may submit their name as a candidate.
This notification is commonly known as a “Pre-AGM Notification and Call for Candidates”. It is often included as part of a regular Newsletter mailed to owners and posted in the common areas (ie. in elevators and mail room). Although there is no specific requirement in the Condominium Act, 1998, for a “Pre-AGM Notification”, Section 28 of the Act does state that the actual Notice of the Owners’ Meeting “shall
include the name and address of each individual who has notified the board in writing of the intention to be a candidate in the election as of the fourth day before the notice is sent”. Section 28 of the Act seems to imply that the owners have been given forewarning of the upcoming date of the Owners’ Meetings and that there are open positions available on the Board and that any qualified persons interested to be a candidate should notify the corporation by a certain date so that their names can be included in the meeting package to be mailed to owners. Some property managers and corporations also request that candidates submit a short bio or complete a one page form which gets included with the meeting package.
The actual nomination process, however, is conducted at the Owners’ Meeting just prior to the election. Simply because an interested candidate did not submit their name to the corporation in advance of the Owners’ Meeting does not restrict that person from nominating themselves or from being nominated by another owner at the Owners’ Meeting. Obviously, the person whose name and bio are not included in the meeting package may have a vote disadvantage because for those owners who submitted a proxy may not have known that the person would be a candidate at the Owners’ Meeting.
Boards should seek out potential candidates whom they believe will make good directors and encourage them to run for a position on the Board. Owners who are already participating in committees are a good source of potential candidates.
Proxy Solicitation and Voting Proxies are a vital and essential aspect of condominium governance. If an owner is unable (or unwilling) to attend an Owners’ Meeting, the Act allows an owner to give another person (who need not be an owner) the right to attend the meeting and vote on behalf of the absent owner as if that owner attended in person. Proxies are often needed in order to get a quorum for Owners‘ Meetings, to obtain enough votes to pass by-laws and to elect directors. The Regulations made under the Act contain various forms of proxies which may be used by owners. Theses forms are optional. In other words, an owner may choose to sign a form of proxy that is different from the form of proxy which was included with the meeting package and so long as the different form contains the required legal statements and information, then that “different proxy” should be considered to
be valid. For the purposes of voting for directors, the Act requires the proxy form contain the name of the candidate whom the owner wants to vote for. If a proxy is submitted for registration and the section relating to the election of directors is left blank, the proxy holder is not permitted to vote for a director.
Proxies which are registered at Owners‘ Meeting or which are faxed into the management office prior to the meeting, are typically placed into the ballot box at the beginning of the Owners‘ Meeting and are counted by the scrutineers at the same time.
In my view, a candidate (and his or her supporters) are entitled to solicit other owners in a reasonable fashion for the purposes of seeking their support for the election of directors. For example, a candidate is entitled within reason to go door-to-door in a condominium and solicit proxies. However, if the condominium manager receives complaints from owners that a candidate is late-
night door knocking and employing aggressive tactics to “grab votes”, then depending on the nature and magnitude of these tactics, the candidate should be informed in writing to cease and desist. Candidates are also entitled to communicate in writing to other owners, however, candidates are not entitled to post notices or leave pamphlets in the common areas. As well, candidates should not be permitted to stand in the lobby area and hand out election material to residents for the purposes of soliciting votes. Such conduct may be considered loitering or a nuisance and contrary to the Rules of the condominium. Proxy By-law In 2008, I wrote an article for the CondoVoice entitled The Power of Proxies: Uses and Abuses. In that article, I stressed the importance of implementing procedures (and a by-law) to avoid potential abuses with the proxy process. A properly drafted proxy bylaw may include provisions requiring
(i) that only a certain type of proxy form (as established by the Board) can be used at owners’ meetings; (ii) that a proxy form must be completed in the owner’s handwriting and that the owner’s initials must be placed next to the voting sections in the proxy and next to the date and time the proxy was signed; (iii) that proxies must be registered with the management office on or before a certain time in advance of the start of the meeting; and (iv) that certain reasonable restrictions be placed on the manner and type of soliciting to be permitted. If a Board is considering such a proxy by-law, it is important that owners are informed that this proposed by-law is intended to protect owners against abuses and improper soliciting of proxies and not as a way for the incumbent members of the Board of Directors to maintain control of the Board. This type of by-law, if drafted properly, should be acceptable and noncontentious for most owners. ■
Fix It Before It Breaks How proactive equipment replacement can reduce your energy costs and avoid costly repairs BY BRYAN PURCELL & TIM STOATE, TORONTO ATMOSPHERIC FUND “If it ain’t broke, don’t fix it” — we’ve all heard this well-worn adage before. It seems to make sense on the face of it, and sometimes it actually does. But all too often it is used as a justification for postponing important projects that could deliver immediate benefits. If your building is like most buildings, you’ve got at least one major piece of mechanical equipment that is over 20
for itself twice over in energy-savings?
The point here is that there is a significant cost of waiting for your old equipment to wear out. That cost is the foregone energy savings you would have benefited from if you’d replaced it earlier. For example, if a new high efficiency boiler will cut your gas bill by $15,000 a year, the extra cost of waiting five more years to ‘get your money’s
‘... just because you can keep that old boiler running for five more years doesn’t mean you should.’ years old. But old building equipment —e.g. boilers, chillers, and common area light fixtures—tends to be pretty simple and dependable. As a result, with appropriate maintenance, you can often keep these old workhorses running long past their expected lifetimes. But just because you can keep that old boiler running for five more years doesn’t mean you should. By maintaining old boilers past their expected lifetime, you may be effectively burning money. That’s because new, high-efficiency boilers can probably do the same job using 30% less energy. Why waste your money maintaining aging, inefficient boilers that you will eventually need to replace anyway when you can replace them today with something that will pay
worth’ out of your old boiler is $75,000 – which would pay for a very good percentage of the cost of the new boiler! This is a “capital budgeting” problem —keep versus replace—and a professional accountant can help with those calculations.
So while keeping your old equipment running a few more years might seem like the prudent choice, it is often anything but. The problem with keeping your old equipment until it dies is that it almost always breaks down when you need it the most. Old boilers don’t die in July when its 26 degrees outside; they seem to expire during the coldest months of the year when they are working hard. You end up in an emergency situation where you must buy a new
boiler immediately, without shopping around to find the most efficient and most affordable product. And if it has to be replaced on a weekend, you’ll be paying twice as much to install it. Not to mention the headache you’ll receive from hearing all the complaints from residents left in the cold. It’s the same story with chillers, which always choose the hottest, muggiest day in July to permanently pack it in. Another old workhorse that many buildings are still keeping around is the T12 florescent fixture — most often found in parking garages, stairwells, and basements. These simple fixtures will often remain operable for decades, but they actually waste significant amounts of energy. Replacing them with a modern T8 fixture with an electronic ballast can cut your lighting energy-use by 30% or more, and the energy savings will usually pay for the project costs in two or three years. That means that over 10 years, those new T8 fixtures will likely earn your building a return on investment somewhere in the neighbourhood of 300%! Clearly, controlling your energy-use isn’t just the environmentally responsible thing to do, it’s also the financially responsible thing to do. Utility costs are the single largest controllable cost for almost any condominium. You can’t do anything about your property taxes, for example, but you can do something Summer 2010
about your energy costs. By doing so, you’ll increase your building’s cashflow and create resources to pay for other important building improvements. And the best news is that most buildings have a variety of cost-effective opportunities to reduce their energycosts by 20% or more!
You may also want to start an energy committee or green committee to manage project implementation. This can take some of the workload off of your Board of Directors, and is also a great
‘An energy audit will identify all the major opportunities to save energy in your building, and government rebates are available to offset the minimal cost of the audit.’ So how do you know if you have old energy guzzling equipment wasting money in your building? Start by getting some professional advice. An energy audit will identify all the major opportunities to save energy in your building, and government rebates are available to offset the minimal cost of the audit. You’ll end up with a prioritized list of energy conservation investments for your building and an estimate of the cost and payback for each measure. This valuable audit report can guide your building’s energy conservation efforts for years to come. You can find a list of reputable Energy Management Firms at http://bbptoronto
way to engage other interested residents.
Best of all, there are generous government and utility incentive payments available to subsidize the cost of energy conservation investments, whether it’s a more efficient boiler, a lighting retrofit, or any other kind of project. Our free TowerWise Conservation Advisor Service — sponsored by the City of Toronto and a number of nonprofit partners including the Canadian Condominium Institute and the Greater Toronto Apartment Association — is here to help you gain access to incentive programs and get started with a retrofit today. If your building is in the 416 area code, pick up the phone and
call Rob Detta Colli at 416-450-7989 or email firstname.lastname@example.org. Rob can provide free advice and one-window access to incentive programs that can help you reduce your gas, electric and water bills. But don’t wait too long, as a number of the incentive programs will be ending this year.
