Issuu

Canada’s Most Widely Read Condominium Magazine

March 2016 • Vol. 31 #1

UNDER PRESSURE Residential construction industry digs into housing affordability in the GTA

Leaky towers, legal grow-ops and falling glass

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COMMITTED TO EXCELLENCE SINCE 1986

Contents FOCUS ON: SPRING MAINTENANCE

DEPARTMENTS

Line paint fades faster under new regs By Rod Campbell

Maintenance A guide to glass balcony guards By Dale Kerr

Post-thaw pest prevention By Alice Sinia

Technology Four ways Bill 106 facilitates e-governance By Grant Yim

How to take the emotion out of tree removal By Craig Southwell

Legal Hate to be a buzz kill, but… By John De Vellis

Love thy neighbour By Josh Milgrom

Governance Down to the minutes By Mark Lindhe

FEATURES

20 27

Deconstructing housing affordability By Michelle Ervin Is the leaky condo crisis over? By Dino Chies

IN EVERY ISSUE

Ask the expert

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EDITOR'S LETTER

Publisher Mitchell Saltzman

Affordable housing

When Toronto city councillor Ana Bailão talks about affordable housing, she takes care to clarify that she is not simply referring to social housing. In the context of runaway prices in one of Canada’s most active housing markets, affordable housing means housing that people can afford and that meets their core housing needs. It’s not just politicians who are talking about housing affordability either. Increasingly, builders and developers and realtors are talking about housing affordability too. Millennials are reaching an age where they will become the biggest consumer group of housing, but the current real estate stock presents two starkly contrasting choices. They can prioritize location and make do in a downtown condo, or they can prioritize size and have to trek into the suburbs to find an affordable detached home. Builders, developers and realtors often pin blame for runaway prices on government fees and policies, such as the province’s growth plan, which limited the supply of land available for in-demand detached homes in the name of curbing urban sprawl. The problem, say builders and developers, is that the plan came without accompanying measures to pave the way for intensification, to spur the sort of family-friendly, mid-rise condos along transit corridors that would provide an in-between option to millennials. The Residential Construction Council of Ontario (RESCON) has commissioned the Canadian Centre for Economic Analysis to independently study housing affordability with a view to measuring the problem and modeling possible solutions. The first stage of this research is the subject of this month’s cover story, which will coincide with the spring real estate market. Also in this issue is a package of spring maintenance articles looking at line painting, pest prevention and tree removal. Plus, look for features on a court case concerning excessive water use in a legal grow-op in a commercial condo as well as a guide to glass balcony guards amid continuing reports of shattering panels. As CondoBusiness was going to press, the Ontario government unveiled an update to its LongTerm Affordable Housing Strategy. Among other measures, the province is proposing legislation for inclusionary zoning that would empower municipalities to require developers to include affordable housing units in new projects.

Editor Michelle Ervin Advertising Sales Sean Foley, Stephanie Philbin, Daniel Ross Senior Designer Annette Carlucci Designer Jennifer Carter Production Manager Rachel Selbie Contributing Writers Rod Campbell, Dino Chies, John De Vellis, Dale Kerr, Marko Lindhe, Josh Milgrom, Alice Sinia, Craig Southwell, Grant Yim Digital Media Director Steven Chester Subscription Rates Canada: 1 year, $60*; 2 years, $110* Single Copy Sales: Canada: $10*. Elsewhere: $12 USA: $85 International: $110 *Plus applicable taxes Reprints: Requests for permission to reprint any portion of this magazine should be sent to info@mediaedge.ca. Circulation Department Maria Siassina circulation@mediaedge.ca (416) 512-8186 ext. 246 CONDOBUSINESS is published eight times a year by

President Kevin Brown Accounting Manager Samhar Razzak Group Publisher Melissa Valentini 5255 Yonge Street, Suite 1000, Toronto, ON M2N 6P4 (416) 512-8186 Fax: (416) 512-8344 e-mail: info@mediaedge.ca CONDOBUSINESS welcomes letters but accepts no responsibility for unsolicited manuscripts or photographs. Canadian Publications Mail Product Sales Agreement No. 40063056 ISSN 0849-6714 All contents copyright MediaEdge Communications Inc. Printed in Canada on recycled paper.

Michelle Ervin Editor, CondoBusiness michellee@mediaedge.ca

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THIS MONTH’S ONLINE EXCLUSIVES ALL THE BUZZ

2016: The year of kids in condos? If Ben Myers’ big prediction for 2016 pans out, kids’ play spaces could become the hottest amenity in the condo market. Myers, senior vice president of market research and analytics at Fortress Real Developments, expects to see a significant rise in the number of millennial parents rearing families in downtown towers this year.

GTA home resales soared 21.1 per cent, year over year, in February.

FROM THE GREEN BIN

Toronto’s debut sixstorey wood-frame development Heartwood the Beach Condos is poised to become Toronto’s debut six-storey wood-frame development. The collection of 40 luxury suites, set to rise on the northeast corner of Queen Street and Woodbine Avenue, is scheduled to enter construction this spring.

Intensification impacts on millennial consumers Millennials are on the cusp of becoming the largest group of home buyers and renters, and they are entering a wildly different real estate market than their parents did. The Consumers Council of Canada struck an expert panel that studied this changed terrain, culminating in a report released last month containing 24 recommendations concerning consumer education, planning policies and more.

PortsToronto recently unveiled its first sustainability report.

EXPERT ADVICE

Lawyer Cynthia Sefton illuminates the implications of the ‘swing stage case.’

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Lost in translation A handful of unit owners in a Richmond-based strata corporation have complained to the B.C. Human Rights Tribunal over strata council (board of directors) meetings conducted in Mandarin only, alleging discrimination, according

to news reports. The non-Mandarin-speaking complainants, who reportedly include recently ousted strata council members, were permitted to attend strata council meetings. They have told media that they feel they’re being excluded, saying that access to English translations of the minutes isn’t enough. The strata council president has countered that it is not discrimination, telling the media that the practice is simply for eff iciency, as there were misunderstandings among the Mandarin speakers (70 per cent of the strata corporation’s residents reportedly speak Mandarin) when the meetings were held in English. We spoke to local condo lawyer Denise L a s h by phone a bout what legal considerations such a scenario would raise for boards of directors in Ontario. Here’s what she had to say: Unlike B.C.’s condominium legislation, which permits owners to attend certain portions of strata council meetings, Ontario’s Condominium Act does not entitle owners to attend board meetings. If a similar situation were to occur in Ontario, I don’t see an issue with the board conducting board meetings in another language on the proviso that all the board members speak that language and that the board does not invite unit owners to their board meetings (unless the owners speak/ understand the language spoken). However, owners must be able to obtain minutes of board meetings if they choose to (subject to certain confidentiality requirements) and therefore the minutes would have to be translated in English. In

addition, this would be important for others, such as property management, legal counsel and auditors, to be able to reference the minutes if needed. The Ontario Condominium Act provides that bylaws of a corporation can govern the procedures at board meetings. That means the board can establish the way its meetings are conducted. Most bylaws do not deal with what language needs to be spoken at board meetings. If boards want to go this route, I would recommend that this be included in a bylaw of the corporation and be carefully drafted to deal with situations in which English must be spoken. A bylaw can include the right for board meetings to be conducted in a particular language; for minutes to be in multiple languages; and for a translator. This may be considered suitable accommodation under the Ontario Human Rights Code

10 CONDOBUSINESS | www.condobusiness.ca

shoul d a d ire c to r o r ow ner alle g e discrimination; however, unless and until the Ontario Human Rights Tribunal is asked to make a decision about this issue, it is difficult to determine whether this would be sufficient. The bottom line is that condominium corporations must be careful not to discriminate. The question is: Are you discriminating against someone because you’re not translating into their language? With respect to the issue in B.C., if an owner is entitled to attend a strata council meeting, the owner should be entitled to understand the language spoken or there should be accommodation of some sort. It will be interesting to see whether the B.C. Human Rights Commission allows the practice of speaking exclusively Mandarin at strata council meetings to continue or finds some other way for the strata council to carry on. 1

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March 2016 11 15-03-12 10:51 AM

SPRING MAINTENANCE

Line paint fades faster under new regs I n r e c e nt y e a r s , p r o p e r t y owners and managers may have

