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F O R B U I L D I N G O W N E R S , A S S E T A N D P R O P E R T Y M A N AG E R S

VOL. 21 NO. 1 • MARCH 2014

NEW PROVINCIAL POLICY STATEMENT DELEGATES DUTIES TO MUNICIPALITIES REDUCING THE RISK OF CARBON MONOXIDE POISONING THE DIFFICULTY IN EVICTING RESIDENTIAL TENANTS

ONTARIO MUNICIPAL BOARD REFORM FACES HURDLES As Calls for Change Mount, Experts Disagree on how to Move Forward

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TABLE OF CONTENTS

CONTENTS COVER STORY

16

ONTARIO MUNICIPAL BOARD REFORM Calls for change are rising, but the province is doing little to alter the status quo

IN THIS ISSUE

8

12

STORMWATER SYSTEMS Control rain and snow melt to prevent damage

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CARBON MONOXIDE Educating tenants on prevention and detection are essential for reducing the risk of disaster

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Lawyer Ike Awgu explains why evicting troublesome residential tenants is not easy

28

LAND USE PLANNING The updated Provincial Policy Statement gives municipalities the duty to recognize Aboriginal interests in land use planning

EVICTION TROUBLES

GREEN CLEANING In this Q&A, Christine Deschenes explains why a green cleaning plan requires more than just buying environmental products

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EDITOR’S NOTE

PUBLISHER MELISSA VALENTINI melissav@mediaedge.ca | x248

TAKING STEPS TO MITIGATE THE RISKS OF CARBON MONOXIDE POISONING

EDITOR-IN-CHIEF BARBARA CARSS barbc@mediaedge.ca | x236 EDITOR DANIEL VIOLA danielv@mediaedge.ca | x223

C ONTRIBUTING WRITERS Ike Awgu, Shane Dari, Christine Deschenes, Leah Wong

ADVERTISING SALES SEAN FOLEY seanf@mediaedge.ca | x225

STEVE McLINDEN stevem@mediaedge.ca | x239

PAUL MURPHY paulm@mediaedge.ca | x264

SENIOR DESIGNER ANNETTE CARLUCCI WONG annettec@mediaedge.ca

DESIGNER JENNIFER CARTER jenc@mediaedge.ca

PRODUCTION MANAGER RACHEL SELBIE rachels@mediaedge.ca | x261

CIRCULATION LINA TRUNINA circulation@mediaedge.ca | x232 PRESIDENT KEVIN BROWN kevinb@mediaedge.ca

ACCOUNTING MANAGER MAGGY ELHARAR maggye@mediaedge.ca GTA & Beyond is produced as a supplement to Canadian Property Management magazine, published 8 times a year by:

5255 Yonge St., Suite 1000 Toronto, ON M2N 6P4 Tel: (416) 512-8186 Fax: (416) 512-8344 E-mail: info@mediaedge.ca

It is jarring to think about the dangers that carbon monoxide poisoning represents. The gas is colourless, tasteless and odourless. At night, the only warning that building occupants can hope to receive is from a carbon monoxide detector. But detectors aren’t a failsafe method for preventing tragedy. This was the case on March 17, when three Brampton residents died in their home due to carbon monoxide poisoning. The CBC reports that when one family member came home at about 2:00 a.m., he found the detectors activated and the occupants unconscious. Even if occupants can hear their alarm going off, they may not know how to proceed, and overlook the threat. This was something that I personally experienced this month, when a detector in my apartment’s hallway started going off. There was no smoke, but the building’s furnace was not working properly and was under repairs. So naturally, we thought the problem may be carbon monoxide. After evacuating and calling emergency personnel and the building superintendent, one of my roommates remarked that if she had been home alone, she would not know what to do and would likely have just ignored the alarm, or even have attempted to shut it off. In the end, the culprit was an old faulty detector. A false alarm, but a wakeup call for the importance of educating tenants about the dangers of carbon monoxide and proper evacuation procedures. Installing carbon monoxide detectors is mandatory in Ontario, but that should not be the extent of a landlord’s or property manager’s safety and security plan. As our feature on page 12 explores, management can take a number of steps to educate tenants and work towards mitigating the real risks that carbon monoxide poisoning represents.