For more advice on how to pursue energy efficiency opportunities in your condominium building, and a case study of a successful project, check out our TowerWise video series at www. towerwise.ca/videos. You’ll also find a variety of other useful decision making tools on our website, including our energy investment calculators (www. towerwise.ca/calculators). You can input the costs and expected savings for your energy projects, and get a detailed financial analysis including return on investment and internal rate of return.
The key point is that renewing your building’s major mechanical systems —heating, ventilation, air conditioning, and lighting—isn’t just a cost, it’s an investment than can offer real, low-risk returns in the range of 10-40% annually when you look at it over a 10-year time horizon. So don’t wait for things to break down—look for cost-effective opportunities to renew your building and reduce utility costs today. ■
RESERVE FUND INVESTMENTS:
Condo Equality with Social Housing BY GORDON J. CHONG
hat’s good for the goose should be good for the gander.
If the social housing sector can invest its reserves in a broad range of financial vehicles, the condominium sector should be given the same opportunity. For years, the social housing sector [housing for the socioeconomically disadvantaged] had been plagued by inadequate operating and capital funding. Medium and small social housing providers were unable to optimize their reserve fund returns due to legislatively-restricted choices in financial instruments available.
Years of concern culminated in the 1999 Provincial Auditor’s Report pointing out that better investment opportunities would have improved annual returns by millions of dollars. The Report’s recommendations included creating a professionally managed vehicle for the mandatory pooling of capital reserve funds, improving capital planning and investment practices among providers, and providing for better matching of investment horizons to their corresponding timing of capital expenditure requirements.
Between 1998 and 2000, the provincial government had also downloaded the operating costs and ownership of social housing to municipalities. The stage was thus set for a radically different 20
approach to maximize investment returns for social housing providers. The confluence of events gave birth to the Social Housing Services Corporation [SHSC] legislated by the Social Housing Reform Act, 2000.
One of SHSC’s mandates was to develop and manage an investment program by means of a “Manager Company.” And, with an eye to future securities proposals likely requiring a separate governance body, the province required SHSC to set up what came to be known as SHSC Financial Inc. [SHSCFI]. The province, at the time, made it mandatory for all providers except the three larger municipalities with their own investment capabilities.
The Manager Company [SHSCFI] was charged with establishing four mutual funds to be offered by prospectus consisting of a money market fund [recent-
ly discontinued because, as a cash equivalent, it was of very limited value], two bond funds and an equity fund. SHSCFI was also required to retain a Portfolio Manager/Adviser— currently Phillips, Hager & North [PH& N]—to provide investment advisory services. The Investment Manager or one of its affiliates was to be retained as distributor of the Units. The Distributor had to be registered as a mutual fund dealer under applicable securities legislation and comply with “ know your client” and other applicable laws, rules and regulations. In addition, the Distributor had to provide education and information to the investors regarding investments in the Funds. The implementation was phased in because some providers were already invested in existing vehicles. Prior to the establishment of SHSCFI, a Steering Committee of stakeholders,
including the Ministry of Municipal Affairs and Housing, took almost two years to prudently effect the province’s directive. The process involved a Request for Proposals [RFP] distributed to twenty-eight investment management firms [including banks and insurance companies] with sixteen formal proposals being received. After careful evaluation, PH&N was selected.
Since the launch of the Funds in 2003, SHSCFI has matured into its present state. FI is required to file Fund-related reports and compliance documents with the Ontario Securities Commission [OSC]. The relationships between FI, PH&N and the Investors are governed by securities and consumer protection legislation.
After initial skepticism and resentment with the province’s fiat – but, more importantly, after an impressive seven year record – FI has attained a status that has attracted voluntary non-man-
‘FI’s returns, after deduction of all related fees, have surpassed what providers could have achieved individually.’ dated capital and other reserve funds into its investment pool. FI’s returns, after deduction of all related fees, have surpassed what providers could have achieved individually.
With the explosive growth in the condo market in recent years, 2010 is the time to treat the condo sector in a more contemporary manner. The SHSC Financial Inc. model is now a mature template that can be applied to the condominium sector.
Condos, like social housing previously, are restricted by the provisions of the Condominium Act from investments that would optimize their returns. These restrictions are now going to have a greater impact on individual condo budgets when the Harmonized Sales Tax[HST] comes into effect.
According to industry professionals, the HST alone is going to have a 6-8% impact on the operating budgets and a 4.5-5.5% impact on overall Reserve Fund costs for the 500,000 condo units which house at least one million residents across the province. They require a meaningful tool to mitigate this negative impact. Now is the time to revisit and “contemporize” the Condominium Act. After all, if the social housing sector has been afforded that latitude, why not the condominium sector? ■
Ontario’s New Workplace Violence and Harassment Laws: The Effect on Condominium Corporations BY BRIAN HORLICK, B.COMM., B.C.L., LL.B., ACCI
Introduction In December 2009, with the passage of Bill 168, the Ontario Government enacted changes to the Occupational Health and Safety Act (“OHSA”). These changes are intended to address issues relating to workplace violence and workplace harassment, and will be in effect as of June 15, 2010. This article will explore the details of these changes and their application to condominium corporations.
As stated above, Bill 168 amends OHSA in order to deal directly with the issues of workplace violence and workplace harassment. “Workplace violence” is defined as the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, or an attempt to exercise such physical force, or a statement or behaviour that can reasonably be interpreted as a threat to exercise such physical force.
“Workplace harassment” is defined as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. Workplace harassment, of course, was already prohibited by subsection 5(2)
of the Human Rights Code, which states that “Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability”. The definition of workplace harassment set forth in OHSA expands this protection to include any unwelcome conduct in the workplace, regardless of whether such conduct offends the Human Rights Code.
As a result of Bill 168, employers have many more responsibilities with respect to workplace violence and workplace harassment. The most substantial of these responsibilities are set out in more detail below. Bill 168 also expands worker rights, by giving workers the right to refuse work if workplace violence is likely to endanger the worker.
Responsibilities of Employers Employers have a number of new responsibilities as a result of Bill 168. Among other responsibilities, employers are required to prepare policies with respect to workplace violence and workplace harassment and, unless the number of employees at the workplace is five or fewer, are required to set out
those policies in writing and post them at a conspicuous place in the workplace. Employers are further required to assess the risks of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of the work, and report the results of this assessment to either the workplace health and safety representative or to the workers. For most condominium corporations, it will be the latter, as they will not likely have a health and safety representative.
An employer must also provide a worker with information regarding the risk of workplace violence from any person with a violent history, including personal information about the person, if the worker is likely to encounter the person in the course of the worker’s work and if the risk of workplace violence is likely to expose the worker to physical injury. The obligation to disclose personal information about the person with the violent history is limited to such information as is reasonably required to be disclosed in order to protect the worker from workplace violence. Accordingly, employers must walk a fine line so as to adequately protect workers without disclosing too much information about persons who may pose physical threats to those workers. Employers are also required to develop and maintain programs to implement Summer 2010
these policies, which programs shall include measures and procedures for workers to report incidents to the employer and set out how the employer will investigate and deal with these incidents. With respect to workplace violence, these programs shall also include measures and procedures to control the risks identified in the assessment mentioned above and to summon immediate assistance when workplace violence occurs or is likely to occur. The employer must also provide workers with information and instruction on the contents of these programs. Additionally, employers have some obligations relating to violence that may have its root outside the workplace. Bill 168 requires an employer to take all reasonable precautions to protect any worker with respect to whom domestic violence that would likely expose the worker to physical injury might occur in the workplace. In other words, if two employees are in a domestic relationship, the employer has an obligation to protect one of the employees if the employer knows or reasonably ought to know that such employee is or might be in danger of being a victim of violence at the hands of the other employee, even if the root of such violence is entirely unrelated to the employment itself.
Penalties for Non-Compliance Employers that do not comply with their obligations under OHSA and Bill 168 risk liability for the penalties set out in OHSA. These penalties can include, for a corporation, a fine of up to $500,000.00. Further, the directors and officers of a corporation are each responsible to take all reasonable care to ensure that the corporation complies with OHSA and with Bill 168. Failure to comply with those obligations can result in such directors and officers being liable for a fine of up to $25,000.00 or a prison term of up to twelve months, or both.
The Impact on Condominiums Like any other employer, condomini-
um corporations must be aware of the changes to OHSA brought about by Bill 168 and must ensure that they are in compliance with the new requirements set forth above. It must be said that certain condominium board members and property managers may look at the details set out above and get the impression that Bill 168 will not affect their condominium corporations. “After all,” they may reason, “our corporation does not have any employees. We use contractors for property management, security and cleaning, and have no livein superintendent.”