BY ROD CAMPBELL

noticed that the line paint in their parking lots is fading more quickly and, consequently, needs to be reapplied more frequently. A reason

for this change may be new Environment Canada regulations that set a limit on volatile organic compounds (VOC) in traffic-marking coatings. The VOC regulations, which are aimed at improving air quality, took effect in September 2012. Since then, line-painting companies that are doing or redoing traffic marking coatings in parking lots have been required to use paint with lower concentrations of VOC. They have found this paint does not last as long as the paint previously used. One method for

12 CONDOBUSINESS | www.condobusiness.ca

increasing the longevity of lower-VOC paint is to add glass beads. Taking into account the impact of the new regulations, regular line repainting should be done at least every two years. It’s not only a low-cost way to keep a parking lot looking

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Companies doing traffic marking coatings in parking lots have been required to use paint with lower concentrations of VOC.

sharp and well-maintained, but it also demonstrates the condo board and property manager’s due diligence by promoting safety. Lines show drivers where to park and where not to park (e.g. a fire lane). They also show pedestrians where to cross or walk. Painted speed bumps encourage drivers to slow down, while arrows can help show traffic flow. Marking parking spots indicates who should park where, including unit numbers and accessible spots, and maximizes the number of parking spots available. It’s not just product choice that affects the longevity of line paint. The weather conditions in which it’s applied matter. Line paint is best applied at an air temperature of 10 degrees Celsius or warmer. If a contractor paints a parking lot when the weather is not ideal, the work may not hold up as long as it should, in which case the repainting will have to be done sooner, costing more money. Depending on the weather, the line-painting season typically spans from early April to mid-October. Incidentally, the arrival of spring weather also reveals the damage of winter weather to parking lots and roads, such as faded or nonexistent line paint. Keep in mind, asphalt that must be repaired should be repaired first. W h e n i t c o m e s to lin e p a intin g , less is more. If curbs and other nonparking areas are painted, the condo board or property manager is obligated to maintain the traf fic coating. If a concrete curb is painted and the paint is begins to wear off, the paint must be scraped off before new paint can be applied. Otherwise, the new paint won’t stick as well as it should. Paint flakes off of concrete sooner than asphalt. On

asphalt, new paint can be repainted over existing lines without a problem. Regular parking spots generally measure 18 feet deep (5.49 metres) and nine feet wide (2.74 metres). As a rule of thumb, allow 24 feet (7.32 metres) for a two-way road. Accessible parking spaces generally measure 18 feet deep (5.49 metres) and 12 feet wide (3.66 metres). Double check the local municipality’s accessible parking bylaws, as signage and stencils vary. When working with a line-painting company, consider using fewer stencils and more hatch marks because the company may have trouble getting its stencil(s) to match a previous company’s work. Re-stenciling on top of a differently sized stencil looks sloppy. Although two years is a good guideline for how often to repaint parking lot lines, hightraffic locations may demand more frequent touch-ups. For example, arrows showing the “right” way in or out of a complex will likely need to be painted more often. If line repainting is left too long, it may cost more because a lot layout needs to be added to the estimate. Like repainting a parking lot with lines so faded they’re no longer visible, painting a newly repaved parking lot is more complex and is therefore costlier and more time-intensive. 1 Rod Campbell is president of Addaline Asphalt Maintenance. His company was established in 2005 and serves the GTA, Southwestern Ontario and points in between. After working in property management for 10 years, he founded Addaline in 2005 with the belief that asphalt services could be done better and customers should expect more.

Your social media starting point By Steven Chester Perhaps you’ve finally decided that “now’s the time” to get started on social, or maybe you’re cringing at the thought of logging in to your Twitter account that hasn’t been touched in months. If this is the place you’re in, it’s time to reassess what your social media goals are and get yourself to your social media starting point. Your goals could be just one or all of the below. In the case of the latter, take the time to rank the order of importance of each. • Building your brand: Are you looking to develop new relationships? Then it’s time to listen to what others are saying, craft messages designed to inform, entertain and captivate your audience. • Increasing website traffic: Have great content to share? Craft some meaningful messages to drive traffic to your content pages. • Customer support and outreach: Your customer demographic is changing, and so are their communication needs. You’ll need a space to answer questions and gather feedback for your company. • Sales leads: Yes, you can sell on social. In fact, if you’re not doing it, your competitor more than likely has the jump on you. LinkedIn, for example, is an incredible way to gather contacts and expand your reach through secondary connections. Next up, we’ll talk about outreach. Hint: You’re nowhere near ready to craft that first post.

Steven Chester is the Digital Media Director of MediaEdge Communications. With 15 years’ experience in cross-platform communications, Steven helps companies expand their reach through social media and other digital initiatives. To contact him directly, email gosocial@mediaedge.ca or call 416.512.8686 x224.

March 2016 13

SPRING MAINTENANCE

Post-thaw pest prevention

As spring a rrives, pests a re likely to be become more active with

BY DR. ALICE SINIA

the seasonal change in temperature. They will begin seeking much-needed food, shelter and breeding sites, which can put increased pressure on a condo property. Not only can these unwelcome guests make residents uncomfortable, they can spread dangerous diseases such as E. coli and salmonella. And those in the condominium management business know that ensuring residents are comfortable and safe are essential parts of the job. Outdoor maintenance is key to keeping common pests out of condos. Here are a few springtime tips to ensure a property is protected from birds, rodents and termites, among others.

Manage moisture Any sources of standing water on the property, including melting snow, can become a potential breeding site and drinking source for pests, and especially mosquitoes, midges and gnats. Redirect the water flow away from the property or else it may invite pests to residents’ next outdoor gathering. • Maintain proper drainage away from the property. • Inspect roofs and outside areas to ensure there is no standing water or flooding.

14 CONDOBUSINESS | www.condobusiness.ca

• Clean out gutters and ditches. • Inspect for empty containers or damaged structures on the property that can hold water. While moisture management is important, so is a healthy lawn. To maintain one, be sure to use proper fertilizing and weed control. Inspect property Identify potential breeding and hiding sites, especially in shrubs, vegetation and heavy

SPRING MAINTENANCE

mulch. Storms can result in fallen branches and tree limbs that can attract pests such as termites. If a lawn is covered with snow, rodents will burrow and move around under the snow, and those burrows will soon be revealed. Inspect the property for any signs of such burrows and contact a local pest management provider or wildlife company if an infestation is suspected. Also keep these preventative tips in mind: • Maintain vegetation and shrubbery. Trim tree branches and bushes regularly, as they can create a home for pests. Remove dense weeds or shrubs from the site or periphery of the lawn or property. • Repair all broken panes in windows, and be sure to check that any caulking and weather stripping that is in place has remained intact. • Monitor the property for any access points. Repair and seal holes, cracks and crevices to reduce entryways for pests. • Inspect the roof for any cracks or missing shingles. • Inspect for openings, voids or easily dug spots in the building foundation where raccoons and skunks can nest. Exclude them by sealing off these sites.

proactive integrated pest management (IPM) program, which focuses on prevention. To that end, it’s also important to have a monitoring program or routine in place to inspect the lawn and surrounding areas for signs of pest damage at regular intervals — not just after the snow melts away. 1

MJW_halfPage_island_V2_BLEEDS.pdf

Alice Sinia, Ph.D. is Quality Assurance Manager – Regulatory/Lab Services for Orkin Canada focusing on government regulations pertaining to the pest control industry. With more than 10 years of experience, she manages the Quality Assurance Laboratory for Orkin Canada and performs analytical entomology as well as provides technical support in pest/insect identification to branch 1 2015-03-12 12:02 PM more information, offices and clients. For email Alice Sinia at asinia@orkincanada.com or visit www.orkincanada.com.