DANIEL VIOLA danielv@mediaedge.ca

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PUBLISHER’S NOTE

NEW REGIONAL FEATURES ONLINE www.REMInetwork.com

A NEW LOOK AT AN EVOLVING INDUSTRY

} TORONTO LOOKS AT MANDATORY ENERGY USE REPORTING

} ROOMING HOUSE FIRE HIGHLIGHTS SAFETY CONCERNS

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} YORKDALE SHOPPING CENTRE’S ONGOING EXPANSION

We are proud to bring you Canadian Property Management – GTA & Beyond. With our new name comes a fresh look and increased focus on regional content. Formerly called Property Management Report, we have been a mainstay of the property management and real estate industry for more than 20 years. In this new and improved iteration, we will continue our mandate of informing and educating property and asset managers, along with building owners throughout the Greater Toronto Area and southern Ontario. The real estate and development industry is undergoing rapid changes. New provincial and municipal regulations concerning construction and sustainability are changing how buildings must operate, and new technologies are changing how management connects with staff, tenants and occupants. Management must constantly adapt in order to keep energy and operational costs down, and to attract and retain tenants in a competitive market. From Toronto city council coverage to in-depth features looking at updates in safety and security practices and up-and-coming tech tools, Canadian Property Management — GTA & Beyond will work to keep you informed on the need-to-know industry news that matters. And our print edition is only one part of our commitment to providing up-to-date real estate information to industry members. Readers can find everything from hyperlocal to national stories at REMInetwork.com. With our regular news briefs, weekly feature articles and convenient e-newsletters, readers can stay in the loop on best practices and breaking news. Throughout all of these changes, one important factor will remain the same: our commitment to be a trusted source for professionals throughout the Greater Toronto Area, Hamilton and Niagara regions. I welcome your feedback on our new design, and look forward to working with you over the coming years. MELISSA VALENTINI melissav@mediaedge.ca

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BUILDING ENVELOPE

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SYSTEMS TO IMPROVE STORMWATER MANAGEMENT Controlling Rain and Snow Melt can Prevent Flooding and Damage BY LEAH WONG

With the spring thaw underway, melting snow and ice will have nowhere to go but the sewer system. This can create problems in urban environments with large amounts of impenetrable surfaces like roads and roofs, as precipitation does not naturally soak into the ground. Stormwater management is therefore a priority in order to prevent flooding and damage.

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In natural conditions, stormwater — either rain or melted snow — is absorbed into the ground, where it is filtered before either replenishing aquifers or flowing into streams and rivers. According to the Toronto and Region Conservation Authority, the runoff from precipitation in urban areas runs through storm drains, municipal sewers and drainage ditches into natural bodies of water. In doing so, it picks up pesticides, road salts, heavy metals, oils and bacteria. The polluted runoff can cause downstream flooding, aquatic habitat destruction, sewage overflow and infrastructure damage. There are systems that can improve stormwater management, which also have added benefits to the buildings around them. Two projects in southern Ontario — Environment 3 (EV3) at the University of Waterloo and the North Toronto Collegiate Institute — have utilized two different types of systems that do just this. At EV3, a constructed wetland mimics a natural wetland by filtering water. Constructed wetlands are beneficial, as they increase water efficiency and decrease the load on municipal stormwater systems. Located at grade level, the constructed wetland filters both rainwater funneled off the roof, and greywater from kitchen and bathroom sinks through a vertical flow system. The vertical flow system has water applied to the wetland surface, which flows downward. The plants filter out contaminants from the two water sources before pumping it back into EV3 to flush toilets and water a living wall. There are two types of constructed wetlands: those that are located at ground level, and those that are located at roof level (and are often integrated into green roofs). There are advantages to both systems, but there is more maintenance associated the with roof version. “The advantage of the ground level system is twofold,” says Paul Parker,


BUILDING ENVELOPE

professor and director of the economic development program at the University of Waterloo. “Capacity can be larger on the ground without concerns about structural strength on the roof. Maintenance is easier and the potential damage is much less if a leak occurs on the ground versus the roof.” Wetland roofs are a special type of extensive green roof system that includes wetland or marsh plants. Because of the types of plants, the systems have to be irrigated on a daily basis. This differs from the standard extensive green roof, which can be self-sustaining and not require irrigation. At the North Toronto Collegiate Institute (NTCI), a redevelopment included the construction of a new four-storey school, the development of two residential condo towers, as well as an artificial turf field and tree-lined public walkway. Covering 80 per cent of the school’s roof is an extensive green roof system, which is connected to a stormwater management system. “The green roof layers are as follows: drainage layers, filter fabric, water retention fleece, pre-cultivated vegetation mat, growing medium, and finally, ballast. The plant material is contained on precultivated vegetation mats,” says Susan Spencer Lewin, principal and director of sustainable strategies at CS&P Architects. In this system, rainwater is stored under the growing medium in the retention fleece. Water that gets through to the drainage layer moves to roof drains, which slowly discharge the water using control flow features. The water then travels through internal rainwater leaders within the building to the storm system. Lewin says that the artificial turf, associated open space and walkways at the NTCI generate considerable stormwater. Under the south end of the field is a system of catch basins that lead to a three-chamber stormtech system, which manages the water and provides retention and detention systems. “The open bottom chamber is used for retention, where stormwater infiltrates into the underlying soils, and for detention where peak flows are attenuated using an outlet control structure,” Lewin says. In the event of a major storm that exceeds the storage capacity of the roof, there are overflow roof scuppers in place, which creates an overland flow route to a flow outlet. Both the extensive green roof system at NTCI and the constructed wetland at EV3

ultimately use different methods to achieve the same results: to control the amount of stormwater entering into the system, and reduce the burden on the municipal stormwater management system. ■ ________________________________________

Learn more about green roof systems at

LEAH WONG IS THE ONLINE EDITOR OF CANADIAN PROPERTY MANAGEMENT. THIS ARTICLE WAS FIRST PUBLSIHED ON REMInetwork.com.