‘...all condominium boards and managers should be mindful of the requirements of Bill 168 and should take immediate steps to ensure that their respective corporations are in compliance with these requirements.’ Unfortunately for these condominium corporations, “employer” means a person or entity who employs one or more workers or contracts for the services of one or more workers. As such, for the purposes of OHSA, a condominium corporation can be an employer even if it does not directly employ anyone. As such, all condominium boards and managers should be mindful of the requirements of Bill 168 and should take immediate steps to ensure that their respective corporations are in compliance with these requirements. What steps should condominium corporations take? Here are some suggestions:
Make a List of Employees The board and management should start by making a comprehensive list of all employees, whether employed by the corporation or by a third party. This list
should include full-time, part-time and occasional employees.
Make a List of Employees’ Responsibilities Once the board and management have compiled their list of employees, they should set out, for each respective employee, the employee’s job responsibilities while that employee is on corporation property. Useful resources for completing this list may include the terms of the employee’s employment agreement, or a job responsibilities schedule compiled by management or by the company that directly employs the employee. Coordinate with Service Providers Corporations that contract with thirdparty companies for the provision of services such as management, cleaning or security may find it helpful to work with those companies in order to complete the list of employees’ responsibilities. This may be helpful because these third-party companies may have more information about their employees’ schedules and responsibilities, particularly because these third-party companies, as employers, will have similar obligations pursuant to OHSA and Bill 168.
Analyze the List of Employees’ Responsibilities Once the list of employees’ responsibilities has been completed, it should be analyzed by the board and management so as to generate a picture, of sorts, of each employee’s day-to-day work experience. As set out above, Bill 168 requires employers to assess the risks of workplace violence. Although Bill 168 does not impose a similar obligation on employers with respect to the risks of workplace harassment, corporations may find it worthwhile to do a similar assessment of these latter risks, as such an assessment may aid a corporation in creating the policies which Bill 168 requires employers to prepare. Implement Required Procedures Regardless of whether analysis by the board and management shows any risks of workplace violence (or workplace Summer 2010
harassment), the corporation must have procedures in place to enable workers to report workplace violence or workplace harassment, and to deal with these situations as they occur. These procedures should be clearly communicated to all board members and members of management who may have a role in dealing with these situations, so as to ensure that all situations are dealt with properly and completely. Being able to point to a compliant, consistently used set of procedures will go a long way toward helping the corporation defend itself from any claims or administrative sanctions associated with any alleged non-compliance with OHSA or Bill 168.
Be Aware of Other Considerations Once a condominium corporation has implemented the required policies and procedures, the board and management should evaluate that corporation’s particular situation to ensure that there are no gaps in compliance with OHSA and Bill 168. For example, Bill 168 provides that, if an employer is aware that domestic violence that is likely to expose a worker to physical injury may occur in the workplace, the employer must take every reasonable precaution to protect the worker. This requirement should be minded by boards and managers of condominium corporations which, for example, may have cleaners who are spouses of one another, or a live-in superintendent whose spouse also lives in the superintendent’s unit.
Condominium boards and managers should also be aware of workers’ rights to refuse work in circumstances where workplace violence is likely to endanger the worker. Depending on the type of work that the worker would be refusing, corporations should have contingency plans in place to ensure that essential work can be completed if such a refusal occurs.
A third consideration is the employer’s obligation to inform its workers about the risk of workplace violence from a person with a history of violent behaviour. Given that this obligation to 26
Obviously, an article such as this can neither contemplate nor address every situation that may arise in an individual condominium corporation. Boards and managers should consult with the corporation’s lawyer for assistance in interpreting and resolving specific issues that may arise. ■
Boarders and Roomers in Residential Units: Can You Get Rid of Them? BY MICHAEL PASCU, L.L.B.
he Ontario Court of Appeal has just delivered excellent news to the boards of condominium corporations struggling to remove unwanted boarders and roomers from residential units: you can legally prohibit boarders and roomers, and even better, your corporation’s declaration may already contain the provision upon which you can rely to remove them!
Specifically, in the case of Nipissing Condominium Corporation No. 4 v. Kilfoyl  ONCA 217, the Ontario Court of Appeal has finally and unequivocally confirmed that a condominium corporation can restrict the use of dwelling units to “one family residence” and thereby prohibit boarders and roomers in dwelling units.
Prior to this case, there was some doubt as to whether the typical “one family residence” restriction was valid and enforceable. Certainly, there have been a number of court cases wherein condominium corporations successfully defended declaration and rule provisions whose purpose was to prevent the leasing of units for short-term accommodations, similar to a “hotel-like” use. There were also some recent cases where the courts showed willingness to enforce declaration and rule provisions
that limited the unit owners’ right to lease their units, provided that these provisions were not arbitrary or capricious and were intended to prevent the types of uses that would result in a change in the character of the building. However, there remained some doubt about the validity of the “one family residence” prohibition because the Supreme Court of Canada in Bell v. The Queen  2 S.C.R. 212 considered whether a municipality could enforce a zoning by-law that restricted the use of dwelling units to single-family use and concluded that such by-law was unreasonable and oppressive. If the Supreme Court of Canada determined that restricting the use of dwelling units to
single-family use by means of a zoning by-law was unreasonable and oppressive, would not a similarly worded restriction in a condominium corporation’s declaration be likewise considered unreasonable and oppressive?
In Kilfoyl, the Ontario Court of Appeal said no. The court took the position that the Bell case was not applicable because it was a land use planning case and the principles that apply to land use planning are different than those that apply when considering the validity of declarations and by-laws. By distinguishing the Bell case, the Court of Appeal confirmed that a condominium corporation certainly can, through a Summer 2010
properly drafted declaration provision, restrict the use of dwelling units to a single family residence, thereby excluding roomers and boarders. The only limitation noted by the court was that the single family residence definition should not be unduly restrictive so as to constitute discrimination with respect to accommodation based on “family status”, which would be in breach of the Ontario Human Rights Code.
The practical implications of this case for those condominium corporations that wish to prohibit boarders and roomers are as follows:
a. the typical “one family residence” restriction is enforceable but only if it is contained in the declaration and not the by-laws or the rules. This restriction cannot be in a by-law or a rule because it is not the subject matter of either a by-law or a rule. By contrast, Sub-section 7(4)(b) of the Condominium Act, 1998 specif-
ically permits declarations to contain conditions or restrictions with respect to the occupation and use of units;
b. if the declaration already contains a provision limiting the use of dwelling units to “one family residence only” but does not contain a definition of what constitutes a “family”, the condominium corporation need not amend the declaration to insert such definition but should be careful in how it interprets and enforces this provision so as not to be in breach of the Code.
c. if the declaration already contains a provision limiting the use of dwelling units to “one family residence only” but somehow contains a definition of “family” that is more restrictive than the definition set out in the Code (which defines “family” as “the status of being in a parent and child relationship”), then the
declaration should be amended; and
d. if the declaration does not contain the typical “one family residence” restriction, then the declaration should be amended to add an appropriate provision, which should, among other things, contain clear definitions of terms such as “family”, “roomer” and “boarder”.
Conclusion The Ontario Court of Appeal has indeed delivered excellent news to the boards of condominium corporations struggling to remove unwanted boarders and roomers from residential units. Restricting the use of residential units to “one family residence” only is legal and enforceable, but such restriction must be contained in the condominium corporation’s declaration and must be worded and enforced in such manner so as to not result in a breach of the Code. ■
CONDO OF THE YEAR â€“ 4th Quarter Finalist Edengrove Beach, Durham Condominium Corp #87 & #96 CCI Toronto is thrilled to announce that DCC #87 & #96, Edengrove Beach, has been announced as the fourth quarter finalist of the annual Condo of the Year Award. The following article was written as part of the corporationâ€™s submission for entry to the contest. Our congratulations are extended to DCC #87 & #96. Further details on this contest may be found on the CCI-T website at www.ccitoronto.org. The 2010 annual grand prize winner will be selected from amongst the four quarter finalists in the early fall of 2010 and will be announced at the CCI Toronto Annual General Meeting in November 2010.
ondominium living means co-operation and compromise. This relationship occurs between the Board of Directors and the owners of the condominium complex. At Durham Condominium Corporation #87 & Durham Condominium Corporation #96, also known as Edengrove Beach Condominiums in Beaverton, Ontario, we strive to create good relationships and understanding within the 60-unit townhome retirement community. We believe that we have moved forward in a progressive and caring manner to resolve problems, concerns and past issues that have affected Edengrove. One of our main priorities is to effectively govern, maintain and plan for the future to make Edengrove a modern, forward thinking community.