Clean regularly C Critically, sanitation reduces the three key M elements of survival for pests — food, water and shelter. Many newly built condos are Y vulnerable to pests because of temporary CM dampness from new wall plaster, which MY encourages mould growth that plaster and CY fungus beetles can feed on. Although not necessarily specific to spring, the following CMY measures can help reduce pest pressures as K part of this seasonal maintenance. • Pressure wash and sweep any outdoor areas around the property as needed. • Frequently empty all garbage cans to prevent trash buildup. • Regularly clean garbage cans and dumpsters. Also wash outdoor garbage containers, including any spill areas around containers, biweekly. • Collect and properly dispose of all debris around the exterior of the property. • Inspect the ground around any fruit trees on the property for fallen and rotting fruits. The preceding spring maintenance tips are aimed at addressing the particular pressures associated with the seasonal changeover. They represent only one element of a broader, March 2016 15

SPRING MAINTENANCE

How to take the emotion out of tree removal Trees provide many benefits to BY CRAIG SOUTHWELL a property, such as shade from the sun, sound and pollution absorption, and a dose of nature

in what might otherwise be a stark urban environment. Residents

can also become emotionally attached to particular trees, so the decision to remove one can rarely be taken lightly. As dynamic organisms, trees (like animals and humans) have a finite life expectancy and their physical condition can change, sometimes very quickly. Trees can become dangerous as they decline in condition, so it’s important to make objective decisions about their removal.

16 CONDOBUSINESS | www.condobusiness.ca

SPRING MAINTENANCE

There are also situations that call for the removal of healthy trees. Arborists are often asked to advise property owners and managers on pruning trees that have outgrown their limited space. It may be more effective to remove such trees and replace them with a species that has a smaller mature size than to enter a cycle of expensive pruning that leaves the tree mutilated. Owners should also consider the long-term useful life expectancy of an existing tree when undertaking landscape renovations, as a lot of time and effort can be spent preserving a tree that might only live for another five years. Consider engaging a certified arborist ( id e all y holding the I S A Tree Risk Assessment Qualification) to carry out an inventory of the trees on the property to help guide these decisions. The arborist’s report should objectively document tree condition and suitability for retention, and can then be used to build a longer term tree-management plan for the property. The arborist should also visit the property after storms to identify any trees that have been affected by the weather. This also helps to head off those knee-jerk reactions, where every tree is considered dangerous because of its size and overzealous news reporting. After deciding that a tree needs to be removed, consult local bylaws to see if a permit is required. Most municipalities exempt dead or imminently dangerous trees, but they usually need to be informed so that they can check the tree for themselves and issue an exemption certificate. Also confirm who owns trees that are on or close to a boundary, contact the neighbour and include them in the removal decision. There might not be a legal requirement to inform residents about plans to remove a tree, but it can often help to soften the blow of losing a favourite specimen and can help avoid recriminations later. A tree removal permit may stipulate tree replacement as a condition, or replacement might just be something the property owner feels is the right thing to do. Canadians living in cities are fortunate that previous generations saw the need to plant trees in streets and parks. By replacing lost trees, this generation can do its bit to preserve the urban canopy for future generations.

Confirm who owns trees that are on or close to a boundary.

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SPRING MAINTENANCE

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When planning tree planting, consider the desired long-term function of the tree (shade, screening, flowers, fall colours) and how much space is available above and below ground. Ideally, plant trees that are wellmatched to the local environment (shade, moisture, soil characteristics) and that will need minimum inputs (pruning, watering) during its life. Choose good quality trees from a reputable grower, and don’t always go for the biggest tree that the budget will allow. It’s common to see large, expensive trees struggle for several years after planting, only to be outgrown by the smaller trees that became established that much sooner. And only plant as many trees as the corporation can afford to maintain for the first three years, as this is typically how long it takes to establish a tree in an urban situation. Nothing says neglect (and a huge waste of money) like dead, newly planted trees. Managing a property’s trees in a proactive and planned manner should help to avoid much of the emotion and conflict that can arise from tree removals. Coupled with a sensible and well-thought-out replanting program, the property’s trees can be an appreciating asset rather than an unquantified liability. 1

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March 2016 19 2016-03-14 4:08 PM

COVER STORY

DECONSTRUCTI HOUSING AF The Residential Construction Council of Ontario (RESCON) has commissioned independent research into the complex web of factors at play in the housing market. The ultimate goal is to measure affordability pressures in the province and model possible public policy solutions. BY MICHELLE ERVIN

COVER STORY

TING AFFORDABILITY

March 2016 21

COVER STORY

THE SCAR INDEX BY THE NUMBERS The Canadian Centre for Economic Analysis has created a tool called the shelter consumption affordability ratio, or SCAR index, to gauge affordability pressure in the housing market. It divides the costs associated with owning a home by the discretionary income left to pay for them after covering non-discretionary costs such as food, clothing and taxes. Increases in the SCAR index indicate rising affordability pressure. Here’s a breakdown of the figures:

The per cent by which the aggregate Canadian SCAR index exceeds its 30-year average.

41%

The aggregate Canadian SCAR index in 2014.

Housing af ford abilit y is a growing concern in Canada, especially in urban centres such as the GTA, but there is no consensus on how to quantify the problem. T hat could soon change with the recent debut of the shelter consumption affordability ratio, or the SCAR index, as the Canadian Centre for Economic Analysis (CANCEA) calls it. The SCAR index essentially divides the costs associated with owning or renting a home, including utilities, maintenance and repairs, by the discretionary income left to pay for those shelter-related costs

38.5%

Ontario’s average SCAR index.

after taxes, financial obligations and basic needs such as food and clothing. It may seem simple on the surface, but these two categories capture a complex web of factors that are at play in the housing market. The costs associated with owning or renting a home reflect factors including demographic changes and population growth as well as shelter types and transportation costs. The discretionary income left to pay for those shelter-related costs after covering basic necessities reflects factors including household debt, interest rates and labour demand.

1 in 4

The approximate share of Ontario households with a SCAR index of 62 per cent.

Increases in the SCAR index indicate rising affordability pressures, with rises above the long term average indicating issues of sustainability. The aggregate Canadian SCAR index of 41 per cent in 2014 pegs affordability pressures at an all-time high, or 11 per cent above its 30-year average. The SCAR index comes as the product of an independent research project c o m m i s s i o n e d by t h e R e si d e nt i a l Construction Council of Ontario (RESCON). “We felt that our understanding of housing, and housing affordability, was very limited — in fact, there were vital pieces of information

“You’re basically left with a lower quality of life, more people spending time in

their car, trying to get to work, or just cramming their families into ever-shrinking condos.” 22 CONDOBUSINESS | www.condobusiness.ca

COVER STORY

480,000

SOLUTIONS FOR WHAT YOU CAN’T SEE

The number of Ontario households facing “significant affordability pressure” that are middle class and under the age of 45.

that we didn’t understand, because housing is basically connected to everything,” said Richard Lyall, president of RESCON. “And the research has, at this stage, actually demonstrated just that, that there are a lot of components that have been overlooked or at least not brought together in totality.” CANCEA did a qualitative analysis of the factors influencing the housing market, which culminated in the December, 2015 report Understanding Shelter Affordability Issues: Towards a better policy framework in Ontario. RESCON hosted the release of CANCEA’s report at Ryerson University’s Centre for Urban Research and Land Development, bringing together experts, industry and government. In a proposed phase two of its research, CANCEA will do a quantitative analysis of Ontario’s housing market, by municipality, using advanced computer simulations. Its ultimate goal is to model the impact of public policies to determine how best to confront growing affordability pressures. Young households under significant pressure In its report, CANCEA pinpoints two shortcomings of existing measures of housing affordability.

