CondoBusiness October 2021

Page 1

Canada’s Most Widely Read Condominium Magazine

October 2021 • Vol. 36 #5

ANATOMY OF A DISASTER PM#40063056

Learning from the Surfside condo collapse

+

PA R T O F T H E

A Dose of Reason What’s facing condos when it comes to vaccine policies?

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Contents 34 FEATURE 22 Learning From The Surfside Collapse By Sally Thompson

36

GOVERNANCE 10 What Disputes Over Nuisances Will Mean For Condos By Natalia Polis

12 Is Your Board Prioritizing Properly? By Steve Ilkiw

29 Directors And Officers Coverage Poised For Change By Matthew Studley and Dru Douglas

36

LEGAL

MAINTENANCE

14 CAT Evolves In Jurisdiction But Not Costs

40 Fire Risk Factors Evolve Over Time

By Sonja Hodis

30 Vaccination Policies In Condominiums By Ashley Winberg

34 Recent Proof-Of-Vaccination Decisions By Darrell Gold and Jordana Lyons

After The Vaccine: The Nuances of Amenity Access By Rebecca Melnyk

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SECURITY 18

To Catch A Thief

By Scott Hill

IN EVERY ISSUE 6

Editor's Note

8

Ask the Expert

42

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EDITOR’S NOTE

The Challenges of Good Governance Condo corporations are likely conflicted over whether or not to implement a mandatory vaccine policy, which remains optional in condo communities when it comes to accessing common areas like the gym. Amid the uncertainty, industry members gathered at the CAI Canada V-CON(DO) 2021 conference in September to discuss the nuances of limiting amenity access to those who are vaccinated. Implementing a vaccine policy is one thing. Enforcing it is next level. How can corporations balance this emotionally-charged topic? Beginning on page 30, we look at the various aspects of such a policy, including the legalities and privacy concerns, along with recent cases of condos that gave the nod to proof of vaccination. Our governance issue also looks at another contentious topic: the tragedy in Surfside, Florida. In her cover story on page 22, Sally Thompson delves into the event from an engineering perspective, highlights the flaws of poor governance that contributed to the collapse, and offers advice for boards of directors across Ontario who might worry about their own building’s vulnerabilities. We also present legal articles that delve into the expansion of the Condominium Authority Tribunal and what the latest changes will mean for condo communities. And on page 12, check out five simple tips for prioritizing when it comes to condo board meetings. We wish you all a safe pre-winter season and happy reading.

Rebecca Melnyk Editor, CondoBusiness rebeccam@mediaedge.ca

Associate Publisher Bryan Chong Editor Rebecca Melnyk Advertising Sales Bryan Chong Kelly Nicholls Blair Wilson Senior Designer Annette Carlucci Production Manager Rachel Selbie Contributing Writers Dru Douglas, Darrell Gold, Scott Hill, Sonja Hodis, Steve Ilkiw, Jordana Lyons, Natalia Polis, Matthew Studley, Sally Thompson, Ashley Winberg, Ben Zelikovitz 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 Rob Osiecki circulation@mediaedge.ca (416) 512-8186 ext. 234 CONDOBUSINESS is published six times a year by

President Kevin Brown Director & Group Publisher Sean Foley Accounting Anna Kantor 2001 Sheppard Avenue East Suite 500 | Toronto, Ontario M2J 4Z8 (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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How can condo corporations ensure voting accuracy during virtual and hybrid meetings? The COVID-19 pandemic has forced organizations across various

BY BEN ZELIKOVITZ

industries worldwide to adjust operations and leverage technology in new, innovative ways to conduct business as usual - with condo corporations being no exception.

8 CONDOBUSINESS | Part of the REMI Network


ASK THE EXPERT

While these adjustments have affected nearly every aspect of a condo corporation's operations, one area that might have seen the most drastic change over the past 18 months has been governance meetings. Whether it be AGMs, SGMs, or turnover meetings, condo corporations across Ontario have migrated these necessary meetings from in-person events to virtual or hybrid formats while reaping the many benefits of doing so in the process. Some of the major benefits to virtual meetings and electronic voting are shorter meeting durations, simplified voting periods and quicker tabulations. And while shorter meetings are great, ensuring voting accuracy is most important. But how can this be ensured in hybrid and exclusively virtual formats? It All Starts with Tracking Attendance Accurately tracking meeting attendance is not only integral to ensuring that quorum is achieved at your meeting. The ability to accurately track and identify who is in attendance at your meeting is also a crucial step in ensuring the accuracy of voting results. Standalone meeting software is simplistic and generally fails to meet the requirements for an owner meeting in this regard. For example, Zoom can tell you who it thinks is there but there’s so much more to attendance. Consider this: without knowing who's in attendance at your meeting, some crucial questions become impossible to answer. Who is eligible to vote on this matter? Who is present online? How many units are uniquely represented? Have they submitted a proxy vote prior to the meeting? These questions simply cannot be answered by standalone meeting software like Zoom. These attendance-based challenges are even more sophisticated in the context of a hybrid format with in-person attendees. Registration needs to cross-reference voters online, voters in-person, proxies that have been submitted, owneroccupied voters, ineligible voters (e. g. arrears), guests and otherwise. Not understanding exactly who is present significantly raises the risk of duplicate or ineligible votes being included in the final ballot tabulations, jeopardizing the integrity results. However, while a majority of corporations plan to embrace virtual and hybrid meetings for the foreseeable future, concerns around the accuracy of voting results during these meetings have understandably become a pressing concern for many. The simple answer ensuring voting accuracy is to have all owners vote on the same platform. Electronic Voting and Virtual Meetings Are Not the Same Electronic voting and virtual meetings are related but must be understood as two pieces that are tied together. Electronic voting uses electronic means to cast and count votes and does not necessarily include a virtual meeting. There are a few flavours of electronic voting: advance balloting, electronic proxies and real-time voting. So, while all virtual meetings necessarily include electronic voting, it is conceivable that electronic voting could be used at an exclusively in-person meeting (i. e. no virtual component).

By comparison, virtual meetings should be thought of as meetings where all activities, including audio/visual and voting, are conducted through telephonic or electronic means. The delineation is that the virtual meeting component should include full participation rights for owners and not simply a live stream for them to observe. This includes virtual-only meetings, a meeting which is held exclusively through telephonic or electronic means, and hybrid meetings, a meeting where attendees can join and participate in the meeting either electronically or in-person. Using disparate standalone meeting software (i. e. Zoom) and an electronic voting platform is a helpful and viable path for corporations wishing to host virtual meetings. However, the result of the voting platform not being integrated with the meeting software has the potential to create delays caused by necessarily manual processes in registration and attendance. If owners are simply registering to a zoom meeting, there is no way for a chairperson to immediately determine how many of those virtually present have submitted proxies or to determine how many unique units are present. Therefore, your quorum count is immediately at risk and is subject to manual processes (e. g. renaming and reviewing each attendee). For smaller corporations, this may very well be an acceptable time delay. For larger corporations, manually reviewing each attendee is arduous and a poor experience for all. Lastly, and statistically speaking, a small percentage of owner meetings will be contested. Was quorum achieved? Did the owner in question establish a connection to the meeting? Can you deconstruct the voting results and provide data that can be audited? Can you defend your election to the CAO? Part of ensuring accurate voting results is using platforms that generate and store auditable reporting, including both voting tallies and meeting registration data. The simple solution for all of this is to use a unified virtual meeting and voting platform. Selecting the Right Platform As we know, governance meetings have unique voting requirements. From the need to account for proxies submitted ahead of the meeting to voter eligibility that varies from owner to owner, these factors must be accounted for and add complexity to the ballot tabulation process to ensure the accuracy and integrity of results. This is why selecting a secure electronic voting platform that can accommodate the dynamic nature and unique voting requirements of your meeting is integral to the success of your meeting. Without a capable solution, ensuring the accuracy of voting results is a daunting, time-consuming task that is prone to errors and, if done incorrectly, can have negative impacts that can be felt across the corporation's operations. 1 Ben Zelikovitz is a level 200 CCI Certified Director and co-founder of GetQuorum. He loves quorum, the Toronto Raptors, Maple Leafs, Liverpool FC and Drake. He is also a husband, father, peloton rider and washed-up hockey player.

www.REMInetwork.com | October 2021 9


What Disputes Over Nuisances Will Mean For Condos The Condominium Authority Tribunal of Ontario (CAT) is an

BY NATALIA POLIS

online dispute resolution system that helps resolve certain condo-related disputes. CAT opened its doors back in 2017 and currently has jurisdiction over disputes pertaining to records requests, pets and animals, vehicles, parking and storage, settlement agreements and indemnification or compensation relating to these disputes.

