CondoBusiness by MediaEdge

Canada’s Most Widely Read Condominium Magazine

November 2017 • Vol. 32 #6

HIGH EXPECTATIONS Residential construction sector revisits workplace health and safety ahead of cannabis legalization

PM#40063056

PA R T O F T H E

MANAGEMENT Licensing costs and complaints processes

P A R T

O F

T H E

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Contents FOCUS ON: HR/MANAGEMENT

Analysis: Who will bear the costs of condo manager licensing? By Debbie Dale

Regulator will not actively seek complaints By Michelle Ervin

Amping up energy savings By Per Polderman

Builders abuzz By Michelle Ervin

The minutes are written — now what? By Marko Lindhe and Noah Maislin

Legal Is it time to amalgamate? By Michelle Kelly

The habitual complainer and the vexatious litigant By Josh Milgrom

Maintenance The aftermath of hoarding By Robert Holbrook

Excess moisture increases pest pressure By Alice Sinia

DEPARTMENTS

Security The trouble with tail-gating By Scott Hill

IN EVERY ISSUE Governance The pros and cons of community-building efforts By Marc Bhalla

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EDITOR'S LETTER

High expectations The regulation of condo managers and condo management companies promises to raise industry standards.

In many ways, the setting of rules where there previously were none will be restricting, but in at least one way, it will be liberating. As condo lawyer Armand Conant pointed out to me just before plans for licensing were unveiled a few years ago: in the absence of industry standards, condo managers who were asked by condo boards to flout the law and refused faced the possibility of getting dumped for another manager who would. However, I sincerely hope that managers do more than simply stand their ground on issues in which the law is behind them. I hope that they strive to exceed industry standards, which will become the new baseline (read: bare minimum). It was disappointing to recently come across a news article about a safety concern in a condo community that had left some residents rattled and seeking a more robust response. A representative of the management company cited some general steps that were being taken, saying it didn’t take the concern lightly, but had little more to add than to point out that it worked at the behest of the condo board. That management companies work at the behest of condo boards is something of a stock phrase that I’ve seen trotted out to the media before, and one I’m sure I’ll see trotted out again. It’s absolutely true, but there’s also no reason management companies can’t counsel their clients to do the right thing. Builders want to do the right thing when recreational cannabis becomes legalized by the feds next summer. That’s why the Residential Construction Council of Ontario (RESCON) recently hosted a symposium bringing together industry executives to hear from health and legal professionals. This month’s cover story details how, although employers’ duties won’t technically change — as the use of recreational cannabis will continue to be prohibited in workplaces — their existing responsibilities will be amplified. In the case of the condo community facing the safety concern, the management company — perhaps aided by the glare of negative press — may well have counseled the board to do the right thing, as a follow-up article indicated that further specific steps were being taken. (Or perhaps it was the board’s own initiative — it’s hard to tell what happened behind closed doors.) In any event, the introduction of industry standards will create barriers to entry to the condo management profession and likely shrink the pool of competition initially. Consequently, I would argue that management companies and their managers can afford to be dumped by clients that willfully neglect their duties to their community — in fact, it might even be considered a point of pride.

Michelle Ervin Editor, CondoBusiness JTB_Condo_March_2017_FINAL.pdf michellee@mediaedge.ca

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2017-02-23

11:36 AM

Publisher Mitchell Saltzman Editor Michelle Ervin Advertising Sales Sean Foley, Stephanie Philbin, Melissa Valentini Senior Designer Annette Carlucci Production Manager Maria Siassina Production Coordinator Elizabeth Nguyen Contributing Writers Marc Bhalla, Debbie Dale, Scott Hill, Robert Holbrook, Michelle Kelly, David Lammers, Marko Lindhe, Noah Maislin, Josh Milgrom, Per Polderman, Alice Sinia Digital Media Director Steven Chester Subscription Rates Canada: 1 year, $60*; 2 years, $110* Single Copy Sales: Canada: $10*. Elsewhere: $12 USA: $85 International: $110 *Plus applicable taxes Reprints: Requests for permission to reprint any portion of this magazine should be sent to info@mediaedge.ca. Circulation Department Yeshdev Singh circulation@mediaedge.ca (416) 512-8186 ext. 234 CONDOBUSINESS is published six times a year by

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

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ASK THE EXPERT

Winter weather brings heightened slip-and-fall risks

Condo corporations have an ongoing responsibility to ensure the safety of people who enter their property. In the winter, as driveways and sidewalks get wet and icy, snow-clearing can go a long way toward mitigating these hazards. David Lammers, president of Garden Grove Landscaping answers: How can condo corporations minimize these seasonal slip-and-fall risks?

Property owners, tenants and other “occupiers” have to ensure that anyone who enters their property is safe. This includes pedestrians and even uninvited guests who have a legitimate reason to enter the property (yes, even door-to-door salespeople). In most cases a person’s property includes their driveway, walkways, parking lot and even the sidewalk in front of it. Although the law applies year round, the risk is highest in the winter when the ground becomes wet and icy. To protect a condo corporation from a lawsuit, it’s important to get familiar

8 CONDOBUSINESS | Part of the REMI Network

with the law and ensure that its property is sufficiently cleared of snow and ice. Occupiers Liability Act The Occupiers Liability Act states, “An occupier of a premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”

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Of course the “persons” entering a property also have a personal responsibility to ensure that they are not putting themselves at risk. The Occupier Liability Act states, “the duty of care…does not apply in respect of risks willingly assumed by the person who enters on the premises.” What does this mean in layman’s terms? Corporations need to provide a reasonable standard of safety for anyone who will enters their property (or a property they manage). A reasonable standard of safety The responsibility to apply a reasonable standard of safety applies to all properties, year round. In the summer, exercising a reasonable standard of care might mean keeping property landscaped, repairing or replacing broken stairways, installing handrails or using slip-resistant flooring in areas that are frequently wet (such as pool decks or restaurant and bar floors). In the winter, the biggest challenge businesses face in providing the reasonable standard of care is protecting the public from the dangers caused by snow and ice. Winter liability issues Property owners should have insurance that includes liability coverage. However, this may not be enough. If property owners do not take reasonable actions to ensure their properties are safe to the public in the winter, then their insurance coverage may be void. Even if a slip and fall caused by winter conditions is covered by a property owner’s insurance, his or her premiums may still surge as a result of a claim. Take precautions to avoid the potential financial devastation of slip-and-fall liability. Snow and ice clearing The best way to protect against winter liability issues is to ensure that properties are clear of snow and ice at all times. This means having an experienced snow removal contractor who can respond quickly, especially in times of high demand, such as during a snow or ice storm. Hire the right contractor Only consider hiring snow removal contractors who are fully insured. If they lack the required insurance to cover work-related liability (including workers’ compensation), then they may be a bigger liability than

the snow and ice! Ask if they are licensed to operate in the subject proper t y’s jurisdiction, and if they are ISO and SN9001 certified. It’s important for condo corporations and their property managers to know and meet their legal responsibilities to provide a reasonable standard of safety for those entering their property. In the winter, snow and ice clearing goes a long way toward minimizing slip-and-fall risks. 1

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SECURITY

The trouble with tail-gating Ta i l - g a t i n g i s w h e n a n unauthoriz ed person follows a

BY SCOTT HILL

resident into a condo building to bypass security. Traditional remedies for this issue include security awareness education for the residents as well as detailed signage.

