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Canada’s Most Widely Read Condominium Magazine

TOURIST TRAPS

Industry members flag rise of illegal short-term rentals ahead of Pan Am Games

May/June 2015 • Vol. 30 #3

1st ever Who’s Who A ranking of the Canadian condo industry's major players & portfolios PA R T O F T H E

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Contents IN EVERY ISSUE

FOCUS: ACCOMMODATION

10 54

When the pitter-patter of little feet elicits noise complaints By Andrea Lusk The age gap By Sharon Snitman and Diane Girard

Ask the expert Smart Ideas

DEPARTMENTS

Consider creative solutions before claiming undue hardship By Deborah Howden

Legal Opinion: Code of ethics decision courts problems By Michael Campbell and Bora Nam

Governance Five people you (may) meet in condo hell By Patrick Greco

Digital signage 2.0 By Sue Langlois

Management Automated doors aren't just for accommodation anymore By Mark Marmer

Regulations Utilities flagged for cap-and-trade costs By Barbara Carss

FEATURES

The Pan Am Games and the sport of short-term rentals By Michelle Ervin

1st annual Who’s Who survey of the Canadian condo industry’s major players and portfolios

Province reveals proposed Condo Act reforms

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Five ways to curb utility costs in condominiums Intermittent pumping, variable speed drivers, toilet inserts, plumbing audits and lighting retrofits are inexpensive, easy-to-carry-out energy efficiency projects.

New York City has bumped Toronto as North America’s leader in multi-residential construction.

FROM THE GREEN BIN

Communication tips for condo communities Many in the condo industry can attest to the fact that unit owners commonly complain that boards of directors are too secretive. One simple way for boards of directors to address this complaint is to improve communication.

LEED certification ups condo resale price: TD LEED certification boosts the resale price of a Toronto condo anywhere from five to 14 per cent, according to a special TD Economics report released May 12.

The apartment building sector favours an alternative to the BOMA BESt environmental program.

EXPERT ADVICE

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EDITOR'S LETTER /condomediaedge /condobusiness

Associate Publisher Mitchell Saltzman

/condomediaedge

Editor Michelle Ervin Advertising Sales Sean Foley, Robert Koven, Michelle Lumb, Stephanie Philbin

Accommodation

Legally speaking, condominium corporations have a duty

to accommodate residents to the point of undue hardship in areas, such as housing

accommodation, where the Ontario Human Rights Code protects residents from discrimination. One ground for discrimination is mental disability, which may mean making exceptions to condo rules. As Deborah Howden details in “Consider creative solutions before claiming undue hardship,” undue hardship is an onerous standard. Another ground for discrimination is physical disability. On this front, many condo corporations are grappling with what the accessibility amendments to the Ontario Building Code, effective as of Jan. 1 this year, require of them. In our regular Ask the Expert feature, accessibility experts highlight some of the common barriers they identify when doing accessibility audits in condos. Baby boomers may well drive an increase in accommodation requests as they enter their senior years — a time when we are more prone to dementia and decreased mobility — and downsize to condos. Casually speaking, accommodation might conjure a play to stay, such as a hotel — or one of the many condo units listed for short-term rental on websites such as Airbnb. The trouble is, a good number of condo communities have rules setting minimum lengths of tenancy. With short-term rentals on the rise, property managers are preparing for an anticipated influx in this activity during July’s Pan Am Games, which are expected to be a major tourist draw to Toronto. For “The Pan Am Games and the sport of short-term rentals,” I investigated what condo lawyers, property managers and security firms are seeing on the ground, and how they’re meeting this growing challenge. Plus, this issue presents the results of CondoBusiness’ first ever Who’s Who survey, a look at the major players and portfolios in Canada’s condo industry. If we missed you this year, we want to hear from you. Email Daniel Ross (dross@mediaedge.ca) to be added to our contact list for our 2016 survey. We will happily accommodate you. Note: As CondoBusiness was going to press, the Ontario government introduced the Protecting Condominium Owners Act. Turn to page 30 for coverage from the day of the announcement and stay tuned for more in-depth coverage in future issues.

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Production Manager Rachel Selbie Production Coordinator Karlee Roy Contributing Writers Michael Campbell, Barbara Carss, Diane Girard, Patrick Greco, Deborah Howden, Sue Langlois, Andrea Lusk, Mark Marmer, Bora Nam, Sharon Snitman 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. 234 CONDOBUSINESS is published eight times a year by

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ASK THE EXPERT

Breaking down barriers New accessibility requirements rolled out in Ontario at the beginning

of the year. The Ontario Building Code amendments give effect to the built environment standard established by the Accessibility for Ontarians with Disabilities Act (commonly known as AODA). For now, the requirements apply only to new construction and buildings undergoing

major renovations. We asked accessibility experts: What common barriers do you encounter when conducting accessible facility audits in condominium communities that would need to be removed if a corporation undertook a major renovation? Standard ramps and stairs Standard ramps and stairs may present barriers for people experiencing a loss of mobility or a decrease in vision. Making sim p l e c h a n g e s like a d d in g c o l o u r contrast to ramps and the edging of stairs give visual cues that help with depth perception and create a directional p ath. Creating non - slip ramps help individuals with mobilit y issues, low vision and who use mobilit y devices such as scooters and wheelchairs. Indeed, the building code amendments now require slip-resistant surface finishes for ramps and stairs; colour contrast or a distinctive visual pattern on the leading edge of tread landings and at the beginning and end of ramps; and tactile attention indicators at the top of stairs and the leading edge of landings where doorways open into stairs. Edie Forsyth, corporate director, Accessibility Experts Ltd. Poor awareness, mislabeled renovations C ondominiums commonly have t wo “barriers” to accessibility: 1. Few Ontarians are aware of the AODA . Those who are aware sometimes lack understanding as to why providing accessible built environments in condominiums is important for seniors and owners with disabilities. 2. S o m e a rc h i te c t u r a l a n d i nte r i o r design firms working with c ond ominiums are find ing ways t o a v o i d u n d e r t a k i n g “m a j o r renovations” or are mislabeling their

renovations as being minor. This is resulting in the perseverance of inaccessible built environments for all condominium owners and tenants. It is important for condominium boards and pro p er t y m anag ers to b ec ome aware of how improving accessibility in all common elements of condominiums will ensure higher property and resale values, along with safer and enhanced access to all parts of the condominium. Jane Sleeth, president and senior consultant, Optimal Performance Consultants Too few accessible parking spaces The rules for accessible parking have changed. T he number of accessible spaces varies depending on the size of the lot. For example, a lot with two to 50 parking spaces must have b et ween one and three ac c essib le spaces. One of these spaces must be able to accommodate a van that has been fitted with a lift mechanism that operates either from the side or rear of the vehicle. The space must be marked as “Van Accessible Parking;” however, anyone with an accessible parking pass is able to use the space. Brian Kon, president, Sterling Frazer Associates Difficult to navigate entryways Accessible facilit y audits often identify entryways that are difficult for persons using walkers, wheelchairs, or mobilit y scooters to navigate. If barriers exist in common areas, then

10 CONDOBUSINESS | www.condobusiness.ca

a condo corporation needs to make alternative ser vice arrangements to facilitate the use of those spaces — it has an obligation to its members, who are considered ‘customers’ under the AODA’s customer ser vice standards. The process for removing an entryway b a r r i e r w o u l d b e to a s s e s s i n a n access audit the condo board’s various options based on the existing space, modification costs, long-term return on investment and AODA requirements. Ronny Wiskin, accessibility consultant, ReliAble Barrier-Free Living Centre Lack of space to improve accessibility T he m aj o r i t y of b uil d in g s l a c k the required space to improve accessibility for individuals using mobility devices. However, there are many additional design strategies that can be employed to elevate the accessibility of a space. Through the use of custom millwork, colour contrast, careful selection of hardware and strategic programming a space can greatly improve its accessibilit y and usabilit y for all individuals. Corporations undergoing major renovations are in a great position to ret rof i t t h eir s p a c e s into in c lu si ve environments. T he early integration of ac c essib le and uni vers al d esign p r i n c i p l e s a v o i d s l a s t m i n u te a n d usually costly changes to make a space inclusive and accessible. Lorene Casiez, accessibility specialist, AccessAbility Advantage

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ACCOMMODATION

When the pitter-patter of little feet elicits noise complaints Wit h a g row ing number of O nt a r i o h o u s e h o l d s r a i s i n g

BY ANDREA LUSK

children in condominiums, many in the condo industry may have read a recent news report from British Columbia with interest: A family —

consisting of mother, father and two sons, aged two and five — facing a noise fee of $50 per week, decided to move rather than continue to fight with its strata council (the B.C. equivalent to an Ontario condo’s board of directors).