10 CONDOBUSINESS | Part of the REMI Network


LEGAL

As of Januar y 1 2022, the C AT will expand its jurisdiction to include disputes pertaining to the amended Section 117 (2) of the Condominium Act, 1998 (the Act) and provisions that prohibit, restrict or otherwise govern any other nuisance, annoyance or disruption of an individual in a unit, the common elements or the assets, if any. The prescribed nuisances will include unreasonable noise, odour, smoke, vapour, light or vibration. Currently these nuisances would be handled through either mediation/arbitration under Section 132 of the Act or a court application. Whether the above-noted activities are “unreasonable” would be determined on a case-by-case basis. For instance, in noise-related disputes, corporations would assess the frequency, timing and volume of the noise as well as the nature of the noise. With many owners working from home since COVID -19, common household noise has increased and it is important for corporations and

condo owners to remember that living in such proximity, regular household noise is generally permissible and may not be considered unreasonable. Before a corporation commences an application before the CAT, it is important to provide the offending owner or resident the opportunity to rectify or stop the activities that are deemed to be unreasonable or a nuisance. So, what does the CAT’s expanded jurisdiction mean for Ontario condos? Condos will now have to commence or respond to applications before the CAT on the above-noted disputes. The CAT is generally a more streamlined, faster and cost- effective dispute resolution s y s te m t h a n p ro c e e d in g to e i t h e r mediation/arbitration or to court. As the CAT is entirely online, a proceeding before the CAT commences as soon as the application is approved, and the parties join. This system avoids the backlog of the courts, especially due to COVID-19 delays, and disputes are oftentimes either

resolved or adjudicated in a shorter time. Although the filing fees to commence the CAT proceeding are substantively less than mediator/arbitrator fees or court filing fees (totaling $200), condos can still incur significant costs if they choose to be represented by legal counsel. With that said, the CAT’s rules of practice currently permit condos to be represented by paralegals, directors, licensed managers or by anyone else exempt from Law Society’s licensing requirements. On a final note, the CAT will not be expanding its jurisdiction to include “dangerous activities” under section 117(1) of the Act. These disputes will remain in the jurisdiction of the Superior Court of Justice; however, the provision will be amended to include any activity that is likely to damage the property or assets or to cause an injury or an illness to an individual. 1 Natalia Polis is an associate at Lash Condo Law.

www.REMInetwork.com | October 2021 11


Is Your Board Prioritizing Properly? T h i r t y-f ive m inutes to select the flower arrangement in

the lobby for the holiday season, balanced by a five-

minute update on the $500,000 HVAC renovation. Sound familiar?

12 CONDOBUSINESS | Part of the REMI Network

BY STEVE ILKIW


GOVERNANCE

“Leaving a complex issue for the end of a long meeting almost assures a rushed decision.”

Many condo corporations struggle to prioritize. In fact, it's a challenge facing several organizations across industries, from a board level, right down to day-to-day task assignments. Condo boards and their management teams are no different. Over the past three years prioritization figured highly into responses from Ontario-based condo board members, via an online diagnostic tool, which subsequently generated insight into board issues. (1) Almost half (48 per cent) of respondents identify that prioritization is an issue, and 52 per cent are confident that more important items are given priority. Other findings reveal personal priorities often trump the greater good. Forty-six per cent of condo board members reported a unified board working in the interests of the condo community, but 54 per cent reported individuals, or several people, trying to drive personal agendas, rather than put the needs of the community first. So, what does a condo board director or manager do when they feel condo priorities aren’t balanced correctly? The easiest solutions lie in the condo board meeting. Here are five simple tips that can have any condo board or condo manager prioritize better.

1

Draft an agenda that indicates the time expected to spend on each topic. Slot 15 minutes for the flower arrangement conversation and 40 minutes for the expensive infrastructure project.

2

Beyond time on a topic, give thought to the order of items on an agenda. Board meetings can be long and tiresome. Leaving a complex issue for the end of a long meeting almost assures a rushed decision.

3

A llow people to speak their perspectives in a meeting, but

encourage people to avoid restating what others have already said to keep to timelines. As the chair of the meeting, ask, “Does anyone have anything new to add to the conversation?”

4

When points have been made, but discussions carry on, ask for a straw poll. You may find everyone is in agreement and the board can move forward with a vote quickly and efficiently.

5

Create a parking lot for good ideas that require time at another meeting. Record these ideas as part of a rolling agenda so that when time allows, these ideas can be given their due. While the above five tips on prioritization will help your board deal with some issues, some more holistic foundational solutions may be required for long-term success. For those boards who really want to step things up, nothing is more effective than a strategic plan. Strategizing Long-Term Strategic plans for condos are not done nearly enough. With data collected from the diagnostic, just 17 per cent of condos report any sort of strategic plan, 44 per cent use their reserve fund as a strategic plan and 39 per cent simply tackle issues as they arise. A strategic plan is important because it allows a condo to thoughtfully plan and prioritize short-term, medium-term, and long-term projects. It helps a board and management team work together to take planning beyond a long to-do list or simply react to problems as they occur. For boards going down the path of creating a strategic plan, here are a couple things to consider. First, collect some data from the condo to give your board insight into what owners and

residents care about. A three- or five-person board can’t possibly have insights into what the whole population of the condo is thinking about on different topics. So ask. Survey tools have never been easier and cheaper to use. Look to Survey Monkey, Google Forms, or your in-house communications software to get a pulse on your community’s perspectives. Second, during the strategic planning process, account for what you’re not going to do. As your board and management make plans, lots of ideas will be tabled and dismissed or allocated for a distant future. Be sure these items are identified and the board’s rationale recorded as to why the items are not prioritized. Share these as part of documentation to your ownership. They’ll appreciate the insights and transparency. Finally, be sure to share your plans with the condo through a town hall event or at the AGM. Be prepared for a good idea to arise that your team may have missed. This will have given everyone an opportunity to participate, voice their opinions, and play a role in the future of your condo. 1 Steve Ilkiw is the Principal and Founder at CondoHive and Bedford Hill Consulting. A driven leader and project manager, Steve helps organizations grow through strategic planning, research, and related initiatives. Combining his business acumen and research skills, Steve has led numerous projects designed to engage, provide insights, and facilitate databased decision-making. [1] A free online diagnostic tool via the CondoHive website gathered intel from 150 condo board directors over a three-year period. Data was gathered from a series of questions that condo board members answer to receive a score determining their board’s efficiency

www.REMInetwork.com | October 2021 13


CAT Evolves In Jurisdiction But Not Costs The Condominium A u t h o r i t y Tr i b u n a l

BY SONJA HODIS

(commonly known as CAT) has gone through quite an evolution since its inception, which occurred as a result of the 2017 changes to the Condominium Act (the Act). The CAT has seen its jurisdiction expand from being only able to deal with records requests under section 55 of the Act to an ever-expanding jurisdiction, which now includes matters involving pets and animals, vehicles, parking and storage issues, and enforcing settlement agreements made in the CAT process. Starting January 1, 2022, CAT’s jurisdiction will further expand to include nuisance, annoyance and disruption disputes.

While initially, very few, if any, condo corporations were successful in a records dispute, it appears that with its expanded jurisdiction currently in place the CAT has taken a more balanced approach. Although many condo corporations have been successful in obtaining orders for compliance with their governing documents, on the issue of costs (i.e. the amount that a condo corporation gets

14 CONDOBUSINESS | Part of the REMI Network

reimbursed when an owner loses his/her case at the CAT), the CAT, while awarding costs in some instances, is leaving condominium corporations with a large part of the expenses incurred to be paid by all owners, not just the offending owner. It does not appear that the “innocent owner” principle the courts have routinely applied in condominium enforcement proceedings has become part of the CAT’s evolution yet.


LEGAL

Prior to the CAT, the courts repeatedly stated that it was not fair for “innocent owners” to pay the costs incurred as a result of one owner who decides not to follow the rules. If a condo corporation must pay for the costs incurred, this means that all owners are paying for these costs. In most cases, although there are some noteworthy exceptions, the courts have typically granted the condominium corporation the majority (and in some cases even all of their costs) on a successful compliance application. Unfortunately, although we are seeing the types of cases a court normally hears being transferred to the CAT, we are not seeing the principles regarding costs the court has adopted being transferred and implemented as well. Case In Point A recent CAT decision released October 1, 2021, may provide an explanation as to why this occurs. In Middlesex Vacant Land Condominium Corporation No. 605 v. Cui, the condominium corporation was successful in enforcing its governing documents and getting some costs. The condo corporation wanted to enforce a provision in their governing documents regarding pets and nuisance. The condo claimed that the owner’s dogs barked excessively, the owner did not clean up after them and she did not control them on the common elements. The CAT ordered the dogs to be permanently removed and the owner had to pay $8,273.56, which was about 38 per cent of the total costs claimed. The CAT reaffirmed that in order to ensure protection of the interests of other condominium owners and residents, a condominium must be able to enforce its governing documents. W h i l e t h e C AT fo u n d t h a t t h e indemnification provisions in the condo’s bylaws and rules were sufficient to cover the breach of the pet provisions, they, despite this finding, did not apply the indemnification provisions to all costs sought. Trying to reconcile the reasoning in the decision is a difficult task as it appears to contradict its own findings and previous CAT decisions. It prompts the question as to why full costs were not ordered if the indemnification provisions in the governing documents applied. In Cui, the CAT examined costs differently, depending on when the costs were incurred.

compliance. However, in terms of costs incurred during the CAT process, which were in excess of $17,0000, the CAT awarded the condo only 25 per cent of these costs. The CAT took into account the delay of the proceedings the owner caused, which led to increased costs for the condo and characterized this as exceptional reasons. However, it did not see fit to award 100 per cent of the costs claimed as it did with pre-CAT process costs incurred.