10 CONDOBUSINESS | Part of the REMI Network

SECURITY However, this continues to be a problem for condo corporations, because even if the authorized condo resident notices that someone is following them, rarely do they feel comfortable confronting the person. And recent innovations in delivery services may raise additional security concerns, placing renewed importance on access control. Uber has faced an uphill battle when it comes to security acceptance. One of the most cited criticisms (by their competitors) of Uber’s transportation system is the lack of registration of the drivers. Now condo corporations may face a new security challenge as Uber enters into the food delivery industry. One issue that may arise is the fact that the people delivering the food are not employees of the franchise that is delivering the food. For instance, if a resident was to order a pizza from a franchise organization, that pizza is usually delivered by an employee of said franchise. This means that there is accountability, as the employer is responsible for the actions of the employee and presumably has insurance to cover any intentional or accidental security incidents. It would appear that Uber drivers act as contractors and, as such, there is no accountability from the food provider. If any damage was caused to the facility by the driver, it would appear that the only recourse the condo corporation would have would be against the driver specifically. Additionally, even locating the driver would be a challenge for the corporation, as the food provider does not have a record of who picked up and delivered the order. The corporation would need to obtain that information directly from Uber. Optimizing access control A security measure is meant to delay, deter or detect any unwanted intrusions to the facility. As a rule, condo corporations usually rely on two security measures: access control and video surveillance systems. Access control is the facility fob system, key, locks — any mechanical or electronic device that would prevent an unauthorized person from being able to enter the building. The purpose of access control is to both delay and deter security breaches. In order to accomplish this goal, securityconscious condo corporations expend considerable resources, both in time and money, to ensure that their access control system is performing at optimum capacity.

These efforts include undertaking projects such as fob audits, ensuring that each fob is only authorized to access the area required (for instance, a guest fob does not need to access the locker room), and ensuring that their system is up to date with system upgrades and computer patches. When discussing the protection of a facility, it is often useful to discuss security layers or protection in depth. A property boundary would be considered the outlaying or extended layer — this area is protected by fences, signage, hostile vegetation, etc.; the building envelope

would be considered the outer layer, which is protected by the above-mentioned access control system; and the inner layer would be the condominium unit doors, which is protected by the locks of the residents. The concept of protection in depth dictates that each circle of security becomes more stringent the closer a person moves to the interior. With all these security concepts in place, a condominium manager or board of directors can rest easy knowing that they have taken all reasonable steps to protect the residents and their property. Or can they?

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Responding to new risks One security solution to the rise of third-party delivery services has been that residents are now (more often than previously) meeting their delivery drivers in the lobby. This is safer for both the resident and the corporation. It is safer for the resident as the lobby is usually under video surveillance and is a more public area than a condo hallway. Without casting any derision on any driver for the many companies currently offering these services, if there was one driver that had ill-intent, he or she would likely be hesitant to do anything inappropriate in this situation. It is also safer for the condominium, as it restricts unauthorized personnel, such as the delivery person, to the outer boundaries of the property. Other, newer services for groceries will allow delivery people to bypass both the outer and inner boundary of a unit. With this service, not only are the groceries delivered to the building, but the delivery person will also put the groceries into a person’s unit (refrigerator, cupboard, etc.). This could cause condo security concerns due to extra foot traffic within the property, as well as a lack of key control. Should items go missing from a unit, and if the condo corporation maintains a master keys system, it could be unclear on who is responsible for the theft. If the missing item is not noted at the time of the delivery, it may be assumed that it was taken at another time — maybe during an annual fire inspection (when all units need to be entered) or by a site superintendent that needed to enter the unit for innocent purposes. It would be wise for a condo manager and/or board members to discuss policies regarding entry into the units to prevent any future liability issues. While new services are very convenient for residents of a condo, there is still the potential for security issues to arise. The solution for these issues may be as simple as including a blurb in the condo newsletter, or it may be more complex, such as updating the corporation’s integrated security plan. It is recommended that condo corporations regularly review and discuss any new issues — such as the changing nature of delivery services — that could affect the safety and security of the residents. 1 Scott Hill of 3D Security Services has been a practicing RCM with ACMO since 2012, a Physical Security Professional (PSP) with ASIS and a Certified Security Project Manager (CSPM) with the Security Industry Association.

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the introduction of the Condominium Management Services Act, Ontario condo owners, condo managers and condo management firms are facing new expenses that fall outside of existing budgets.

14 CONDOBUSINESS | Part of the REMI Network

MANAGEMENT

All condo units will now be subject to a monthly fee that works out to roughly $1 per unit, payable to the Condominium Authority of Ontario (CAO) to fund its services. Invoices are already being issued and the scramble is on to register, pay and wait to see whether those per-unit fees will remain stable or rise later in 2018. This unbudgeted expense levied by statute against condo corporations is easy to understand and account for in the continuous condo board/ owner quest to keep condo fees low. The real dilemma is in understanding the impact and real cost of licensing condo managers and the management firms that employ them. While the stakeholder review of the way condo corporations were managed or operated has clearly driven massive change, the actual cost of the widesweeping changes is just hitting home. Condo property managers are poorly paid, some are untrained, cases of theft have hit the headlines and consumers demand change — and so they should. But who

is paying for these essential, consumer protection-focussed changes? That matter has yet to be settled, but it would benefit everyone if management firms took a common approach to applying license fee charge backs to client condo corporations. Enter the Condominium Management Regulatory Authority of Ontario (CMRAO) to assess, license, monitor and collect license fees from both condo management service providers and condo managers. Inspectors will be appointed and the CMRAO was, at the time of this writing, busy setting up to process license applications, gathering criminal record checks for future licensees, hiring staff and setting up operations. The prayer of the condominium management industry is that whomever is ‘judging’ managers and service providers will possess beyond significant insight into the condo marketplace to cast realistic and informed decisions or verdicts. Licensing fees for a condo manager will range from $379 for an employee with less

than two years’ experience up to $607 for an experienced manager employee, as defined by criteria set out in regulations under the Condominium Management Services Act. A one-time per application fee will apply of $150. HST implications are not yet defined. Licensing for a condo management services provider that employs a licensed condo manager will be $799, plus $350 per licensed employee. Doing the quick math for one of the four large condo management service providers in the Toronto area employing 50 experienced managers, this tallies up to $18,299 for the management firm itself. The license fees for the 50 experienced managers adds up to $30,350. Smaller firms with only a few experienced managers will also be hit hard with the fees atop the increased workloads. The industry knows what the fees will be until sometime in mid/late 2018 at least, but who is bearing these costs and how they will suddenly be able to pay without cutbacks

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MANAGEMENT

overtake competitors by acquiring the best managers by paying the manager license fees and leaving competitors with the dregs of the barrel. Time will tell — it always does. In the meantime, if these expenses are not accounted for in a management firm’s bottom line, then how does that management firm balance its budget? Either the firm doesn’t and ceases operations (exacerbating the existing shortage of

or financial distress is a rather significant question. Some observers foresee a potential increase in the volume of unlicensed support staff to reduce the number of license fees applicable to fully qualified, experienced, educated managers. How many units or condo corporations can, or could (or should!), one trained manager reasonably be accountable for? Others ponder a market opportunity to

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trained, experienced condo managers alongside continuing construction of more condo units) or the firm informs clients of the new, unavoidable, government-mandated costs and seeks fair reimbursement for them. Or, the firm just increases its per-unit fees as soon as possible and waits to see how it plays out. License fees may go up, and presumably not down, once the numbers of managers and management services providers have been established. Currently, no one is too sure how many there are of each, so it’s not possible to determine a long-term license fee income from which to fully fund all the services of the CMRAO. There are additional costs associated with the time it will take management firms and managers to prepare and submit new required notices. Condo corporations will be required to send information cer tificates to the CAO at set intervals, plus more forms when certain events occur. Notices of meetings will be preceded by notices of notices of meetings. Budgetary changes and changes in directors will mean other notices to file. A proper t y manager changing employers will require yet another notice. The co n d o m a n a g e m e nt s e r v i c e providers will bear the cost, initially, despite lacking the budget to cover the costs of this extra labour or the costs of their licensing or that of their manageremployees. The thought of pushing the manager licensing fees onto condo managers who are already poorly paid for hours worked and services performed is not logical. The true win-win is simple. Condo unit owners need to acknowledge and pay for the actual, measurable financial impact of the newly developed, consumer-driven legislative changes with substantial fees to both condo management service providers and experienced, trained condo managers. Perhaps the management industry can absorb the labour costs and all the extra work, but absorbing the license fees as well is simply not realistic. These are the costs of progress, better service and safer investments for condo owners. 1 Debbie Dale is president of Muskoka Condo & Rental Services (mymcrs.com).