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COVER STORY

One is that various stakeholders have blinders to important factors outside their fields of view. For example, the Bank of Canada’s Housing Affordability Index, which shows housing affordability improving in recent years, closely tracks the trajectory of a mortgage payment investment index. The other is that the use of aggregates and averages obscures underlying trends among particular demographic, geographic and socioeconomic groups.CANCEA’s

preliminary analysis shows that Ontario’s average SCAR index is 38.5 per cent. That average hides the fact that 840,000 households in Ontario (or roughly one in four) have a SCAR index of 62 per cent. What’s more, 60 per cent of the 840,000 households facing “significant pressure” are younger than 45. At a time when millennials are entering their prime home-buying years, Sal Guatieri, director and senior economist

at BMO Capital Markets, said that another recent study found affordability in Toronto and Vancouver is poor and will get worse. Speaking at the launch of the CANCEA report, he attributed runaway prices to a number of factors, but suggested that it basically boils down to supply and demand. Demand is strong, and both Toronto and Vancouver are running out of the serviceable land required to build detached homes, for example. Currently, the typical family that wants to buy a bungalow in the GTA would have to spend roughly half its gross income on housing-related costs, said Guatieri. And as families spend greater shares of their incomes on housing-related costs, they become increasingly susceptible to financial shocks such as interest-rate hikes or income loss. “You’re basically left with a lower quality of life, more people spending time in their car, trying to get to work, or just cramming their families into ever-shrinking condos,” said Guatieri, “and you end up with an economy that’s going to grow slower and is more vulnerable to downturn than would otherwise be the case.” Public policy costs passed on to purchasers The shrinking condo unit — down from an average of 908 square feet in 2005 to 767 square feet in 2015, according to RealNet Canada data — is the result of designers working with the resources they’ve been given to extract the highest value. Designers have increasingly had to make do with fewer resources, explained Sheena Sharp, principal of Coolearth Architecture, speaking at the launch of the CANCEA report. “From a design point of view, we’re hitting the edge of that,” she said. “I mean, how low can you go and still call it a bachelor apartment?” Sharp expressed concerns about the inefficient use of resources due to conflicting government policies. Plus, the prospect of future requirements for net zero buildings, while positive in the fight against climate change, could mean another layer of costs is coming as efforts are being made to rein in existing costs. “What I’m hoping for from this study is to be able to pinpoint some of the things, and the opportunities that we have, so that we’re not wasting resources, so that we are coordinating policies and we are able to deliver something that you could actually live in,” said Sharp.

24 CONDOBUSINESS | www.condobusiness.ca

COVER STORY

Speaking at the launch of the CANCEA report as well, Cherise Burda, executive director of the Ryerson City Building Institute, talked about the Crombie report released just days earlier. An expert panel led by former Toronto mayor David Crombie produced the report as part of the province’s coordinated review of its growth, greenbelt, Oak Ridges Moraine conservation and Niagara Escarpment plans. In particular, Burda zeroed in on the Crombie report’s recommendations around building complete communities. Features of complete communities include a range of housing types geared toward a range of income levels, as well as density targeted along transit lines. The relationship between housing and transit is especially important, she noted. When growing young families look to trade up from a condo in the core to a detached home, they now have to travel increasingly farther into the suburbs to find affordable prices. The irony is that the location demands that they own one or more cars, which has been shown to cost more over the long haul than the higher upfront cost of homes in the city. Burda also nodded to the Crombie report’s recommendations to remove the barriers C to intensification that reduce the desirability M of building in preferred locations. To name a few, the costs of applying to amend outdated Y zoning bylaws and meeting minimum parking CM requirements add up. Potential solutions MY include as-of-right zoning and relaxed parking CY requirements. “For example, I live in a mid-rise condo CMY and I have a parking spot that I don’t use, K because I don’t own a car, because I live next to a subway, four streetcar lines, the GO and the UP Express,” she said. “Yet I have paid the $50,000 to $60,000-price for building an underground spot that gets passed down to the homebuyer.”

“Nowadays when you talk about affordable housing, you might be talking about your son or daughter that just graduated from school with a huge school debt, and probably graduated as a nurse and works in one of the hospitals, and cannot afford an apartment in downtown Toronto.” The city councillor readily acknowledged the municipal half_page_residential_ad_PRINT.pdf government’s role in addressing the problem. One of its initiatives is the Open

Door Program, which is designed to support Toronto’s work with private and non-profit sector organizations to meet its targets for delivering affordable housing. Through the program, the city will identify land it owns that is available for such development; streamline the approval process for these t ypes of applications with dedicated planners for 1 2015-06-01 PM and establish a each community12:42 council; calculation to create certainty as to what

Ongoing government work on the housing file City councillor A na Bailão, chair of Toronto’s affordable housing committee, called the affordability issue a “housing crisis” at the launch of the CANCEA report. She also quickly added that the issue spans income brackets. “When I talk about affordable housing, a lot of people automatically think I’m talking about public housing,” said Bailão. March 2016 25

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incentives the city will bring to the table in the form of benefits such as waived fees and property taxes. More details of the recently approved program are coming in June. Minister of Municipal Affairs and Housing Ted McMeekin was also on hand to speak at the launch of the CANCEA report. He said he doesn’t buy the argument that Ontario’s growth and greenbelt plans, which are aimed at curbing urban sprawl and protecting important resources, such as farmlands, are to blame for rising house prices. McMeekin pointed to the Crombie report, which found that the existing greenfield areas designated to accommodate projected population growth up to 2031 would not be developed by then and could be used to satisfy some or all housing demand through to 2041. The land use planning review represents just one of many ongoing Ontario government initiatives on the housing file. The province last year amended the building code to lift the height limit on wood-frame construction from four storeys to six and recently passed the Smart Growth for Our Communities Act with the goal of bringing predictability to the development charges system, planning and appeals process. Min. McMeekin indicated that he thought the SCAR index would be a helpful policy tool and that he looks forward to seeing phase two of the research. “I think we can all agree that affordability is an issue,” he said. “We may not agree exactly on what the barriers are, but that’s why … we need to keep talking.” A way forward with a responsible mixed market? Paul Smetanin, president and CEO of CANCEA, suggested that the answer to the affordability challenge is some sort of “responsible mixed market,” in which the government acts as referee. As Smetanin explained, economic theory expects consumers to make rational decisions about housing based on their ability to pay. The problem is, shelter is a basic need, so opting out isn’t a realistic choice if prices are beyond their budget. C o m p o u n d in g t h e i s su e, h e s a i d , i s t h e fa c t t h at consumers who are trying to meet their basic needs are competing with consumers who are pursuing housing that exceeds their basic needs as well as investors. With the right confluence of factors, this can crowd out consumers who are trying to meet their basic needs. “How do you allow society to consume what it wants without restricting the needs of others within that same society?” Smetanin asked rhetorically. Ultimatel y, he s aid , the c ombination of c onsumers pursuing shelter that exceeds their needs and rising house prices is not a problem on its own, with one big caveat: that it’s sustainable. What’s at stake is wider economic stability. Amid rising affordability pressures and rock-bottom interest rates, overleveraged homeowners pose a potential hazard to the housing sector. “From our point of view, if nothing changes, the system might be able to right itself out,” said Smetanin. “The problem is, everything’s changing all the time; if you get high interest rates, inflation or job losses, it will be of interest to see what begins to happen, but there is a risk to the economic contribution of the residential construction market.” 1

26 CONDOBUSINESS | www.condobusiness.ca

FEATURE

Is the leaky condo crisis over? W h i le t here may be fe wer

BY DINO CHIES

news stories about condo boards and property management companies frustrated by water leaks, is the leaky condo crisis over? This situation involved many high-rise

residential properties built from about 1980 to 2000, which were found, due to

design and construction f laws, to have substantial water inf low. The problem was most widely publicized for the Vancouver, B.C. area, but the same combination of design and construction inadequacies was felt right across the country, including many buildings in Ontario. March 2016 27

FEATURE

Now, many developers and property managers may be asking themselves: Have most of the problems in existing structures been fixed? Do current building techniques mitigate against the problem recurring in future? Ask any engineer who has inspected their share of residential buildings in Ontario, and the answer is likely to be “no.” This article discusses several myths about water ingress into residential buildings, and points to some potential solutions. All the leaking buildings must have been repaired by now, so the crisis is over. While a lot of buildings have been repaired, plenty of buildings with potential systemic problems still exist. Many buildings have had partial repairs performed with little or no maintenance on the remaining parts of the building. Many buildings have also been constructed during a time of transition for many provincial building codes, when many technologies in building envelope design and construction were being implemented — much of this during the period 1980 to 2000.

MYTH

Water is a problem just in from a specific MYTH buildings time period. Attention to the “leaky condo” crisis has focused on buildings constructed in the 1980s to mid-1990s. This is particularly the case in the Lower Mainland of B.C., where the problem has perhaps received the greatest publicity. Older buildings may seem to be more resistant to water ingress problems. They may be slightly more forgiving as lack of insulation and poor air resistance allows the walls to dry out a little more. However, many still exhibit poor details such as missing flashings and sealants. Even buildings constructed with the more recent code requirements and improvements in design may suffer problems due to substandard construction, inadequate inspections or lack of maintenance.