In terms of costs incurred prior to the CAT process being engaged, the CAT awarded the condo 100 per cent of its costs based on the indemnification provisions. They found that the owner’s refusal to participate in mediation and her continued breach of the rules, despite multiple notices and communications from the condo, warranted an order that the owner pay the full amount of pre-CAT costs. The CAT took notice that the condo gave the owner plenty of time to achieve

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LEGAL

“Athough we are seeing the types of cases a court normally hears being

transferred to the CAT, we are not seeing the principles regarding costs the court has adopted being transferred and implemented as well.” In terms of costs, the decision recognized the innocent owner principle used by the courts, but advised that the CAT’s hands were tied in terms of costs awards due to the Act and the tribunal’s rules of practice, which guides their ability to award costs, limiting costs to exceptional circumstances. Is this the explanation of why the CAT ordered full costs incurred pre-CAT process and not during the CAT process? I am not sure that this provides a complete and satisfactory answer. The CAT’s rules of practice state that no costs are awarded unless there are exceptional circumstances. However, once you have met the “exceptional circumstances” threshold, there are no restrictions on the amount of costs that can be awarded. Having found that exceptional circumstances existed, it is unclear why the owner was required to pay 100 per cent of costs pre-CAT process and only 25 per cent of costs for the CAT process, especially since the CAT process was where the majority of the costs were incurred. In addition, since the CAT found that the contractual provisions of the indemnification clauses applied it is unclear why it would apply them to the pre-CAT costs, but not to costs incurred during the CAT process. Full Costs Awarded In fact, in an earlier 2021 CAT case, Peel Condominium Corporation No. 9 6 v. Psofimis, referenced in the Cui decision, the CAT awarded full costs to the condo corporation against an owner who breached the pet restriction rule. They did not distinguish between pre-CAT costs and costs incurred during the CAT process. The CAT in Psofimis found that the innocent owner principle applied and awarded legal costs as damages under section 1.44(1)(3) of the Act and as costs

under the tribunal’s practice directions. The CAT found that in that case there were exceptional circumstances, as the condo was forced to seek an order from the tribunal because the owner deliberately and repeatedly ignored the condo’s numerous attempts to request voluntary compliance. It is hard to reconcile the Cui decision in light of Psofimis as it appears that both owners blatantly disobeyed the rules despite many opportunities to voluntarily comply. Both condominium corporations had an indemnification provision in their rules, which were similar. Cui had an additional indemnification provision in a bylaw. Both decision makers awarded costs under CAT’s rules of practice. The only two major differences between the two cases appear to be the quantum of legal fees sought (the higher quantum was sought in Cui) and the tribunal in Psofimis was also awarded the amount sought as damages as well as costs. Although these factors should not impact whether the costs incurred should be awarded or not, it appears that they may have been influencing factors. While the jurisdiction of the CAT is forever expanding, it appears that condos and owners need to push for further amendments to the Act and the CAT’s rules of practice. Then, they too can evolve and catch up to the well-recognized “innocent owner” principle the courts have used to award costs to condominium corporations in cases where a condo has been successful in enforcing its governing documents. This would provide for greater consistency in recouping of costs without having to determine whether the amount is classified as damages or costs. It will also deter frivolous cases from being brought to the CAT because the financial commitment and risk will be more than just the filing fees. It will allow real issues to be heard and avoid

16 CONDOBUSINESS | Part of the REMI Network

rogue owners from abusing the CAT process and causing disruption and unnecessary costs for their fellow neighbours. Much clearer provisions in the Act and the rules of practice that would allow results like in Psofimis to occur on a routine basis would ensure that “innocent owners” are not footing the bill because of the actions of one disgruntled owner. Despite the fact that the venue has changed for resolving these disputes, the innocent owner principle should apply equally, regardless of the forum and decision maker assigned to a case. Condos should not have to worry about obtaining full indemnification from offending owners, especially if their governing documents provide for a contractual obligation to do so. We see many examples in the court system where the contractual provisions between parties trump the court’s practice directions regarding costs, and the courts are willing to enforce those contractual obligations. It appears that the CAT in Psofimis recognized this contractual obligation in their decision when they granted full costs to the condo corporation. Hopefully, more CAT decision makers will adopt the practice in Psofimis so that the innocent owner principle regarding costs can continue to exist not only in theory but in practice. 1 Sonja Hodis is a condominium lawyer based in Barrie who practices condominium law in Ontario. She advises condominium boards and owners on their rights and responsibilities under the Condominium Act, 1998 and other legislation that affects condominiums and represents her clients at all levels of court, various tribunals and in mediation/arbitration proceedings. Sonja can be reached at (705) 737-4403, sonja@ hodislaw.com or you can visit her website at www.hodislaw.com.


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To Catch a Thief A w a v e of bi k e t h e f t s i s sweeping ac ross Onta r io. The Ot tawa Police Ser v ices reported seeing an almost 70 per cent 2021. In Toronto, nearly 4,000 bikes

BY SCOTT HILL

spike as of April

were reported stolen last year,

the majority from residential buildings. Many condominiums have been targeted repeatedly, and one of the reasons is that, historically, they are very soft on security.

18 CONDOBUSINESS | Part of the REMI Network


SECURITY

“By monitoring local crime trends— usually easily accessible from local police

websites—board and committee members can keep abreast of what is taking place in their backyard.” When a security problem or vulnerability arises, the traditional method of dealing with it is to look for the most cost-effective, or no-cost, method to address it, rather than the most securityeffective solution. From a criminology perspective, this has some similarities, although not exact, with the broken window concept. Briefly, the broken window theory states that a security vulnerability unaddressed will attract further security incidents that will escalate both in severity and frequency. Inevitably, condominiums are starting to change their position on security, and there are those that have taken a proactive strategy. A few Toronto-based condos authorized a “safety and security” committee, made up of owners, to research security concerns and solutions and advise the board of directors. Part of the contributing factors to this systematic problem may be the incomplete advice that is being given to condominiums. Traditionally, when condominiums seek security advice, they tend either to seek out those municipal organizations that offer a “free security audit”, or they go to one of their security suppliers who offers to evaluate the security of the facility for free. The issues that arise from these types of reviews is that they are quite often incomplete; municipal organizations do not provide security consulting as their core business. Another concern is that the audits may not be impartial. If you are asking a security equipment provider to evaluate a need for extra security cameras, then there is certainly a very good chance that the report will have the condominium purchasing additional cameras. This is not to suggest that there is anything unethical on the part of the supplier—they provide cameras and will usually be very confident of the level of security their product provides. The question is, will the proposed solutions be sufficient to reduce crime activities within the condominium? Let’s take a quick look at what some experts say is necessary to reduce crime:

1

Address the underlying cause of crime This is a social - politic al conversation that would

go beyond the ability of a condominium to address, even in their neighborhood. One action that we are noting is that, in some neighborhoods, several condominiums are bonding or forming associations in order to have more voices represented when they petition their city officials to take more active measures in protecting their areas. That aside, in most cases, the condominium will have a limited abilit y to address the underlying cause of the crime. For instance, the underlying cause of bike theft is the shortage of bikes, potentially caused by the pandemic as more people decided to take up cycling as a means of travel and exercise. A condominium does not have the ability to address the current shortage of bikes but is in a position to see what is taking place due to this shortage. There have even been reports of bikes that were stolen at knifepoint. In the case of condominium management, forewarned is forearmed. By monitoring local crime trends— usually easily accessible from local police websites—board and committee members can keep abreast of what is taking place in their backyard. In this case, condominiums may not be able to do anything to address a province-wide problem but being aware of the situation allows them to take steps to protect their facilities. This may be as simple as placing an extra layer of security around the magnets which are attracting the bad actors. By doing this, the condominium is ensuring that the cost, or risk, of obtaining the goods outweighs the benefits of getting them.

2

Deter offending activity The condominium should make the risk of getting caught outweigh the joy the adversary will get from obtaining the goods. For this to take place, look at the probability of detection and the potential response time of the condominium. Most condominiums are protected by surveillance cameras, as well as a key or fobbed entrance. If a bad actor is able to breach the perimeter or envelope of the building, the condominium should

www.REMInetwork.com | October 2021 19


SECURITY

look at the likelihood that that breach will be caught in real time so that a security response can be organized. To be effective, a security response must be organized and completed before the adversary has time to complete his/ her objective. To deter the offenders, there has to be a ver y real risk that they may be caught and prosecuted for their bad behaviour. Some factors that may affect the adversary's decision to attempt their objective (steal the bike) may include the visual security readiness of the building, the reputation of the condo in dealing with past attempts, and the difficulty or ease of gaining entry. If an adversary is confident that he/ she will not be interrupted in their commissioning of a crime, and that they have a high likelihood of success in accomplishing their objective, then they are more likely to attempt the theft. Condos that have a reputation of preventing crimes and making arrests will be less likely to be targeted because the cost is too high to the adversary.