12 CONDOBUSINESS | www.condobusiness.ca

ACCOMMODATION

T h e B .C . f a m i l y p u rc h a s e d t h e i r second -floor, wood -frame townhouse unit when their first child was born. Last year, their downstairs neighbour began submit ting complaints that the sound of running back and forth, jumping and stomping, was constant through the day. While the neighbour reco gnized that there was a family with young children living above, the neighbour claimed that the noise could be heard t wo floors down in the basement and was affecting the enjoyment of the lower unit. T h e m ot h e r i n t h e u p s t a i r s u n i t was cited saying that her t wo - yearold screamed, had tantrums, but also that he was supposed to be loud and there was nothing she could do to stop that. She asked the strata council for suggestions on how to keep her c hi l d re n q u i et , b u t c l a i m s to h ave received no response. She placed a foam mattress in her dining room for her children to jump on quietly and agreed to an offer of mediation from her condominium (but C claims to have heard nothing back ). M She reportedly felt bullied by her strata c o u n c i l b e c a u s e s h e h a d c h i l d re Y n and felt that she was prevented from CM p a r e n t i n g i n t h e w a y s h e w a n te d MY b e c a u s e s h e h a d to p u t a v i r t u a l CY stranger ’s comfor t before the well being of her children. CMY Many things jump out from this story K which have implic ations for Ontario condominiums. While the mother in the B.C. stor y may have had good intentions and no direction from her strata council on how to abate the noise, her children jumping on a foam mattress on the floor may have been an ineffective solution. The impact from the jumping would still be present and transmitted below. W i t h re s p e c t to t h e d e c l a r a t i o n an d r ules , in O nt ar io m ost c o n d os have a provision in these documents prohibiting the transmission of noise and nuisance from one unit to another ( w hi c h i s u su a ll y m e a su re d at t h e discretion of the manager or board of directors).

Rules must be reasonable but d e c l a r at i o n s n e e d n ot b e, s o l o n g as they are consistent with the Condominium Act. Some condos will have a corollar y declaration provision that a unit owner must, at his or her o w n ex p e nMJW_halfPage_island_V2_BLEEDS.pdf s e , t a ke a l l re a s o n a b l e steps to abate noise transmission.

M any newer condos’ declarations allow the corporation to charge - back a unit owner for legal fees and costs related to the breach of a declaration, bylaw or rule provision. Rules may also contain charge - back provisions with respect to noise/breach 1 2015-03-12 12:02 PM of the rules. W hether a c our t woul d u p ho l d a

May/June 2015 13

ACCOMMODATION

“Family status” is now used to challenge condo

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charge-back related to noise depends on whether the authorit y to charge back is explicitly set out in the d e c l a r a t i o n a n d h ow t h e p rov i s i o n is worded. The Act is ver y clear that “common expenses,” by which a condominium would charge b a c k ex p enses to a uni t , c an o nl y be specified in the legislation, in the declaration, or be related to the performance of the objects and duties of a corporation. A c o r p o r ati o n w ishin g to a d d an amount to the common expenses of one unit, but not all others, must have authorit y to do so in the Act or its declaration. The Act allows for such “single unit” charge-backs for certain items (occupancy breaches; insurance d e d u c t i b l e s / d a m a g e; m a i n t e n a n c e or repair work done for an owner; in relation to alterations made by a unit owner to common elements; and if costs are awarded to the condominium by the court or an arbitrator in obtaining compliance with governing documents). Other wise, if a corporation wishes to charge one owner for something, b u t n ot a l l ot h e r s , t h e w o r d i n g i n the declaration must be specific and explicit. Rules may also contain fines and charge - back provisions, but rules cannot “create” common expenses. A d e c l aration prov ision sp e c ific all y allowing a reasonable charge-back for noise abatement is valid. Collection via a general “indemnity” provision may be permitted but can be subject to the discretion of a judge or arbitrator (the court has commented that the general “indemnity” provision of a declaration is not a sweeping collection tool). W h a t a b o u t h u m a n r i g h t s? T h e d e f i n i t i o n o f “a g e” i n t h e H u m a n Rights Code is “an age that is 18 years or more.” The Code does not protect against differential treatment solely on the basis of a person being under 18. However, “family status” is now used to challenge condo provisions which have the effect of restricting based on age. “Family status” is defined as “the status of being in a parent and child relationship.” W hen human rights are raised to challenge a governing provision, the

14 CONDOBUSINESS | www.condobusiness.ca CertifiedBuilding_Condo_2013.indd 1

14-03-11 3:03 PM

ACCOMMODATION

c o n d o m i n i u m’s d e fe n c e i s u s u a l l y that the complainant has not proven a prima facie case of discrimination. In the alternative, if a governing provision is proven to b e discriminator y, the c o r p o r ati o n must sh ow th at it h as accommodated the individual to the point of undue hardship. A corporation’s duty to accommodate is considered and balanced in light of its obligations to other unit owners. Human rights complaints are decided on a case-by-case basis. The above considerations all factor into families and noise complaints. However, what sticks out in a case that appears to have hit a standstill and left both sides unsatisfied is that mediation was not more swiftly availed. In Ontario, mediation is mandatory in most cases before a condominium can proceed to court for a compliance order and is also of fered in human rights proceedings. In the event a board is faced with a substantiated and persistent noise complaint, the best course of offence and defence is to gather all the evidence and immediately submit the mat ter to mediation under the Act. If mediation under the Act fails, the matter can proceed to arbitration. If, in the meantime, the owner brings a s i m i l a r c o m p l a i nt to t h e H u m a n Rights Tribunal, the condominium can argue that proceedings have already been started under the Act, relate to the same subject matter, and, if not resolved by mediation, an arbitrator has the jurisdiction to deal with all q u e s ti o ns of l aw, in c lu d in g hum an rights issues. The corporation can ask for a stay of a human rights complaint pending the outcome of mediation and arbitration under the Act. If there is a delay by the condominium corporation in actually proceeding with mediation/arbitration steps, the human rights tribunal/court may not grant a stay and two similar proceedings may happen at the same time. Therefore it is best to commence the dispute resolution process as soon as a verified and persistent noise complaint is received. By doing so, the c or p oration sets the forum for the complaint (and a forum where

costs can be recovered, as legal fees are not recoverable in human rights proceedings). In noise disputes, hearing is believing. Mediation can include unit visits to o b je c ti vel y w itnes s the n o ise an d usually allows for simple and economical solutions to noise complaints before they make the news. 1

Andrea Lusk is an associate lawyer at Gardiner Miller Arnold LLP, a condo focused law firm in downtown Toronto. She can be reached at andrea.lusk@ gmalaw.ca.

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The age gap By 2020, or sooner, one in four

BY SHARON SNITMAN AND DIANE GIRARD

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16 CONDOBUSINESS | www.condobusiness.ca

ACCOMMODATION

Today, the number of younger people who are buying condominium units also continues to rise. This is especially true in large urban centres, where the price of traditional homes has sky-rocketed. People in their twenties and thirties are driving the market for new condominiums now. Young people are buying units in existing buildings, too. The needs and preferences of these two groups differ, which can lead to dissatisfaction and dif ficulties for the owners, the condominium corporation, and the proper t y management firm. Understanding the differing needs of these two groups is essential to meeting these challenges. Senior owners’ needs and preferences Baby boomers and older seniors have often downsized from single-family homes. They want to stay in their condos for the long term. Active seniors want opportunities to enhance their lifestyle with a variety of activities they can continue to enjoy, from yoga to dance and art classes. They want to continue to learn and grow with peers who share their interests, and they want the benefit of doing some of these activities in their own building. The less active or frail seniors also want to age-in-place. They want access to indoor recreational activity areas for social interaction, card games and more passive activities as well as access to seating in outdoor space during good weather. Both baby boomers and older seniors see investing in their home as a positive way to improve their personal environment. To that end, they may spend money to upgrade and tailor their unit to their individual preferences. They are also more likely to understand the need to have a healthy reserve fund to cover the cost of future maintenance of the common elements. Younger owners’ needs and preferences Younger owners do not usually plan to live in their units for many years. They may see buying a condo unit as a stepping stone and want to sell it when they can afford a single-family home. This may mean they are less invested in the condo development as a place of community. However, a young owner does need their home to be saleable when the time comes. Younger owners are more likely to want to use the party and recreation rooms and outdoor barbeque or picnic areas for evening or weekend events. They are also more likely to want to use any exercise equipment in the early hours before work or in the evenings after work. In general, younger owners spend less time at home and have less of a need to know their neighbours. They have more outside connections through work and with friends in their own age cohort. W ith this understanding of older and younger owners, boards of directors and proper t y management firms c an accommodate their differing needs and desires. Accommodating differing needs Consider using indoor and outdoor recreation space for seniors’ classes and events during the day. Then cater to younger owners by making the party room or recreation room available during the evening. Be sure to require advance booking of these rooms through the

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Meals on wheels, transportation, security checks, home making, personal care social work and other services are available at either no cost or minimal cost in many cities. Find a place for brochures from agencies offering these community services. Communities with a significant number of frail seniors might agree to let a nurse or community worker use an office or clinic space on a continuing basis.

superintendent as well as deposits for large group events. And don’t forget to inform owners of any bylaws regulating the use of these rooms and their operating hours. Give frail seniors the opportunity to enjoy the outdoors close to the safety of their home with benches and shaded areas. Frail seniors may also need more services to continue living independently in their condominiums.

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Fostering an inclusive community Knowledge is power. When owners are aware of the value of community, they are more likely to participate. Newsletters are one way the board of directors can inform owners about available services and invite feedback on the use of facilities and what owners see as their needs for the future. Another way to engage with owners is by hosting a getting to know the board evening. The board of directors is a vital part of the condominium corporation, but often owners have only a vague idea of what the board does and does not do. Owners may also lack clarity on when to contact the board versus when to contact the property manager or the building superintendent. Invite all owners and residents to regular events such as barbeque or pizza nights where everyone has an opportunity to meet in an informal setting. When residents k n o w o n e a n ot h e r, t h e y a re m o re likely to notice if a neighbour needs assistance. Consider presenting information during these events on educational topics such as fire safety procedures, community police information on current scams and the importance of keeping a healthy reserve fund.