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SAFETY & SECURITY

PREVENTING CARBON MONOXIDE POISONING Early Detection is Essential for Keeping Tenants Safe BY SHANE DARI

Carbon monoxide, also known as the silent killer, is odorless, colourless and tasteless. The gas is a byproduct that is created when natural gas undergoes incomplete combustion. Natural gas has many important uses in residences, from heating to cooking. But when it does not burn properly, or if there are leaks caused by faulty appliances, the results can be deadly. When carbon monoxide levels rise in closed off, poorly ventilated spaces, it can prevent people from absorbing oxygen. And since carbon monoxide goes

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undetected to both sight and smell, people are at the most risk when they are asleep. While it may seem easy to brush off the risks of carbon monoxide poisoning, it is surprisingly common. Deaths can occur close to home in the Greater Toronto Area, as was the case during the December 2013 ice storm, or further away, like the February 2014 leak in a New York mall that left one

dead and sent more than two dozen to the hospital. In fact, carbon monoxide poising is the leading cause of accidental poisoning deaths in North America. This is why property managers must know the regulations surrounding carbon monoxide detection, and understand the serious risks that it can present. Not only that, managers should work towards


SAFETY & SECURITY

educating their tenants so they themselves can take the necessary steps to prevent and detect carbon monoxide incidents. REGULATION Ontario and the Yukon are the only two provinces that have made carbon monoxide detectors mandatory. The legislation dictates that any property with a garage or a fuel-burning device, such as a fireplace, furnace or gas stove, must have carbon monoxide detectors present. Ideally, there should be a carbon monoxide detector on each floor. It is best to place one next to the furnace room in the basement, one on the main floor, and one in a location that is central to the bedrooms. In all other provinces, it is up to tenants, property owners and managers to take their own steps to ensure occupant safety. Just because a government is not enforcing carbon monoxide detectors in buildings does not mean that they are not necessary. DETECTION If a carbon monoxide alarm goes off, it is safe to assume that levels are too high. Property managers should evacuate the area and call emergency personnel. However, there are ways to detect problem areas before an emergency. If a gas appliance has a flame that is not blue, but instead looks yellow or orange, this could be evidence of incomplete combustion. If a flame is yellow or orange in colour, management should call a technician to inspect the device. In addition to incomplete combustion, property managers should also think about the risks that gas leaks represent. There are subtle hints that can notify occupants that a gas leak is happening. While generally odourless, gas companies add an odour (hydrocarbon) to the gas that makes is slightly detectable. This smell has been likened to that of rotten eggs. Depending on the intensity of the leak, occupants may detect a strange hissing or blowing sound, or notice dead or discoloured vegetation in an otherwise green area, as well as dirt or dust being emitted from a hole in the ground. In this case, if the broken line is underground, it may penetrate the surface and tenants may therefore see debris pushing its way through. If a tenant or property manager suspects a gas leak, they should immediately notify emergency personnel and the appropriate gas provider.

IF TENANTS OR STAFF MEMBERS DETECT HIGH LEVELS OF CARBON MONOXIDE, MANAGEMENT WILL WANT TO ENSURE THAT ALL UNITS ARE IMMEDIATELY EVACUATED AND REMAIN VACANT UNTIL THE SITUATION IS CONTROLLED.

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NS CE N LOW TR A T IO CON

Carbon monoxide can’t be smelled, it can’t be tasted and it can’t be seen. But in high levels, it can kill within minutes. According to the Canada Safety Council, the following signs and symptoms of carbon monoxide poising are detectable in low and high concentrations.

E NS R E M T IO E X T NTR A CE CON

CARBON MONOXIDE POISONING

HIGH CONCENTRATIONS

• Headache • Shortness of breath • Dizziness • Nausea

ACTION So, high levels of carbon monoxide have been detected in a property. What is a property manager to do? If tenants or staff members detect high levels of carbon monoxide, management will want to ensure that all units are immediately evacuated and remain vacant until the situation is controlled, and airflow should be provided to the indoor area if possible. Management should immediately contact emergency personnel and the appropriate technicians, and wait until they have provided a green light before allowing residents back into the building. Management should post written warnings in visible areas so that any residents who are out of the building will be informed and aware of the problem. In most instances, the gas provider will need to shut the main gas supply to the entire property until the problem is fixed. In the event where individual gas supplies are present for each unit, gas to all units should be disconnected until the problem is under control. If this is the case, the property manager should tell each resident to contact their respective gas provider to re-establish service. Communication is key. Property managers must be helpful and update tenants with any new information. They should take all proactive measures through any means necessary to ensure that their residents are up to date on the situation. This can involve using mass email, updating their website, or sending text messages and phone calls. PREVENTION Effective prevention strategies can mean the difference between a slight inconvenience and a catastrophe. Property managers should test smoke and carbon monoxide detectors each year to ensure that they are in good working