3

Reduce the opportunities In addition to discouraging the motivation of would - be thieves, condominiums should look for ways to reduce the opportunities for crime to take place. Condominiums are forming associations within their buildings and their neighbourhoods in order to share information and look for methods of eliminating the vulnerabilities. At a basic level, condos are commissioning security audits in order to assess their risk and to develop strategies to mitigate them. These strategies may include increased lighting, better locking mechanisms, mobile patrols, CC T V monitoring and response, static security guards, intrusion detection systems, and many more. Some condos are taking the extra step and implementing robust security master plans in their buildings. By having a complete security plan in place, a property is able to determine what is working and adjust what is not. A securit y plan is a living document

20 CONDOBUSINESS | Part of the REMI Network

that may change when the proper t y understands the underlying cause of crime. Condos looking to reduce the crime in their buildings need to keep t h e i r t h u m b s o n t h e p u l s e of t h e neig h b o ur h o o d s . L o ok fo r ways to discourage criminal motivation, and reduce the opportunities to gain access to the building and its assets. 1 Scott Hill is the owner of 3D Security Services, a security company specializing in condominium protection a n d s e c u rit y s e r vi c e s. S c ott i s a n RCM with ACMO, a Physical Security Professional (PSP) with ASIS/GSX and a Certified Security Project Manager ( C S P M ) with the S e c u rity I n d u str y Association. The preceding article is an expanded and updated version of a previous blog post, 3 Steps for Reducing Crime in Condominiums,” as published on 3D Security Services.


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Costa advised that he no longer wished to occupy his role as president. The emergency meeting took place at the defendant’s (MTCC 1292’s) premises. At the emergency meeting, the plaintiff and Mr. Da Costa entered into a heated argument, which led Mr. Da Costa to “lose it” and strike the plaintiff on the head with a chair. Mr. Da Costa was charged by the police and received a conditional discharge for assault with a weapon. iff commen The plaintiff commenced a civil action against Mr. Da Costa fo for his use of force as well as MTCC TCC 1292 for fo failing to ensure her safety and nd failing to employ security meet measures at board meetings. MTCC 1292 brought a motion summary judgment otion for su to dismiss the plaintiff’s plaintiff’ claim against it nly opposed by Mr. Da Costa which was only given his crossclaim MTCC 1292 ossclaim against ag on and indemnity. inde for contribution

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their premises reasonably safe for those who enter it. But what about when an individual commits assault while at one of these meetings? Should the occupier or organizer of the

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In Omotayo v. Da Costa, 2018, the defendant occupier, Metro Toronto Condominium Corporation 1292 (MTCC 1292), was successful in dismissing the plaintiff’s claim and the assailant’s crossclaim when a member in attendance at a condominium board meeting struck another meeting attendee with a chair. Justice Nishikawa found that the duty the condominium corporation owed to the plaintiff did not include preventing an assault that occurred during their condominium board meeting. Facts of the case T he plaintif f, J ac queline O mot ayo, was a resident and former chair of the condominium corporation. The defendant, Jose Da Costa, was also a resident and former president of the condominium corporation. An emergency board meeting was held on Oct. 4, 2011, to discuss the future organization of the board as Ms. Omotayo had recently been removed from her position as chair and Mr. Da

By Steven Chester

SERVING THE FACILIT Y CLE ANING & MAINTENANCE INDUSTRY

Let’s face it, we all want our businesses to be social media rock stars, and we know it ain’t easy. It’s becoming more prevalent that some of the most popular social media platforms have been infiltrated by those who game the system.

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Summary judgment motion udgment m positi MTCC took the position that its duty w is confined confine to the physical under the law condition of the premises premise and foreseeable e unforese risks, not the unforeseeable conduct of individuals in attendan attendance. Meanwhile, Mr. Da Costa that MTCC 1292’s a argued th s to having rules of conduct duty extends for meetings, relating to abusive s, policies re l an gu a g e, thre at s aan d intimid atin g d a duty to h behavior, and hire and supervise competent professional professionals to oversee its business (including, security luding, if appropriate, ap Cos further argued personnel). Mr. Da Costa that the assault given the ult was foreseeable fore quarrelsome nature of MTCC 1292’s board M nd a prior unrelated u meetings and incident involving the plaintiff and another member of MTCC 1292 wherein the police was 292 wherei called. ng her dec In reaching decision, Justice Nishikawa looked Coleiro v. Premier ooked to C s where summary sum Fitness Clubs judgment d in favour of the defendant was granted

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LEARNING FRO SURFSIDE COLL

22 CONDOBUSINESS | Part of the REMI Network


TECHNOLOGY FEATURE

OM THE LAPSE

A condo tower stood high for 40 years until its partial fall this past summer. Why the sudden tragedy in Florida wasn’t so sudden, and the fatal flaws of poor governance.

BY SALLY THOMPSON

www.REMInetwork.com | October 2021 23


FEATURE

In the early hours of the morning, on June 24, 2021, Champlain Towers South in Surfside, Florida, suffered a collapse of the east wing, killing 98 people. The 136 - unit condominium, at 8777 Collins Avenue, was constructed in 1981. Most of the building was 12 storeys, with a last-minute 13th-floor penthouse added on the east side. The tower sat over a single -storey garage, the roof of which ser ved as the pool deck. T his pool deck was contiguous with the ground floor of the tower. Building failures of this horrific scope are seldom seen in North America. But it is important to examine what happened so we can learn and prevent similar collapses in the future. Anecdotal evidence from the scene allows us to recreate the sequence of events. About five minutes before the east wing of the tower collapsed, a large portion of the pool deck collapsed. Video evidence taken at the time, looking down the garage entrance ramp, showed concrete debris on the floor of the garage, and a sprinkler pipe in the garage sheared off and spraying water. A unit owner was in the lobby and noted that the cars in the ground-floor parking lot outside the window had fallen into the parking garage below. A unit owner on the sixth floor, who went on to perish in the collapse, was on the phone with her husband at the time and reported a “sinkhole” in the pool deck. Tragic Triggers Why would the collapse of a single-storey pool deck trigger the collapse of the adjacent 13-storey tower? Fundamentally, it appears the single-storey failure disturbed the columns that were supporting the east wing. The fallen slab created two-storey columns, which would have been prone to buckling, or it

24 CONDOBUSINESS | Part of the REMI Network

may have been that the slab pulled laterally on the columns causing them to fail. Two-storey columns could be seen at the base of the west tower after the collapse, where the pool deck had fallen around the columns. Those columns stood, and the west portion of the tower did not fall. This was likely due to a combination of factors: the columns in this area were larger because they supported the surface parking; there was no beam along the west tower columns, so the connection between the slab and the columns was weaker; and the west tower housed the elevator shaft, which was surrounded by very strong shear walls. Regardless, failure of the columns at the base of the east wing triggered its progressive collapse over a period of about 10 seconds. There have been at least four similar failures of reinforced concrete parking garages in Canada over the last 30 years. In the mid-1990s, the garage roof deck of a Mississauga condominium collapsed. In 2008, a floor of parking in a Montreal garage fell to the floor below, killing one. In 2010, a floor of parking in a Kingston, Ont., hotel collapsed to the floor below. And again in 2010, the garage roof deck over a single-storey parking garage collapsed in Windsor, Ont. In all four cases, the nearby columns withstood the failure without collapsing, and the adjacent towers remained standing. This was, however, good luck and not good management. If any of the adjacent columns had buckled or been pulled over, this could easily have triggered a similar progressive tower failure. The Surfside building sat right on the beach. On the oceanfront, it was always exposed to salt-spray. Salt is kryptonite to reinforced


FEATURE

“Good governance should have existed so that boards had the clout to implement the appropriate, but potentially painful fee increases that were needed.”

concrete structures because it induces corrosion of the embedded reinforcing steel, causing structural deterioration. Buildings exposed to salt, whether from the ocean, from de-icing chemicals, or because it was added to the concrete during construction (a practice which was discontinued in the late 1980s but which continues to plague some older buildings) must always be protected using waterproofing materials and monitored closely so that structural deterioration can be repaired as it arises. Governing Flaws The cause of the collapse of the single-storey garage is unlikely to be single-faceted. When learning from this failure, it is important to separate the factors over which the condo board had no control from those over which they had full control. The investigators are likely to uncover defects in the original design and construction. Settlement of the site may also be a contributing factor, as may have been the construction of an adjacent development. None of these were under the control of the board. However, there is also clear evidence from the site that some factors within the board’s control are likely culprits. The pool deck was originally constructed with a tiled finish on

the concrete slab, acting as the only waterproofing. When leakage originally occurred, rather than strip the tile to permit the slab to be properly waterproofed, the corporation, possibly following lessthan-ideal advice, installed a membrane on top of the tile and then covered this with sand and concrete pavers. This may have proved a temporary fix, but it added load to the pool deck slab. We can assume that a structural engineer was engaged at the time to ensure the slab could withstand the additional loads, but regardless, the extra load related to the pavers, and to the addition of some planters not shown on the original drawing would not help as the structure aged and deteriorated. It also appears that the drains added when the pavers were installed drained at the level of the surface of the pavers, rather than being bi-level drains that drained both the surface and the level of the original tile/slab. Ponding water is evident in many photos of the site, adding further load and helping salt penetrate the structure. When further leakage occurred, the corporation attempted repair by injection-sealing the leaking cracks from below, again, possibly following poor advice. Injection from below is never appropriate if the slab above is exposed to salt. This simply plugs

www.REMInetwork.com | October 2021 25


FEATURE

“Condominium corporations should exercise due

diligence and complete periodic component evaluations— balconies, cladding, parking garages, post-tensioning cables and even electrical systems—as the building ages.” the crack but provides no protection to the top surface of the slab above. The salt water continues to access the structural slab, where it can drive deterioration that is invisible—hidden below the surface finishes. The structural deterioration was readily visible in some areas, even to a lay-person. There were chunks of missing concrete and rusted reinforcing steel, visible in both the garage and on balconies. This would have developed over years, not weeks. Yet no, or at least insufficient, action was taken until the 40-year recertification process was started. Then, a plan was initiated to address the issues, but this plan could not be implemented because there were insufficient funds in the corporation’s reserve fund. A typical story of poor governance ensued, with one board resigning before a second board came in and was able to start the $15-million special assessment needed to fund the deferred

26 CONDOBUSINESS | Part of the REMI Network

maintenance. However, the three-year delay in moving forward allowed ongoing deterioration and prevented the repair from being completed on time. This failure could have been prevented. E xposing the top sur face of the slab and proper waterproofing would have addressed leakage as it developed. As deterioration occurred, structural repair should have been completed periodically. Occasional condition evaluations, c omp lete d during the life of the building , c ould have identified hidden concerns. Proper reser ve fund studies, relying on the condition evaluation reports, would have ensured that the corporation set aside the money needed to complete the work, and in a timely manner. Good governance should have existed so that boards had the clout to implement the appropriate, but potentially painful fee increases that were needed.