MYTH

The “official” inspection would have caught all the big problems. In the past, public building inspectors may not have had the time or experience

(or expertise) to inspect the exterior of the buildings for building envelope issues. It wasn’t clear until the mid-1990s that water ingress carried significant risks of property damage. In the early 1990s, for example, the focus of building inspectors seemed to be on the changes in the code in preventing heat loss. Building inspectors were quick to point out holes in the plastic vapour barrier yet paid less attention to how the exterior of the buildings were being completed. Also, they paid greater attention to the fire and life safety issues that posed higher risks in terms of injury and property damage. Inspectors pulled out measuring tapes to check the height of a railing, or the consistency of the treads on the steps in a stairwell, and they also reviewed fire-stopping, smoke alarms, sprinkler systems and fire alarms. While these issues are vital to the safety of building inhabitants, focusing on them does not leave much room for inspectors to check on exterior issues, such as preventing water ingress. If there’s no visible water, it’s okay. MYTH Obvious signs of water ingress, such as stains on the ceiling or walls, tend to get noticed and fixed promptly. The greater damage can often come from the slow dripping of water coming in through a small hole in the cladding. The result can be rotting of wooden elements, corrosion of steel, and mould growth that can cause air quality issues. Often, the water flows in and then gathers inside the building and continues to cause damage even during times of no precipitation. Wall interiors can conceal a truly amazing amount of moisture, which does not always show up in the form of

28 CONDOBUSINESS | www.condobusiness.ca

water or stains on the inside of the dwelling. Many times during building investigations, engineers have opened up a wall and found major structural damage that endangered the integrity of the building, which needed to be shored up right away. With those myths debunked, what do condo boards and property management companies need to know about addressing water damage? Potential solutions Many condo owners and management companies take comfort in their building’s warranties. However, it is important to have a clear understanding of what those warranties cover and to keep track of the warranty terms. Well before warranty expiry date(s), have a firm that is qualified to assess the building envelope determine whether there has been water damage or leaks and recommend a course of action if the firm discovers a serious issue. Because of the slow-leak issue mentioned above, it is also important for property managers and boards to carefully check the results of the building envelope assessment, which must be done regularly as part of the reserve fund study. The inspection firm will study the roof, cladding, windows, doors and penetrations, and waterproofing — to see if water has an opportunity to enter. Then the firm can recommend a course of action. Lastly, take steps to prevent water ingress — such as retaining an experienced firm to review the building envelope and a qualified contractor to maintain the cladding, sealants and waterproofing. Preventative maintenance can pay off hugely in avoided future costs. 1 Dino Chies, P.Eng., BEP, is building science manager for Western Canada with the engineering firm exp, and is based in Burnaby, B.C. Contact: 1.604.874.1245; dino. chies@exp.com.

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MAINTENANCE

A guide to glass balcony guards Over the past several years, there have been many instances of

BY DALE KERR

glass balcony guards breaking. All glass breaks, but different types of glass break

more or less easily. The type of glass typically used in windows, for example, is

annealed glass, which is the weakest type of glass. When annealed glass breaks, it breaks into long sharp shards. This can create a dangerous situation if, for example, such glass is used in a door that someone might push their hand through.

30 CONDOBUSINESS | www.condobusiness.ca

MAINTENANCE FEATURE

Glass can be made stronger through a process known as heat treating. In this process, annealed glass is heated to about 70 0 degrees Celsius, then rapidly cooled, or “quenched”. T he glass sur faces cool at a faster rate than the interior of the glass, which creates a compression zone on the face of the glass and a tension zone inside the glass. This makes the glass more resistant to breakage. There are two types of heat-treated glass: heat strengthened and tempered. Heat- strengthened glass is about t wice as strong as annealed glass, whereas tempered glass is four to six times as strong as annealed glass. The difference between heat-strengthened and tempered glass is the rate at which the glass is cooled. The faster cooling

of tempered glass results in a stronger c ompressive sur face, improving its strength, but it also results in more tension in the glass. In situations where injur y due to breakage is a concern, tempered glass is typically used. Because of the stresses in the glass, when tempered glass breaks, it breaks into tiny crystals with relatively blunt edges that are far less likely to cause injury. For this reason, and because of its improved strength, tempered glass is used for balcony guards. Over the past 20 years or so, glass b alc ony gu ards have b ec ome more common. Glass is architecturally appealing and allows an unimpeded v i ew f ro m a b a l c o ny, u n l ike p a n e l or picket balcony guards. Glass is also relatively inexpensive, it doesn’t corrode and it requires little maintenance, unlike metal guards that require regular painting. As balcony lengths have increased, the size of the glass panels used on b alc onies has also inc re ase d . N ot only has the length and height of glass balcony guards increased; the thickness of the g l as s h as also inc re ase d to enable the glass guards to resist the increased loads from wind and potential impacts. So why have glass balcony guards been breaking? Nickel sulphide inclusions One of the possible causes of such glass breakage is a nickel sulphide inclusion. Sulphur is used in the glass-

manufacturing process to help eliminate bubbles. Glass can be contaminated by nickel being intro duced into the glass-manufacturing process in the raw materials, during handling and storage, or from the fire brick in the furnaces. A single gram of nickel can contaminate thousands of tonnes of glass. At high temperatures, such as those encountered during heat treating, the nickel sulphide particle is smaller than it is at lower temperatures. Due to the rapid cooling required to manufacture tempered glass, the par ticle can be trapped at the smaller size. O ver a period of anywhere from a few months to a few years, the nickel sulphide conver ts to the larger size and that expansion of the nickel sulphide creates stresses in the glass. If the nickel sulphide inclusion is in the perimeter compression zone of the glass, the glass may sur vive the ex p a n s i o n fo rc e s . H oweve r, i f t h e n i c ke l su l p h i d e i n c l u s i o n i s i n t h e tensio n zo ne in the inter io r of the glass, the expansion forces can cause spontaneous breakage. T h e p r o b l e m o f n i c ke l s u l p h i d e inclusions is not new. However, as the size of glass balcony panels has increased, so has the probabilit y of having a nickel sulphide inclusion in the tension zone of a particular panel. There is a telltale sign that a nickel sulphide inclusion has caused a panel to break, and that is a “Double D” or butter fly pattern in the broken glass at the point of the inclusion. When a breakage has occurred, examine the March 2016 31

MAINTENANCE

As the size of glass balcony panels has increased, so has the probability of

having a nickel sulphide inclusion in the tension zone of a particular panel. broken glass for this sign before it is cleaned up to determine whether a nickel sulphide inclusion was the cause of the breakage, as opposed to a projectile. The likelihood of a piece of glass breaking due to a nickel sulphide inclusion will tend to decrease over time. There are varied opinions as to what i s a n “a c c e p t a b l e” b re a k a g e r a te . W hile building owners would like to see zero breakage, it is this author’s opinion that two breaks in 1,000 panels should not be considered unusual. If a building experiences more breaks than this, seek professional expertise to determine an appropriate course of action to minimize further breakage.

Contact breakage Glass breakage can also be caused by glass-to -metal contact or by glass-to glass contact. The simple act of the glass edge rubbing against a mounting plate, a guard post or the edge of an a d j a c e nt p ie c e of g l a s s c a n c au se the glass to break. Breakage can also be caused if there is a temperature difference between glass and metal if they are in contact. To prevent such contact, appropriate clearances must be maintained, t y pic all y by mounting the glass on set ting blocks (pieces of neoprene, EPDM, silicone, or other elastomeric material) and using gaskets or sealant

NEW REQUIREMENTS FOR NEW CONSTRUCTION In 2011, following a series of cases of glass balcony guards breaking, the Ministry of Municipal Affairs and Housing struck an expert panel to study the issue. In 2012, the Ontario Building Code was amended to include Supplementary Standard SB-13, which became effective July 1, 2012. The supplementary standard prescribes requirements for the design and construction of glass in guards that are intended to reduce the probability of breakage or injury; it is recognized that it is not possible to eliminate breakage. One such requirement is to use heat-strengthened laminated glass for guards located beyond the edge of a floor (e.g. on the face of the balcony slab). SB-13 is applicable only to new construction or when a major renovation is being undertaken, such as the replacement of the balcony guards. The supplementary standard does not require existing balcony guards to meet its requirements.