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Beacom attributes the company’s success to his staff. “Although we were just two [people] when we started, we’ve really had, and have, some amazing people working here,” he says. “These people have brought different expertise to help us grow, and we’ve really become a family.” “I have worked at Priority for over 10 years and watched the company grow from four employees to over 20,” says Tom Ellerby, a longtime sales associate at the company. “Priority is successful because the goal is to be the best we can be by treating both employees and customers with integrity and respect. Priority is a great place to work and will continue to grow and prosper because it cares.” To celebrate the company’s anniversary, Priority ran a promotion on its website giving away gift cards to 15 customers.

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MANAGEMENT

Regulator will not actively seek complaints As mandatory licensing launched Nov. 1, condominium managers and

BY MICHELLE ERVIN

management companies were likely relieved to learn that the Condominium Management Regulatory Authority of Ontario (CMRAO) will not be fishing for concerns about licensees. “We’re not actively seeking complaints,” said Aubrey LeBlanc, chair of the CMRAO’s board of directors, speaking at a CAI Canada seminar about condo manager licensing at the end of October. “We could spend lots of money on promoting the issue. We are not planning to do that.”

The CMRAO plans to take a balanced approach to addressing complaints about condo managers and condo management companies, said LeBlanc, treating all parties fairly and respectfully as the regulatory authority goes about ensuring licensees comply with their ethical and legal duties in

20 CONDOBUSINESS | Part of the REMI Network

order to protect condo communities. The Ministr y of Government and Consumer Services mapped out procedures for complaints about condo managers and condo management companies, along with discipline procedures, in proposed regulations that were open to public

MANAGEMENT comment until mid-October. The regulations are due to be finalized in the coming weeks and slated to take effect on Feb. 1, 2018. T he CMR AO was established to administer the Condominium Management Services Act, which will regulate the condo management profession and was introduced as part of broader changes to Ontario’s condo laws that began taking effect this fall. As the CMRAO investigates complaints about licensees, giving them an opportunity to respond, it will focus on finding resolution as opposed to meting out discipline, said LeBlanc. “We’re trying to be problem-solvers and take what amounts to a compliance attitude as it stands from a crime and punishment attitude,” he said. “Suspending, revoking or refusing to renew a license are actions that the registrar can make, but actions of last resort.” Before reaching for these enforcement tools, the CMRAO will look to some of the other enforcement tools it has available, said LeBlanc, such as requiring a licensee to take educational courses. “The outcome of actions that are proposed or taken on a license will be published on the online registry of licensees,” he said. “The idea here is that consumers ought to have the right to find out the status of licensed practitioners.” LeBlanc observed that other parties may also be interested in this information, such as suppliers who do business with condo managers. In fact, he said, suppliers will have the ability to complain about licensees to the CMRAO, as will condo board directors, condo managers, condo management companies, condo owners and condo tenants. Condo lawyer Shawn Pulver, partner at MacDonald Sager Manis LLP, who moderated the panel at the CAI Canada seminar, asked about how the CMRAO would handle chronic c omplainers wielding the soon-to-come ability to initiate procedures that could lead to discipline against condo managers — a concern that was echoed in other audience questions. LeBlanc said the CMRAO is bracing to receive a lot of personality- based complaints, citing his past experience heading up Tarion, which regulates new home builders. However, he added that the parties who bring forward concerns about licensees will not have the ability to dictate the outcome.

“We have to work with a documented assertion and the collection of information and a notification of all parties affected by it,” said LeBlanc. “There is a vetting process.” Also at the CAI Canada seminar, condo lawyer Rod Escayola, partner at Gowling WLG, shared his top tips for condo managers ahead of Nov. 1, which marks the roll out of condo law reforms including new communication requirements for condo corporations. Escayola advised condo managers to help themselves, and then help condo directors, likening it to act of reaching fo r o n e’s ow n ox yg e n m a sk in a n emergency before aiding others. In other words, condo managers need to figure out which type of license they’re eligible for and apply for it, which requires a criminal record check that is current within the last six months. After they’ve applied for their license, c ond o managers need to educ ate themselves about the new requirements under the condo law reforms in order to be able to educate condo directors, he said. One of the new requirements is that condo corporations have to collect a monthly

fee which works out to roughly $1 per unit from owners and remit it to the recently established Condominium Authority of Ontario (CAO). The fee, which will support services provided by the CAO, including director education and dispute resolution, has been received unfavourably by some, reported Escayola. A perhaps even thornier issue is the increased costs condo management p r o v i d e r s f a c e i n e xe c u t i n g n e w communication and reporting re q u i re m e nt s o n b e h a l f o f c o n d o corporations — costs that are likely to trickle down to condo corporations to some extent. Escayola suggested that, in delivering this message, condo managers focus on the benefits of the legislative changes behind the increased costs. “There’s tons of added value with everything that’s being implemented now: We’re going to have more accountable managers, we’re going to have better-trained managers, we’re going to have licensed managers, which means that there are some people who may not get into this exclusive group that you’re becoming.” 1

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www.REMInetwork.com | November 2017 21

MANAGEMENT

Amping up energy savings

Looking at the history of the Ontario

BY PER POLDERMAN

energy industry, it is unquestionable that rates will continue to increase. Since rates are mostly beyond a condominium corporation’s control, reducing the demand for gas, hydro and water is key to controlling operating budgets.

22 CONDOBUSINESS | Part of the REMI Network

MANAGEMENT Many condo corporations have undertaken L ED lig hting retrofit s (a m a x imum five per cent savings in most cases) and have pursued some sort of energy management plan, but in most cases, there’s lots of easy-to-grab money left on the table. The internal rate of return on some energy conservation projects is 30 to 60 times greater than that of the GIC or bonds that reserve funds are invested in. E n e r g y ex p e r t s c a n h e l p c o n d o corporations identif y more complex savings opportunities through an energy audit. This can involve analyzing a condo corporation’s historical energy usage, comparing its current energy usage to benchmarks and finding incentives. This can also involve examining energy bills for potential billing errors to verify that the corporation is not being charged any hidden penalty fees. Power factor correction One important energy cost that many condo managers often overlook is the power factor, and condo corporations may be unsure of how it affects their hydro bills. Most local utilities will not surcharge a condo corporation if its power factor stays above 90 per cent, although Toronto Hydro penalizes for anything less than 100 per cent. This means reactive energy is generally allowed to take up 10 per cent of a customer’s total usage without any penalties. E l e c t r i c m oto r s re q u i re re a c t i ve energy to start moving. Buildings with electric heaters, chillers, heat pumps and geothermal systems require lots of reactive energy, as they have a lot of compressors and pump motors starting and stopping continuously. When the building’s power factor dips below the 90 -per-cent threshold, a condo corporation will be billed based on the lowest power factor during the billing cycle. Most utility companies do not clearly show these unnecessar y charges, which can range from hundreds to thousands of dollars per billing cycle. For tunately, there are easy, costefficient solutions to correct a condo corporation’s power factor, using devices called power factor correction banks (capacitors) or batteries. The payback will start instantly because the condo corporation will no longer be surcharged for the reactive energy it is now storing within its facility’s electrical system.

BAS recommissioning HVAC equipment (boilers, chillers, fans, pumps, etc.) is one of the largest assets contained in a building; a typical apartment building’s HVAC equipment is worth between $400,000 and $1 million. One question that every condo manager needs to know the answer to is: what really controls the HVAC equipment?

piping configurations and controls. If these items are not considered, the boiler may not last as long or perform as well as desired. New boilers and controls can help improve occupant comfort, reduce maintenance and be integrated into advanced automation systems. Another reason to use condensing boilers are the incentive programs offered by gas distribution companies, which improve

Most utility companies do not clearly show these unnecessary charges, which can range from hundreds to thousands of dollars per billing cycle.