FEATURE Reserve Fund Diligence In Canada, there are no 40-year recertification programs, nor any mandatory structural reviews except for parking garages in Quebec. After the 2012 collapse of a portion of the steel framed Algo Mall in Elliot Lake, which killed six, the Building Safety Technical Advisory Panel recommended mandatory periodic structural evaluations of medium- and high-risk buildings in Ontario. However, the Ministry of Municipal Affairs and Housing has not yet implemented these recommendations via the Building Code. Most provinces and territories require periodic reserve fund studies. While the individuals completing these studies may have the technical know-how to spot a developing structural concern, this is not always the case. In Ontario, a recent guideline, published by Professional Engineers Ontario, suggests that reserve fund studies for certain highrisk buildings, including all high-rise buildings, should involve a professional engineer, notwithstanding the laxer list of reserve fund study providers included in the Condominium Act. This shift to engineers as reserve fund study providers for high-risk buildings should help reduce risk, as Ontario engineers are required to regard their duty to public welfare as paramount. This means that they can’t notice an imminent structural concern and simply report it to the client, as appears to have been the case in Surfside. They must ensure that action is taken to address the concern. Reserve fund studies aren’t the only solution. There are many forms of structural deterioration the study’s visual review cannot evaluate, such as wood-framed buildings and steel buildings that often have coverings over the structural connections.

Post-tensioned buildings, which are relatively common in condominiums, particularly in Toronto, Alberta and British Columbia, can suffer corrosion of the embedded steel cables, even without the presence of salt, which can result in rapid progressive failure without any visible surface deterioration to provide a warning. As such, condominium corporations should exercise due diligence and complete periodic component evaluations—balconies, cladding, parking garages, post-tensioning cables and even electrical systems—as the building ages. A good reserve fund study will set out the necessary component evaluations to complete, as these can be paid for from the reserve fund. Subsequent reserve fund studies can reference these evaluations to ensure funds are available in time to complete the required repairs. Diligent boards will also avoid any activity that adds excessive additional load to a structural slab, whether in the form of adding more finishes, allowing large vehicles onto a suspended slab, or even allowing trees to grow unchecked on top of a structural slab. Boards should promptly implement fee increases to adequately support the reserve fund. Delaying, deferring and ignoring seldom end in success. Canadian condominiums have every opportunity to avoid a catastrophe like the Surfside collapse; however, this requires diligent oversight by the board, good governance, and proper funding of their reserve funds. 1 Sally Thompson is a managing principal at Synergy Partners and pastpresident of CCI Toronto.

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Directors and Officers Coverage Poised For Change When the dust had settled after the pa r tia l collapse of Champlain

Towers South in Miami earlier this year, the story

that emerged was one of total disarray inside the condo board.

28 CONDOBUSINESS | Part of the REMI Network

BY MATTHEW STUDLEY AND DRU DOUGLAS


INSURANCE

Although the board had called for structural repairs back in 2018, those repairs were to be paid for through special assessments imposed on the owners. Five of the seven board members resigned over the issue but the repairs were never scheduled. As a result of those decisions, the condo building’s board members can actually be sued for decisions they made on behalf of the homeowner’s association (HOA). In fact, several dozen lawsuits have been filed against the HOA and the board of the Champlain Towers. And any other condo association facing a disaster can be held responsible for a decision that left the condo at risk. What’s more, in today’s litigious environment, it’s not hard to imagine a scenario in which a series of lawsuits filed against HOA board members and regulatory investigations could quickly surpass the limits of the building’s property and casualty (P&C) and directors and officers (D&O) coverage. And for those boards that are lacking appropriate D&O coverage, each individual board member’s personal assets may be at risk. When it comes to condo boards of directors, it’s important to consider all angles. Protecting your board of directors is critical, and D&O coverage is just one component of that. A Changing D&O Landscape In the coming months, the D&O insurance landscape is expected to change in several ways, including:

1

Expect far tighter underwriting. Boards preparing for renewals will have to make themselves an attractive risk to insurers. Underwriters will be looking for healthy reserve funds and may decline to cover buildings without adequate reserves. They are also likely to scrutinize individual board members, looking carefully at their experience, their decision-making abilities and their financial acumen. Insurers may deny D&O coverage to boards that aren’t up to par.

2

Qualified board members will be scarce. Ontario began to require training for new board members back in 2017, but this measure seems to have encouraged inexperienced candidates to apply for the positions. While the training does help, it can’t compete with years of experience or an appropriate management background. Meanwhile, existing, experienced board members, knowing they may be held personally responsible for poor decisions, may possibly reconsider their positions. 1 Matthew Studley, CFA, is senior vice president, complex risk, for global insurance brokerage Hub International. He is a recognized expert in financial risk management, executive liability and the mitigation of specialty risks through insurance and insurance-linked securities. He consults on a variety of liability matters and risk transfer options, and advises clients on corporate governance issues, investor lawsuits, regulatory investigations and claims management. Dru Douglas is an account manager for the Ontario region for global insurance brokerage Hub International. He specializes in insurance and risk solutions for the office, retail, industrial and multi-family sectors of commercial real estate.

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Vaccination Policies in Condominiums Condomin iums under t he Condominium Act (the Act) are

BY ASHLEY WINBERG

deemed to be the occupiers of their common elements for liability purposes, and as the occupiers of their common elements,

have a duty of care under the Occupiers’ Liability Act, (the OLA) to ensure the reasonable safety of indoor common element amenity users.

30 CONDOBUSINESS | Part of the REMI Network


LEGAL Condominiums also have an obligation under the Occupational Health and Safety Act, (the OHSA) to take every precaution reasonable in the circumstances to protect the safety of their on-site employees and contractors. Consequently, under the OHSA and the OLA, condominiums are required to take reasonable measures to limit the spread of COVID-19 as they have an obligation to protect amenity users and on-site employees from potential exposure. In an effort to comply with their obligations under the OHSA and OLA, an increasing number of condos within the last two months have implemented mandatory vaccination policies, which apply to indoor common element amenity users and on-site employees. Although these policies are largely supported by public policy in Ontario, concerns have been raised with respect to the authority of condos to unilaterally implement such policies, as well as the legal protections available to amenity users and employees. Workplace Vaccination Policies Toronto’s chief medical officer of health has strongly recommended that employers in Toronto institute workplace vaccination policies, in addition to other measures, to protect their employees and the public from COVID-19. The foregoing recommendation would apply to condos in Toronto; however, a workplace vaccination policy implemented by a condo, including a condo situated in Toronto, would still have to be reasonable and comply with existing legislation. If a condo’s workplace is unionized (i.e., the employment of the condominium’s cleaners, superintendent or security staff is governed by a collective agreement), the condo would be prohibited from unilaterally implementing a vaccination policy. If a condominium’s workplace is not unionized, the condominium would be permitted to unilaterally implement a vaccination policy and require that all employees comply. In the latter scenario, barring discrimination under the Human Rights Code, (the Code), if an employee is unwilling to comply with a condo’s vaccination policy, the condo would be permitted to terminate the employee’s employment on a without cause basis. In doing so, the condo would have to provide the employee with pay in lieu of reasonable notice of termination, in addition to any other pay

and/or benefits that employee may be entitled to upon the termination of their employment, under statute, contract and/or common law. As the presence of unionized workplaces in condos is becoming more prevalent, any condos considering a workplace vaccination policy should first consult with their solicitor. Exemptions under the Code The Ontario Human Rights Commission (the OHRC) released a policy statement on September 22, 2021, advising that implementing vaccination policies to protect people at work or when receiving services is permissible under the Code. However, protections must be put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated. In this regard, it is possible that an amenity user or employee may claim that they are exempt from a vaccination policy under the Code on the basis that: (a) they have a religious objection that prohibits them from getting vaccinated against COVID-19; (b) they have a medical exemption that prohibits them from being fully vaccinated against COVID-19; and/or (c) they are unable to

receive the COVID-19 vaccine for disabilityrelated reasons that are unrelated to a medical exemption. Creed and Religion The Code prohibits discrimination based on creed, which can include religious beliefs and non-religious belief systems that resemble religion. In the September 22, 2021 policy statement issued by the OHRC, the OHRC advised that “personal preferences or singular beliefs do not amount to a creed for the purposes of the Code”. Accordingly, if an amenity user or employee chooses not to be vaccinated because of a personal preference, this would not amount to a creed for the purposes of the Code. As such, said amenity user or employee would not be entitled to accommodation under the Code on this ground alone. In order to support an exemption based on a creed under the Code, the amenity user or employee would have to provide objective evidence that their claimed creed has a connection to an organization or community that professes a shared system of belief, which prohibits them from getting vaccinated against COVID-19.