Communication is the key factor in keeping owners informed and knowledgeable as to what is going on in the community. Our Boards of Directors make an effort to try to respond to each and every letter from owners and regular information meetings are held to explain budgets and upcoming work. A newsletter is issued quarterly that provides owners with some social information, tips and tricks for condo owners, and reminders of upcoming projects or events that assist owners in their dayto-day planning. Since we recognize that communication should work both ways, our Boards of Directors often issue surveys to owners to seek their input, to deter-
mine what they feel needs attention, or what they think about the ongoing activities of Edengrove. We may not always agree, but we try to make the effort to understand the concern of the owners when decisions are made.
Our Boards of Directors govern in the manner of the Condominium Act with due diligence, taking the time to read and review the declarations and the Condominium Act and using professional advice when required. Regular Board meetings are held where minutes are taken and submitted to the members of each Board of Directors, who read and approve them. All meetings allow for open discussions and the Boards always manage with honesty and good faith, even during difficult decisionmaking times. They understand their responsibility to maintain and repair and have honoured repairs related to past misinterpretations of their declarations.
Board members try to ensure that they analyze and understand needs of the owners and upcoming projects. They set and manage budgets to the best of their ability while still effectively maintaining and repairing despite the constant pressure from owners to keep maintenance fees down. The Boards of Directors also try to ensure a fair process for all owners, whereby no owner is favoured nor given priority over the other. All projects are set up to attend to matters on an â€œas needed/ priorityâ€? manner.
Edengrove try to ensure the building of this fund, while continuing to attend to the obligation of repair and maintenance of the properties.
The Boards of Directors, after considerable research, have tried to ensure that ownerâ€™s heating costs are kept down and the life of the roofs preserved. In order to do this, a program was put into place and this year a number of units were air sealed and insulated. The Boards will continue with this program until all units have been done. This has resulted in improved energy efficiency and considerable cuts in heating costs for the owners.
A similar program was implemented recently with window replacements, using Low E Argon filled windows that have a better insulation rating, minimizing heat loss. We participated in the eco energy retrofit program to make certain that our modifications were beneficial to the unit owners, ensuring some longevity of unit components. All of these improvements are beneficial to the environment, minimizing the use of our natural resources
Our condominium complex is aware of our local community connection. The Boards of Directors hire local contractors whenever possible, to support the community. Edengrove often works closely with local municipal offices and services to complete projects in accordance with government, community and environmental standards. These
close working relationships are important to achieving common goals for the residents of the area. Our waterfront complex is located on the eastern shore of Lake Simcoe, and docks, a lakefront deck, clubhouse, pool and tennis courts are gathering places for owners, their neighbours, families and friends. Recently, our Corporations worked with the Lake Simcoe Conservation Authority in the planning of repairs to the footings of our lakeside deck, in
Our Property Manager works very hard in keeping good records and this year, she compiled a summary of accumulated qualifying expenses for a submission to be used by all unit owners for their income tax Home Renovation Tax Credit, which will translate into considerable savings for our owners.
The Boards of Directors also ensure that a Reserve Fund Study is completed and updated, using it as a guideline for future planning of required repairs and maintenance. Reserve funds in condominiums always seem to be underfunded, but the Boards of Directors at Summer 2010
order to comply with the needs of Lake Simcoe. We wanted to ensure that this beautiful lakeside property was not contributing to any ecological detriments that may affect the lake and lake habitats.
Our Boards are extremely aware and try to ensure that toxic products are not used on the grounds, which might affect the water quality of the lake. At Edengrove Beach Condominiums, we sometimes have to deal with “fishy” situations. Being alongside Lake Simcoe, we enjoy beautiful beaches and awesome sunsets. The waters of Lake Simcoe bring many challenges. The often calm waters sometimes turn rough and wash ashore many of the worlds castaways. Little did we imagine that we would be faced with having to remove some of the more stinky
variety of castaways. Lake Simcoe has many fish, carp being one of them. In 2008, the carp endured a disease called “Koi herpes virus”, which killed the older and larger carp by the thousands.
Apparently it did not affect the younger ones, but it seemed as though nature was purging the elders. The virus did not infect humans. Every shoreline of
Lake Simcoe endured washed up dead fish, which the townships and provincial bodies were now faced with the challenge of removing and disposing of them. The numbers were so great that each owner, or each property along Lake Simcoe had no choice but to pitch in, remove the rotting carcasses, bag them, and put them out for special garbage pickups arranged by the township and municipal bodies. At Edengrove Beach Condominiums, the numbers of fish were of such great quantity that maintenance personnel, property management and owners all pitched in to remove the daily carcass deposit for a period of about 2-3 weeks. The fish were heavy, water-laden, stinky, wormy and slippery and had to be picked up, bagged in garbage bags and await pickup. The pickup time was never soon enough with the heavy fish odour that hung in
the air. Despite the tremendous task, we were fortunate that we had volunteers and the only cost incurred was additional garbage bags. In our community, we all share the same backyard and everyone pitches in to help when the call goes out.
have some fun.
Our clubhouse library and games room also offers a place to exchange books or gather for some friendly competition. Our swimming pool and saunas allow some leisure time and relaxation for the owners and their guests, but also ensures a clean, safe environment for the owners. Edengrove Condominiums or Durham Condominium Corporations #87 & #96 actively work to maintain and repair, ensure a safe and enjoyable property and are also actively involved in the ongoing needs, problems, and activities of the condominium complex. This beautiful 60-unit townhome condominium community on the eastern shores of Lake Simcoe, offers a unique retirement lifestyle. You can own your own large bungalow / loft home (1800 - 2400 square feet), without the ongoing worries of out-
The grounds of Edengrove Beach Condominiums consist of around 16 acres of land with many large, old, beautiful trees. The Boards of Directors consult with professional Arborists, who look after the pruning and good health of the trees. From time to time, new trees are planted when some had to be removed, to ensure that plant and tree life are always a part of this wonderful lakeside property.
Edengrove Condominiums are fortunate to have many actively involved owners. A number of committees assist the Board by providing their assistance in researching various projects and working together for the beautification of the property.
A Garden Committee was formed and through donations from social functions, they purchased and planted hundreds of plants and bulbs for these grounds. They also attend to the weeding and care of many of the gardens, providing aesthetically pleasing surroundings.
The Social Committee plans events like dinners, parties, day trips, special celebrations for Canada Day, casino trips and card games, all of which allows owners to get to know one another, to develop a more closely knit community.
The Recreational Facilities Committee
plays an active role as an advisory committee, providing recommendations to the Board of Directors on the many recreational areas like the swimming pool, tennis courts and lakeside deck and beach.
A newly established Decorating Committee is assisting the Board with the renovation of the clubhouse great room and kitchen, where many of the events occur, which now requires some updating and upgrading. In addition, we have a number of clubs that meet at the clubhouse on a weekly basis, like the Bridge Club, Euchre Club and Book Club, allowing owners an opportunity to share interests and
side maintenance, sharing the magnificent grounds, waterfront and amenities. It is a neighbourhood community where owners help owners and get involved in the community. The Boards understand that it is their responsibility to protect and maintain their investment for future condominium owners to enjoy. â– Summer 2010
C C I N AT I O N A L S P R I N G rom May 27th through May 29th, 2010 the CCI Toronto Chapter hosted the CCI National Executive Board and National Council members at semi-annual meetings, held at the downtown Novotel hotel in Toronto. The meetings, which spanned over two days, were attended by over 20 National representatives as well as various chapter delegates. On May 27th, the National Council held its first meeting, under the newly established governance structure and reports from each chapter were received, along with the 2010-2011 budget being received and approved.
photo courtesy of Jack Gilbert Photography
Left to Right: Vickie Vancas, Bob Girard, Mario Deo, Peter Leong and Doug King
CCI delegates shown here at YCC #510 were given guided tours of the condo amenities. Front Row (seated) L to R Diane Gaunt, Dan Sills, Armand Conant, Carol Burke, Carol Conrad, Phil Williams and Vickie Vancas. Middle row: Maria Galati, Alison Nash, Lynn Morrovat, Maurice Lloyd, Don Peters, Jamie Nykolaishen, and Helen Neville. Back Row: Geoff Penney, Jamie Bleay, Stephen Cassady, Doug King, Vic Persaud, Doug Steen, Bill Thompson, Kim Coulter, Jim McKenzie, Paul Murcott and Bob Girard.
On May 27th, delegates were invited to a walking tour and historical presentation on the unique housing arrangements on Wardâ€™s Island. A buffet dinner at the Queen City Yacht Club on the Island followed the tour and participants were treated to a fabulous view of the city and a spectacular sunset!
On May 28th, a Chapter Clinic was held which focused on successful strategies utilized by chapters in dealing with municipal levels of Government as well as Operational Governance at the Chapter levels. Volunteer delegates from all chapters came away from the meetings feeling recharged and full of new ideas.