SAFETY & SECURITY

HIGH CONCENTRATIONS

order. If the devices are battery operated, batteries should be replaced during every inspection. Managers should also keep records of inspections, and ensure that this information is easily accessible. Management should also work with tenants and occupants, as they will be the frontline of defence. This can be as easy as setting up a recurring monthly email blast, reminding residents to test their alarms themselves each month, and to report any issues to management. These messages can also include educational information, ranging from basic steps to prevent gas leaks, to warning signs and symptoms of carbon monoxide poisoning. To prevent incomplete combustion and gas leaks, certified professionals should install all gas-using appliances. Property owners, managers and occupants should also call on these professionals to service gas appliances on an annual basis in order to detect wear and tear. Finally, property managers should establish policies and procedures for evacuations, which should be easily accessible to all staff. Each evacuation procedure will be different depending on the type of building. Property managers can contact their local fire agency, which can send experts to visit the property and determine the best policy for that site. As the saying goes, an ounce of prevention is worth a pound of cure. When it comes to carbon monoxide, it really can mean the difference between life and death. ■ ________________________________________

SHANE DARI IS THE VICE-PRESIDENT OF THE PROPERTY COLLECTIVE LIMITED, A COMPANY THAT MANAGES MORE THAN 400 RESIDENTIAL PROPERTIES THROUGHOUT THE GREATER TORONTO AREA. DARI HAS MORE THAN A DECADE OF EXPERIENCE IN THE REAL ESTATE INDUSTRY.

NS CE N LOW TR A T IO CON

CE N LOW TR A T IO CON

• Severe headache • Confusion • Blurry vision or hearing impairment • Loss of consciousness when exerted

E NS R E M T IO E X T NTR A CE CON

E NS R E M T IO E X T NTR A CE CON

NS

HIGH CONCENTRATIONS

• Unconsciousness • Coma • Death

If someone is showing any of the symptoms of carbon monoxide poisoning, they should immediately seek medical attention. According to the Mayo Clinic, if a building occupant thinks that there is a carbon monoxide build up, they should immediate go outside. They should also open any windows or doors along the way (if they have a safe opportunity to do so) in order to increase airflow.

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REGULATORY UPDATE

ONTARIO MUNICIPAL BOARD REFORM REMAINS A DIVISIVE ISSUE IN TORONTO While many experts agree that change is necessary, there is no consensus on how to move forward BY DANIEL VIOLA

Any discussion of the Ontario Municipal Board (OMB) tends to be in extremes. On paper, the OMB may seem dull. After all, at its core it is a body of adjudicators who act as judges, and simply listen to applications and appeals about municipal planning, official plans, zoning bylaws, minor variances and development charges, among other things. In other words, it is the venue where cities — most notably Toronto — duke it out with developers when they disagree on a proposed real estate development. They fight about whether a building is

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too big, too tall, or simply unwanted in the neighbourhood But when listening to the OMB’s defenders and detractors, a different story emerges. These parties either describe it as the last line of defence against rampant NIMBYism and pandering politicians, or as an authoritarian, developer-friendly body bent on tearing down the will of the people. So it was surprising that the whole ‘usversus-them’ mentality was largely absent

from Within Reason: Justice, City Building and the OMB, a round table discussion held on Feb. 25 at Ryerson University. But while the attending experts were able to have a frank and constructive discussion concerning the OMB, they did not reach a consensus on what changes are necessary moving forward. Speaking to the full room were Rosario Marchese, MPP representing Toronto’s Trinity-Spadina riding; Toronto developer Steve Diamond, president and CEO of


REGULATORY UPDATE

Diamond Corp.; and Cynthia MacDougall, partner at McCarthy Tétrault LLP. The three managed to highlight how different members of the public and private sectors view the OMB. “I think the timing for this discussion is very interesting,” said moderator Mitchell Kosny, associate director at Ryerson’s School of Urban and Regional Planning. He explained that when the provincial Liberal government announced its intention to review the planning process this past summer, many interested parties thought that this meant possibly reforming the OMB. But the Ministry of Municipal

Affairs and Housing ultimately excluded it from the scope of the review. “Some of us had hoped that the province would have pushed further … or somewhere,” Kosny said. This thought was something that Rosario Marchese echoed, adding that as it stands now, the system is simply not fair. “Citizens don’t have much power in this process,” Marchese said. “Developers, God bless ‘em, I often say this is their second home.” While individual Ontarians can appeal proposed developments at the board, such as a new skyscraper that will cast a

shadow on their property, they need to pay a $125 fee. Then, when they do appear before the board, they have to go up against some of the best (and most expensive) planners and lawyers who are there representing the developers. In an effort to change the status quo, Marchese has a private member’s bill before legislature that would allow Toronto to be free from the OMB’s oversight. He said that he fundamentally disagrees with the current system, which he said gives one or two unelected OMB members the authority to override the will of an entire elected city council. www.REMInetwork.com