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LEGAL

Medical Exemptions and Disability policies to require that anyone alleging The College of Physicians and Surgeons they are medically exempt from being of Ontario (the CPSO) stated that the very fully vaccinated must provide a written few and rare medical conditions that would document, supplied by a physician or by a medically prohibit someone from getting registered nurse extended class or nurse vaccinated against COVID-19 include: (i) a practitioner. The document must state they severe allergy or anaphylactic reaction to are exempt for a medical reason and how a previous dose of a COVID-19 vaccine or long the exemption applies. to any of its components, which has been confirmed by an allergist or immunologist; Other Disability-Related Needs and (ii) a diagnosis of myoc arditis It is also possible that an amenity user or (inflammation of the heart muscle) or employee could claim they are unable to pericarditis (inflammation of the sac around receive the vaccine as a result of a disabilitythe heart) after receiving an mRNA vaccine. related need that they suffer from, which is T h e O H R C e n c o u r a g e s c o n d o s unrelated to a medical exemption. To date, the DelProperty_Condo_March_2018_torevise.pdf 2:44 PM that voluntarily implement vaccination OHRC1has2018-04-13 provided no guidance with respect

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to this possible category of exemption; however, it is presumed that this potential category could apply if an amenity user or employee suffered from a mental health condition that made it difficult or barred them from getting vaccinated. Privacy Rights Accessing an individual’s confidential medical information, which includes an individual’s vaccination status and COVID-19 test results, is only permitted by consent, pursuant to legislation or contract, or to the extent that such information is demonstrably required and permitted by law for a particular purpose.


LEGAL At the date of this article, condominiums are only permitted to collect medical information regarding: an amenity user’s vaccination status and/or COVID-19 test results if the amenity user consents to the collection; and an employee’s vaccination status and/or COVID-19 test results if the employee consents to the collection or if the collection is permitted pursuant to the employment contract between the condo and the employee. Although the federal Personal Information Protection and Electronic Documents Act (PIPEDA) and provincial Personal Health Information Protection Act (PHIPA) do not strictly apply to condos in Ontario, the principles set out in the foregoing should be used to help create a privacy policy. Such a policy should be implemented or updated in conjunction with a vaccination policy. The recommended privacy policy should advise amenity users and employees of the following, at a minimum: (a) the nature and extent of the information being collected; (b) the purposes for which such collection is being conducted; (c) where the information will be stored; (d) who it will be shared with; and (e) when and how it will be destroyed.

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Seek Professional Assistance The law and recommendations detailed above are general in nature and are subject to change as the law on this particular matter develops. Accordingly, a condo considering implementing a vaccination policy should first consult with their solicitor, who can assist with the requested policy, in addition to keeping the condo apprised of any applicable changes. If a condo is considering implementing a vaccination policy, it is advised that it be in conjunction with a privacy policy and a human rights policy to reduce the condominium’s exposure to potential liability under the Code. This ensures that accommodation requests are handled in a timely and consistent manner, while protecting the privacy rights of amenity users and employees. 1 Ashley Winberg is a corporate lawyer specializing in condominium law at Elia Associates. She assists a diverse array of condominium boards and management companies throughout Ontario on all matters relating to condominium governance and management. She is also the chair of CCI Huronia’s Communication Committee, a director on CCI Huronia’s Board of Directors, and a member of CCI Toronto’s Volunteer Committee and CCI Toronto’s By-Law SubCommittee.

www.REMInetwork.com | October 2021 33


Recent Proof-of-Vaccination Decisions C ondom i n iu m cor p orat ions

across the province are grappling with the decision of whether to require proof of vaccination

BY DARRELL GOLD AND JORDANA LYONS

(POV) in their condominiums even though they are not required to do so by provincial regulation.

34 CONDOBUSINESS | Part of the REMI Network


LEGAL

Earlier this fall, the property manager of Casa Condos, a 46 -storey downtown Toronto condominium, advised its residents that effective at the time of the notice, POV would be required “for guests and residents who wish to use all amenities”. That means “unvaccinated residents will not be allowed to use the 46-storey building’s outdoor facilities, such as the rooftop deck, pool and barbecue, or its indoor amenities, including a party room, cinema, visitor suites and gym.” After the response from some condo residents of the building, the email notice was retracted by the property manager. However, Ontario Ministry of Health guidelines permit condo boards and property managers to opt into the certificate program which some condo boards, like those at the Casa Condos, opted to do so, notwithstanding that the condo amenities are not “public settings or facilities” subject to Ontario’s POV requirements. On October 28, a news release was issued by Strategic Group, a Calgarybased real estate company that owns multifamily residential communities in Alberta. The news release announced that all employees, residents, and prospective residents (i.e. those who merely come to see the unit prior to renting it) must show POV prior to entering the property and moving in. Current residents must show proof of vaccination to access indoor amenities, such a fitness centre or party room. Anyone unable to be vaccinated—for instance, children under 12— is exempt until able to receive a vaccine. The rule is applicable to all of Strategic Group’s estimated 1,500 residential units in residential communities in Alberta.

condition and that they did not need to provide proof to the condo corporation. Balancing all unit owners’ right to safety with the Mitrovics’ medical conditions, the court held that the Mitrovics could circulate interior common elements without a mask while travelling the most direct route from their unit to the main entrance. However, they could not enter other floors without a mask. In Toronto Standard Condominium Corporation 1704 v Fraser (2020 ONSC 5430), the court upheld a condo corp’s policy that in-unit repairs and renovations by contractors were prohibited during the pandemic. The court stated that the policy was valid and “well within the range of reasonable responses to a global pandemic”. Masks and vaccines are two separate mandates which condo boards must make decisions on. Though the court’s treatment of mask mandates in condos is not indicative that POV requirements would be treated similarly, it is interesting to see how the introduction of these health measures in condo buildings has been received by the courts.

How other COVID-19 mandates have been received by courts During the pandemic, there have been a few instances where the court has ruled in favour of condo boards seeking to enforce compliance with their COVIDrelated policies. In Halton Condominium Corp No 77 v Mitrovic (2021 ONSC 2071), the condo corporation applied for an order enforcing its policy which required unit owners to wear masks while in common spaces, except for children and those with medical conditions or disabilities that prevented them from wearing a mask. The Mitrovics, unit owners in the condo, claimed that they were exempt under the mask policy by way of medical

1. What is the scope of the POV in terms

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Ramifications of requiring POV in a residential setting While none of us know how long POV will be required in Ontario in the settings mandated by the province, or whether those areas and exemptions will be amended over time, what we do know is that there are many factors for residential unit owners, condominium boards and property managers to consider regarding POV requirements, including the following:

2.

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4. 5.

of where on the property it will be required; for example, only for use of public or condominium amenities? What is the purpose of the POV in terms of protecting the health and safety of on-site personnel, residents and guests? How will existing residents (some of whom may qualify for an exemption) be treated? Their monthly common expense payments are used in part for the condominium public amenities. How will the rule or policy be enforced and how will the costs of such enforcement be absorbed? What is the liability to on-site employees where no POV is required and a case of

COVID-19 arises which can be traced to a non-vaccinated person without a valid exemption? How valuable is the ability to increase capacity of the condo’s indoor amenities by requiring POV? What role does an insurer have in advising the condo board / owner / property manager? How do privacy laws affect the release of health information? What about the Supporting Ontario’s Recovery and Municipal Elections Act, 2020, S.O. 2020, c. 26, which is intended to afford protection from lawsuits to “thousands of Ontario workers, employers, volunteers, nonprofits, and other organizations who make an honest effort to follow public health advice, follow public health guidance and law as Ontario responds to the COVID-19 pandemic” and who, by doing so, “risk significant liability in the event of transmission to third parties.”? For how long would a proposed policy be in effect? What amount of advance notice would be fair to residents?

Ontario’s POV requirements do not expressly require them in residential condominiums. While the provincial mandate does permit settings not contemplated in the order to implement POV requirements, there are risks associated with a condo corporation implementing such requirements right now. Unit owners, employees and occupiers of residential condo buildings should balance overall health and safety with individual needs. 1 Darrell Gold has been in practice for over 30 years and is a partner at Robins Appleby LLP. He is responsible for the leasing component of the Real Estate Group and has extensive experience and expertise in commercial, retail, office and industrial leasing, lease enforcement and dispute resolution, acting on behalf of landlords, tenants and property managers. Jordana Lyons is an articling student at Robins Appleby LLP in Toronto, Ontario. She graduated from the dual JD/HBA program at Western Law and the Ivey Business School in 2021.

www.REMInetwork.com | October 2021 35


After The Vaccine The Nuances Of Amenity Access During COVID

As some condo corporations

have likely learned, asking owners and residents to prove they've had their two shots against

BY REBECCA MELNYK

COVID-19 is no easy feat. Rolling out a vaccine policy for amenity use shows a corporation is acting reasonably safe to avoid dangerous conditions on its property, thus hindering liability exposure. But it also may spark emotionallycharged debates from opposing residents. Enforcing such a policy is even more challenging.