On Friday May 28th, the 2009 Condo of the Year, YCC #510 hosted a tour of their condo corporation. 25 CCI delegates attended the tour and were shown firsthand why YCC #510 truly is worthy of the Condo of the Year title. The tour included a visit not only to the fabulous amenities, but also to resident suites and to the boiler room to see the recent energy efficiency upgrades. What stood out the most though was the
Beautiful sunset view from the Island! The view from Wardâ€™s Island was beautiful!
M E E T I N G S – M AY 2 0 1 0
One of two plaques outside of YCC #510 which were awarded by CCI Toronto as the prize for being selected as the 2009 Condo of the Year.
Fun at the Ball Game: Back Row L to R: Mario Deo, Don Peter, , Kim Coulter Brian Antman, Stephen Cassady, Vic Persaud, Paul Muller, Peter Harris, Doug Forbes; Middle Row: Bob Girard, Doug Steen, Jamie Nykolaishen; Front Row: Doug King, Jim McKenzie, Armand Conant, Geoff Penney, Phil Williams, Bill Thompson, Carol Burke, Peter Leong. Forefront: Jamie Bleay.
enthusiasm of the many resident volunteers who guided our tours and the obvious friendships and spirit shared throughout the community. Our thanks to everyone at YCC #510 for a great afternoon.
The evening finished up with a visit to the Rogers Centre to see a baseball game… and our thanks to the Blue Jays for a hometown victory over the Baltimore Orioles. On May 29th, national delegates were invited to seminars organized by the Toronto Chapter, which focused on “Understanding Your Condo Fees” and “Green Condos”.
Three days of learning and sharing ideas were complimented by networking and social activities planned by the Toronto chapter.
Networking time at the Queen City Yacht Club on Algonquin Island.
YCC #510 – Condo of the Year tour included a visit to the Corporation’s boiler room to see the new energy efficient Equipment.
CCI Representatives visited the Rogers Centre to see the Toronto Blue Jays play the Baltimore Orioles on May 28th, 2010.
Between a Rock and a Hard Place: You’ll Reap What You Don’t Read BY LAVONNE MCCUMBER EALS, A PLACE FOR MEDIATION arla inherited her three bedroom condo from her Mother’s second cousin. She rents her extra bedrooms out to students and finds they make good company. Carla gets on well with her neighbours. She offers cat sitting and plant watering assistance to those in need. Her condo has an exercise facility which is mainly how she connects with the other owners. Her career requires her to work some nights and weekends so she is rarely available for Board Meetings but keeps up to date by reading the quarterly newsletters and chatting with her neighbours.
Carla’s strong work ethic pays off. Her employer recognizes her efforts and offers her a position with more responsibility. This pleases Carla except for the fact it is a one year contract in another city. To accept the opportunity Carla has to relocate for the duration of the contract. Carla really doesn’t want to give up her lovely condo but she simply cannot carry it without the rental income. Since renting to students has worked well to date Carla proceeds with this option. Everything is falling into place, no problem to get an additional student to move in.
Carla is busy with her new position and hardly notices as the months go by. The students seem responsible enough. Their rent is always deposited into her account on time. Then, out of nowhere, trouble finds her. It seemed a minor
concern that kept growing. Apparently her students had a weekend party where the neighbours complained about the loud noise. Carla’s tenants turned down the music volume but continued dancing. Eventually another noise complaint came to their door. This time it was a little more emphatic. Each time the complaint came Carla’s tenants responded politely and immediately restored the condo’s ‘quiet enjoyment’.
However her neighbours were not completely satisfied. They felt one complaint should have been enough and when the problem resurfaced the following weekend they were irritated enough to complain to their property management company. Geordie, the property manager, sent a letter which cautioned them to conform to the quiet hours guidelines.
One of the students called the property manager to smooth over the infraction. Geordie noticed this student was not officially living there and requested to speak to the owner. The student insisted they were able to abide by the rules but with Geordie’s insistence she was persuaded to provide Carla’s current contact information.
Geordie sends Carla a copy of the complaint notice sent to her tenants and includes a request to respond to the complaint and to clarify her tenancy agreements. Carla submitted copies of
her tenancy agreements to Geordie and assured him that she had spoken to her tenants about disturbing their neighbours. She apologized and told Geordie how they regretted their lack of concern for their neighbours. Her tenants were celebrating getting job interviews in their specialized fields and admitted to getting carried away. They promised they would be quiet and more considerate in the future.
Carla reminded Geordie that this was her first complaint in the five years she has owned the condo and if she had anything to do with it, it would certainly be the last. After all, she and the complaining neighbour had enjoyed a warm relationship in the past. In fact one of these neighbours had entrusted her with keys to her home so that Carla could water her plants while they were away.
Carla hoped this would put an end to this problem. Geordie was not so sure and asked her if she was aware of the rental policy outlined in the Declaration which only allows rentals to a single family. Your tenants do not appear to be related family members. Carla couldn’t deny this. Instead she reminded Geordie she had been renting to students throughout her five year ownership. Why was it now becoming an issue? Geordie admitted he was not aware of her past rental practices but now that he was, he must act on this knowledge. He was sorry to find Carla Summer 2010
in this situation as he has known her to be an owner in good standing. He knows she has always paid her fees on time and has contributed socially to the condo community. Her neighbours’ complaints had come with regrets that it was her condo causing the noise, they were surprised that Carla would cause them this trouble.
When they found out that Carla no longer lived there they were especially concerned with the change in behaviour and had brought the matter forward to the Board of Directors insisting this matter of non-compliance with the Declaration be addressed. Geordie told Carla she could expect a letter from the Condo Corporation about correcting this situation.
This phone call and the subsequent letter upset Carla. In reviewing her Declaration she found what Geordie was referring to. The rules are quite clear, she just had not read them. Technically she was not allowed to rent to unrelated students although she had been doing just that for all the years she has owned the unit. It didn’t seem to matter when she was there and things were going well. The noise complaint had brought unwelcome attention.
It didn’t seem possible to convince Geordie to avoid dealing with her ten-
ants now that the Board of Directors were involved. Still it seemed unfair for them to forfeit their housing. They were going to be disappointed if she had to make them move. Carla couldn’t imagine what solution would work. She decided to speak to a lawyer about her situation. The lawyer advised her the courts take the Condo Declaration policies quite seriously. He asked her a number of questions, some she could not answer. Were they previously aware of the status of her tenants and what was the practice of the other owners? He also asked what the Corporation was expecting her to do to remedy the problem. ‘How to’ fix the situation was not clear to her but according to Geordie, she can only rent to one family. How can she evict tenants when she has an agreement with them? This was far more than she bargained for. Carla doubts her tenants have family members who want to move in. What will she do? Her Condo Corporation was pressing her to take action. As she feared, her tenants could not offer the required family members so reluctantly she began eviction procedures. Her tenants were outraged and went to the Legal Clinic at their school for advice. They learned that their agreement was with Carla not the Condo Corporation but Carla’s responsibilities to the Corporation did affect them
insofaras they were illegal tenants by condo policies and therefore ran the likelihood of having to move. They were offered help negotiating some compensation with their landlord for this inconvenience which they accepted.
Carla wisely reviewed all her Condo commitments and requested Mediation for her situation in the hope of finding a workable solution. The Board agreed both to Mediation and to allowing Carla’s tenants to attend. Carla determined that her tenants should understand her position even though it was her own lack of awareness that created the problem. The tenants brought their counsel with them although neither Carla nor the Corporation did.
Through the mediation process all three parties agreed to a suitable move out date three months hence. The Students also agreed to not disturb their neighbours while Carla agreed to compensate her tenants by covering their moving expenses. A timely cost effective solution had been found. In a gesture of goodwill one Board member gave Carla the name of a family looking to rent a Condo in their neighbourhood showing once again: Mediation’s effectiveness in restoring community. ■
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The Legal Mine Field of Condominium Rule Enforcement BY BARRIE R.N. ATTZS, KEYSER MASON BALL, LLP he condominium corporation, and the community of unit holders it serves, is a microcosm of a nation. The Condominium Act is the constitution. The Declaration is the Charter of Rights. The By-laws are likened to the Acts of Parliament. The Rules are akin to subsidiary legislation. Condo fees are the equivalent of taxes. The Board of Directors of the condominium corporation (the “Board”) is the government. Board members are elected democratically in accordance with the principle of one unit holder, one vote.
The Law The Statutory Duty to Enforce Compliance
The Condominium Act states, inter alia, that the corporation is obliged to take all reasonable steps to ensure that the owners, the occupiers of units, and the lessees of the common elements comply with the Declaration, the By-laws and the Rules (collectively, the “Constating Documents”). (a) Regulating the Use and Occupancy of Units ◆
The Act provides that a Declaration may include, inter alia, the following: Conditions or restrictions with respect to the occupation and the use of the units or common elements; and
Conditions or restrictions with respect to gifts, leases and sales of the units and common elements.