It is common to have an aging building automation system (BAS) that has never been properly commissioned by the builder, or it may only have local controls and a building superintendent that plays with switches and dials at will. If a building is not commissioned properly, a fully functioning BAS system or simple recommissioning can save as much as 30 per cent in gas and hydro charges after implementation, by ensuring the building works as intended and systems do not counteract each other. In some cases, these initiatives provide payback period within one year. A properly working building will also increase occupant comfort and result in fewer complaints, giving building staff more time to look after other tasks. There are incentives available for installing a new BAS, recommissioning and expanding existing controls with variable frequency drives (VFDs) and adding demand control. Boiler replacement New boiler efficiency requirements became effective Jan. 1, 2017. The building code now requires replacement boilers and water heaters to be 10 to 13 per cent more efficient than previously required. This means that it is even more impor tant to properly engineer the replacement of boilers. Replacing an olderstyle atmospherically vented boiler with a condensing boiler may require different

payback times and internal rates of return on the capital cost of the improvement. New boilers also improve energ y conser vation and reduce future maintenance costs. The scenarios described in this article can all be identified using an energy audit. The local utility company sets the standards for what is required in an energy audit report and will fund the report up to 50 per cent of the cost of the audit. The incentive available is based on the square footage of the building and will provide the corporation with invaluable information on the current condition and opportunities to improve building efficiency. This information can help corporations save money, reduce maintenance fees and increase unit value while improving occupant comfort. Performing an energy audit in conjunction with a mandatory reserve fund study will ensure that the reserve fund accounts for the cost of these projects. 1 With a passion for energy conservation, Per Polderman, CEIT, serves as a senior account manager at Mann Engineering. For close to 30 years the leading energy management company specializes in comprehensive energy audits, reserve fund studies, engineering reviews, BAS, incentives, HVAC design/build and energy retrofit needs. He can be reached at 416-550-3275 or via ppolderman@mannengineering.com

www.REMInetwork.com | November 2017 23

COVER STORY

BUILDERS With the federal legalization of recreational cannabis BY MICHELLE ERVIN looming, Ontario’s residential construction industry is closely watching a high-profile case concerning drug and alcohol testing in the workplace as it awaits tools from the province to help it continue to uphold its health and safety obligations

COVER STORY

S ABUZZ

www.REMInetwork.com | November 2017 25

COVER STORY

Ontario’s residential construction industry is anxiously awaiting tools from the province to help it uphold its workplace health and safety obligations when recreational cannabis becomes legal next year. Further details are expected soon, with information trickling out as the province races to set regulations ahead of the federally imposed deadline of July 1, 2018. Amid the uncertainty, the Residential Construction Council of Ontario (RESCON) recently co-hosted an event called the Cannabis in Construction Symposium with the Ontario General Contractors Association. The event brought together more than 100 senior executives and health and safety representatives from builders and sub-trades to hear from legal and medical professionals. “We don’t really have any of the regulations that we need right now to ensure health and safety, to outline clear rights and responsibilities of employers and workers, other than we know you can’t be impaired on a job site,” said Andrew Pariser, vice president at RESCON. “That hasn’t changed, and that’s good news.” In O nt ario’s plans for regulating re c re at i o n a l c a nn a b i s , re l e a s e d in September, the Ministry of the Attorney General spelled out that the substance’s use will be prohibited in workplaces as well as in public places and vehicles, among other restrictions. “T he Ministr y of L abour has not introduced any new employer health and safety requirements, or requirements for other workplace parties, related to impairment and cannabis legislation,” said Emilie Smith, spokesperson for the Ministry of the Attorney General, via email. “The province will be developing resources to guide employers, labour groups and others as they manage workplace safety issues related to impairment at work through education and awareness initiatives, which will be available in advance of legalization.” Although the legalization of recreational cannabis may not technically alter the employment and labour law landscape, it is expected to amplify employers’ existing health and safety obligations.

Cultural acceptance clouds impairment issues The experience in other jurisdictions that have changed their laws to permit recreational cannabis suggests that legalization may culturally normalize the drug. In Colorado, the drug’s use — and related incidents — increased post-legalization, which has Dr. Melissa Snider-Adler, chief medical review officer at DriverCheck, a company that provides workplace drug and alcohol testing, bracing for a similar surge when Canada follows suit. “There will be more people using marijuana, people do have a feeling that it is not a big deal, [that] it doesn’t cause any problems, and we will see a spike in accidents and morbidity and mortality due to impairment,” she predicted, “which I fear may impact safety-sensitive jobs and work-related accidents that may occur.” Dr. Snider-Adler, who spoke at the symposium, underscored that, despite misconceptions to the contrary, cannabis has impairing effects — on cognitive abilities, focus, memory and reaction time. And, unlike with heavy alcohol use, which typically comes with clear signs of impairment, including slurred speech and stumbling gait, with cannabis use, the signs of impairment, which can include pungent odour and red eyes, can be subtle. As it stands, medical authorizations for cannabis have soared in Canada, from slightly less than 500 15 years ago to 200,000 today, since its therapeutic use was legalized in 2001. In the absence of guidelines for medical authorization, some physicians provide it more freely than others, observed Dr. Snider-Adler. She recommended that employers who become aware of employees with medical authorization consult with their authorizing physician as well as an independent professional with the expertise to evaluate the impact of their specific cannabis use on their ability to safely carry out their specific job. She said the challenge in establishing standards for workplaces is that impairment is influenced by a number of variables, including the potency and quantity of cannabis a person uses, when and how often.

26 CONDOBUSINESS | Part of the REMI Network

While there is currently no way to test for cannabis impairment, there is a way to test (oral swab) for recent use, within a window of several hours. DriverCheck statistics show that random drug testing by employers, which is more prevalent in the U.S., decreases the incidence of positive test results over time. Courts rule on random drug testing Recent high-profile cases have put drug testing on the radar of the residential construction industry. “The one that we are paying particular attention to is the TTC [Toronto Transit Commission], which has obviously gotten a lot of media attention, and they are doing some random testing there,” said Pariser. The TTC decided to make random drug and alcohol testing part of its fitness-forduty policy in the interest of safety, which the Amalgamated Transit Workers Union, Local 113, challenged, claiming it violated human rights. The matter, which is subject to ongoing arbitration, gets at the crux of the challenge employers face. Employers have a duty to both provide a safe workplace and accommodate people with disabilities, said Diane Laranja, associate at Filion Wakely Thorup Angeletti LLP. Addiction is classified as a disability under human rights law, and employees may use cannabis for medicinal and disabilit y - related pur p oses, so employers have to exercise some caution in addressing drug and alcohol use in the workplace. The failure of employers to meet either obligation can come with consequences, L aranja confirmed. C onvic tions for offences under the Occupational Health & S afet y Act c arr y hef t y fines for corporations and possible imprisonment for individuals, and damages for human rights violations can be “substantial,” she said. A few y e a r s a g o , t h e S u p r e m e Court issued an important ruling in a case out of New Brunswick, known as Communications, Energy and Paperworkers Union of Canada, Local 3 0 v. Ir ving Pulp and Paper Limited. In the Ir ving c ase, the cour t found that testing must be a propor tionate

COVER STORY

“We will see a spike in accidents and morbidity and mortality due to impairment, which

I fear may impact safety-sensitive jobs and work-related accidents that may occur.” response in light of both legitimate safety concerns and privacy interest, s a i d L a r a n j a . I t ’s n o t e n o u g h f o r employees to occupy safety-sensitive positions; there must be known issues with substance use in the workplace to justify the practice. Definitions for safety-sensitive positions and provisions for drug testing should be detailed in the workplace fitness-for-duty policy, she said. “Employers must be consulting with m e d i c a l c o n s u l t a n t s w h e n t h e y ’re drafting their policies to ensure that things like appropriate cut- of f levels and appropriate testing methods are being used so that they’re accurate

and they’re reliable, and that’s certainly s o m ethin g we’re se ein g in c ur rent cases,” said Laranja. Fitness-for-duty policies require update Some post- incident drug and alcohol testing occurs in the Alberta oil sands, but , for now, the pra c tic e rem ains v ir tu all y unhe ard of in the O nt ar i o construction industry. “Our desire isn’t to test everyone on site, our desire is just to keep people safe,” said Pariser, “so I think it’s still too early to tell what direction we’re going to go.” As e m p l o y e r s i n t h e r e s i d e n t i a l c onstruc tion industr y await fur ther details of Ontario’s plans to regulate