ACCOMMODATION

Because younger owners don’t typically plan to stay in a condo forever, saving for repairs that may not take place until they have moved away may not be a priority for them. However, it should be, because the overall care of the building and the financial health of the corporation will affect the selling price of their unit. Condo boards should make the case for enlightened self-interest. As baby boomers begin to retire and downsize, and as millennials are increasingly priced out of single-family homes, more and more condo communities will start to face the competing interests of these two groups. Understanding their unique needs and desires will enable boards of directors and property management firms to help the different generations live in harmony. 1

Younger owners are more

likely to want to use any exercise equipment in the early hours before work or in the evenings after work. half_page_residential_ad_PRINT.pdf

2015-06-01

12:42 PM

Sharon Snitman is a seniors housing and services specialist with more than three decades of experience in the development marketing and operation of seniors living communities. Diane Girard is a writer and a condominium owner. She coordinated programs for seniors in community settings for many years. She has a Certificate in Gerontology (Ryerson C University) and is a Human Services M Counselor (George Brown College). Y

CMY

May/June 2015 19

COVER STORY

THE SPORT SHORT-TERM

COVER STORY

T OF M RENTALS BY MICHELLE ERVIN

Every week, Samsonshield, a condo security company, reports to property managers at its client sites on the suites in their buildings that are advertised on short-term rental websites. On average, says CEO Quintin Johnstone, the company gets about three or four hits per building, which are mostly high end and located in Toronto’s downtown core.

May/June 2015 21

COVER STORY

Forty-five days out from the Pan Am/ Parapan Am Games, which run July 10-26 and Aug. 7-15, respectively, those hits started to climb into the double digits at sites located near event venues. Johnstone, a retired Toronto cop, believes the games will have the most dramatic impact on Toronto’s burgeoning shortterm rental market of any event to date — and, from what he’s hearing, not everyone in the condo industry is prepared.

Before preparing a plan, though, condo boards need to consult with their corporation’s legal counsel to find out if their governing documents restrict shortterm rentals. “Where it’s provided by the law, that’s quite legitimate,” says Johnstone, “but where you have the prohibition, like in most condos in the downtown core, you have a problem.”

22 CONDOBUSINESS | www.condobusiness.ca

Check rules and zoning Condo lawyer Denise Lash advises condo boards to check their declaration for provisions either expressly allowing or in any way restricting short-term rentals. Restrictions may take the form of term lengths for tenancies and permitted uses of units that are subject to site specific zoning bylaws, which may prohibit transient use. “Where the declaration is silent on transient or short-term use of units, we always recommend to corporations — even if they don’t have these issues — that they pass rules to clearly set out what restrictions there are on rentals,” she says. The dut y to manage and maintain the common elements for the safety and security of residents gives condo b o ard s an im p etus to p revent an d mitigate the potential consequences of short-term rentals. “People who tend to occupy hotel ro oms don’t treat it as if it ’s their own home, so noise and damage are common problems,” s ays L ash. “A good por tion of those condominium properties that have transient activity have experienced numerous problems which have impacted on the common elements and their residents.” Even if the declaration expressly permits short-term rentals, condo boards still have tools at their disposal to curb the practice. Provisions that make short-term rentals so onerous as to discourage them might include requiring owners to register key fobs and provide tenant information in advance of the tenant’s stay, offers the condo lawyer. W hatever a building’s rules, the obligation to act honestly and in good faith demands that condo boards enforce them. If the condo board wilfully ignores any breaches of the rules, says Lash, directors may expose themselves to personal liability for failure to act. If a unit owner continues to breach a rule af ter rec eiv ing notic e from management, the condo board would t ypically instruct its law yer to send a letter. Telling the unit owner that he or she will be held responsible for the corporation’s legal costs is often enough to obtain voluntary compliance, says the condo lawyer.

COVER STORY

“People who tend to occupy hotel rooms don’t treat it as if it’s their own home, so noise and damage are common problems.”

“I think what they [boards] have to do is educ ate the owners, bec ause A irbnb is becoming more and more popular, and owners may not be aware that there are restrictions,” says Lash. “Many owners aren’t aware of rules until they breach them.” Educate everyone Education is central to FirstSer vice Residential’s response to the rise of shortterm rentals in condos. One tip the firm gives its property managers is to talk to core groups of real estate agents selling in their buildings, says Tania Haluk, vice president of startup operations. The idea is to encourage agents to confirm that shortterm rentals are permitted in buildings they’re showing clients that they know intend to engage in that activity. Haluk cautions that if a condo board decides to introduce a new rule restricting short-term rentals, it faces the possibility of a challenge from an owner who bought in based on what he or she saw as an investment opportunity. Even if a rule goes unchallenged, it takes 30 days to become effective. In buildings that prohibit short-term rentals, the firm's property managers make board directors aware of their responsibility to enforce declaration rules setting minimum lease lengths. The firm’s property managers also engage owners and tenants. “We’re trying to educate everyone in the building of what their obligation as a community member is, and to protect t h e m ,” s h e s a y s . “ S o m e t e n a n t s aren’t aware that they can’t sublease; some owners aren’t aware that they are ultimately responsible if the tenant does sublease and if any damage or incidents occur.” To communicate this information, the firm's property managers use on-site

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COVER STORY

notices, town hall meetings and e-blasts, which, importantly, reach off-site owners. T hough the firm educates its site staff on building rules, it asks staff to defer to the management of fice for enforcement. When the firm's property managers identif y illegal shor t-term rentals in buildings, either by on -site activity or online listing, they contact the owner to advise the owner of the JermarkPIPE_Condo_Apr09.pdf 5/1/09 breach and its potential consequences.

Emails are easy to delete or ignore; Haluk finds that phone calls are more effective. “It ’s dif ficult from the proper t y manager perspective, because they already have a plate full of tasks that they need to keep on top of, and this is just an additional burden to try and be proactive about it,” says Haluk. “We know Airbnb is a $10-billion business and growing … and especially with the Pan Am Games 4:00:12 PM coming, it’s a concern.”

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Create a Games plan Compounding concerns about illegal s h o r t - te r m re nt a l s i s t h e g row i n g trend of tenants subleasing their units unbeknownst to their landlords, the unit owners. “What happens is they’ll have a cash transaction that takes place, they don’t get proper identification, they’ll hand off the fob and keys and say, ‘Enjoy the weekend,’” Johnstone explains. “They’ll come back and find that their place is completely trashed; sometimes, unfortunately, property gets stolen.” Property damage threatens to void not only the unit owner’s and tenant’s insurance, but also the corporation’s insurance. With a view to mitigating these risks, Johnstone teamed up with a condo lawyer and commercial insurance broker last fall to develop a security plan ahead of the Pan Am Games. That plan starts with understanding laws and rules that apply to short-term rentals in a specific building. Next comes communicating to the community those laws and rules — as well as the board’s intent to enforce them. And the board needs to follow through on its vow to enforce the laws and rules by immediately responding to illegal short-term rentals. One response might include turning away would-be short-term guests at the security desk based on advice from the corporation’s lawyer. In cases where the guests make it past the security desk, staff and residents can be enlisted as allies in identifying and reporting illegal short-term rentals. And in cases where short-term guests are causing disorder, such as noise and overcrowding or suspected criminal activity, communities can turn to police for assistance. The key, says Johnstone, is to have a plan in place before vacationers show up in the lobby with their luggage and potentially become unwitting victims of illegal short-term rentals themselves. “If you have a major event like the Pan Am Games, all the hotels are full and then you have them prohibited access at the front desk ,” he says. “T hey ’re from out of tow n, they ’re in town, there’s no accommodation available anywhere, and you’re virtually rendering them homeless.” 1

CONDOBUSINESS

WHO’S WHO 2015 PRESENTED BY:

TOP

TEN

IN THE CONDO BUSINESS INDUSTRY Thank you to those companies that submitted information for our 2015 ranking of condominium owners/managers in Canada. We appreciate your input. Every effort has been made to ensure the accuracy of the figures published. These are CondoBusiness’ rankings and are based on data that was supplied to us but not independently verified.

CONDO BUILDINGS

TOTAL

CONDO UNITS

FirstService Residential Management Canada

1,228

FirstService Residential Management Canada

115,337

Associa Canada

779

Brookfield Condominium Services Ltd.

74,000

Brookfield Condominium Services Ltd.

340

Del Property Management Inc.

60,000

AWM-Alliance Real Estate Group Ltd.

241

Associa Canada

49,562

Pacific Quorum Properties Inc.

236

Rancho Management Services Corp.

30,698

Del Property Management Inc.

230

AWM-Alliance Real Estate Group Ltd.

18,376

Gateway Property Management Corporation

201

Gateway Property Management Corporation

16,976

BridgePort Realty Management

160

ICC Property Management Ltd.

14,918

ICC Property Management Ltd.

128

Pacific Quorum Properties Inc.

14,605

Apollo Property Management Ltd.