36 CONDOBUSINESS | Part of the REMI Network

As the virus remains a threat, Delores Radcliffe, a high-rise condo board director, former senior program consultant for the Ministry of Health, and a panelist at the CAI Canada V-CON(DO) 2021 conference, says there must be a way to protect vulnerable residents and encourage best health practices, while offering


GOVERNANCE accommodation to those who refuse to comply due to medical conditions or other exemptions. “It is also reasonable to ask members of the community to be good Samaritans, that it isn’t that much of an infringement on their personal freedoms to be kind to others who help protect the safety of the community,” she says. Managing A Clash Of Ideologies A patchwork of belief systems colliding with a vaccine policy is what one management professional calls a “minefield” in a condo community. “The reason is because it’s a heated, personally-charged issue,” says Ari Soroka, vice-president of operations at Nadlan Harris. “There is an absolute clash of ideologies here. You’re going to have a lot of issues when you do this, one way or the other.” Understanding why people adamantly refuse to be vaccinated is part of the story. As Radcliffe says, feelings need to be legitimized while reminding antagonists of the greater good of the community. Getting residents on board is often a case-by-case basis. “Every small circumstance would have to be treated individually and with some sensitivity,” she says. “There can be all sorts of reasons why people aren’t getting vaccinated. We just need to understand why and work with as many people as possible to get them vaccinated or to get them to accept the rule or policy and comply with that. Then you have to think about what you’re going to do to enforce compliance. I like to think we can do as much encouragement and awareness training and support individuals. But we need not just a carrot; we need a stick.”

As a representative for her corporation on the shared facilities committee with a neighbouring high-rise, obtaining consensus from both buildings multiplies the challenge. “Most boards are trying very hard these days to retain as much access to their amenities as they can, especially as people went through a whole year of social isolation,” she says. “There’s a real intent to try to be accessible that we need to honour and that helps get through things.” Think Before Adopting A Policy Corporations are advised to do what’s best for their communities. If they decide to require vaccination for amenity access, a first step is understanding the commitment it will take to enforce that and setting realistic goals. “Make sure that when you are crafting this policy, you can actually comply with it,” says condo lawyer Josh Milgrom of Lash Condo Law. “It is counterproductive to have a policy that you are not following. “If a corporation does have a policy and is not complying with it, and knows it is not complying with it, there could potentially be exposure on the corporation.” Milgrom advises condo boards to consider the nature of the amenity, how it’s used and where it’s located, and then assess the risk of COVID-19 transmission for that particular space. “You don’t need to have a policy that covers everything under the sun; you can have it specific to each amenity. List the amenity to which the policy applies instead of doing a broad sweep.” Furthermore, Radcliffe prescribes that boards have a risk assessment tool on hand to help judge the risk level of various amenities and to ease the challenge of assessing them separately.

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GOVERNANCE

Getting People On Board Enforcing a policy could be an arduous pursuit, with a lack of sufficient staff to screen residents and also arguments from residents themselves. “There needs to be that thoughtful, carry-it-through discussion, so you get your messages straight and they are as simple and straightforward as you can make them for all owners to understand,” said Radcliffe. “You could also identify that if people need an exemption, or want to tell you about an exemption and need accommodation, that is an offer for people as well.” The idea is to be as reasonable as possible; to deal with individual needs and concerns, while sending the message that all owners of the condominium must be protected. Concerns over condo fee contributions are also likely to ensue. “Owners have the right to reasonable use of the common elements, but they don’t have the right to endanger the health and safety of other residents to the extent that an owner or residents’ use of the common elements would potentially endanger others,” says Milgrom. “That’s where they lose those rights, and even if they don’t use the amenities, they still have to pay for those common expenses.”

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Diffusing Fires Resident-facing managers are strategizing ways to bring harmony to condo communities in the event of vaccine pushback. “De-escalation is an art,” says Soroka. “Unfortunately, it hasn’t been taught in our industry enough. With human interaction, managers are left on their own, and I also encourage that kind of training for directors as well.” “No matter how upset or angry people are who attack you, the biggest thing is they need to know they are being heard. You sponge the anger and then once you get to a place where you can begin the communication process, in a modality they can understand, then the healing begins. Those skills need to be taught to all your staff. Your security guards need to understand they’re not the vaccination police; above everything else, you have to maintain your professionalism and take emotion out.” Milgrom advises slowly escalating efforts of enforcement. If someone doesn’t comply, communicate first, send reminders about the policy and what it provides for. If all else fails, warning letters might follow, then potential legal letters, and a compliance application. “We saw an application in the context of people not wearing masks,” he says. “And the courts have confirmed that a failure to wear a mask without an appropriate exemption, constitutes a breach of Section 117; it constitutes a dangerous condition, so I can see similar logic applying in the context of a person who is refusing to comply with the vaccination policy in the amenities. “Have that plan in place, know what you’re going to do when you encounter a resident who is not complying and maybe even put that directly in your policy. Specify those steps you are planning on taking, so boards, managers, owners, and residents know exactly what the policy is for people who don’t comply.” 1


GOVERNANCE

Data Privacy Under Renewed Scrutiny Collecting proof of vaccination carries risks of exposing private health data. Maintaining residents’ privacy is nothing new in condos, but optional vaccine policies are bringing more relevance to the issue of confidentiality and how technology safely handles information. Joe Masoodi, senior policy analyst at Ryerson University’s Leadership Lab, says condo corporations should approach the types of tools they are considering adopting with caution. “Some tools can be very dodgy,” he says. “For instance, PortPass was an app that was launched presumably to make it more convenient for individuals to show their vaccination status. Unfortunately, the company didn’t have in place adequate security measures, exposing the personal data of hundreds of thousands of users, including blood type, email address, and photos of identification like drivers licence.” Ari Soroka, vice-president of operations at Nadlan Harris, recently said during the CAI Canada V-CON(DO) conference that condos will likely need to rely heavily on technology, while considering privacy. “We are asking to collect private data on people’s health,” he noted. “How do we deal with it? How do we handle it?” One idea is a special key fob for residents who’ve proven their vaccination status. The fob number would be the only data registered, trackable for management, but with no direct link to identify the individual. In this sense, data could be retained without perpetually checking one’s vaccine proof. “That will depend on the logistics of a corporation,” added condo lawyer Josh Milgrom of Lash Condo Law. “Do they have a security guard, a fob system that could potentially be programmed once someone provides their vaccination status? All of that is important.” Overall, Masoodi says it’s possible to see a national or province-wide proof-of-vaccine app being used by condo corporations for residents to access common areas. “This may be seen as involving less risk compared to adopting other less vetted tools or technologies,” he notes. “Regardless of what tools condo corporations plan to adopt, questions of enforcement are likely to be raised.” Since the pandemic began, digital tools to manage the spread of COVID-19 have been a contentious issue in condo communities. Last year, the Cybersecure Policy Exchange at Ryerson University conducted a survey on contact tracing apps, “mobile device applications that track the proximity of other mobile devices and alert users if they have come close to someone infected with COVID-19.” “Canadians were strongly opposed to making contact tracing apps mandatory by condominiums or landlords,” says Masoodi. Almost half of Canadians (45 per cent) disagreed in this regard, compared to 30 per cent who were in favour. More Canadians supported its presence within workplaces and public transit. Whatever health data is retained in relation to mandatory

vaccination, the consensus among some condo lawyers is to implement a privacy policy to guide how such data will be handled and preserved. As it stands, Ontario’s COVID-19 vaccination certificate rules require people to prove they are fully vaccinated to access specific venues like gyms. Businesses have been requiring this proof through a paper document and the Verify Ontario app and QR codes. Recent headlines have also revealed some frailties in these proof-of-vaccination protocols, suggesting that users, but also those requesting proof, be cautious. “There’s a risk that QR codes can be illicitly obtained,” says Masoodi. “This was the case in Quebec when hackers were able to acquire the QR codes of political leaders including the premier. Downloadable paper receipts are also subject to fraud and altered through common software. “Fraudulent proof-of-vaccination documents have been known to be sold on platforms like Telegram as well as on the dark web. QR codes can also be used to link to fraudulent URLs such as displaying fake information including fake vaccination status.” Cyber Aware Residents and staff are also advised to safeguard their own personal vaccine data. “From a cybersecurity point of view, one of the issues with [QR codes] is the same as with all information that people store digitally — many users do nothing to protect it,” says Daniel Markuson, a digital privacy expert with NordVPN. “Most users store their vaccination proofing documents on their smartphones. And failing to ensure their safety helps hackers to find system loopholes more easily.” NordVPN’s latest survey showed that a quarter of Canadians do not protect their smartphones by any of the possible lock methods. Almost half of them (42 per cent) use a PIN code to protect their device. But according to InfoSec experts’ study, 26 per cent of all phones can easily be cracked with simple digital passcodes, such as “1234”, “1111”, “123456”, “000000.” As a small business, condo corporations are at risk of cyberattacks and must be diligent about protecting residents’ personal information. According to an IBM report, an average cost of a data breach in Canada is $5.4 million. Markuson urges data collection to be as “breach-proof” as possible. Management should train employees, teach them cybersecurity basics, and monitor the use of computer equipment to audit employees’ digital literacy. “According to NordPass research, the most popular password among real estate industry employees is “password”. So, they have a lot to learn,” he says. “Businesses should make sure they are collecting only as much data as needed. “The less information they keep about their residents, the safer it will be for the businesses.”