Furthermore, the Board may enact By-laws to establish standards for the occupancy of the units of the corporation for residential purposes. Equipped with this authority, condominium corporations can target market the community to attract a particular type of occupant (e.g. persons without pets). Occupancy standards assist potential buyers to make informed decisions as to whether a particular condominium (i) is a good long-term investment; and (ii) can provide an environment that they are comfortable living in.
The statutory obligation to take all reasonable steps to ensure that owners / occupants comply with the provisions of the Constating Documents is one that should be taken very seriously by the Board – especially given the potentially negative impact on unit resale prices, which can arise from a failure to enforce the rules concerning occupancy standards.
Generally, tenants or buyers in the condominium resale market will not be as educated as the first generation unit holders were in respect of the rules and restrictions as to
occupancy of the units. Accordingly, it is not surprising that issues of non-compliance with the Constating Documents very often arise in these contexts (e.g., tenants or buyers in the resale market may be persons with pets seeking to occupy a unit in a building restricting pets). The issue then becomes: ◆
What steps can the Board take to enforce the Rules and preserve the status quo?
This is not a simple issue. Indeed, the case law is rife with examples where the Court prevented the Board from enforcing clearly drafted provisions in the Constating Documents. Questions which are routinely addressed in the cases include: ◆
Are the restrictions contained in the By-laws consistent and/or permitted by the Declaration? Is the Board’s enforcement unreasonable? Is the restriction consistent with the Ontario Human Rights Code? Is this the first time the Board sought to enforce the specific provision? Where is the restriction contained: in the Declaration, the By-laws or the Rules?
Given the necessity to consider the above questions, it is clear that questions of rule enforceability cannot be answered in the abstract; Summer 2010
they require a consideration of the unique circumstances of the case.
In our experience, the probability that the Courts will uphold the Board’s attempt to enforce a restriction is improved where the Board adopts the following practices: ◆ The Board is consistent in the enforcement of the specific provision. The Board provides adequate notice of the rules and restrictions to the condominium community. ◆ The Board has consulted with legal counsel to ensure that the provisions in the Constating Documents are effectively drafted to achieve the sought after objectives. ◆ The Board has stipulated in the Constating Documents that it is notified by the unit holders when they sell or rent their units.
(b) The obligation to maintain and repair units and common elements
The Condominium Act provides,
inter alia, that it is the duty of the corporation to maintain the common elements, but it is the responsibility of each owner to maintain his or her unit. The obligation to maintain includes the obligation to repair after normal wear and tear; but does not include the obligation to repair after damage. The corporation shall repair the units and common elements after damage (collectively, the “General Rule”).
Notwithstanding the ease with which the General Rule can be expressed, in practice the breadth of the exceptions effectively eclipses its scope. Specifically, Section 91 of the Condominium Act provides, inter alia, that the Declaration may alter the obligation to maintain or to repair after damage, and may expressly specify that: ◆
Each owner shall repair the owner’s unit after damage;
The owners shall maintain the common elements or any part of them;
Each owner shall maintain and repair after damage those parts of the common elements of which the owner has the exclusive use; and
The corporation shall maintain the units or any part of them.
Accordingly, the Constating Documents must be reviewed to determine whether the obligation for repair and maintenance lays with the Board or with the unit holder in any given circumstance.
For example, in a case currently before the Courts, a unit owner in a high rise condominium complained of water leaking through her ceiling from the unit above. The tub and toilet in the bathroom of the unit above were malfunctioning, which produced a leak. The owner of the above unit hired a plumber. Apparently, the plumber opined that the source of the problem was a defect in the drain assembly area located beneath the unit, which was more costly to rectify.
Assuming for the purpose of this article that the plumber’s opinion is correct: is the owner of the unit above or the condominium corporation responsible for the cost of repairs? The unit owner, naturally, seeks to rely on the General Rule and hold that the drain assembly area is the common element, which is the duty of the condominium corporation to repair. The following matters are being considered by the Court in order to determine this issue: ◆
Did the Declaration alter the General Rule?
Did the malfunctioning tub and toilet cause damage to the drain assembly area? Is the drain assembly area part of the unit above or the common element?
If it is part of the common element, is it part of the common element the unit above had the exclusive use of?
This article does not constitute legal advice. Specifically, the issues discussed herein touch on the surface of just some of the matters that can alter the rights and obligations of condominium corporations vis-à-vis unit holders in this area. Consequently, it is recommended that you consult your legal counsel if you have any questions with respect to your rights and obligations under the Condominium Act. ■
DONNA SWANSON ACCI, FRI
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For your Real Estate Needs call: 416-515-2121
• Real Estate Broker of Record - s peci al i zi ng i n Co ndo mi ni um Sal es since 1982 • Current condominium Owner, Pas t Pres i dent and Di recto r • ACCI - An Associate of the Canadian Condominium Institute • Pas t Di recto r of Toronto Chapter of CCI • FRI - Fellow of the Real Estate Institute of Canada and past
Director of Toronto Chapter of REIC
Email: email@example.com Summer 2010
Presidents’ Club April Dinner BY LISA KAY, MORRISON FINANCIAL SERVICES The purpose of a well-designed condo newsletter is to provide an efficient communication tool that will educate, inform, connect and even entertain condominium unit owners on issues that pertain to their community. The benefits are many but perhaps the most important –informed owners are more likely to feel their board is governing the building with a sense of care and diligence by sharing information on current topics and inviting them to communicate back.
On April 7th, CCI hosted our 14th Presidents Club networking dinner. Our focus was on Creating Community newsletters – a topic which came about via several member requests following the awarding of the 2009 CCI Newsletter of the Year. The award went to PSCC #0688. Dennis Kirstine and Micheal Thibodeau from PSCC #0688 attended the dinner to share tips with other condo directors and newsletter editors.
Although we had a relatively small group, lots of great ideas were exchanged – mostly on newsletter “stuff” but there were a few moments when we strayed into the “condo drama zone” –truly enlightening!
To briefly summarize some of our brilliant ideas on writing a condo newsletter (which you may have already thought of): • Know your audience
• Ask for suggestions from your community 46
• Get a team to compile information – invite freelance writers within your condo to have a starring moment in your newsletter
• Be positive!
• Keep it simple. Have only one or two main topics in your newsletter – then fill in with summarized facts, stats and local community events
• Question and answer column – not like Anne Landers because that could get tricky – keep it to condo issues
• Make it visually interesting but easy on the eyes. Consider the age of your community and average arms length when determining font size.
• Consider time lines – some issues that you want to communicate may be time sensitive
If your condominium corporation does not have a newsletter, your Board should consider the benefits of having one . Understanding that this project is going to create some work but it will likely pay off in spades. It does not have to be a complex, glossy issue but rather the focus should be concise condo information. There are sources on the Internet to help you get started.
It’s forums such as these that enable interested condo owners to take one step closer to perfecting condo living. We hope to see you out at a future President’s Club Dinner. Check the CCI Toronto website at www.ccitoronto .org for dates as they become available. ■
ACCI Member Profile YEHUDI L. HENDLER C.M.A., R.C.M.,ACCI, FCCI Yehudi Hendler has been involved in property management for over 33 years, currently in his own company Y.L. HENDLER LTD. as well as being employed over the years by Minto Management Limited, Best Realty Management Company Limited, Brookfield Residential Management Services, Bramalea Limited, H & R Development and Del Property Management.
In 1972 he obtained his Certified Management Accountant’s Diploma from the Society of Management Accountants of Quebec, in1983 obtained his A.C.C.I., a professional associate of the Canadian Condominium Institute, and received his Registered Condominium Manager’s Diploma in 1988 from the Association of Condominium Managers of Ontario. In 1999 he was honoured by CCI with his F.C.C.I. for meritorious service to the Condominium Industry.
Before you hire a lawyer, an accountant, a property manager, a reserve fund study provider, an insurance agent, an engineer, a realtor, or mediator/ arbitrator, check their condominium credentials. Practicing law and practicing condominium law are not one and the same. Practicing property management and practicing condominium property management are two very different endeavours. And, condominium audits and reserve fund studies require expertise in all kinds of condominium matters. So look for the experts ... they have achieved the designation “Associate of the Canadian Condominium Institute” (ACCI) which assures you that this individual has extensive experience in servicing condominiums and has been successfully examined by CCI. Their ACCI designation is a recognition of a condominium expert’s professionalism and outstanding achievements. These individuals must be a professional member of CCI; have at least three years of professional condominium experience; have contributed to the condominium community by teaching courses, writing articles, participating in seminars or providing other services; and have successfully completed an extensive examination.