Apollo Property Management Ltd

10,204

Q. A.

What are you most proud of?

Property Management Inc.

Q. A.

What sets your company apart from the competition?

We are a team of dedicated experts, specializing in professional property management of condominiums, town homes, apartments, and commercial and industrial properties. Additionally, we are condominium development consultants.

Nadlan-Harris

TOTAL

At Lionheart we’re bringing passion, people, properties and technologies together to shape and advance our industry. We’re committed to creating lasting relations and solutions for our clients through quality services.

#18

#38

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May/June 2015 27

CONDOBUSINESS WHO’S WHO 2015

RANK

UNITS

BUILDINGS

% BY REGION

MANAGE

WESTERN CANADA

ONTARIO

>60

30-60

FirstService Residential Management Canada

115,337

1,228

Brookfield Condominium Services Ltd.

74,000

340

>60

Del Property Management Inc.

60,000

230

>60

Associa Canada

49,562

779

Rancho Management Services Corp.

30,698

>60

AWM-Alliance Real Estate Group Ltd.

18,376

241

>60

Gateway Property Management Corporation

16,976

201

>60

ICC Property Management Ltd.

14,918

128

Pacific Quorum Properties Inc.

14,605

236

Apollo Property Management Ltd.

10,204

>60

Royale Grande Property Management Ltd.

8,200

>60

Canlight Hall

7300

>60

GPM Property Management Inc.

6,858

>60

Percel Inc.

6,209

>60

Dorset Realty Group

6,000

Vero Property Management Services Inc

6,000

AA Property Management & Associates Inc.

6,000

360 Community Management Ltd.

5,165

>60

Nadlan-Harris Property Management Inc.

4,500

>60

BridgePort Realty Management

4,300

160

30-60

Colliers International

3,982

>60

Shelter Canadian Properties Limited

3,973

30-60

ComField Managment Service Inc.

3,700

>60

Bayshore Property Management

3,640

>60

Skywater Property Management

3,000

>60

CitiGroup Properties Limited

2,920

Berkley Property Management Inc.

2,755

>60

Briarlane Rental Property Management Inc.

2,508

>60

28 CONDOBUSINESS | www.condobusiness.ca

> GREATER THAN < LESS THAN

QUEBEC

MARITIMES

<30 >60

>60

>60 >60 >60

>60

30-60

>60

CONDOBUSINESS WHO’S WHO 2015

RANK

UNITS

BUILDINGS

MANAGE

% BY REGION WESTERN CANADA

ONTARIO

The Enfield Group Inc.

2,471

Martello-Trusted Real Estate Advisors

2,212

Provincial Property Management Limited

2,000

>60

Equity Hill Properties Group

1,783

>60

Taft Management Inc.

1,568

>60

Richmond Property Group Ltd.

1,500

Condominium Living Inc.

1,476

G3 property Solutions Inc.

1,175

>60

Ramland Group of Companies

1,100

>60

RBA Property Management Ltd.

1,000

>60

Lionheart Property Management Inc.

804

>60

Warrington PCI Management

672

Taylor Property Management Inc.

600

>60

Huntington Properties Ltd.

465

>60

Regional Group of Companies Inc., The

424

>60

Devon Properties Ltd.

383

Arnon Corp.

190

>60

EcoCondo Management Services Inc.

160

>60

Summa Property Management

157

Shepherd Village Inc.

115

>60

Loncom Property Management

>60

Landmark Properties Inc.

Marklyn Management

CASOT LtÈe.

Lanesborough Real Estate Investment Trust

Fyrst Avenue Property Management Inc.

Prospero International Realty Inc.

WJ Properties

> GREATER THAN < LESS THAN

QUEBEC

MARITIMES

>60 >60

>60

>60 >60 >60 >60 >60

May/June 2015 29

FEATURE

Province reveals proposed Condo Act reforms May 27 marked a significant milestone in the

BY MICHELLE ERVIN

Ontario government’s plans to modernize the Condo Act, as stakeholders got a first glimpse of the proposed legislation many had been anxiously awaiting.

Minister of Government and Consumer Services David Orazietti announced at a morning press conference that he would be introducing the Protecting Condominium Owners Act in the provincial legislature that afternoon. If passed, the Act would dramatically overhaul the Condominium Act and establish the Condominium Management Services Act, which would provide for the regulation of condominium managers. “The existing Condominium Act dates from 1998, a time when far fewer people lived in condos and when the issues revolving around day-to-day life in condos were far less complex than they are today,” said Min. Orazietti. “In recent years, it has become increasingly obvious that our current Act is in need of replacement, and that we need new legislation to keep pace.” The proposed legislation is based on the 200 recommendations and 2,200 submissions the Ontario government received during its three-stage Condominium Act review. Those who followed and participated in the consultation will recognize the proposed legislation’s main features. They include an alternative dispute resolution process, beefed up consumer protection measures, stricter financial management rules, training requirements for condo directors and licensing for condo managers. If passed, the Protecting Condominium Owners Act would also create two new delegated administrative authorities. The Condo Authority would offer a cheaper, faster means of dispute resolution compared to the courts as well as act as a registry for condo corporations and a single source of reliable information. The Condo Manager Licensing Authority would establish minimum qualifications, mandatory training standards and a code of ethics for condo managers. Once up-and-running, the authorities would be self-funded through service fees. In the case of the Condo Authority,

those fees would include a nominal charge of around $1 per unit, to be collected from condo owners as a monthly common expense, starting when the authority’s dispute resolution ser vices become available. The condominium stakeholders who were on hand for the announcement largely welcomed the news. Dean McCabe, past-president of the Association of Condominium Managers of Ontario (ACMO), applauded the government for introducing the reforms. ACMO has long advocated for the licensing of the profession. “The biggest thing that we were looking for — the biggest feature — is something that the minister addressed today,” said McCabe, “and that is the fact that this will be a regulatory body that is dedicated to licensing and implementing ethical and professional standards for condo managers, and condo managers only.” Going forward, ACMO hopes condo managers will continue to have a role in the discussions about regulations, which will dictate how the licensing of managers will work, and have a say in who represents them on the board of the licensing authority. Engineer Sally Thompson, also the 1st vice-president of Canadian Condominium Institute’s Toronto chapter (CCI-T), was pleased to see the proposed legislation proceed after getting stalled by the provincial election last year. CCI-T is especially focused on the reforms concerning good governance and financial management. “If we can get the finances right in the condos, then we’re going to get them off on the right foot, then they’re much more likely to be happy and successful places to live,” said Thompson. One way the proposed Act would strengthen financial management is by defining, through regulations, what “adequate reserve funds” are and offering

30 CONDOBUSINESS | www.condobusiness.ca

condo corporations a way to determine whether their reserve fund is sufficient. Sandy Steffen, a condo board president, said the proposed strengthened financial management rules and training and licensing for condo managers would have helped her condo corporation. She shared the story of how, in 2009, her condo corporation was defrauded of $250,000 by a rogue property manager. “I’m really hopeful that this new legislation will help protect people like me,” said Steffen. W illiam Stratas and Judy Sue, of Eagle Audit Advantage, described the new Condominium Act as having “high promise,” but added that it will need to be matched with “decisive implementation” to protect condo owners from fraud. Referring to Min. Orazietti’s comment that the Condo Authority with “have teeth,” Stratas posed the question: “Will those teeth bite?” The proposed legislation is expected to sketch out the reforms in broad strokes, with the regulations filling in the details. In the future, this would give the government greater agility to amend the legislation to meet emerging challenges without having to re-write the whole Condominium Act again. M i n . D a v i d O r a z i et t i s a i d h e i s “optimistic” that his colleagues will be supportive and that the provincial legislature could pass the Act by the end of the year. He also suggested that the Condo Authority and Condo Manager Licensing Authority could be set up as early as the end of 2016. “As we go through the commit tee process at the legislature,” said Min. Orazietti, “there will be opportunities for folks to make presentations around the regulations, and the development of those specific regulations, which we think will make for a much stronger and a better Act.” 1

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ACCOMMODATION

Consider creative solutions before claiming undue hardship

Accommodating mental illness in a condominium setting is no trifling

BY DEBORAH HOWDEN

obligation. Just like physical disability, both the courts and the Ontario

Human Rights Tribunal require that mental illness be accommodated up to the point of undue hardship. This is, by all accounts, an onerous standard. To the extent that a condo wants to rely on the defence of undue hardship, the burden of proof rests squarely on the corporation. As such, the condo must demonstrate that the accommodation is too onerous because it unreasonably compromises health and safety or it jeopardizes the condo's continued existence, though the courts have sometimes also considered the effect on other residents.

Again, mental health accommodation is no trifling obligation. Most challenging in a community living environment is the accommodation of conduct that is distinctly anti-social in nature. How can a condo effectively accommodate mental illness which is accompanied by behaviours such as repetitive vocalization, cursing, delusions, screaming, aggression, or noisiness, for example?

32 CONDOBUSINESS | www.condobusiness.ca

If noise is an issue, the condo may have to actively assist in soundproofing the unit or otherwise reduce the impact of the noise. In one interesting case from the U.S., a resident with schizophrenia felt compelled to bang incessantly on his unit walls with a baseball bat and yell obscenities though an open window. This behaviour created an unliveable situation for the other residents in the building.