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REGULATORY UPDATE

“I reject that kind of power they have,” he said. “They not only interpret the law, they make the law.” Marchese also pointed out that Toronto city council gave a strong signal in February 2012 that it wants to manage its own affairs. A motion from Councillor Kristyn WongTam asked the province to remove the city from the OMB’s jurisdiction, and create an exclusively-Toronto panel for zoning and appeal processes. It easily passed. “I believe they [city council and Toronto’s planning department] have the expertise to do the job well,” Marchese said. “Democracy is complicated, but I trust it.” However, not everyone agreed that having an unelected board is inherently a bad thing. “Is the OMB the villain, or the scapegoat?” asked Steve Diamond, whose company has worked on projects throughout Toronto. He told attendees that when people outline their concerns over rapid growth in Toronto, they tend to blame the OMB, saying that the board approved buildings that are too tall for the neighbourhood. Diamond said that while it makes a good headline to say that the unelected board overturned a city council decision, the truth of the matter is that city council actually approves many of these controversial developments itself.

THE BOARD HELPS KEEP PEOPLE HONEST IN THE SYSTEM. WE [DEVELOPERS] KNOW ANYTHING WE DO HAS TO BE JUSTIFIED.

He also argued that when councillors do in fact oppose a proposal, they may be bending to the will of vocal local residents (and keeping their upcoming elections in mind), and not considering what is in the best interest for the city as a whole. That said, Diamond was not against OMB reform. Rather, he said that if change is coming, the government should review the entire development process. “If you’re going to look at reform, then what you have to do is reform the system from top to bottom,” he said. When it came time for lawyer Cynthia MacDougall to speak, she bluntly replied to Marchese’s argument for dismantling the OMB’s power in Toronto. “I am terrified by your proposal,” she said. “Absolutely terrified.” Specifically, MacDougall worries that the provincial government will fiddle with the OMB because it is easy and inexpensive, without actually addressing the underlying problems. She said that she does not want to see changes to legislative framework made only so it appears as if the government is doing something.

“There’s a gap between knowledge and decision making that terrifies me,” she said. But it is not downtown Toronto that she is worried about; rather, it is what it would mean for development in the suburbs. Given MacDougall’s background in working with non-profits, she brought up the issue of NIMBYism. She said that she has first-hand experience with local residents vocally opposing housing and developments for already marginalized groups, like those with mental illnesses. Politicians may side with residents who do not want these people in their neighbourhood, leaving the OMB as a line of defence to uphold the rights of the minority. Without the board, long court battles could ensue. A place to act as a sober second thought for planning is needed, she said, which is exactly why the OMB is there. As the roundtable drew to a close, Diamond said that the mere existence of the OMB offers citizens protection from unscrupulous developers. “The board helps keep people honest in the system,” he said. “We [developers] know anything we do has to be justified.” ■

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INDUSTRY COMMENTARY

EVICTING TROUBLESOME TENANTS IS NOT EASY

Landlords Face an Uphill Battle When Trying to Evict Residential Tenants Evicting a residential tenant is not easy. Landlords hoping to find justice at the Landlord and Tenant Board or other appendages of the courts should not be surprised when they find that the system is stacked against them. This is not to say injustice is always the result of a hearing before the board. However, its occurrence is so common that it is clear that the system is broken. When the Ontario Liberal government amended the Residential Tenancies Act (RTA) in 2006, it was wise enough to hold a consultation process with its various stakeholders. Unfortunately, it was not wise enough to include small-scale landlords

BY IKE AWGU

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in this group. The result is a piece of legislation that can treat all tenants as victims and all small landlords as land barons. RESIDENTIAL TENANCIES ACT Predatory tenants are familiar with how to manipulate the RTA. All tenants receive free legal advice from duty counsel at the Landlord and Tenant Board, whereas landlords are forced


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to hire their own legal representatives or appeal to the appropriately titled Landlord’s Self-Help Centre. However, the non-profit centre is so slow at replying to landlords, they are essentially forced to help themselves. One common tactic that predatory tenants use to avoid eviction is simply not showing up at the initial hearing. A landlord will wait up to six weeks to attend a hearing and obtain an eviction order. The tenant will then wait for the eviction order to arrive and then file a request to review, claiming that they could not attend the initial hearing because they were sick, the weather was bad, they had a serious headache, or claim that a problem arose with their dependents. Of course, the excuses are usually unverifiable, and these debilitating issues occur a statistically improbable percentage of the time on the exact day the of a tenant’s hearing to be evicted. The request for review stays the eviction order, and the landlord may be forced to wait another two to three weeks for a hearing on the request. At this point, the

landlord has missed between two and three months of rent, if not more. The tenant can then file their own frivolous application regarding tenants’ rights or maintenance issues, and request that the hearings be held at the same time, thereby delaying the process further. Alternatively, if the tenant loses the request for review (or loses at any stage of the tribunal process), he or she may file an appeal in divisional court with the help of a free legal aid lawyer. The appeal to divisional court stays the eviction order, and depending on whether or not the tenant “perfects” their appeal (a legal term for completing the appropriate paperwork), it may delay the eviction for as long as six months, in addition to time the landlord has already lost. ADJUDICATORS Not only is the legislation flawed, but some members of the Landlord and Tenant Board — also known as adjudicators — have no legal expertise. One adjudicator who I had the pleasure of arguing before early in my career merits