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recreational cannabis, there are steps employers can take now. For example, policies that prohibit “illicit substances” will require an update to capture cannabis after it becomes legal July 1, 2018, as Laranja pointed out. More generally, the employment and labour lawyer added, these policies should establish rules and consequences, as well as identify resources available to employees suffering from addiction. With the province due to introduce legislation governing the use of recreational cannabis later this fall, RESCON is planning to host another symposium this spring to discuss best practices for the residential construction industry. 1

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www.REMInetwork.com | November 2017 27

GOVERNANCE

The pros and cons of communitybuilding efforts

In some condominium communities,

everyone is a stranger. In others, everybody knows one another by name. While there are factors

BY MARC BHALLA

which impact this that are beyond the control of the board, such as the total number of residents within the community, directors can take steps to further encourage — or discourage — fostering community. In determining if it is worthwhile to make the effort, it may be helpful to consider the pros and cons of trying to transform a condominium corporation into a true condominium community. 28 CONDOBUSINESS | Part of the REMI Network

GOVERNANCE

Pro: The comforts of knowing one’s neighbours Cer t a i n c o m f o r t s c a n b e taken from knowing fellow re s i d e nt s w i t h i n t h e c o n d o m i n i u m communit y. For example, it may be easier for residents to work together to prevent strangers from inappropriately accessing the proper t y; par ticularly as some residents may be hesitant to speak up alone when a stranger tries to “tailgate” (enter the premises behind them). A neighbourhood watch - like camaraderie amongst community residents can only truly be developed if they know one another. Further, it may be more enjoyable for a condominium dweller to feel that they are part of a community in which they can borrow a cup of sugar from a neighbour. C o n: G o s s i p — k n o w i n g to o m u c h a b o u t o n e ’s neighbours It may be human nature to obser ve, yet when one considers this tendency within the context of a condominium — where people come together to live or work — many find that they end up learning more about their neighbours than their neighbours

may care to share. It’s common for fellow condominium residents to be exposed to aspects of their neighbours’ li fe s t y l e, l ove li ve s o r re c re ati o n al activities that some may have preferred to keep to themselves. When one considers that different people come together to form a c o m m u n i t y, g e t t i n g t o k n o w o n e a n ot h e r to o we l l m ay g i ve r i s e to conflict. If for no other reason than a sense of resentment over lost privacy or feeling judged. Pro: Feeling heard While it is ultimately the board of directors who is empowered to make decisions that impact the community as a whole, there can be a signific ant dif ference when those who are af fec ted by decisions feel that they were considered in the course of deliberations versus being ignored. Directors attempting to foster community often invite communication — actively taking an interest in learning the views, concerns and feedback of those who form the community. This can help everyone feel as though they have a voice, and that their voice is important.

Con: Toxic apathy It can be discouraging for a condominium director to get the sense that no one appreciates the efforts that he or she makes. Putting in time to encourage community-gathering ice breakers only to have few turn up can lead boards to re s e nt t h o s e w h o d o n ot s e ize the oppor tunit y to get to know their neighbours. In some circumstances, those who do participate may feel that in doing so they have more influence over the decisions before the board than others. This can lead to rifts between active and non - active community members, or put pro p er t y m anag ement in an awkward position whereby an active resident or owner feels that they should be treated specially rather than equally. Pro: Feeling accounted to T he board of directors of York Region Condominium Corporation No. 798 — the Toronto & Area Chapter of the Canadian Condominium Institute’s “Condo of the Year” — prides itself on being open with information and communications. Stephen Pollishuke, who ser ves on the board, believes that this approach

The board directors try to exist in the

community without being easily identified to avoid receiving unsolicited knocks on their door or being interrupted as they walk the dog or return home with their groceries. www.REMInetwork.com | November 2017 29

GOVERNANCE

prevents surprises at owners’ meetings or fallout from decisions made by the board. W hile he appreciates that conflict w i l l i n e v i t a b l y a r i s e f r o m t i m e to time, as everyone will not always see things the same way, he finds that being transparent and open prevents conflict from escalating unnecessarily d u e to s p e c ul ati o n , as sum pti o n o r misunderstanding. This approach sends the message to ever yone in the communit y that the board feels accountable to them. Con: Crossing boundaries T he writer knows of a condominium communit y where directors only identify t h e m s e l ve s at t h e A nnu a l G e n e r a l Meeting ( AG M ) if they are seeking re - election that par ticular year. That is, ever y director who is not up for re - election at any given AGM does not sit at the head table at the yearly owners’ meeting or other wise draw at tention to themselves; they either

hide as just another face in the crowd or skip out on the meeting altogether. Why? Because while the directors serving this community enjoy their role, they do not enjoy what they view as the “baggage” that comes with it. This community happens to have a history of residents crossing what their directors’ view as the line when it comes to interactions with the board — perhaps a failure to appreciate that the directors are fellow residents, too. As a result, the board directors try to exist in the community without being easily identified to avoid receiving unsolicited knocks on their door or being interrupted as they walk the dog or return home with their groceries. Is it worth it? The positives that come with fostering c o m mu ni t y w i t hin a c o n d o miniu m community would seem useful to virtually every condominium. However, it may be important to recognize that no two condominium communities are the same. The success rate of attempts to foster community can vary, as can the degree

of impact of the potential positive and negative consequences of doing so. Committed condominium directors should certainly consider the benefits of fostering community at their own condominiums and how best to structure the effort to accomplish the desired result. At the very least, opportunities may exist to minimize or re-direct some of the potential negative consequences, such as by setting boundaries with residents. This is particularly the case in view of some of the opportunities this presents in better managing the conflict that will inevitably arise from time to time in the condominium context. 1 M a r c B h a l l a h o l d s th e C h a r te re d Mediator (C.Med) designation of the ADR Institute of Canada, the nation’s most senior designation available to practising mediators. Marc leads the CONDOMEDIATORS.ca team, manages MarcOnMediation.ca and serves as the 2nd Vice President of the Toronto & Area Chapter of the Canadian Condominium Institute.

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9/29/17 10:20 AM

GOVERNANCE

The minutes are written — now what? The management of meeting minutes differs from board to board.

BY MARKO LINDHE AND NOAH MAISLIN

Of course, taking minutes is not only good practise, it is mandatory as part of keeping an off icial minute book under the Condominium Act. But what happens after the minutes are taken? If a professional minute taker is hired, the delivery time of the completed minutes should be clearly disclosed prior to engaging. A deadline should also be set if it is the board secretary who takes the minutes; it can depend on the protocol of the board, but receiving the completed document within one week of the meeting is a good guideline. Prompt receipt of the minutes allows ample time for them to be reviewed before the next meeting, which improves the efficiency of meetings: instead of analyzing the previous minutes at length for the first part of each meeting, most of the legwork can and should be done via email, weeks in advance. It also reduces potential unnecessary discussion and

debate during the meeting, which can be time-consuming and expensive. Distribution, Part 1 Minutes should be submitted to the building manager and the board president, who should take a day or two to review them separately and then compare reviews with one another via email. Next, they should formulate one email to the rest of the board with their suggested amendments in the body of the email and attach a first draft of the minutes. The other directors should be asked to submit their opinions and their own proposed changes by a deadline — three to five days, for example. Once the board has had the chance to

respond, the manager should send the amendments on which there is consensus to the recording secretary or the minutetaking company to be entered into the working copy of the minutes. This sets the stage for efficient board meetings with the goal of getting the previous set of minutes approved and signed promptly. Disputed changes should not be made to the minutes; rather, the board should be notified in advance that those proposed amendments will be discussed at the next meeting. Once the board agrees on all the amendments to be made to the previous minutes, they can be approved with a formal motion during the next meeting and signed.