ACCOMMODATION

The solution, which was approved by the court, was to seal the window from the outside and give the resident a Nerf baseball bat. In that manner, the resident continued his compulsive behaviour, but other residents were not subject to the accompanying noise and coarse language. In circumstances where a resident has compulsive hoarding disorder or some similar condition, the corporation may have to arrange for, and assist with, clean-up efforts in the unit. This is precisely what happened in Metropolitan Toronto Condominium Corp. No. 946 v. J.V.M, which involved an owner who had paranoid schizophrenia. In 2007, the corporation's property management removed 150 bags of garbage from the unit. In February, 2008, property management independently arranged to have the unit cleaned and disinfected due to an abundance of fecal material and vermin. Where anti-social conduct is the troublesome behaviour, de - escalation techniques must be identified and put in place. In the Divisional Court case of Walmer Developments v. Wolch, for example, a tenant suffered from schizophrenia and was given to screaming, throwing loose garbage from her unit, shouting profanity and putting her property out in the hall. She would also leave cooking food unattended, which would fill the hallway with smoke. The landlord brought an application to terminate the tenancy. The Court ultimately found that the disruption to other residents could have been accommodated by contacting family members, who could have intervened when the behaviours became unreasonably disruptive. Therefore, the Court found that the landlord had not discharged its duty to accommodate, there was no undue hardship, and the tenancy could not be terminated. Obviously, each accommodation scenario will necessarily be fact-specific and often involves some creativity. In another case out of the U.S., for example, a resident with schizophrenia was constantly leaving pots and pans on a hot stove for hours, causing fire alarms to go off. The matter went before a judge who ordered the oven and stove locked. A caretaker was hired to come in and cook meals. The caretaker was the only person with a key to the locked cooking elements. This constituted a restriction on the resident's property rights, but the Court preferred this solution to an order forcing the resident to vacate the unit. In dealing with mental health illness which causes disruption to the living environment, condos should consider developing a crisis intervention plan which addresses what to do if and when the resident becomes disorderly. Among other things, the plan should include current emergency contact information for the resident’s family members or support persons who are available to intervene when required. Of course, sometimes accommodation efforts really are to the point of undue hardship. Consider the recent example of Carleton Condominium Corporation No. 348 v. Yves Chevalier. Mr. Chevalier was a condominium unit owner at Carlton Condominium Corporation No. 348. He also suffered from a mental illness. In 2005, he intentionally removed salt and grit placed on common element stairs by the condo corporation, thereby increasing the risk of slip and fall accidents.

In 2007, he was asked to remove his vehicle from a common element parking space that was assigned to him because the vehicle was not in working condition. Mr. Chevalier subsequently threatened to charge the corporation and its property management with criminal conspiracy. Also in that year, a contractor engaged to carry out work at the corporation was subject to a “barrage of extreme profanity and abuse” by Mr. Chevalier. In 2012, he, in concert with his tenant, tiled the steps in front of another unit, which constituted an unauthorized change to the common elements. The tiles were eventually removed, but both he and the tenant subsequently continued to effect unauthorized changes to the common elements. He persisted with bizarre and disruptive behaviour. The court ultimately issued compliance and cost orders, which were ignored. By 2013, there had been enough “antisocial and unacceptable” behaviour creating a series of health and safety issues that in June 2014, he was ordered to vacate his unit. The upshot is this: notwithstanding accommodation obligations, no condominium has to indefinitely tolerate extremely disruptive behaviour. Communal living, Ontario courts have continued to affirm, requires respect and consideration for one’s neighbours and socially acceptable behaviour. 1 Deborah Howden is a lawyer and partner in Shibley Righton LLP ’s C o n d o m i n i u m Law G ro u p. S h e i s a l a b o u r a n d employment law specialist who regularly advises condominium corporations and property management companies.

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LEGAL

Opinion: Code of ethics decision courts problems

I n Ju ly 2 014 , t he Ont a r io Court of Appeal released an unfortunate

BY MICHAEL CAMPBELL AND BORA NAM

decision in a case concerning codes of ethics for condo directors. A lower court had dismissed a director’s application to be reinstated to his condo board and have his condo corporation’s bylaw establishing an ethics review declared invalid. The appeal court dismissed the director’s appeal to overturn that decision. T he au th o r s re p resente d St anley G ordon, the applic ant in G ordon v. York Region Condominium Corporation No. 818, et al., and the appellant in the appeal pro ceeding. T his ar ticle will explain why the authors believe the decision was not only unfortunate for their client, Gordon, but also for condominium owners across Ontario. First, some background.

The background Before the events considered by the cour ts, Gordon, a 5 0 - something, long -ser ving director at the Thornhill condominium, found himself a proverbial “gadfly” in regards to many items of c ond ominium business. It seems that the other board members of ten dis agree d w ith the p ositions that he expressed. W hile a pluralit y of opinion among the directors should

g enerall y b e enc ourag e d , G ord on’s criticisms of the status quo appear to have been unwelcome. G o rd o n’s re l at i o n shi p w i t h ot h e r d ire c to r s fu r t he r d ete r i o r ate d ove r concerns regarding a member of the c o n d o m i niu m’s s e c u r i t y s t a f f. T h e securit y company confirmed the substance of complaints about a staff member through its own investigations. With the board’s support, the company

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LEGAL

relocated the staff member to another site. The staff member was a companion and friend, however, to a large number of senior residents, who demanded that he be reinstated. Gordon claims that other directors p or trayed the decision to relo c ate the st af f mem b er as h av in g b e en orchestrated by him. Soon after these events, the condo’s s o l i c i to r s d e m a n d e d t h a t G o r d o n resign from the board. This demand was based on allegations including a claim that Gordon had disparaged management and other directors at an industry conference. Gordon, who d enies the alle g ations, refuse d to resign. He then received notice from the condo’s solicitors on a Friday of an “ethics review” to be conducted the following Monday. The ethics review T he c ond o’s by l aws inc or p orate a t ypical code of ethics for directors, but also provide that the board may vote to remove a director whom the

other directors find to have violated the code on three occasions during his or her term. The bylaws, which otherwise offer scant guidance on procedure, call the process of making these findings an “ethics review.” G o rd o n w a s f ir s t n ot i f i e d of t h e alleged code violations at the ethics review itself, which followed a script that one of the other directors said he had created for the occasion, “word for word.” The board produced no witness st atement s or sup p or ting ev id enc e before or during the ethic s review. Gordon was permitted a few minutes to speak, but the board denied his request to speak with a lawyer. T h e b o a rd t h e n exc u s e d G o rd o n and, shor tly thereaf ter, resolved to remove him. A notice was later posted in the elevators by the board, stating, in part, that Gordon’s “removal was the result of an ethics review conducted by the board.” The notice did not detail the board’s “findings,” although it did suggest that owners could request minutes of the ethics review from management.

The court case Gordon applied to the Superior Court of Justice for orders declaring (1) that the board had not followed due process in conducting the ethics review; (2) that the bylaw clause establishing the ethics review was invalid for being contrary to the current Condominium A c t , w h i c h ex p r e s s l y a f fo r d s t h e p owe r to re m ove d i re c to r s to t h e owners by majority vote; and (3) that Gordon be reinstated to the board for the remainder of his term. The condo star ted a counter- applic ation for relief that was largely contrapositive to G o r d o n’s a p p l i c a t i o n a n d l a te r d e s c r i b e d b y t h e c o u r t a s h av i n g “added nothing” to the case. The court found that the ethics review conducted by the board had "violated principles of fundamental justice” and “brings to mind justice from the dark ages.” While the court set aside Gordon’s disqualification for the board’s failure to follow due process, the court ordered that Gordon was not to be re-instated to the board, pending the conduct of a second

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36 CONDOBUSINESS | www.condobusiness.ca

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LEGAL

ethics review. The court also found that the by-law clause establishing the ethics review was not contrar y to the Act. The court declined to consider whether Gordon had violated the code of ethics. Gordon appealed to the Ontario Court of Appeal on two grounds: (1) that he should have been re - instated to the board, given that his disqualification had been set aside; and (2) that the bylaw clause is indeed contrary to the Act, which requires every bylaw to be reasonable and consistent with the legislation. The Court of Appeal ruled ag ainst b oth of those ground s and dismissed Gordon’s appeal. The implications I n the au th o r s’ v iew, the C o ur t of A ppeal’s decision is problematic for several reasons: 1. T h e c o d e c o n t a i n s s o m a n y ambiguities th at almost any ac t or omission, significant or trivial, may be characterized as a breach. That is, a poll of 100 condominium directors in Ontario asking what it

means to act in a “professional and businesslike manner at meetings o f d i r e c to r s o r o w n e r s” w o u l d generate a wide variety of answers, n o n e of w hi c h w a s n e c e s s a r i l y incorrect. In Gordon’s case, he was said to have violated the code, according to the notice provided at the ethics r e v i e w, b y a l l e g e d l y s e a r c h i n g common rooms and counting the number of people using the rooms. It remains unclear, in the authors’ view, which of the code’s provisions this conduct was alleged to offend. 2. A n ethics rev iew of t his n atu re allows condominium directors to “eat their own,” for lack of a better phrase. Condominiums are fundamentally political communities. Where directors are given legitimate means of disposing of their rivals on what may b e frivolous pretenses, it risks enabling a majorit y of the board to dismiss alternative perspectives and may

discourage any dissent on issues of actual importance. For instance, i f D i re c to r X su p p o r t s a m a j o r re p l a c ement ex p end iture, w hile Directors Y and Z support a series of inexpensive, short-term repairs, t h e C o u r t of A p p e a l ’s d e c isi o n arguably supports the notion that Directors Y and Z may disqualif y Director X for having raised his voice at three board meetings. The authors presume this risk to b e among the re asons that the Municipal Act does not authorize a m u n i c i p a l c o u n c i l to v o te to d isqu alif y o r rem ove any of it s members. In the same vein, the C our t of A ppeal noted at the he ar in g th at p ro c e dures simil ar to the ethic s rev iew c onduc te d in this case are used in the governance of some business corporations. While publicly traded business corporations may employ procedures of this nature, in the authors’ view, several features of