Yehudi is a member of the Certified Rental Building Certification Committee of the Federation of Rental-housing Providers of Ontario (FRPO), a past Chair of the Urban Development Institute (Ontario), Apartment Group and Past Chair, President and Director of the CCI, National Office, and a speaker at the National Canadian Condominium Conferences, Urban Development Institute Apartment Group Conferences, a lecturer at CCI Toronto Area Chapter in Condominium Courses and GTAA Property Manager’s Continuing Education Program. Also, Yehudi is a past Director and Treasurer of ACMO, as well as past Chair of the ACMO 2000 certification committee. Yehudi was a member of the task force on Accounting and Auditing Guidelines For Ontario Condominium Corporations of The Institute of Chartered Accountants of Ontario, published in November 2001. Currently Yehudi is Treasurer and Director of the Greater Toronto Apartment Association. ■
ACMO President’s Award –
Armand Conant June 1st, 2010 marked the date on which the Annual ACMO Awards Ceremonies were held and this year the honour of the ACMO President’s Award was bestowed upon Armand Conant, the President of CCI Toronto.
President, Chris Antipas had the following (excerpt) to say about Armand Conant:
“In his role as president of CCIToronto, the opportunity has presented itself on many occasions where he has been asked to speak or present on behalf of CCI-Toronto and he has made sure that ACMO was always represented. He has spent countless hours preparing briefs and presentations, and always without fail…..he has ensured that ACMO was represented and identified as a contributor. When we are sitting in front CCI Toronto President, Armand Conant (left) receives the ACMO of different members of parPresidents' Award from ACMO President, Chris Antipas liament and talking about The President’s award is unique in that our respective associations, he reaches it falls outside the Awards Committee into his briefcase and pulls out not only mandate and is presented each year at the Condo Voice, CCI’s publication, the discretion of the President as his or but also a copy of the CM Magazine; her way of saying thank you to an again just to ensure that both associaindividual—or individuals—who have tions are equally represented. given exceptional service to the ACMO board and/or its committees or the ACMO’s most attended luncheon last Association as a whole. year and in ACMO’s history for that matter, was the one dealing with the As reported throughout the past year, HST, where (MPP) Yasir Naqvi was Armand Conant has been front and cenpresent. The presentation and Yasir’s tre in many important joint initiatives attendance was all coordinated by this with ACMO such as the campaign individual. against the HST and meeting with senior officials to clarify the administraIn closing, in my mind, I believe that tion of the HRTC for condominiums. Armand Conant epitomizes everything He also co-chaired the joint CCIthat we would hope that a supporter T/ACMO condominium conference and advocate of ACMO would be”. with ACMO President Chris Antipas in On behalf of the CCI Toronto & Area 2009. Chapter we offer our congratulations to Armand Conant for this honour. ■ In his presentation speech, ACMO Summer 2010
The Condo of the Year Award – Why is Your Condominium a Great Place to Live? BY VIC PERSAUD, SUNCORP VALUATIONS LTD & CCI TORONTO MEMBERSHIP CHAIR s owners and directors in condominiums, it does not take much effort to find out what is not going right with your condominium, and often times the positive efforts and contributions being made in your condominium communities are not recognized. This was exactly the thinking of CCI Toronto’s Membership Committee when we started the Condo of the Year Award in 2009.
This award recognizes condominiums that are taking positive steps in the right direction to make their condominium a better place to live. In order to enter, a condominium has to submit a brief article describing any range of issues that their condominium has successfully tackled for the benefit of their community. Each quarter the Membership Committee selects a winner which is featured in an upcoming issue of the CondoVoice magazine. The Grand Prize winner is selected from the four quarter finalists by the Public Relations Committee and is announced at CCI Toronto’s Annual General Meeting. The winner also receives a street sign prize valued at $5,000 which will proudly display that they were a Condo of the Year winner.
In 2009, our first Condo of the Year winner was YCC No. 510, ‘the HarbourSide’. This condominium was one of Toronto’s first waterfront communities and has a population of about 2000 people. Clearly the HarbourSide is one of the larger condominiums in the Greater Toronto Area but it was its dedicated volunteers, social activities, communication and its involvement in the community not its sheer size that 50
resulted in HarbourSide being selected as the Condo of the Year for 2009.
Over the past year, our Membership Committee has reviewed a number of excellent articles that include: • Defining a vision for the condominium that revolves around taking a proactive approach versus a reactive approach to dealing with problems as they arise • Implementing energy initiatives at no cost for the condominium that have resulted in substantial savings • Forward “Thinkingness” of condominiums by purchasing defibrillators that have saved residents lives or installing digital CCTV cameras • Effective communication with residents through newsletters, reports and meetings • Social activities including lectures, pot luck dinners and excursions. • Turn-around stories and challenges faced and overcome by condominiums • The role Management companies have played in these exceptional condominiums
We hope that the above snapshot of the content in articles we have received will spur your interest to enter this contest. Samples of some of the past Condo of the Year submissions are on our CCI website which can give you an idea of what we are looking for or assist you in preparing your article.
We look forward to receiving your submission soon on why you think your condominium should be the “Condo of Year” for 2010. ■
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Terminating a Superintendent BY RHONDA SHIRREFF, HEENAN BLAIKIE LLP erminating a condominium superintendent is not necessarily an easy matter. As Boards of Directors and property managers who have been through this experience know, it is a situation fraught with difficult questions. Do you have just cause for the dismissal? If not, how much notice will the superintendent be entitled to? Is there anything you can do to avoid wrongful dismissal lawsuits and other employment related claims? If the dismissed superintendent resides on site, when must he or she vacate the superintendent’s suite? If he or she refuses to leave, what can you do?
DO YOU HAVE “JUST CAUSE”? Under Ontario law, an employee may only be terminated for just cause or upon “reasonable” notice.
Although determining whether there is just cause for dismissal requires a contextual analysis in each case, there are several categories of misconduct that may establish cause, including: wilful misconduct or neglect of duty that is not trivial and has not been condoned by the employer; theft or fraud; insubordination; and conflicts of interest. The threshold for establishing just cause is high. Essentially, the degree of misconduct must be such that it fundamentally undermines the employment relationship. Mere poor performance of job duties will rarely, in itself, constitute just cause for dismissal.
HOW MUCH NOTICE IS REQUIRED? Like any other employee, a superintendent dismissed for “just cause” will only be entitled to his or her earnings up to the time of termination. He or she will not be entitled to any working notice.
If a superintendent’s misconduct or job performance falls short of “just cause,” dismissal may occur on a “without cause” basis. In such circumstances, the superintendent will be entitled to appropriate working notice or payment in lieu of working notice.
Assuming that the superintendent is not in a union, his or her notice entitlement can be found in one or more of the following three sources: (i) a written contract of employment; (ii) the Ontario Employment Standards Act, 2000 (ESA); or (iii) the common law of wrongful dismissal. Contractual notice provisions
At the outset of employment, superintendents often sign a written contract setting out the terms and conditions of employment. If a superintendent’s contract contains a provision describing what notice will be provided in the event of dismissal without cause, then that provision will define the full extent of the employer’s notice obligation to that superintendent, subject to two qualifications.
First, the contractual termination provision cannot undercut the ESA minimum standards (described below). If it does, it will be unenforceable. Second, if a court determines that the superintendent signed the employment contract under a degree of duress, the entire contract will be unenforceable. To avoid vulnerability to a duress argument, the Condo Board should make sure that, during the hiring process, a superintendent is given an opportunity to consider the contract and, if desired, seek independent legal advice about its terms before signing it. If the superintendent’s employment contract contains an enforceable termination provision, then that provision will displace both the statutory and common law obligations that would otherwise apply. ESA notice & continuation of benefits Subject to limited exceptions, the ESA requires that an individual employee terminated without cause be given advance written notice of his or her pending termination or pay in lieu of such notice. The length of an individual’s statutory notice period will range from one to eight weeks, depending on the period of his or her employment with the condominium corporation.1 Notice of termination of employment must be in writing, addressed to the employee, and delivered either personally by registered mail, or by facsimile or electronic mail if the employee is equipped to receive such transmissions. Summer 2010
The ESA prohibits changing terms and conditions of employment during the statutory notice period. This means that when dismissing a superintendent without cause, the condominium corporation must maintain all benefits (including coverage for extended medical, life insurance, STD and LTD) to which the individual is entitled for the appropriate notice period. The Condo Board cannot escape this obligation by providing the dismissed superintendent with termination pay in lieu of working notice. Therefore, if a superintendent is dismissed with termination pay in lieu of working notice, the Board must ensure that all benefits are maintained after the termination date for a period of time equivalent to the length of the statutory notice period to which the superintendent would otherwise have been entitled. Common law “reasonable notice” In addition to the minimum standards
and protections afforded by the ESA, and provisions in a written contract of employment (if any), a superintendent’s employment relations is also governed by the common law. At common law, in the absence of an enforceable contractual termination provision, an employment relationship of indefinite duration may only be terminated for cause or upon providing reasonable notice.