By Rebecca Melnyk

www.REMInetwork.com | October 2021 39


Fire Risk Factors Evolve Over Time The advent of sprinklers

and drop-off in smokers are two

of the most influential fire risk factors in multifamily buildings over the past 40 years. A recently released study of U.S. statistics and trends from the National Fire Protection Association (NFPA) concludes that the combination of improved suppression and ignition source depletion has reduced the likelihood of fire-related fatalities within residential high-rises, and all dwellings in general, since 1980. However, analysts highlight other emerging concerns over the same period, tied to an aging population and new types of household furnishings. “The NFPA Fire & Life Safety analysis shows that the most successful recipe for fire safety in the built environment is the implementation of fire safety technologies through mandated codes and standards,” assert the study’s authors, Marty Ahrens and Birgitte Messerschmidt. “Most of the common causes of fire are related to human actions or lack thereof. One of the ways to tackle this issue is with continued public education alerting people to the

potential dangers of fire and how to prevent them. Another method is reducing the ignition risk by utilizing fire safety standards specific to the products involved.” The latter tact includes product standards related to cigarette ignition, the ease of operability of disposable lighters, and the ignition point, flame height and uprightness of candles. Notably, annual deaths in the U.S. attributable to playing with fire dropped from 410 in 1994, at the time consumer protection standards for disposable lighters were introduced, to 50 in 2018. In addition, new technologies, energy efficiency directives and evolving consumer preferences have brought LED lighting to replace the incandescent and halogen bulbs that can become hazardously hot, and to carve out a growing market share for artificial candles. Although not applicable to multifamily

“Demographic shifts could be bringing new fire safety vulnerabilities to multifamily buildings”

40 CONDOBUSINESS | Part of the REMI Network


MAINTENANCE

buildings, the study’s authors also credit the surging popularity of gas fireplaces for fewer fires due to castoff burning embers or creosote buildup in chimneys of wood-burning fireplaces. Sprinklers bolster survival rates, gap widens with singlefamily homes The data shows impressive life safety performance for sprinklers. Overall, Ahrens and Messerschmidt calculate fire - related death rates in the 2014-2018 period were 86 per cent lower in homes with sprinklers, and high-rise dwellers were particular beneficiaries of that trend. While just 7 per cent of all U.S. homes reporting fires had sprinklers or some other form of automated extinguishing system (AES), they were present in 48 per cent of the reported fires in multifamily buildings, seven storeys or higher. The report compares four-year periods in three decades — the 1980s, 1990s and 2010s — and finds a relatively steep drop in the number of high-rise fires between the ‘80s and ‘90s, falling from roughly 10,400 per year to 8,700 per year. The number of fires dipped more moderately over the next 20 years, easing down to an annual average of 8,600 by the 2010s. However, there was a more marked difference in the average death rate during the three periods, from a high of 6 fatalities per 1,000 fires in an average year in the ‘80s, to an average of 5.1 annually in the ‘90s and to 3.4 per annually in the 2010s. In multifamily buildings with sprinklers or AES, 89 per cent of deaths during 2014-2018 occurred in the room where the fire originated. Looking across the entire universe of multifamily buildings, deaths outside the room of origin accounted for 30 per cent of all fire-related fatalities in 2014-2018 compared to 49 per cent in 1994-1998. “The decrease in fire deaths in high-rise buildings follows the increase in the use of sprinklers in these buildings,” Ahrens and Messerschmidt state. “While compartmentation is clearly successful in limiting the spread of fire outside the room of origin, adding the additional safety layer of sprinklers can confine even more fires to the object or room of origin.” Multi-family buildings are also less likely to lack fire safety basics. Ahrens and Messerschmidt cite findings of the American Healthy Home Survey conducted in 2018-2019, which revealed that, among respondents, 8.2 per cent of single-family homes and 2 per cent of multifamily dwellings had no smoke alarms present. More disconcerting, 20.5 per cent of single-family homes and 9.4 of multifamily homes did not have working devices. Looking at reported home fires in 2018, roughly 57 per cent of single-family homes and 28 per cent of multi-family buildings relied on batteryoperated smoke alarms, which operated as intended 82 per cent of the time. “These differences mean that roughly two of every five reported one- or two-family home fires had no operating smoke alarms compared to less than one-quarter of the reported apartment fires,” Ahrens and Messerschmidt observe. “In 1980, working smoke alarms were only four percentage points more likely to have been present in reported apartment fires than in fires in one- or twofamily homes. The difference has grown wider over time. This is one of the main factors contributing to the sharper decline in apartment fire deaths than deaths in one- or two-family homes.”

Fewer smoking-related fires with deadlier consequences Demographic shifts could be bringing new fire safety vulnerabilities to multifamily buildings. Ahrens and Messerschmidt foresee potential heightened risk in the increasing numbers of people living alone, particularly if they are seniors and/or have disabilities. Typically, people have a higher survival rate in fire situations if someone else is also on the scene to alert them to danger, help them evacuate or control the fire. Death rates due to home fires, measured as the number of fatalities per 1 million people, declined significantly across all age groups between 1980 and 2018. The most improved results were recorded for children under the age of 10, while the lowest overall rate, at just two per million, was registered for youths aged 10 to 19. At the other end of the scale, the death rate surpassed 10 per million in age cohorts above 50 — at 16 per million for people aged 65 to 74, and topping out at 25 per million in for the 75+ bracket. At the same time, stats from the American Housing Survey show that increasing numbers of people 89+ are living alone, often because a spouse has died or moved to a long-term care home. “In 2014-2018, 17 percent of fatal fire victims who were 80 or older were unable to act at the time of the fire. Nearly onethird (31 percent) had some type of disability,” Ahrens and Messerschmidt report. The flammability of home furnishings is another major cause of concern. Statistics show that kitchens were less risky places to be during a fire in the 2010s than in the 1980s, while bedrooms and living rooms were much more dangerous. Synthetic fabrics and polyurethane foam padding burn more quickly than the natural materials, such as cotton and wool, that predominated in the 20th century. Research indicates that flashovers can occur in as little as five minutes when some more recently manufactured furnishings ignite. “Upholstered furniture and mattresses or bedding accounted for 1 and 2 per cent of the reported fires in 2014-2018, but 17 per cent and 12 per cent of the home fire deaths, respectively,” Ahrens and Messerschmidt note. “These are relatively low-frequency, high-consequence fires. On average, one of every 12 upholstered furniture fires and one of every 26 mattress or bedding fires in 20142018 resulted in death.” The prospect of ignition due to smoking is considerably lower now than it was in the 1980s, although smoking remains a major cause of home fires and fire-related fatalities. Ahrens and Messerschmidt chart a 77 per cent decline in fires attributed to smoking in the years from 1980 to 2018 and a 62 per cent decrease in fatalities. In 1980, smoking caused approximately 70,800 fires in U.S. homes versus an estimated 16,100 in 2018. Total fatalities fell from 1,820 in 1980 to 680 in 2018. However, that translates into a significantly higher death rate in 2018, at 42 per 1,000 fires, compared to 26 per 1,000 fires in 1980. “Although these fires have become less common, when such a fire has been reported in recent years, it was more likely to be deadly,” Ahrens and Messerschmidt affirm. In the good news department, it’s estimated that just 17 per cent of the U.S. adult population smokes, compared to 33 per cent in 1980. Today’s smokers also typically smoke fewer cigarettes than smokers of earlier generations, while more smokers habitually step outside their homes before they light up. 1

www.REMInetwork.com | October 2021 41


NEW AND NOTABLE

Toronto Approves Inclusionary Zoning Toronto is the first city in Ontario to implement inclusionary zoning which will require certain new residential developments around Protected Major Transit Station Areas to include affordable rental and ownership housing units beginning in 2022. Inclusionary zoning will secure five to 10 per cent of condominium developments (over minimum unit thresholds) as affordable housing, increasing gradually to eight to 22 per cent by 2030. The amount of affordable housing required will vary depending on where in the city the development is located and whether the units are intended for rental or ownership, with the highest requirements in the Downtown area, followed by Midtown and Scarborough Centre. Overall, Mayor John Tory said the policy will help the city achieve its target of approving 40,000 affordable rental and 4,000 new affordable ownership homes across Toronto by 2030. “Policies like this one are the right move forward to get thousands of homes built and it will ensure that our city remains vibrant and strong as it continues to grow,” he said. Tenant advocacy groups like ACORN are not convinced the new policy goes far enough. In a statement on November 9, the group said its members are “happy to have won the policy, but disappointed that it could have been much stronger,” and that

42 CONDOBUSINESS | Part of the REMI Network

despite victories the council voted to “protect developer profits rather than the right to housing.” The Framework Toronto’s inclusionary zoning framework sets out foundational requirements for affordable housing to be incorporated on a consistent basis in new developments and ensures affordability is maintained for 99 years. The policy will be closely monitored and reviewed after one year to allow for adjustments that may be required including changes to the phase-in and/or set aside rate, alterations to the minimum development size threshold and any other changes needed to ensure market stability and production of affordable housing units. Additional market analysis will be conducted in areas of the city currently undergoing a planning study, such as Little Jamaica and the Sheppard Subway Corridor, to identify opportunities to expand inclusionary zoning to other areas, with an update report by mid-2022. In the city’s policy, rent and ownership prices will be centred on new income-based definitions of affordable housing, targeting households with an annual income of between $32,486 and $91,611.


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