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LEGAL

AmbientMechanical_Condo_May_2015_FINAL.pdf

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condominium corporations serve to weaken the court’s analogy. Condominium corporations are often managed, on behalf of a multitude of non-controlling owners, by lay directors who do so on a volunteer basis. The authors believe, due to the risk that the decision to disqualify a director on inherently subjective grounds will be inappropriately politicized, that the outcome of a bona fide dispute concerning alleged ethical violations should not be determined by other directors. Rather, these types of disputes should be determined via the mediationarbitration process prescribed under section 132 of the Act or another form of third-party adjudication. (In the context of municipal law, such outcomes are typically determined by the municipality’s integrity commissioner.) 3. Within a month of the ethics review, the board appointed Gordon’s replacement, who was elected, along with two other directors, at the subsequent AGM. A ll of these directors sat on the board for the second ethics review that was ordered by the court. It is a principle of natural justice that no person may sit in judgment of his or her own cause, or that persons who sit in judgment of others are to be impartial. That Gordon’s replacements were allowed to determine whether their predecessor ought to resume his position in their place was an obvious breach of this principle. 4. T h e C o u r t o f A p p e a l f o u n d t h a t t h e “ i s s u e o f re - inst atement is now m o ot” as G ord on’s “ter m of office has now expired.” This decision implies that the reference to a three-year term in section 31 of the current Condominium Act means a period bet ween t wo fixed dates. It does not require much imagination to appreciate why this finding may create prac tic al problems. For instance, if a director is removed by way of a requisition, and a cour t declares the requisition invalid months or even years later, the Court of Appeal’s reasoning would mean that the director’s term continued to run during the litigation and could expire before the dispute was resolved.

38 CONDOBUSINESS | www.condobusiness.ca

LEGAL

5 . T h e C o u r t of A p p e a l o p i n e d t h a t Gordon was “at liber t y to stand for re-election.” Anyone familiar with the realities of condominium politics will understand that, practically speaking, re - ele c tion in su c h c ircumst anc es would be easier said than done. Few condominium corporations have a “ fif th estate” or free press that can present an objective account of political events for the owner-voters to consider. T he murk y notice that Gordon’s “removal was the result of an ethics review,” along with notices that remained posted on the bulletin board and in the elevator for several weeks, ad vanced only the b o ard ’s interests and can only have limited Gordon’s chances of re-election. While the alleg ations concerning G ordon were never proven in a court of law, and Gordon continues to dispute their substance, the court of owner-opinion would likely have reached a verdict long ago. To sum up, the authors believe that the Court of Appeal’s decision was unfortunate for both Gordon and condominium owners in Ontario. It obviously makes for good governance if directors follow a code of ethics. The absence of carefully measured enforcement procedures, however, can lead to abuses and results that may not serve the ownership’s best interests. 1 Michael Campbell is an associate lawyer at Deacon, Spears, Fedson + Montizambert Barristers and Solicitors (“DSFM”). Bora Nam was an associate lawyer at DSFM at the time of writing.

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May/June 2015 39

GOVERNANCE

Five people you (may) meet in AGM hell A nnua l genera l meetings (AGMs) should be an opportunity

BY PATRICK GRECO

for the board and owners to attend to mandatory business required by the

Condominium Act, to communicate about and consider the previous year, and to discuss the corporation’s future. Normally, AGMs run smoothly. Business is taken care of according to the agenda, the board effectively communicates with the unit owners, and the unit owners ask well-considered questions and make constructive comments. Every once in a while, however, an AGM goes less than smoothly. The reasons for this can be manifold, but it is usually some combination of poor communication by the board and management, and overly-suspicious owners with ulterior motives and often arising in the crucible of a looming major project or other strain on the corporation’s finances. The challenge for the AGM chairperson is to control the meeting process, follow through on the business as set out in the agenda, and prevent the AGM from becoming confrontational, divisive, and/ or a source for future disputes or litigation for the corporation. Below are some tips to assist in controlling the personalities in the room and ensuring that the AGM runs smoothly. Often the negative energy at an AGM is channeled through the words and actions of individual board members or other unit owners, whose troubling behaviour can be divided into five categories: The Hoverer T he Hoverer loves nothing more than to monitor ever y administrative detail of an AGM. Yes, that is the Hoverer crowding the registration table to obser ve how proxies are registered. Yes, that is the Hoverer approaching the head table prior to the meeting to pepper the lawyer with questions. And, yes, that is the Hoverer insisting on triplecounting every ballot and proxy while acting as scrutineer.

40 CONDOBUSINESS | www.condobusiness.ca

How to handle the Hoverer: A little bit of foresight can help ward off the Hoverer. For example, give thought to how the registration table is situated vis-à-vis the door and line-up. Try to avoid areas where the Hoverer has easy access to the back or sides of the registration table or where the Hoverer could otherwise cause bottlenecks. When the Hoverer is a scrutineer, it is important for the registrar of the AGM (usually the property manager) to be clear in his or her instructions to the scrutineers and not allow the process to be co-opted and unduly delayed. The Aggressor Perhaps the most familiar AGM troublemaker is the Aggressor. The Aggressor is angry at the world and loves nothing more than to take it out on the captive audience of an AGM. The Aggressor can be an audience member or a board member and is usually easily identified by a glaring demeanour, raised voice, and refusal to give up the microphone. As an audience member, the Aggressor is usually the one yelling out the first question of the night and then refuses to sit down when asked to do so, instead invoking the standard battle cry, “This is not your AGM, this is our AGM!” As a board member, the Aggressor laughs off questions, hurls personal accusations back at unit owners even when being asked fair questions, and generally looks to shut down any healthy debate on corporation business. How to handle the Aggressor: Reining in the Aggressor can be tricky business. Paradoxically, the worst way to handle the Aggressor is usually by matching the Aggressor’s level of histrionics. Instead,

GOVERNANCE

the chair should insist politely but firmly that the Aggressor not be allowed to monopolize the meeting. Where a known Aggressor is expected to attend, having security or police on hand can be of great assistance. Where the Aggressor is on the board, it is incumbent on the other board members to make it known the Aggressor’s conduct will not be tolerated and remind the Aggressor of his/her duty to be responsive and civil to unit owners. The Inquisitor The AGM is a natural habitat for the Inquisitor who can be found in the audience with a yellow legal pad scrawled with pages of questions and a copy of the financial statements marked up with colour-coded comments. The Inquisitor has waited all year to ask the board every imaginable question, and some that are even beyond imagination. While an inquisitive owner is not, in itself, a bad thing, their inquisitiveness can quickly become a hindrance to an efficient AGM. That is because the Inquisitor attempts to monopolize the floor by asking question after question, including some that will be answered in a separate portion of the meeting or which do not even make sense. How to handle the Inquisitor: This requires a combination of preparedness and meeting control. The best defence against the Inquisitor is an informed and knowledgeable board with substantive answers to questions. A board that doesn’t have answers or assurances that there will be “follow-up” only goads the Inquisitor into more frenetic questioning. Provided that reasonably complete answers have been given to the Inquisitor’s reasonable questions, the chair must be firm in controlling any further questions or comments the Inquisitor may attempt to make or offer. The board should defer irrelevant questions to the New Business portion of the agenda so that votes can get under way. The Emperor The Emperor is a subspecies of board president who believes that the corporation is not a community of owners but rather his or her kingdom of serfs over which the Emperor reigns. Based on the Emperor’s many years living in the building and serving on the board (or based on unbridled arrogance), the Emperor knows what is best for the corporation and has little time for dissenters. This is the way the building has

“always done things” and the Emperor is there to make sure that this never changes or there to impose his/her will without debate. How to handle the Emperor: The board must remember that it exists to manage the corporation in the best interests of the unit owners, and not vice versa. When the Emperor is exceeding the proper authority of the president, it is incumbent on the remaining board members to rein in the Emperor. The Emperor must keep in mind that the president has no decision-making power other than that provided by the board via a duly passed resolution. Failure to keep this in mind — by, for example, making substantive decisions on board business as the chair of the AGM — is not only improper but can also threaten the board’s errors and omissions insurance. The Wildcard The Wildcard likes to make an appearance whenever a corporation is expecting a quick and efficient meeting. Chameleonlike, the Wildcard can take many forms: a unit owner’s lawyer, a unit owner who insists on airing personal grievances in front of the audience, the past board member who wishes to expose confidential board discussions in front of all unit owners, etc. It is the element of surprise which makes the Wildcard so potentially dangerous. How to handle the Wildcard: Dealing effectively with the Wildcard requires a combination of the skills and practices needed to deal with the other personalities discussed above. The board must be wellprepared to handle any of the issues a Wildcard may present and at the same time act fairly and responsively toward the unit owners in attendance. Almost any situation can be handled by acting courteously and keeping a cool head. Understanding the personalities in the room and responding to interruptions in a calm, rational, and respectful manner can go a long way in ensuring a successful and productive AGM. 1

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Patrick Greco is a partner in Miller Thomson LLP’s Condominium Law Group. His practice includes both condominium solicitor and litigation work. The preceding article is reprinted with permission from MTCondoLaw’s February 2015 newsletter.