Reasonable notice is assessed in each individual case taking into account factors that are intended to reflect the length of time the employee is likely to need to locate a similar position. These factors include the employee’s age, length of service, the type of work performed, salary and future employment prospects. As a general rule, upper level managers and executives are entitled to longer notice than lower-level employees who have worked for the same number of years. Salary or position as a factor in assessing reasonable notice
reflects the view that it is more difficult to find a new management or specialized position than a lower-level job. Similarly, courts treat greater age and longer service as indications that the employee will have more difficulty finding new employment. Greater age and length of service can significantly increase the assessment of reasonable notice.
In assessing the quantum of damages, courts have taken into consideration, among other factors: salary; bonus; fringe benefits (i.e., life insurance, accidental death and dismemberment insurance, health insurance, etc.); mitigation expenses (i.e., moving and relocation costs, educational courses); and mental distress and punitive damages.
Because the assessment of reasonable notice is individual to each case, a superintendent’s precise common law entitlement is unknown until determined by a court. At the time of the
dismissal, legal counsel may only predict the “range” of reasonable notice to which the superintendent may be entitled under the common law.
The common law approach to assessing an individual’s entitlement will generally yield a richer notice period than the ESA minimum standard. For example, and depending on individual circumstances, a 55-year old superintendent with 10 years of service could be entitled to common law notice exceeding one month per year of employment, although the same superintendent would only be entitled to eight weeks of notice under the ESA. However, under the common law, an employee dismissed without cause has a duty to mitigate his or her damages by making reasonable efforts to find a new job. Reemployment during the notice period will “cap” the common law damages that a court will award. There is no corresponding mitigation obligation under the ESA.
Insofar as it is possible, it is prudent for a Condo Board to maintain any insurance coverage during the entire common law notice period. This avoids the risk of becoming liable not just for the value of the insurance premiums, but also for any insurance claims incurred by the dismissed superintendent during the common law notice period.
WHAT CAN YOU DO TO AVOID A LAWSUIT? In order to shield the condominium corporation from a wrongful dismissal lawsuit and claims related to employment and the termination of employment, when dismissing a superintendent without cause, a Condo Board should consider offering a termination package conditional upon the superintendent signing a full and final release of all claims, including potential claims under the common law and any applicable employment statutes.
To be enforceable, a release must be entered into voluntarily and include the superintendent’s acknowledgement that
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he or she is cognizant of his or statutory rights, including rights under the ESA and the Ontario Human Rights Code, and is not asserting such rights or advancing any such claim or complaint. Further, a Board must take care that any efforts made to encourage the dismissed superintendent to sign a release could not be interpreted as coercive or in any way heavy-handed so as to ground an allegation that the release was signed under duress.
Equally important, “consideration” is required for the release to be valid. This means that something of value must flow from the employer to the dismissed superintendent beyond his or her contractual or ESA notice entitlement. Commonly, consideration will take the form of notice or payment in lieu of notice in excess of the individual’s entitlement under a written contract or the ESA. However, at law the nature and the amount of the consideration is generally open for the parties to determine. For example, a nominal lump sum payment to the superintendent (in addition to the notice or pay in lieu required under a contract or the ESA) could constitute valid consideration for a release.
HOW DO YOU TERMINATE A SUPERINTENDENT’S TENANCY? Additional issues arise when the superintendent being dismissed (whether with or without cause) resides in the condominium’s superintendent suite as a term of his or her employment. In such cases, a Condo Board must ensure that it complies with the applicable provisions of the Ontario Residential Tenancies Act.
Pursuant to section 93 of the Act, if a condominium corporation (as landlord) has entered into a tenancy agreement with respect to a superintendent’s premises, unless the parties agree otherwise, the superintendent’s tenancy terminates on the same day his or her employment terminates. The superintendent then has one week after that to vacate the superintendent’s premises. During that oneweek period, the condominium corporation is not permitted to charge or receive rent from the superintendent. The Act does not require that the superintendent be given any special form of notice to vacate. Accordingly, it would be sufficient for the Condo Board to
include such notice in the superintendent’s termination letter.
If a superintendent fails to vacate by one week after the termination of his of her employment, the condominium corporation may apply to the Ontario Landlord and Tenant Board for an order terminating the tenancy and evicting the individual from the superintendent’s premises.
ENDNOTES 1 The ESA contains “mass termination” provisions. Under these provisions, the statutory notice due to an employee depends on the number of employees being terminated, rather than on the length of the individual’s employment. A mass termination generally involves the dismissal of 50 or more employees within a four-week period. Accordingly, these provisions will rarely, if ever, apply to the termination of a superintendent by a condominium corporation. Likewise, ESA provisions entitling some employees with five or more years of service to statutory “severance pay” (in addition to notice) are unlikely to apply to a condominium corporation. This is because the statutory severance pay entitlement is not triggered unless: (a) the employer has an annual payroll of $2.5 million or more; or (b) the severance of employment occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees whose employment relationship is severed within a six-month period. ■
Mark Your Calendars Condo 101 Course Dates & Times:
Saturday September 25th, 2010 from 9:00 a.m. until noon or, Saturday January 15th, 2011 from 9:00 a.m. until noon or, Thursday June 2nd, 2011 from 7:00 p.m. until 10:00 p.m.
Novotel North York Hotel
$95 for CCI Members and $125 for Non Members (plus HST)
This three hour course will focus on the topics that every Director should be aware of and will provide participants with a basic knowledge of the Condominium Act. The course is an excellent means to find out what you need to know to be effective as a condominium owner or director. The information presented will be of interest to those purchasing a condominium or to those who want to know what a condominium is and what it means to live in one.
Level 200 Course Dates & Times:
Wednesday October 6th, 13th, 20th and 27th, 2010 or, Saturday February 26th and March 5th, 2011 from 9:30 a.m. to 4:00 p.m.
Novotel North York Hotel
$200 for CCI Members and $275 for Non Members (plus HST)
This informative five night or two day course is a must attend for all new Directors or Condominium Residents who want a better understanding of the way Condominiums function and should operate. Topics covered include: The Directors' Role, Insurance, Property Management, Budgets and Finance, Reserve Funds, Physical Building Management and Effective Meetings.
Condo 201 Course – Governance and Unit Owner Rights Dates & Times:
Saturday November 27th, 2010 from 9:00 a.m. until 12:00 p.m. or Saturday March 26th, 2011 from 9:00 a.m. until 12:00 p.m.
Novotel North York Hotel
$95 for CCI Members and $125 for Non Members (plus HST)
This ½ day course will teach directors all they need to know about proper Governance issues and how to ensure a well functioning Board. This is a ‘must-attend’ session for any new Director or for any owner considering running for a Board position.
Level 300 Course Dates & Times:
Tuesday September 14th, 21st, 28th and October 5th, 2010 from 7:00 p.m. to 10:00 p.m or Saturday June 4th and Saturday June 11th, 2011 from 9:30 a.m. to 4:00 p.m.
Novotel North York Hotel
$200 for Members and $275 for Non Members (plus HST)
Completely updated, the Level 300 course is designed for the dedicated condominium director. Upon completion of the course, participants should understand all aspects of reserve funds, major repairs and replacement, financial management, common problems and solutions, legal responsibilities, mediation/arbitration and health and safety/emergency planning matters. For further course information, to download registration forms or to register online, please visit www.ccitoronto.org/Education
NEW – watch for details coming shortly about our condo courses in webinar format!
Check Out the CCI Bookstore at www.ccitoronto.org Resource material for Condominium Owners, Managers and Boards of Directors
List of Advertisers A.R. Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 ACMO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61 Adams & Miles LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Atrens Management Group Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Baird Roofing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Ball & Associates Inc. 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Edick & Sons Landscape Contractors Ltd. . . . . . . . . . . . . . . . . . . . . . . .66 Larlyn Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 M & E Consulting Engineers Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Maple Ridge Community Management Ltd. . . . . . . . . . . . . . . . . . . . . . . .54 Mareka Property Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Metro Group of Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Miller Thomson LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Morrison Financial Services Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63 Morrison Hershfield . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Nadlan-Harris Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Ontario Screen Systems Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Pillar Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Prescott Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Pro-House Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Provident Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Regal Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Rogers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Royal Grande Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . .46 Samuel Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 SmithValeriote Law Firm LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 SR Wise Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Stratacon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Summa Property Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Suncorp Valuations Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Toronto Hydro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 TowerWise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Waste Solutions Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Whiterose Janitorial Service Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Wilson Blanchard Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 YARDI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22