www.REMInetwork.com | November 2017 31

GOVERNANCE

> SOCIAL MEDIA COLUMN Sponsored by MediaEdge

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Showing your social media ROI By Steven Chester As the year winds down, a big challenge for many of us in the social media field arises as we produce our analytics reports and show our worth. Simply saying “I’ve gained 50 Twitter followers a month for the year” doesn’t translate to the business owner who needs to understand how these efforts are furthering their bottom line. The first step is to understand your goals. Was your business looking to sell a product online, acquire customers, gain brand awareness, drive traffic to a sign-up page, or increase overall traffic to your website? If the answer to this loaded question is “yes,” then you’ll have to look at several metrics and ensure you’ve built campaigns around each goal. Then, you’ll need to assign a value to those goals. Think of your hours spent – which you absolutely must be logging for ROI to work – and assign a value to each of those metrics. This is tough, but consider items such as cost per impression and clicks if you were to buy an advertisement. You’ll be able to track your referral traffic and other goals via your site’s Google Analytics dashboard, and most social platforms have decent internal analytics where you can delve a bit deeper into your numbers. There are a handful of great third-party tools that you can also use, which will provide even more insight. This is one of the more complex topics that can’t be fully covered in this space. As always, I invite you to stay social and continue the conversation via my contact info below. Happy holidays, and all the best for 2018.

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

corporations need to archive their minutes so they are available “at all times,” which means that they can never be destroyed. Distribution, Part 2 Once minutes are approved, how they should be distributed and stored? Minutes only need to be distributed to individual owners upon request, in which case it is important to ensure that only the open minutes are released — not the in-camera minutes. In-camera minutes pertain to actual or contemplated li t i g at i o n , in su r a n c e inve s t i g at i o n s involving the corporation, and items related to corporation employees (not including contracts) and specific unit owners. These items do not need to be disclosed in the regular minutes and the board has the discretion to keep these subjects confidential. Storage Condominium records (including minutes) are of ten misplaced or dif ficult to obtain because of the turnover of board members, management companies and managers. Filing and storing minutes in a cloud-based system that is available to both board members and managers makes these documents available to all relevant parties 24/ 7. When managed by a third party, these types of systems allow boards to limit and regulate access in case anything were to happen with the manager or a rogue board member. C onsistent storage of minutes is important, but without access to the stored files the effort of storing them could be rendered futile. The records of a meeting need to be accessed for years to follow, not just for approval at the

following meeting. A resident has the right to ask for minutes from last year’s AGM or even a board meeting that took place several years prior. The duration of how long condo records need to be archived was previously in question. However, under new regulatory requirements (as of Nov. 1, 2017) condo corporations need to archive their minutes so they are available “at all times,” which means that they can never be destroyed. To some, that may sound ominous as things do and will change within a corporation, but being able to provide minutes from years prior easily, and in a timely fashion, is a good way to instill confidence in residents. It is not only helpful when needing to share minutes, but it shows a vested interest in the maintenance of the buildings records, and is a direct avenue for developing trust and transparency. Although ever y board may have a unique way of distributing and managing their meeting records, following these steps will establish a straightforward protocol to ensure that the board is abiding by legislation and providing prompt access to minutes and records. 1 Marko Lindhe and Noah Maislin are partners at Minutes Solutions Inc. (www. minutessolutions.com), a Canadian thirdparty minute-taking company established in 2014 that works with over 500 condo corporations in Ontario. Marko can be reached at marko@minutessolutions.com or (647) 389-1568.

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www.REMInetwork.com | November 2017 33

Is it time to amalgamate? Some management companies are giving notice to end their contracts with

BY MICHELLE KELLY

smaller condominiums. The management companies are assessing their contracts and determining if they can make a profit with all the extra work they need to do

when the first phase of amendments to the Condominium Act come into force.

34 CONDOBUSINESS | Part of the REMI Network

LEGAL

For smaller condos, that really leaves three options: find a manager who will work with smaller condos (which is getting harder unless the corporation wants to pay higher than average perdoor rates), self-manage (which seems like a full-time job with all of the changes coming), or amalg amate with their neighbouring condos (if there are any). Amalgamation is simply the process of combining of two or more existing condos to create a new condo. Sometimes it is two condos, other times it is 10 or more. Amalgamation can be used in almost any circumstance if the legal requirements are satisfied, but it is often used for older “phased” condos. The current version of the Condominium Act permits a condo to be created over a period of time with one or more phases being completed after the initial registration. Prior to the act there was no way to p h a s e c o n d o s . I n s te a d , “p h a s e d ” communities were actually constructed as separate condos with shared facilities. For an outsider the community seems like one condo, not several. Unfortunately, these communities often have higher monthly fees than newer phased condos because of the extra time and expense involved in managing them. Sometimes each condo has only eight or 10 units. For these small condos amalgamation can lead to lower common expenses. Instead of four audits each year, one is done. Instead of four reserve fund studies every three years, one is required. And so on. At the tim e of this w r i tin g , the first phase of amendments to the Condominium Act were due to come into force Nov. 1. The industry is abuzz about the amount of work the amendments are going to create with all of the returns, notices of change, certificates, disclosure obligations, etc. So, one might ask, “Why would anyone want to create more work for themselves and amalgamate now?” Many condos, especially the older ones, are likely considering amending all of their documents to remove outdated, unenforceable provisions and add some of the new pro-technology options, such as electronic voting for owners meetings. The process to amend all of the documents is actually pretty similar to the process used for amalgamation: hire a lawyer to prepare

A TIMELINE OF AMALGAMATION Description

Timeframe

Each condo must complete a comprehensive reserve fund study, or update with site inspection.

Within the one year prior to the boards’ sending the notice of amalgamation to owners

The lawyer prepares an interim agreement that describes the expected conduct of each condo, timelines and other matters.

Prior to sending the notice of meeting to the owners

The lawyer and surveyor complete a new declaration, description, bylaws and rules.

Prior to sending the notice of meeting to the owners

The lawyer and manager prepare amalgamating status certificates for each condo.

Prior to sending the notice of meeting to the owners

The auditor prepares the last annual financial statement for each condo.

Prior to sending the notice of meeting to the owners

The manager and lawyer prepare a notice of meeting and send it to the owners, with copies of the proposed documents for the new condo; a special status certificate; auditor’s report; reserve fund study; interim agreement; an estimate of the costs for each condo; and a statement of any key differences in the proposed documents from the original documents. The owners’ meeting is held and the amalgamation is presented to the owners. A vote is not taken at the meeting. The owners of at least 90 per cent of the units provide their consent forms.

Within 90 days of the meeting

The municipality approves the amalgamation, or exempts it from the approval process.

Formal approval will not normally be given until the condos have the approval of the owners

The documents must be submitted to the Land Registry Office for approval.

After the owners have consented

The documents are signed by the signing officers of each condo and submitted to the Land Registry Office for registration.

After the documents are approved (or exempted) by the municipality and the Land Registry Office

The documents are registered and the amalgamated condo is created. The directors of the amalgamating condos become the directors of the new condo and must appoint an auditor.

Immediately after amalgamation

An owners’ meeting is held and a new board of directors elected.