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GOVERNANCE

Digital signage 2.0

L ong gone a re t he fea r of technology, the ups and downs (pun

BY SUE LANGLOIS

intended) of elevator installations and the quest for an affordable solution specific to condos that were common to digital notice boards in their infancy. As the industry has overcome many of these initial challenges, the trend

of condo boards swapping out cork bulletin boards for sleeker digital signage has become firmly entrenched. This is no doubt a product of the fact that establishing good communication is a priority for board directors and condo managers. While email, websites, and management software have all helped improve communication a great deal, digital notice boards have become an integral part of a condo’s communication strategy because they offer one vital item that the others do not — a captive audience. This means that the audience sees what the board or management wants them to see, because it is obvious, in their line of sight, available at all times. This is very important, especially when it comes to cutting costs in condos. Mr. Resident might open an email letting him know that there is an emergency water shut-off, but he is a lot less likely to visit a website to seek out the “Top 10 items not to shove down a garbage chute.” Now that condo board directors have embraced the technology as part of their communications toolkit, the next step is to work it to their advantage. Here are the top five trends in digital notice boards in condos for their adoptees to consider: Advertising To advertise or not to advertise, that is the question. Understandably, some condo boards wish to allow advertisers some space on the notice boards to help cover their costs. But be cautious. A grainy, poorly crafted ad from a local used car lot posted in a highend condo will not only offend residents, it can negatively impact the condo’s brand. When people buy a condo, they are quite often buying the lifestyle that came with it; make sure all ads complement that lifestyle. Be absolutely sure that the advertiser is relevant and carefully chosen.

42 CONDOBUSINESS | www.condobusiness.ca

A key trend: Ad-free solutions or at the very least future-proofing by keeping ad deals flexible and at the entire discretion of the board so that the board can turn ads off at any time. Content As the expression goes: “Content is king.” Posting the same textheavy content that appeared on the old cork bulletin board on the new digital notice board is a lot like skating with blade guards on. It sort of works, but not in the way it was intended. A picture is worth a thousand words and what’s popular now are bright, attention-grabbing messages with a unique visual architecture, displayed full-screen (no more CP24-like confusing zones and competing messages). Communication Property managers have their hands full at the best of times, so when it comes to communication, all they usually have time for are notices about fire alarm testing, window washing, fan coil maintenance, that kind of thing. These are the basics that the typical management contract covers. In other words, managers aren’t paid to run campaigns to meet quorum at the annual general meeting, provide water conservation tips to reduce costs, or design an attractive flyer for the next resident social. Great communication means making an investment to get it right, and that could mean hiring a service to do it. The trend here? A hybrid solution where managers can easily upload the aforementioned basics and a digital signage network operator takes care of the rest.

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GOVERNANCE Hardware The current hardware for elevators is sleek, like a giant tablet, while lobbies generally sport a 40 or 42-inch LED display. The elevator models can be touch-screen or not, and the best way to determine which one to choose is to go back to the board’s communication goals. Does the board wish to entertain residents or educate them? Touch screens may provide news, weather, and notices, but are subject to the whim of the resident, so the benefit of a captive audience

may be lost. Touch screens can also lose their calibration over time, which can be frustrating. However, if the board’s goal is to cut costs by informing residents about all aspects of life at their condo, retain the captive audience and opt for a non-touch display instead. The current (and positive) trend is for board directors to take stock of their communication goals first (i.e. enter tainment or educ ation) before making their selection.

Interactivity Display interactivity can have different applications in the digital condo. Digital displays should be versatile enough to schedule different items at different times, go full screen with one simple message during an emergency, and even interact directly and instantly with residents in an elevator if required. The ability to schedule many notices in advance is a must (think fire alarm testing). Though rarely required, getting the resident vote on things like carpet colour in the lobby might be useful, and can be achieved with SMS text or even Twitter apps on the displays, no longer relying on touch. Resident classifieds are also popular. The trend here is that boards and management teams are beginning to see the vast potential of digital displays. They are looking past the physical features of the displays and focusing more on what they can actually do for their condo corporation. What’s next for digital notice boards in condos? Cost conscious boards realize that the time and money saved by a wellrun communications network positively affects their bottom line — by as much as 40 to 60 per cent, according to preliminary client surveys. The future should see an even more p ro a c ti ve a p p ro a c h as b o ard s an d management identify key issues, initiate notice board campaigns with appropriate reach and frequency, and then follow them up with a measurable return on investment. For example, boards and management might run campaigns to reduce water use in which they set a target, provide conservation tips and then report results to owners. Digital notice boards are the gateway to a thriving and fiscally healthy condo corporation. Communication remains the key! 1 S u e La n g l o i s i s th e fo u n d e r/ C EO of Diginotice, a digital notice board communication service for condos seeking to improve their bottom line. A pioneer in the digital condo landscape, Sue serves on the communication committees for both CCIToronto and CCI-National and contributed the communications chapter of CCI-T’s Board of Directors’ Tips, Tools and Techniques. She can be reached at sue@digi-notice.com.

44 CONDOBUSINESS | www.condobusiness.ca

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May/June 2015 45

MANAGEMENT

Automated doors aren't just for accommodation anymore

Most condo residents expect t he f ront e nt r a nc e d o or of

BY MARK MARMER

their properties to have an automated door operator to accommodate persons with disabilities. While there are still a few sites without operators on

their front doors, this is usually the first location that boards and managers install these devices. Once the residents have experienced the convenience of operators, they often look to other locations in the building where these devices might be useful. Since many residents park their cars underground and enter the building from the garage, these doors tend to be the next most logical location. Many residents are entering the building with packages, and being able to hit a button to open the door is very handy. The devices are also being put on doors leading to the common area recycle bins, which is another location where residents’ hands tend to be full of items that they may not want to place on the floor. Property managers tasked with overseeing the installation of automated door operators should be sure answer the following questions to ensure the success of these projects: How heavy is the door? An undersized operator may fail prematurely. Operators are available with larger motors and heavy duty mechanisms, but of course this

46 CONDOBUSINESS | www.condobusiness.ca

comes at a cost. An experienced company will consider weight as they assess the requirements at each of the doors. Are there wind or pressurization issues that make the door hard to open or close? Often the answer is to use a larger operator, but sometimes the answer is to replace the swing door with a slider. A qualified installer will be able to point out areas where a slider may be a better option. Is there enough headroom to install the operator? Often, in existing buildings, the headroom above a door is too low or there may be duct, sign or sprinkler pipe in the way. Consider these potential obstacles when obtaining an estimate. In many cases, it may just be a matter of shifting the operator slightly or cutting a bit of drywall to create a recess for the unit so that it meets the minimum clearance.

MANAGEMENT

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Mark Marmer is a master electrician and the owner of Signature Electric in Markham, Ontario. Signature Electric is an ACMO member that specializes in service to condominiums throughout the Greater Toronto area. Mark can be reached at 416-490-8093 or mark@signatureelectric.ca.

nit l a n dlo

At first blush, it might seem like installing an automated door operator is a simple task. On closer look, it’s clear that a property manager may want to enlist a reliable electrical contractor who can help coordinate the project. As boards increasingly opt to install additional automated door operators, property managers can set the stage for easy and stress-free jobs by dealing with one experienced company and asking the right questions. 1

Will I need electrical inspection for this installation? Yes. These connections need an ESA (Electrical Safety Authority) certificate of inspection.

Should the feed come from an emergency circuit so the door will operate during a power outage? If the door is a slider at a main entrance, property managers would certainly want it to be fed from their emergency generator in the event of a power failure.

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Where will the pushbuttons be located? Sometimes the exterior of a building’s front entrance lacks an easily accessible mounting surface, which might require the installation of a post for the button. If doors are close together, it may make sense to interlock the operation of two openers with the outer buttons. Even so, including inner buttons prevents people from possibly becoming trapped between two doors.

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Does the door need a new strike? Who will supply and wire this to the operator? In many cases, the contractor will need to install an electric strike, which is typically included in the quotation and would be supplied and wired as part of the complete project. The strike’s interface would be handled similarly to the fob system, as detailed above.

Where will the power for the door come from? Contractors can sometimes pick up power for these doors from 24-hour lighting in the area. Other times, such as when the lighting is 347 volt and the operators are 120 volt, this will be unfeasible. The Electrical Safety Code prohibits the use of the power for the exit and emergency lighting system to feed these doors. The installer should be on the lookout for these issues during the design and quotation stage.

...