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mention for some perspective on what landlords may face at the board. My client, a small-scale landlord and father of four, rented out the basement of his two-storey home in order to help with his mortgage. In short order, the tenant — who he had not screened thoroughly — began pouring gasoline in the basement (close by to where the furnace was situated) in order to kill supposed cockroaches and insects. But there were no cockroaches. There were no insects. It was later found out that the tenant had mental health issues. In any event, the smell of gasoline filled the home, threatening the safety of the landlord’s wife and children. At the hearing


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before the Landlord and Tenant Board, the landlord testified that the smell of gasoline forced him to move his family away from the home, as he feared for their health and safety due to the fumes and the potential for fire. Upon hearing this testimony (the tenant in question was not present at the hearing), the adjudicator asked how much gasoline the tenant had poured in the basement. The landlord replied that it was of a quantity sufficient to be smelled upstairs, on the second floor. The adjudicator asked how the landlord could have known the gasoline pouring was dangerous if he did not witness it being poured to begin with, adding that maybe it was a small amount. At that point, I recall asking the adjudicator how much gasoline would be a safe amount to pour in her home, in her basement while her children slept upstairs and where she and they could smell the fumes. Ultimately, the eviction was successful. Landlords have to fight an uphill battle when attempting to evict residential tenants. Not only is the RTA not in their favour, but the Landlord and Tenant Board can be presided over by adjudicators who may have never been landlords and who may credulously believe whatever tenants tell them. If a landlord does find himself or herself attempting to evict a tenant where there is much at stake, or the landlord cannot afford needless delays, they should immediately see a lawyer and obtain professional advice. It is not a good idea for landlords to be penny wise and pound foolish — the scales of justice are not in their favor. ■ _________________________________________ IKE J. AWGU, B.A., IS A LAWYER AT LANDLORD LAWYER, A FIRM THAT SERVICES RESIDENTIAL LANDLORDS ACROSS ONTARIO. HE CAN BE REACHED AT 1-800-737-9571 OR INFO@LANDLORDLAWYER.CA.

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REGULATORY UPDATE

ABORIGINAL INTERESTS GAIN GROUND IN LAND USE PLANNING Duty to Consult Delegated to Ontario Municipalities BY BARBARA CARSS

Local governments and development proponents in Ontario must heed a new directive to recognize Aboriginal interests and consult appropriately when an updated version of the Provincial Policy Statement (PPS), which guides land use planning, takes effect later this spring. This is one of the first Canadian examples of a province explicitly delegating the responsibility — conferred to the federal, provincial and territorial governments in the Constitution Act, 1982 — to municipalities.

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REGULATORY UPDATE

“That is a significant development, and what municipalities do with it is going to be an interesting question,” says Mark Winfield, an associate professor with York University’s Faculty of Environmental Studies. “It will be interesting to see if there will be OMB (Ontario Municipal Board) appeals based on Aboriginal and treaty rights.” Legal experts project that it is a highly likely outcome. As of April 30, 2014, the new PPS replaces the previous circa-2005 version, and all in-progress development applications will be expected to conform to the new requirements. Two new references that employ the mandatory language “shall” instruct planning authorities to consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources, and to implement the PPS in a manner consistent with the Constitution Act’s recognition and affirmation of existing Aboriginal and treaty rights. The label “policy statement” somewhat underplays its regulatory clout, but the enabling Planning Act dictates that provincial and municipal planning decisions must be consistent with the PPS and also entrenches it as the terms of reference for Ontario Municipal Board decisions. Within the PPS itself, varying degrees of authority are expressed through the verbs “may”, “should” or “shall”. “This is the centrepiece of the legislation,” Winfield observes. “It is the planners’ bible.” Both the new PPS and other Ontario statutes and policy thrusts urge local authorities to adopt archaeological and cultural heritage management plans as one potential means to comply.

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REGULATORY UPDATE

THERE HAS BEEN ENCOURAGEMENT BY THE PROVINCE OVER THE PAST DECADE TO INCREASE THE LEVEL OF ENGAGEMENT WITH ABORIGINAL COMMUNITIES, ALTHOUGH THERE WAS NO SPECIFIC GUIDANCE [IN PLANNING REGULATIONS] AS TO HOW TO ACCOMPLISH THIS EFFECTIVELY.