32 CONDOBUSINESS | www.condobusiness.ca

to separate glass from metal supports. One of the problems that has occurred with the larger sizes of glass panels now b eing used as b alc ony guards is that, due to their weight, they are difficult to handle and assure that the appropriate clearances are maintained when they are installed. Also, over time, if a glass panel is not secured on all four sides, it may shift its position due to buffeting from wind or movement of the building structure. So even if correctly installed in the first instance, over time, contact breakage may increase. Unlike a nickel sulphide inclusion problem, shifting of panels can be readily observed and corrected before breakage occurs. Can glass breakage be prevented? U n fo r t u n a t e l y, i t i s i m p o s s i b l e t o e n t i r e l y e l i m i n a t e n i c ke l s u l p h i d e inclusions in glass, so it’s difficult to prevent all glass breakage. However, t h e re a re s te p s t h at c a n b e t ake n to ensure that the risk of injur y is minimized if glass does break. Heat soaking Some exper ts recommend that tem p ere d g l as s b e he at s o ake d to determine if it has, or likely has, nickel sulphide inclusions. In this process, the tempered glass is reheated in a controlled factory environment to force breakage of glass with nickel sulphide i n c l u s i o n s . T h e p ro b l e m w i t h t h i s approach is that it adds significantly

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to the cost of the glass, and some uncontaminated glass may break, further adding to the cost. However, using only heat-soaked glass will certainly minimize, if not eliminate, the use of glass with nickel sulphide inclusions. Buffer zone A buf fer zone, ab out 2 0 feet wide, can be created around the perimeter of the building using planters or other m e a n s to l i m i t p e d e s t r i a n a c c e s s . Should a glass panel break, injury will be minimized as there should be no one in the area where the glass falls. Of course, this approach may not be feasible in dense, urban areas.

Support of the glass panel In recent years, framing around glass balcony panels has been reduced or even eliminated in some cases. This has resulted in the need for thicker pieces of glass to compensate for the reduced structural contribution from framing. And thicker glass increases the chances of nickel sulphide inclusions in the tension zone of the glass. Designing balcony guards with metal framing allows thinner glass to be used, reducing the probability of a nickel sulphide inclusion. In some designs, the balcony panels are mounted on the face of the balcony slab rather than on the top of the slab.

When the glass breaks, all of the glass will fall to the ground. Some experts believe that keeping the glass back from the edge of the balcony slab will minimize the amount of glass falling to the ground and potentially injuring someone. Laminated glass On some new buildings, laminated glass is being used for balcony guards. An interlayer film bonds layers of glass together. As a result of the glass being held together, it is less likely that glass pieces will fall to the ground should the glass break. H owever, this ap pro ach w ill onl y work if the laminated glass is held

A large piece of falling laminated glass is likely to cause more injuries than small pebbles of tempered glass.

34 CONDOBUSINESS | www.condobusiness.ca

MAINTENANCE

securely in a frame. If the laminated glass is not held on all four edges, it could fall, and a large piece of falling laminated glass is likely to cause more injuries than small pebbles of tempered glass. For this reason, the use of structural silicone sealant on the exposed edges is recommended to adhere laminated glass to adjacent metal posts. For retrofits, there are films that can be applied to the surface of the glass to hold it together should it break. To be properly applied, the balcony glass should be removed from its supports so that the entire surface of the glass can be covered with the film, not just the area of glass within the inside perimeter of any framing. As with laminated glass, if a film is applied, the glass must be secured in place on all four sides. It is difficult to install such films outside of a controlled environment, and as the films are on the surface of the glass, they are prone to degradation due to ultraviolet radiation from the sun. It is preferable to use laminated glass rather than apply films, though the use of laminated glass would require complete replacement of the glass, which is an expensive proposition. As noted earlier, while glass breakage due to nickel sulphide decreases over time, contact breakage will increase. Annual inspections of balcony guards are recommended to identify potential glass-to-metal or glass-to-glass contact and to take corrective action. These inspections can be conducted by the property manager. 1 Dale D. Kerr, M.Eng., P.Eng., BSSO, ACCI, is a building science specialist with GRG Building Consultants with over 30 years’ experience in assessing and repairing buildings.

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TECHNOLOGY

Four ways Bill 106 facilitates e-governance BY GRANT YIM Big changes a re coming to t he condo l a ndsc ap e i n Ontario. This past December, Bill 106, the Protecting

Condominium Owners Act, was passed and obtained royal assent. It still remains anyone’s guess as to when its amendments to the Condominium Act will be

proclaimed into force (i.e. become law). However, technology looks poised to take centre stage in the way condos are governed at that time.

36 CONDOBUSINESS | www.condobusiness.ca

TECHNOLOGY FEATURE Here are four ways for thcoming Condominium Act changes will facilitate, and in one case require, the use of technology. Document and notice delivery The amended Act will make it mandatory for boards to formally provide preliminary notice of owners meetings 20 days before sending out the actual meeting notice. It will also make electronic options available for delivering important condominium documents and notices including disclosure statements, status certificates and material change notices. Given the sensitive nature of documents and notices, board members and property managers will have to consider security when selecting which software and tools to use. In particular, look for robustly built solutions that completely encrypt the communication link between the browser and platform. Also, consider ease of use because board members and residents possess varying degrees of technical proficiency.

Compared to other jurisdictions, Ontario’s condominium laws are globally regarded as some one of the most advanced of their kind. While it has its share of critics, Bill 106 is written with modern realities in mind — at a time when software is eating the world. The condo industry is about to experience the same. One read of the Protecting Condominium Owners Act shows that legislators have finally embraced technology in this sector. A bulk of its amendments to the C ondominium Act aim to increase communication and transparency between board members, property managers and residents. When they’re rolled out, the changes will enable the use of “electronic mail,” “electronic means,” “electronic databases,” “electronic communication” and “electronic delivery” to achieve those objectives. The provisions will become clearer when they are supplemented by corresponding regulations, but it is safe to say that “electronic” will, in a lot of cases, mean software.

A dedicated condo website The amended Condominium Act will require condo developers to make public proposed documents, corporation bylaws, community rules, a search function for keywords and terms, and other key documents online. This is to help prospective buyers understand what to expect from a condo community that has not yet been constructed. The key here is to use a software platform that is easy to manage, as the need to put up the website quickly and update it as documents evolve will demand flexibility. That means the website should be fully customizable to the specific needs of each condo and developer, have the ability to publish online instantly and be easy to maintain by the condo developer. Increased communication Communication is key to a healthy condo community. However, many condo owners have expressed that they do not feel they know enough about decisions and activities that have a direct impact on their lives. As such, some of the amendments to the Act aim to improve transparency by mandating regular updates from the condo board. N o tew o r t hy i n t h e fo r t h c o m i n g amendments to the Act is the requirement to improve owner access to high-level information such as the reserve fund budget and other financial information. Additionally,

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there is a dire need for condo owners to be kept in the loop of all other day-to-day happenings in the community. Ideally, communication should be accessible, easy to consume, mobile and available in real time, which can be achieved through multiple channels such as smartphone push notifications, emails, text messages, and voice calls. While the smartphone has become an indispensable tool, it has yet to make its mark in improving communication in condos. That is likely to change. Virtual board meetings A common issue with condo corporation board meetings is the challenge of finding the right time and location for the meetings. Condo board members cannot always be physically present for meetings. In an effort to keep up with the times, changes to the Act will make it possible to hold a valid board meeting via teleconference without having to pass a bylaw. This will surely have a significant impact on how boards get together to make decisions as it makes it easier for them to attend and hold meetings on a regular schedule. To facilitate these teleconferences, property managers are likely to turn to popular virtual meeting software that is already out there, such as Webex and GoToMeeting.

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Voting procedures Today’s technology makes it possible to vote electronically. The Act will recognize this reality as it gives condo corporations the option to allow owners to vote by “telephonic or electronic means,” which is defined to include emails, faxes, automated touch-tone systems or computer systems. There are no go-to tools on the market that specifically accommodate voting in condo corporations, but the ability to vote for a director directly from a smartphone app is coming soon. Not only will the implementation of Bill 106’s amendments to the Condominium Act pave the way for new tools. It will also update the legislation to acknowledge a role for existing technologies that have yet to make inroads into the condominium industry. This is important, because the tools are designed to promote better and more communication, which is exactly the intent of these consumer protection laws. 1 Grant Yim is co-founder of condo management software Evercondo.com. He is an entrepreneur and lawyer.