Is the door secured through a fob or magnetic lock system? Who will interlock these items? After property managers select a supplier for the door system and settle on an electrical contractor, they may also have to coordinate and schedule a time for the corporation’s alarm or access control company to come in. This can be a complex operation to schedule all in one day. The preferred route would be to select one contractor to coordinate and complete the job. In most cases, an experienced installer can interface the existing fob system without the access control company, which can be assessed when the installer quotes the work.

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REGULATIONS

Utilities flagged for cap-and-trade costs Natural gas will be the main BY BARBARA CARSS conduit for transferring capand-trade costs to Ontario’s commercial and multi-

residential building sectors. Although there are still few details of Premier

Kathleen Wynne’s newly stated intentions to establish an economy-wide limit on greenhouse gas (GHG) emissions and to trade carbon allowances in a system aligned with Quebec and California, the experiences of those two jurisdictions provide a broad outline of what’s ahead. Drawing on Quebec’s model, which targets emitters that release at least 25,000 metric tonnes of carbon dioxide (CO 2 ) equivalent annually, it’s unlikely that real estate operators or developers will be compulsory frontline participants in the system. However, some of their key sup pliers w ill b e c onscripted , i n c l u d i n g fo s s i l f u e l d i s t r i b u to r s , generators of fossil-fuel-fired electricity and the cement industry. “B u i l d i n g s w i l l b e s o m e o f t h e biggest takers of the price on carbon,” advises Duncan Rotherham, vice president, Canada, of the environment and energy management consulting firm, ICF International. That said, owners/managers shouldn’t expect pass-through costs

added to their utility bills for awhile yet. Ontario officials have some important decisions to make b efore they c an unveil the firmer directions they ’ve promised for later this year, and there is potential for a fairly lengthy phase-in period even after the rules are in place. “In Quebec, more than 50 per cent of the economy wasn’t included at the outset,” Rotherham explains. “That changes in 2015, but we haven’t really seen the price impact yet in Quebec because this is the first (few months) with transportation and commercial and residential natural gas consumers included.” Af ter roughly t wo years in which large industrial players were the only participants, fossil fuel distributors joined as of January 1, 2015. It will be 2018

48 CONDOBUSINESS | www.condobusiness.ca

before other types of Quebec enterprises that produce 25,000+ tonnes/year of CO2 equivalent are added in. The most recent Quebec / C alifornia auction in Februar y 2015 yielded a price of $15.14 per tonne (US $12.21) for carbon allowances — a 41 per cent increase from the $10.75/ tonne price garnered at the inaugural December 2013 auction. As of April 1, Quebec’s natural gas distributor, G azM é t r o , q u o t e s t h e p as s - throu g h c a p - and - tra d e c h arg e at $ 0.0 2 8 5 6 cents per cubic metre o r ju s t u n d e r $ 0 .7 5 p e r g i g a j o u l e. T h at ’s u p fro m $ 0 . 6 8 /g i g aj o ul e o n March 1, but still only half of British Columbia’s carbon tax rate of $1.4 9/ gigajoule.

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Thus far, real estate industry response to the new charge appears muted, as ROOFING SOLUTIONS YOU CAN TRUST! the January 1 start-date serendipitously c o in c i d e d w ith fallin g o il an d g as prices. Hans Brouillet te, director of Thanks for allowing 30 YEARS c o mmunic ations and pu b lic af fair s STRONG with CORPIQ, Quebec’s association to be of service to you! of private rental residential owners Thanks for allowing Viana Roofing to be of service and managers, repor ts receiving no to you and congratulations on your success! complaints, to date, from members. “Since gas is very cheap, maybe it’s too early to have had an impact,” he suggests. Natural gas heating is considerably less common in Quebec than in Ontario. A 2010 CORPIQ survey of rental buildings, Viana Viana Roofing & Sheetmetal Ltd. isLtd. a progressive roofing, Roofi ng & Sheetmetal is a progressive roofiwaterproofing ng, waterproofing collectively encompassing 20,000 units, and restoration company successfully completed thousandsofof and restoration company whowho has has successfully completed thousands revealed that 77 per cent were electrically projects overpast the past 30 years. Our services include all types of roofing, projects over the 27 years. Our services include all types of roofing, heated, 17 per cent were heated with sheetmetal and siding, caulking work, waterproofing and more... sheetmetal and siding, caulking work, waterproofing and more ... natural gas and 5 per cent were heated with oil. Tel. 416-763-2664 www.vianaroofing.com Roofing solutions you can trust! info@vianaroofing.com Also in contrast to Ontario, Brouillette Tel. 416-763-2664 www.vianaroofing.com info@vianaroofing.com notes that 55 to 60 per cent of Quebec’s private rental residential buildings do not Member of include heat in the rent. Perhaps due to the prevalence of electric heat, tenants are more likely to pay the provider directly. “The number of landlords that are going to be affected by this (cost) increase is lower in Quebec than it would be Ontario,” Brouillette affirms. VianaRoofing_Condo_March_2015.indd 1 15-03-12 9:17 AM Ontario’s system designers have a few key steps to complete before cap-andtrade can be launched. First off, they’ll have to set the initial cap. That will dictate an upper limit on the amount of GHGs that an industr y sector can produce, Practical Advice, Creative Solutions. and establish quotas for the carbon allowances that designated emitters will condoreporter.com have to apply to account for their share of the total. Next, they’ll determine whether to Aird & Berlis LLP is committed to helping our clients allocate free carbon allowances to any make informed decisions and create strategies to cap-and-trade participants and, if so, what successfully resolve condominium issues. volume. They’ll also have to define the We act for hundreds of condominium corporations, carbon offsets that emitters can use as co-operatives and co-ownerships, as well as some acceptable GHG-reduction measures to of the largest condominium developers in the GTA. counterbalance their own output. Our depth of experience representing both owners Notably, the Quebec government does and developers gives us the expertise and not recognize credits registered through perspective necessary to provide high-quality the Verified Carbon Standard (VCS) or and cost-effective advice on issues affecting Gold Standard (GS) that many purchasers those in the condominium industry. in the corporate sector rely on as an Denise Lash authentic source of offsets. Instead, a dlash@airdberlis.com fairly limited set of options — destruction 416.865.4147 of methane at covered manure storage airdberlis.com facilities; destruction of methane at landfill

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REGULATIONS

“Buildings will be some of the biggest takers of the price on carbon.” sites; and destruction of ozone-depleting substances removed from refrigeration and freezing appliances — are enshrined in provincial regulations. “There was probably an irrational exuberance in the early years in Quebec and California around the volume and diversity of compliance-calibre offsets that were going to be created and transacted,” Rotherham observes. Renewable electricity generation and/ or electricity-saving retrofit projects had little offset potential in Quebec anyway, given the province’s low-GHG hydroelectric supply. On the flipside, Quebec’s building owners/managers won’t absorb pass-through costs on hydro, which will be the case in Ontario,

particularly if the GHG intensity of power impor ts from the United States are factored in. Ultimately, the Ontario government is aiming to fulfill its goals to reduce province-wide GHG emissions to 15 per cent below 1990 levels by 2020, and an even more ambitious 80 per cent below 1990 levels by 2050. “Climate change needs to be fought around the globe and it needs to be fought here in Canada and Ontario,” Premier Wynne said, as she announced her government’s plans. Debate persists about whether capand-trade is the most effective way to do that, with many critics asserting that a carbon tax could be more easily and expeditiously implemented. Yet, the

success of carbon tax is premised on consumers’ reluctance to pay it — making it a weaker strategy in booming economic times when restraint might actually be most needed. “I think the benefit of cap-and-trade, if it’s structured as a hard cap, is a firm emissions outcome,” Rotherham says. “With cap-and-trade, at some point you run out of allowances and have to abate. With carbon tax, if the economy can bear the price, you can continue to emit.” 1

Barbara Carss is the editor-in-chief of Canadian Property Management. This article is reprinted from the REMI network. See www.reminetwork.com. 6391MasterClean2.5x2.5Ad_MasterClean2.5x2.5Ad 12-1

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SMART IDEAS

When stairs are the only way out The maker of a chair designed to facilitate the evacuation of people with limited or impaired mobility has expanded its operations into Canada. Condo directors are taking note

EVAC+CHAIR has been around for more than 30 years, but the company only recently expanded its operations into Canada, to meet growing demand here. Though the company’s core client base is public sector facilities, Jim Closs, managing partner, EVAC+CHAIR Canada, says the device has started to attract the attention of condo directors. No surprise, given that the large cohort known as the baby boomers is entering its senior years. It’s a life phase when homeowners often downsize to a condo. It’s also a life phase when a larger share of the population relies on assistive devices such as walkers and wheelchairs. EVAC+CHAIR is designed to help evacuate people with limited or impaired mobility when the stairs are the only way out of a building. The 19-pound tool, which has a capacity of 400 pounds, can be stored flat on the wall. When needed, users can dismount and unfold it in around 10 seconds. The Industrial Designers Society of America has recognized the EVAC+CHAIR with a Design of the Decade Award. The tool has also been credited with saving lives in the evacuation of New York’s World Trade Center towers on 9/11. EVAC+CHAIR bears a lifetime warranty and comes with a mounting wall bracket, vinyl dust cover, instructional DVD, fullcolour user guide and patient restraints. For more information, visit www.evac-chair.com. 54 CONDOBUSINESS | www.condobusiness.ca

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