Meanwhile, it has really been the courts that have provided direction for upper-tier governments and proponents of projects subject to federal or provincial oversight. “The Supreme Court says that constitutional protection means that if Aboriginal and treaty rights are to be impacted, the Crown must first consult with those Aboriginal people whose rights will be impacted, assess the impacts, mitigate the damage and accommodate where appropriate,” explains Julie Abouchar, an Aboriginal and environmental law specialist with Willms & Shier Environmental Lawyers

LLP. “To date, the courts have not found that municipalities have a duty to consult absent a specific delegation from the province. Implementation of the PPS consistent with constitutional protection of Aboriginal rights will require consultation that is consistent with the legal duty to consult that is emerging from the courts. Compliance will be judged against those standards.” COMPLIANCE STRATEGIES Municipal planning authorities will now be tasked with identifying when consultation is required and ensuring that

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it is integrated into the planning approvals process. Formal steps for doing that will likely be established in an amendment to the municipality’s official plan. For their part, development proponents may be asked to undertake extra measures or provide new types of documentation. A few municipalities in the Greater Toronto and Hamilton Area already have or are currently working on an archaeological management plan (AMP), which should support compliance with the PPS mandate related to conserving cultural heritage and archaeological resources. These include Toronto, Hamilton, Halton Region, and — with prescient timing — York Region, where council endorsed a plan in late February, just days before the Ministry of Municipal Affairs and Housing revealed the new PPS. “There has been encouragement by the province over the past decade to increase the level of engagement with Aboriginal communities, although there was no specific guidance [in planning regulations] as to how to accomplish this effectively,” says Valerie Shuttleworth, York Region’s director of long-range planning.

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“Some of the other legislation municipalities work under, such as the Environmental Assessment Act and the Ontario Heritage Act, have their own requirements for consultation with Aboriginal communities.” York Region’s AMP includes an inventory of 1,453 known archaeological sites; identifies areas where as-yet undiscovered archaeological resources are most likely to be found; and sets out the process for allowing, modifying or prohibiting development in archaeologically sensitive areas. It enshrines notification of and consultation with Aboriginal communities, Untitled-1 which is also in keeping with requirements and recommendations of the Ontario Heritage Act and associated Standards and Guidelines for Consultant Archaeologists. “These requirements and recommendations are more specific than the language of the PPS,” Shuttleworth says. The AMP itself was developed in consultation with Aboriginal communities — an exercise that regional planning staff further capitalized on to devise a First Nations and Métis Consultation Tool, which is still in draft form and yet to approved. When finalized, it will be part of a package of guidance resources for planners and project proponents. “That will help staff of various departments to understand when and how notification or consultation should be taking place,” Shuttleworth says. “Greater knowledge on the part of development proponents on the need to engage with Aboriginal communities, and the most appropriate timing and methods for that engagement, will help prevent conflict and delays later in the process.” ■

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Implementing an effective green cleaning strategy means more than buying the right products. How staff clean can be just as important as what they use to clean. Below, Christine Deschenes of Commercial Cleaning Services explains what goes into creating a green cleaning strategy, and what factors property managers and owners should consider when setting up a plan. - Editor WHAT ARE THE DIFFERENCES BETWEEN GREEN CLEANING AND REGULAR CLEANING? Today, most of the cleaning products used in janitorial services are “green”. However, a proper green cleaning plan goes well beyond the products and equipment used. It touches upon energy and resources conservation, full environmental procurement program, communication plans, and pandemic and crisis planning. It can also include having experts on staff, such as a Leadership in Energy and Environmental Design (LEED)-credentialed specialist, in order to assist and provide

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the best expertise when building a sitespecific green cleaning plan. Green cleaning is no longer just about what products staff or contractors use or buy, but how they use or buy them. By using concentrated chemicals with diluting stations, staff can diminish the environmental footprint even further by cutting back on the transportation and the plastic necessary for high-volume containers. WHAT IS A SITE-SPECIFIC CLEANING PLAN? A traditional green cleaning plan focuses on techniques and methods to alleviate

the use of chemicals. But an integrated site-specific green cleaning plan considers the goals or objectives of the organization responsible for the management of the property. The starting point of a site-specific green cleaning plan is to learn about the organization’s current environmental policies and goals, and establish techniques and methods to achieve them. The main benefit of these plans is that they deliver a clear, uniform and consistent message about the organization’s priorities. A site-specific green cleaning plan can only


SUSTAINABILITY

work if the goal is the same for the contractor as well as the property owner and manager. Therefore, all parties should work together to build and develop the plan. HOW WOULD A PROPERTY MANAGER GO ABOUT IMPLEMENTING A GREEN CLEANING STRATEGY AT THEIR BUILDING? A green cleaning program should be seen as a change management initiative, since it involves significantly more effort than shifting from traditional cleaning chemicals to greener products and using newer equipment. A green cleaning program is also an evolutionary process. It is not a black or white issue; instead, it is about degrees of greenness. Property managers looking to adopt such a program can consult with specialists in the janitorial industry, or follow either the Building Owners and Managers Association’s BOMA BESt program or the LEED rating programs.