Within 60 days of the amalgamation www.REMInetwork.com | November 2017 35

LEGAL

The number of

amalgamations seems likely to increase over the next few years. documents, send notice to the owners, hold a meeting to present the new documents, vote on them or collect written consent, and register the documents if approved by the owners. Yes, there is definitely more work involved in an amalgamation than amending documents, but the process is very similar. Experience suggests the legal costs for amalgamation may be only slightly higher than amending all of the documents, especially where there are several condos to share the costs. That said, there are other costs to consider, such as surveyor’s fees to prepare a new description for the condo and reserve fund study fees (if it has to be completed ahead of schedule). Some management companies charge extra fees for amalgamations as well because of the extra work involved. The amalgamation process can be daunting

for even the most experienced property manager so it is a good idea to discuss it with the condos’ lawyer before starting the process. Amalgamation is authorized by section 120 of the act and the regulations, provided certain requirements are met. Consider the following questions: 1. Are the condos a type other than standard (i.e. common elements, vacant land, or leasehold condos)? 2. Are any of them phased? If yes, are more phases to be registered in the future or have fewer than 10 years passed since the initial registration? If the answer to any of these questions is yes, amalgamation is not available. Even if amalgamation is available, it may not be wise to pursue it. Before

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incurring the costs to start the process, discuss it with the owners at the next owners’ meeting or put it in the next newsletter. There’s no sense in incurring thousands of dollars in costs if the condo can’t get close to the 90-per-cent consent that it’ll need. Assuming the boards have had these preliminary discussions with each other and their respective owners, the process generally involves the steps outlined in the sidebar “A timeline of amalgamation.” Amalgamation isn’t easy, quick or cheap, but it can be beneficial. Given that many condos will be under increased pressure to pinch pennies anywhere they can, the number of amalgamations seems likely to increase over the next few years as new requirements under the Condominium Act take effect and add to the workload of condo managers. 1 Michelle Kelly is a partner at Sutherland Kelly LLP located in Guelph. She serves condominiums, unit owners, and developers across the province. Michelle practices exclusively in the areas of condominium and real estate law. The preceding article is reprinted with permission from www.ontcondolaw.com.

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LEGAL

The habitual complainer and the vexatious litigant In two recent decisions, the court BY JOSH MILGROM dealt with two owners whose persistence, stubbornness, and disregard for the interests of their respective condo corporations got the better of them. These owners

just wouldn’t quit, resulting in their inevitable downfall in court, and two condo corporations thankful to resume ordinary operations and governance. In Carleton Condominium Corporation No. 166 v. Sennek (CCC 166), the owner at issue commenced a multitude of legal proceedings against the corporation, its directors and officers, its property managers, and lawyers. The time, effort, money and other resources necessary to dedicate to litigation can significantly impede a corporation’s ability to conduct its ordinary business. Coupled with a litigant whose goal seems to be to commence as many proceedings against as many parties as possible, this presents a condo conundrum — particularly since the costs of litigation can fall on the hands of all the other innocent owners. In York Condominium Corp No 163 v. Robinson (YCC 163), the owner was, to put gently, a “habitual email writer” and a “complainer,” as confirmed by the owner’s

own legal counsel. More accurately, the owner engaged in a “daily verbal barrage [that] made work life intolerable for the Applicant’s staff — in particular for the Applicant’s office manager at whom much of the Respondent’s venom appears to be aimed.” Many industr y insiders have had the misfortune of dealing, to a greater or lesser extent, with one of these types of owners. It can be a mentally and emotionally taxing undertaking, and frankly, a full time (unpleasant) job. In CCC 166, the corporation sought an order that the owner be declared a “vexatious litigant.” Generally speaking, a vexatious litigant is someone who brings multiple, meritless proceedings, or proceedings that have already been tried in court, sometimes for improper purposes,

38 CONDOBUSINESS | Part of the REMI Network

such as to harass or oppress other parties. A variety of characteristics are reviewed by a court in determining whether a person should be declared a vexatious litigant, including the history between the parties, whether it is obvious that the claim has no merit, whether the issues have been previously tried, and whether the purpose of the proceeding is to harass other parties. As a general rule, courts are not quick to declare litigants vexatious. It is something which is done sparingly and with great caution, as the consequence to the litigant is significant. Once declared a vexatious litigant, a person cannot commence any actions without first bringing a motion and obtaining leave of the court. In CCC 166, the owner commenced multiple proceedings, motions, and appeals

LEGAL

Some fear that the CAT will open the door to other habitual and meritless complainers looking for an easy way to air grievances.

against the corporation and many of its service providers. The relief sought in the various proceedings were duplicative, overlapping, and without merit, and the court found that they were commenced for improper purposes. The court declared the owner a vexatious litigant. The corporation can breathe a sigh of relief, as the order will help prevent the owner from taking up any more of the corporation’s resources and wasting its time unnecessarily; however, not before the corporation was required to endure years’ worth of meritless litigation. In YCC 163, the owner incessantly complained about the corporation and its staff, in an antisocial, degrading and harassing manner. On occasion, her complaints were legitimate, such as complaints about doors not closing properly and hot water issues in the building. The corporation simply wanted complaints to be made civilly and respectfully, if and when they were made; not a particularly unreasonable request. The owner was ordered to cease and desist from making inappropriate comments, which the court found violated section 117 of the Condominium Act (an activity which is likely to cause injury) and constituted workplace harassment pursuant to the Occupational Health and Safety Act. Despite its success at court, the judge’s cost award saddled the corporation with a portion of its own legal fees. With the advent of the Condominium Authority Tribunal (CAT), and in particular, the jurisdiction it will have over many disputes which arise between owners and a corporation, time will tell the impact that the new dispute resolution mechanism will have on condos and owners, and on those similar to the habitual complainer and vexatious litigant from these two court decisions. The CAT will introduce an online dispute resolution forum, which at first will deal only with records-related disputes (but its scope will be increased over time).

Many are optimistic that the CAT will be a welcome addition to condo living, providing owners and corporations with a cost-effective and timely mechanism within which to resolve disputes in a more tailored, resolution-focused manner, with its sole emphasis on condo disputes. Still, some fear that the CAT will open the door to other habitual and meritless complainers looking for an easy way to air grievances, at the expense (both time and money) of the corporation. Similar to the court, the CAT will also have the power to dismiss applications if it is of the opinion that an application is vexatious. The CAT’s familiarity with condo governance and the t ypes of disputes which arise will likely aid its

ability to assess whether an application is vexatious. Owners are becoming more aware of the recent changes to the Condominium Act and the availability of new dispute resolution mechanisms. The habitual c o m p l a i n e r a n d v ex a t i o u s l i t i g a n t may be inevitable in some situations. However, corporations that are proactive, responsive, and transparent with owners — qualities that are facilitated by some of the amendments to the Condominium Act — are better positioned to overcome these types of issues. 1 Josh Milgrom is an associate at Lash C o n d o La w, p ra c ti c i n g ex c l u s iv e ly condo law.

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MAINTENANCE

The aftermath of hoarding A hoarded unit can contain a mix of rubbish, including rotten food items, wet

BY ROBERT HOLBROOK

garbage, soiled clothing, electronics, furniture, paper and items that may

have been retrieved from the trash. This mix of rubbish can almost be ceiling high in extreme cases. The environment becomes an optimal breeding ground for bacteria, mold and pests that enjoy a safe home and constant supply of moisture and food. Items brought in from the trash by the hoarder can contain bedbugs and other pests that can rapidly infest the unit. 40 CONDOBUSINESS | Part of the REMI Network

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MANAGEMENT MAINTENANCE A previously hoarded condo unit can look like a bit of a disaster zone after the trash and unwanted items are cleared out. The carpets are generally soiled beyond repair and a majority of surfaces stained or ruined. Holes can be found in walls and ceilings. Windows that have been left shut for years can be stuck shut. Appliances are often broken and smell of rotten food. Cupboard doors are often broken and vanities can be ruined. There can be plumbing issues, including dripping taps, toilets that have been left to run on and plugged drains. The air quality in the unit is often poor because of mold and bacteria growth. In most cases, a previously hoarded unit will require an extreme clean before tradespeople will agree to go in to repair problems. The unit will likely have to be stripped of all carpeting, which is a good first step of the clean-up process. (Sometimes carpet can be cleaned — area rugs can be sent to a professional cleaning ser vice and c an of ten b e saved.) All clothes should be bagged and cleaned — it is best to take clothing to a laundromat that offers wash and fold

In most cases, a previously hoarded unit will require an extreme clean before tradespeople will agree to go in to repair problems.

service. Appliances will most likely have to be partially dismantled to be cleaned properly or discarded. A ll sur faces, including hard furniture and windows, will typically require a thorough clean. A thorough clean of the entire unit should remove surface mold and kill the bacteria. Killing the bacteria and mold will create a fresh-smelling environment. At this point, the unit should be ready for repairs, renovation or re-decorating, depending on the extent damage. It is an excellent idea to prioritize plumbing repairs. Sinks will commonly be