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LEGAL

Hate to be a buzz kill, but… BY JOHN DE VELLIS The news that the recently elected federal Liberal government plans to legalize marijuana may leave Canadians happy, sad, or just very,

very mellow. However you feel about it, the changing landscape is bound to create unintended dilemmas for condo corporations.

40 CONDOBUSINESS | www.condobusiness.ca

LEGAL

Take the case of Metropolitan Toronto Condominium Corporation No. 659 v. Truman. Shortly after Mr. Truman purchased his unit in August 2011, the corporation noticed a significant increase in water consumption. After learning that Mr. Truman was operating a legal marijuana grow-op, the corporation installed a water meter to measure the unit’s consumption. Sure enough, the meter confirmed that Mr. Truman’s consumption was far greater than his proportionate contribution to the common expenses. It demanded that Mr. Truman pay for the excess. Mr. Truman refused and the matter ended up in court. Because the condo corporation’s declaration included unit water consumption as a common expense, the first issue the court had to deal with is whether, even if his consumption was found to be excessive, the corporation had any right to seek compensation from him for the excess. After all, each unit’s contribution to the common expenses is determined by the declaration, and owners who use, say, the elevators, or gym, more than others, are not charged more. The declaration, however, provided an exception in the case of water used for “commercial and industrial purposes”. The case then turned on the meaning of “commercial” and “industrial” use. The owner claimed that his use was neither. Although he admitted the marijuana he grew was not all for his own personal use (he did provide some to others), he denied receiving any sort of compensation for it. Indeed, the owner’s personal use production licence, granted by the federal Ministry of Health, would not allow him to sell marijuana, and there was no evidence that Mr. Truman was operating in violation of the terms of his licence. The court agreed with the condo corporation’s position that the “personal use” of marijuana contemplated by the licence is not the same personal use of water contemplated by the condo’s declaration. Although the condo was successful on the “commercial” use argument, it appears that it would have been successful even if the declaration did not explicitly exclude water consumed for a commercial purpose. That’s because a 1993 Court of Appeal decision, York Region Condominium Corp. 771 v. Year Full Investment (Canada) Inc., which the court in the Truman case cited, held that a declaration should be interpreted in a fair and equitable manner. The 1993 decision also held that the intent of a declaration is to apportion common expenses among unit owners in percentages as close as possible to the percentage of use made and enjoyment received by each unit owner. Excessive usage by one owner should not be included in the common expenses but should be the responsibility of the owner.

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LEGAL

The intent of a declaration is to apportion common expenses among unit owners in percentages as close as possible to the percentage of use made and enjoyment received by each unit owner.

The lesson from the Truman and YRCC 771 decisions is that the courts are willing to be flexible to ensure an equitable result. In YRCC 771, for example, the court looked beyond the plain wording of the declaration. It considered the first-year budget submitted by the developer and noted, first, that the unit owner’s consumption was more than the amount budgeted for the entire corporation and, second, that the budget stated that “excessive consumption” by an owner would result in a back-charge to that owner. In Truman, the court, in effect, endorsed an approach that allowed for two different definitions of “commercial” depending on the context. While the owner’s activities may not have constituted a “commercial” use for the purpose of his licence, they did offend the condo corporation’s legitimate interest in ensuring that all owners pay their fair share of the “common” expenses and that one owner’s activities not be subsidized by all the other owners.

Beyond the water context, the cases may have application in a number of other situations where owners are using their units in a manner not contemplated by the declaration. Condo corporations often struggle to prove that the use is “commercial” in the traditional sense of receiving compensation. These cases show they do not necessarily have to: it’s the increased strain on the condo corporation’s resources that matters. It would also have been interesting to see how the Truman case would have played out had the building been a residential condominium rather than a commercial one. (Though the unit may be commercial in the sense that it is used to run a business, the pooling of water costs is done on the basis that water use is only incidental to the business and not a core part its operation.) Presumably, the court’s finding that the activity was commercial would mean that it would offend the “residential purposes” definition found

in most residential condominium declarations. But the question may be a matter of degree. What would happen, for example, if a residential owner grows a smaller amount of marijuana, dedicated only for his/ her personal (or family) use? Are there other considerations besides water consumption that a condo corporation may be concerned about? Only time will tell. In the meantime, I’m feeling a bit peckish — anybody seen my Cheezies? 1 John De Vellis is a partner and a member of the condominium law group at Shibley Righton LLP. He acts for condo corporations throughout south and southwestern Ontario on all aspects of condominium law including compliance and governance issues, general litigation, employment and human rights disputes, construction deficiency issues, shared facilities disputes, and commercial matters such as contract review and drafting, and advice on loan agreements and re-financing.

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LEGAL

Love thy neighbour “Life would be much neater if all disputes could be terminated

BY JOSH MILGROM

unilaterally,” wrote Justice F. L. Myers in the recently

released Couture v. TSCC No. 2187 decision. What started as a relatively simple dispute with respect to the lease of a common element parking space quickly escalated, with “name-calling, hyperbole, failure to listen, taking extreme positions, wasting time, money and effort, and causing [the parties] and each other distress.” “What they did not do,” the court said, “was act like good neighbours.” Litigation can be divisive and costly for a condominium, particularly when it involves members of the community. While litigation certainly proves necessary at times, parties should consider their options and do their best to prevent disputes from escalating to a point of no return. A board is tasked with the responsibility of managing the property and assets of a condominium corporation, but it must act reasonably in carrying out its duties. Courts are taking note of aggressive or unreasonable positions adopted by boards of directors, as the Couture v. TSCC No. 2187 case showed. Couture v. TSCC No. 2187 In Couture v. TSCC No. 2187 the court considered a dispute about a condo corporation that contained parking spaces which were to be leased by owners, and allocated by the board on a priority basis. The declaration provided that the parking spaces

could only be used to park licensed and insured motor vehicles in good repair, and that a lease would end once ownership of a unit ceased. The leases were not formalized in writing, which left most of their terms ambiguous. The applicant, who had been leasing a parking space from the corporation, owned a vehicle which lacked valid license plates, was not insured, and had two flat tires. The corporation gave her 30 days to take steps to bring her car into compliance with the requirements of the declaration. Having not received a response from the applicant (she denied receiving the letter), the corporation sent another letter “in the spirit of goodwill”. The follow-up letter gave the applicant an extra month to comply. So far so good, right? Unfortunately, things take a turn for the worse. “In this case, like so many others involving neighbours, a discrete issue was allowed to escalate out of hand causing needless distress and expense,” found the court. “Like excellent tacticians, the parties let their counsel attack while they sat and watched for weaknesses.” The condo corporation returned the applicant’s post-dated cheques for the following two months, since the cheques included amounts to cover the parking lease.

44 CONDOBUSINESS | www.condobusiness.ca

Meanwhile, the applicant sent her car to the mechanic for repairs. Before the end of its self-imposed deadline extension, the condo corporation advised the applicant that the board was withdrawing the applicant’s parking privileges, and that new post-dated cheques (without the parking amount) had to be submitted. The court described the correspondence from the corporation as “disrespectful and dismissive” and “not consistent with an amicable, businesslike, or neighbourly tone among a community member and her elected representatives.” The applicant and the condo corporation retained lawyers, and then sent them into battle. What followed was a plethora of unfortunate events, including two invalid liens, illegally charged administrative fees (the Condominium Act does not permit a condo corporation to levy fines against owners), refusal to mediate, and oppressive conduct. The applicant refused to pay the common expense fees without the parking lease amount, and similarly, the condo corporation continued to refuse to accept the payments which included the parking amount. The applicant tried to turn to mediation, but the corporation refused to mediate what it referred to as a “meritless” dispute (in breach

of its bylaws). The applicant’s unit fell into arrears, with the help of some additional charge backs for legal fees, and her property was later liened. After the applicant paid off the lien under protest, the dispute continued. T he c o n d o c o r p o r atio n lev ie d t wo administrative fines of $250 each, tacked on some additional legal fee charge backs, and liened the property again. The applicant then commenced an application against the corporation, seeking a variety of orders, including a declaration that the liens were invalid and a declaration that the condo corporation acted oppressively, contravening section 135 of the Condominium Act. The court found that the liens were invalid and that the condo corporation acted oppressively by disregarding the applicant’s interests and legitimate expectations, treating her in a harsh, burdensome manner. While the court was clear that it did not condone the conduct of the condominium corporation, it did not view the applicant as an innocent victim either. Both parties played a significant role in escalating the dispute and neither side acted reasonably.