There are a few things that are crucial to a successful sustainable strategy: Standard operating procedures (SOPs) SOPs are detailed and written procedures permanently in place to execute a defined task. Green SOPs should be an integral part of a green cleaning program, and should cover techniques of cleaning, like spot cleaning, polishing, disinfecting and dry mopping. The SOP should also specify a standard way of cleaning types of rooms, including washrooms, hallways and lobbies, and

may sometimes be as detailed as offering step-by-step guides. This provides customers with assurance that the green cleaning plan is executed as per their goals and policies. SOPs also provide a clear framework for employees, as they can be used as references and training guides. Inventory lists All chemicals should be maintained on an inventory list. This is not only best practice for a simple green cleaning plan, it is also a requirement for most green building accreditations.

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SUSTAINABILITY

equipment reduces downtime and breakage that that can send products to the landfill, which creates waste. Maintaining equipment that use chemicals is crucial, as wear and tear can cause them to use more chemicals or spill solutions. Training records This is a best practice and a requirement for certification. The training plan is also one of the few ways that a building owner or manager can be reassured that the SOPs will be executed, and that the contractors or staff are taking the environmental goals and policies seriously. DO BUILDING TENANTS AND OCCUPANTS PLAY A ROLE IN IMPLEMENTING AN EFFECTIVE GREEN CLEANING STRATEGY? They certainly do. A comprehensive green cleaning plan requires the involvement of all internal and external stakeholders. Custodians are obviously the primary target of an outreach strategy, but building occupants definitely are the secondary stakeholders. The communication plan should provide occupants with an opportunity to raise concerns and provide feedback, articulate the benefits of a green initiative, generate enthusiasm, communicate targets and milestones, and most importantly, strategically manage the change initiative. For recycling and waste diversion program to be effective, tenant co-operation is vital. Ultimately, a building can be zero net energy, but still have building occupants who ignore or are oblivious to the internal recycling program, leading to waste. WHAT BENEFITS AND INCENTIVES ARE THERE FOR PROPERTY OWNERS OR MANAGERS WHEN IT COMES TO IMPLEMENTING A GREEN CLEANING STRATEGY? The most interesting advantage that green operations bring to property owners and managers is clearly the marketing opportunity. Green rating programs in Canada are widely recognized, and meeting standards can be a part of a marketing strategy to attract new tenants and retain current ones. For property owners, the choices made for cleaning products, procedures and

frequencies have a tremendous impact on the life span of the materials used. Sustainable building operations can: • Reduce building occupants’ exposure to toxic chemicals by eliminating chemical-producing volatile organic compounds (VOCs) that are found in

after the winter season is complete, so that we start the spring with a fresh slate. It is crucial for property managers to look at the overall value that a contractor will bring, and make sure the periodical work will be done by ensuring that they are being charged accordingly. That said,

A GREEN CLEANING PROGRAM SHOULD BE SEEN AS A CHANGE MANAGEMENT INITIATIVE, SINCE IT INVOLVES SIGNIFICANTLY MORE EFFORT THAN SHIFTING FROM TRADITIONAL CLEANING CHEMICALS TO GREENER PRODUCTS. some cleaning products. It can also provide a safer work environment for building staff by ensuring proper training programs. • Deliver better cleaning efficiency through lobby maintenance strategies, improved cleaning processes and systems. By having entrance SOPs, workers can minimize the quantity of dust and particles that enters the building, reducing maintenance of other building areas, as well as increasing indoor air quality. • Improved indoor air quality is associated with reduced absenteeism. • Promote a higher tenant retention rate by providing a greener and more comfortable experience. DO OFFICES AND COMMERCIAL BUILDINGS TYPICALLY UNDERGO AN INTENSIVE SPRING CLEANING? IF SO, WHAT DOES THIS INVOLVE AND WHY IS IT NECESSARY? If the contractor providing daily janitorial services in a specified building follows and executes each tasks on the scope of work submitted by the property manager or facility manager, a spring cleaning may not be necessary. We typically plan all our periodic heavy cleaning tasks, such as floor re-finishing, carpet cleaning and high-level dusting

cleaning services is a very competitive industry, and some clients wish to operate with a very basic level service. This is when we can see more requests for spring cleaning as an extra service that goes above the regular work. HAVE YOU NOTICED A RISE IN DEMAND FOR GREEN CLEANING SERVICES IN COMMERCIAL AND OFFICE BUILDINGS? We very rarely get requests that do not stipulate some kind of green requirement. While the industry is changing and it’s hard to keep on top of all that “greenwashing”, we are surprised to see very little site-specific integrated green cleaning plans requested from clients, or even delivered from our competition. We are seriously investing in developing highly specific green cleaning plans built by professionals. One of our experts has a LEED Green Association certification from the USGBC (U.S. Green Building Council), as well as an FMP (facility management professional) certification from IFMA (International Facility Management Association). Having this kind of expertise on staff can ensure that site-specific green cleaning plans are integrated with the property managers plan, and that a facility management approach has been included throughout the process. ■

_________________________________________________________________________________________________________

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