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plugged, which can cause flooding. Taps left to drip and toilets that run on will increase water usage costs. Exterminators may have to be called in to deal with pest issues. Unfortunately, pests from the hoarded unit may have infiltrated common areas or surrounding units. The units surrounding the hoarded unit may have to be treated for pests. If mice were an issue, there could be issues with chewed wiring, which should be investigated. T h e a i r q u a li t y i n t h e u ni t m ay continue to be a concern even after the unit is cleaned. Lingering odours could be caused by mold growing behind walls and under fixed cabinetr y that could not be cleaned. It would be wise to have an air quality test performed at this point. If hidden mold is an issue, a mold remediation service may need to be brought in. Unfortunately, mold spores can spread in the air and impact other areas of the condominium building. The HVAC system should be investigated to ensure filters are changed and the system is clean. Antibacterial spray can be applied inside ducts of forced air systems. The goal of remediating a hoarded unit is to return it to a state that is safe for the resident and the condominium building. A previously hoarded unit can also be renovated to look like new at a further cost. The owner of the unit will have to decide whether he or she wants to invest in renovating the unit after it has been restored to a safe living environment. 1 Robert Holbrook, MSW, RSW, is the owner of Toronto Hoarding and Extreme C l e a n i n g S e r vi c e s . H e s p e c i a l ize s i n hel p i ng c o nd o mi niu m m an a g ers re m e d i ate h o a rd i n g s itu ati o ns. M o re i n f o r m a t i o n i s a v a i l a b l e a t www.torontohoardingservices.ca.

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Excess moisture increases pest pressure High humidity levels may be associated with the summertime,

BY DR. ALICE SINIA

but moisture issues can be problematic well into the fall and winter because of humidity-generating activities and circumstances such as cooking, hot water usage, water leaks, air leaks and even the building’s exterior. If

a condominium property has moisture problems, its board and manager are sure to have unhappy residents on their hands. In addition to making living spaces uncomfor table, indoor moisture problems can lead to structural damage, health and pest problems. If the root cause of moisture isn’t resolved quickly, it can cause significant damage and impact a condo corporation’s bottom line. Excess moisture in condos can harm residents and staff alike. It can cause bacteria, mould and mildew growth, which poses health threats for sensitive individuals and can cause allergies and asthma. Mould and mildew in the walls can be difficult to detect without professional diagnosis, but is associated with visible signs of water damage such as peeling paint, warped wood, wall bubbling, discolouration and corrosion of metal. While some of these consequences are purely aesthetic, others can damage the structural integrity of a property. Even if residents don’t immediately notice these signs, they will surely notice increased pest activity that can develop as a result. Pests are attracted to condos for the food, water and shelter they provide. If a property has excess moisture, it becomes even more attractive to the pests seeking out water sources, as well as pests that feed on mould and mildew. Moisture attracts certain types of insects Springtails These tiny, jumping insects are attracted to areas of high moisture because they rapidly lose water from their bodies. They flock to kitchens, bathrooms and laundry rooms where moisture is common, invading through gaps and openings around utility pipes, cracks and crevices in wall foundation and window

44 CONDOBUSINESS | Part of the REMI Network

screens and sills. The insects feed on decaying vegetation, bacteria and fungi. Plaster beetles These critters feed exclusively on spores and vegetative parts of mould, mildew and other fungi. Most species live outdoors, but there are a few that invade and infest structures especially in areas that are conducive to fungal growth, such as damp basements and crawlspaces, inside walls and on damp fiber and carpet. Fungus beetles These critters are attracted to musty odours and are small enough to get through vents or screens. Like plaster beetles, they feed exclusively on fungi and are found indoors in areas with moisture problems. Foreign grain beetles These scavengers that feed on fungus, mouldy grain and dead insects. Infestations often start inside wall voids and become noticeable when beetles emerge from the baseboards. Psocids (Booklice) Despite their resemblance, these critters are not true lice. They are typically found in areas with high humidity because they can easily lose water from their bodies. Mould is their primary diet and psocids have been known to infest bath traps and air conditioning drain lines. Common pests such as cockroaches, ants and rodents also can be found more often in buildings with excess moisture.

MAINTENANCE Managing these types of pests is a team effort, and a successful • Turn on exhaust fans when showering and cooking to remove Integrated Pest Management (IPM) program will require cooperation moisture from the air. from both residents and property management. There are a few things • Leave the washing machine doors open when not in use to allow that can help reduce these moisture-related pest pressures: water to dry. • Report moisture collecting on windows, walls or pipes Managing moisture-related pest pressure immediately and dry the affected areas. Property managers can take the following steps to address both • Report plumbing problems and leaks promptly and ensure they are excess moisture and the pests that it attracts: repaired. • Vent clothes dryers and unit heaters to the outdoors as much as possible. These appliances produce water vapour and can increase To prevent pest problems related to excess moisture, it is critical humidity. that all residents take steps to reduce humidity in their units. To get • Inspect vent ducts regularly and clean them at least once per year. residents on board, review the importance of moisture control at the • Inspect, clean and repair drains and roof gutters regularly. next corporation meeting and send out an email or newsletter to help • Respond promptly to water leaks. If damp or wet surfaces are educate individual unit owners. resolved within 24 to 48 hours, mould and mildew should not grow. Given its potential to cause pest infestations, property damage and • Be sure that the ground slopes away from the foundation of health risks, excess moisture is not a problem that a condo board or the building. This helps prevent water from pooling around the manager wants to have. Pests such as springtails and plaster beetles foundation. are often a sign of an underlying moisture, mould and mildew issues, • Seal cracks, crevices and gaps around utility lines, window sills and which should prompt a call to the corporation’s pest management doors. provider and steps to reduce humidity levels. 1 • Eliminate indoor condensation with: o Increased ventilation indoors Alice Sinia, Ph.D. is Quality Assurance Manager – Regulatory/Lab Services o Air conditioning systems with dehumidification for Orkin Canada focusing on government regulations pertaining to o Exhaust systems in bathrooms and kitchens the pest control industry. With more than 15 years of experience, she o Airtight HVAC systems manages the Quality Assurance Laboratory for Orkin Canada and performs analytical entomology as well as provides technical support in pest/insect Property managers can also share the following tips with residents: identification to branch offices and clients. For more information, email • Keep air conditioning units on during warmer days to lower humidity Alice Sinia at asinia@orkincanada.com or visit www.orkincanada.com. levels.

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NEW AND NOTABLE

Community rolls out welcome mat for short-term rentals Toronto condo corporation partners with Airbnb in Canadian first As some condo corporations struggle to enforce community rules prohibiting shortterm rentals, one condo corporation has rolled out the welcome mat for one of the biggest players in the market. Neptune Waterpark Condos in Toronto has partnered with Airbnb to let residents offer their principal homes for short-term rental through the home-sharing platform’s Friendly Buildings Program, marking the first such agreement in Canada and following similar agreements in the U.S. Allowing the short-term rental of principal homes specifically aligns with proposed regulations for short-term rentals that city staff are due to report back on to Toronto City Council before the end of the year. “This is an important milestone for home sharing in Toronto, and in Canada,” said Aaron Zifkin, regional director for Airbnb in North America. “The program gives property managers and Airbnb the opportunity to work together to proactively manage home sharing in buildings.”

Airbnb’s Friendly Buildings Program has three planks: control, profit and insurance, and transparency. Buildings can set guidelines for guests for items normally captured in condo rules, such as pet restrictions and parking provisions. Buildings also benefit from Airbnb extending the $1 million in liability insurance all hosts possess to common areas as well as from profit-sharing that sees corporations receive a percentage of short-term rental bookings of anywhere from five to 15 per cent. Plus, buildings can monitor short-term rental activity — who’s hosting, how many guests and when — via a dashboard. “Home sharers and condo corporations can happily co-exist,” said Nick Bednarz, vice president of Neptune Waterpark Condos. “An open dialogue and a formal framework contributes to the community of the building, and enables renters and condo owners to share their residential homes to make supplemental income.”

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