Despite the parking dispute being the root cause for the application, there was no evidence that the applicant’s car was fixed or insured, so it was not clear that the car would have ever been permitted to park in the parking space. The court found that the applicant “too failed to conduct herself or these proceedings on a reasonable basis.” Nonetheless, the court cautioned the condo corporation, and boards of directors in general, against wielding a heavy sword over the heads of unit owners. The court said that in permitting a condo corporation to recover all of its reasonable legal costs in a successful application against a unit owner, section 134(5) incentivizes “recalcitrant, litigious behaviour.” This behaviour ought not be encouraged, particularly in a condominium context where expectations of neighbourliness should take priority. Key takeaways Due to their very nature, condominium disputes are uniquely positioned to become immensely emotional. Parties dig in their heels, judgment becomes clouded, and tunnel vision sets in. Before long, there’s

a complex web to untangle. The court in Couture v. TSCC No. 2187 does not hide its displeasure toward the conduct of the parties and it provides some key takeaways: • Parties should attempt to de-escalate a situation and prevent litigious disputes; • C o n d o c o r p o r atio ns sh o ul d g i ve owners opportunities to comply before commencing formal enforcement steps; • Progressively more formal dispute resolution tactics should be used only on an as-needed basis; • If formal enforcement steps become necessary, come to court with clean hands and act reasonably — take a step back and question how the conduct would be perceived by a judge before moving forward; • Remember that a condominium is a community and a failure to act neighbourly may poison the dispute and prevent a favourable judgment. 1 Josh Milgrom is an associate at Lash Condo Law, practicing exclusively condo law, and is a director at his condo corporation in downtown Toronto.

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GOVERNANCE

Down to the minutes A cornerstone BY MARKO LINDHE of a wel lfunctioning condominium board is

regular meetings. These gatherings bring together a diverse group of individuals to make crucial decisions on managing and spending millions of dollars of other people’s money — choices that

affect their community’s quality of life and day-to-day operations. The responsibility is enormous and so is the liability. Unfortunately, boards are not always happy, harmonious groups. As a safety mechanism, Ontario’s Condominium Act requires every board to keep an adequate minute book, which serves to protect the board, property manager, and residents of the condominium. A well-documented minute book allows residents to see how their condo fees are being spent, the financial standing of the corporation, and decisions on general upgrades to the building. If residents disagree with their board representatives, they can use information gleaned from the minutes to inform their vote on new board members at the annual general meeting (AGM). In the case of a discrepancy, and a resident challenges the board’s integrity, spending or general decisions, the board can refer to the minutes showing exactly what was discussed, what decisions were unanimously

46 CONDOBUSINESS | www.condobusiness.ca

made, and what was officially agreed upon. Minute-taking can be a daunting, difficult and tedious task, but it’s also an important task. Keeping a fair and unbiased record of decisions can go a long way toward bolstering the confidence residents have in their condominium board. Some boards will have a director or the property manager take meeting minutes, while others will hire professional recording secretaries. Whomever produces them, proper minutes should never be a reflection of personal objectives. It can be challenging for directors or management to wear two hats in a meeting — that of an engaged, active, decisionmaking participant while simultaneously being a totally objective transcriber of the proceedings. Professional recording secretaries are independent third parties trained to listen for and distill the pertinent information required for the minutes.

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GOVERNANCE

A we ll - p ro d u c e d set of minu te s will depict relevant material, such as projects that are out for tender, and any other decisions that involve money and careful consideration. Since financing comes largely from condo fees, these types of decisions will be of interest to all members involved, including the residents of the condominium. Minute-takers must be aware of what should and shouldn’t be recorded. The level of detail embedded in a set of minutes can vary from board to board. However, table talk (the weather, general discussion not involving a decision and back and forth between board members) is typically excluded from the minutes, as it can compromise conciseness and add clutter to the document. Some boards may want specific comments included for clarification, and that’s perfectly fine. There is another level of pressure associated with being the minute-taker because these documents are admissible in court. If litigation occurs, and it becomes necessary to rely on the minutes, the simple fact that the minutes were taken by an independent third party may be helpful. If minutes were altered after they were adopted, a third-party recording secretary

would have a copy of the original set of minutes. It is also good practice to add disclaimers for minutes that were altered after the fact, so a trail of edits exists. For brief or informal meetings, minutes may be helpful, but not necessar y. However, for of ficial meetings that require a quorum, well-taken minutes are absolutely imperative. Minutes of owners’ and board meetings are part of the minute book mandated by the Condominium Act. A g o o d minu te b o o k in c lu d e s a complete record of all meetings and resolutions of direc tors from each meeting. Minutes should also thoroughly describe financial figures and accurately represent the condominium’s financial standing. A n of ficial minute book needs to contain: • The signed minutes of all meetings; • Any reports that were tabled; e.g., management report, financial report, any shared facility meeting minutes, committee reports; • The AGM minutes, complete with the auditor’s report and any other reports given at the meeting; e.g, reports from the president, treasurer, committees; • Confidential minutes per taining to

48 CONDOBUSINESS | www.condobusiness.ca

matters regarding owners or staff members, known as in-camera minutes. It is good public relations, and best practice, to make the minutes available to residents once the board has adopted them. Board minutes need to cover the topics discussed and the resulting motion or resolution. Owners need to be informed that the minutes for the previous month were adopted and approved at the following month’s meeting. A lthough posting them is not required, it is a good way to promote dialogue with residents and board members. Publicly posting approved minutes (or distributing them via email or online platform) keeps owners informed and demonstrates the board’s transparency and integrity, which often become points of contention. It is not uncommon for residents to question or doubt their board, and wellproduced minutes are a great start, and often a more-than-sensible answer. 1

Marko Lindhe is a partner at Minutes Solutions. He can be reached at marko@ minutessolutions.com or via www. minutessolutions.com.

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A new solution aims to remove the roadblocks to the broader rollout of electric vehicle (EV) charging stations in condos.

Plugged in A new, made-in-Toronto solution is designed to rev up the roll out of electric vehicle (EV) charging stations in condos. The dedicated panel system addresses common barriers to these increasingly in-demand installations

The dedicated panel addresses three barriers in particular. It has sufficient capacity compared to connecting the charging stations to existing building panels. It also makes more efficient use of that capacity, by accounting for the fact that the EVs plugged into it won’t be drawing power non-stop at full strength. (A system monitors the feed to the panel and can turn off individual chargers if the fusing to the panel is at risk of being exceeded. This allows the system to accommodate a greater number of vehicles.) The system has a built-in metering system that tracks individual energy use and its associated cost. The reporting is captured via cloud computing, eliminating the need for condo managers to read individual meters and make billing calculations. Markham’s Signature Electric is behind the solution, which was first installed in a Toronto condo one year ago. Mark Marmer, founder and owner of Signature Electric, says his company developed the dedicated panel in response to a question he frequently got from property managers: What if 10 people want an EV charger? “Certainly if all 10 lined up at one time, the solution might be simple, but that’s not really the way it works,” says Marmer. “It was always one first and it was unknown if there would be others, and if so, how many.” The turnkey solution is scalable, meaning condo managers need not anticipate how many residents will request an EV charging station. Its cost and installation, which involves getting a feed from the building’s power — possibly requiring a large switch or transformer, vary condo by condo. The system’s online dashboard lets both the condo manager and the resident view individual energy use and its associated cost in real time. Residents also have the ability to turn their charger on and off remotely with the swipe of their phone. Today, the solution is up and running in two Toronto condos, with others showing interest. “Many boards see this as an amenity,” says Marmer. “Being EV ready may be a selling feature.” For more information, visit www.signatureelectric.ca.

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