CondoVoice, Volume 25, Issue Number 1, Fall 2019

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Electronic Ballots vs Proxies

Owners Can Now Submit Electronic Ballots

Extra Expense or Added Benefit?

The Case for Professional Directors

Too Much Communication

Are Owners Becoming De-sensitized?

Improper Inducement?

Condo Kickbacks, Conflicts and Contracts

... And More!

Publication of the Toronto and Area Chapter of the Canadian Condominium Institute • Fall 2019 • www.ccitoronto.org

THE

IDEAL CONDO BOARD

Winning Teams Communicate, Act Swiftly and Adapt to Change

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Condovoice Your Condo Connection in the Toronto, Peel, York and Durham Regions Providing education, information, awareness and access to expertise by and for our members. www.ccitoronto.org Volume 25, Issue Number 1, Fall 2019

In This Issue

Page 24

7 Decisions From the Courts

BY BRIAN HORLICK AND TIMOTHY M. DUGGAN A Unit is Not a Hotel; When a Boardroom becomes a Ballroom

11 Electronic Ballots Versus Proxies

BY JOY MATTHEWS AND WARREN KLEINER Owners Can Now Submit Electronic Ballots Prior to the Meeting

15 Unintended Consequences of Too Much Communication

BY MURRAY JOHNSON

Are Owners Becoming Desensitized?

BY JOSH MILGROM Communicate, Act Swiftly, and Adapt

53 Amended Condo Act

BY ALEX YOUNG 55 Lockbox Fiasco

BY BEVERLEY VARCOE & RYAN CUNLIFFE

Workplace Harassment is an Issue That is Plaguing Condo Corporations

Page 15

24 Condominium Profile: Absolute World

BY JAMES RUSSELL Meet the Super Hero Board of Absolute World

35 The Case for Professional Directors

5 Message From the Editor

BY MARC BHALLA

For Condo Owners

21 Workplace Harassment – A Refresher Course BY JAKE A. FINE

3 President’s Message

BY TANIA HALUK

60 The Last Word Property Manager Harassment

BY MARIO D. DEO

17 The Ideal Board

In Every Issue

BY BILL COLUCCI

CCI Members News & Events 47 August Seminar Recap 49 Word Search 51 New Members 52 CV Selfie

Extra Expense or Added Benefit?

Page 55

37 Beyond the Act

BY MARC BHALLA When Mediation and Arbitration are Also Mandatory

41 Condo Conflicts, Contracts and Kickbacks

BY PATRICK GRECO Property Managers are Encouraged to Use the Sniff Test CONDOVOICE FALL 2019

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Canadian Condominium Institute/ Institut canadien des condominiums Toronto & Area Chapter 2800 14th Avenue, Suite 210, Markham, ON L3R 0E4 Tel: (416) 491-6216 Fax: (416) 491-1670 E-mail: info@ccitoronto.org Website: www.ccitoronto.org 2018-2019 Board of Directors PRESIDENT: Tania Haluk, (Member, Education Committee, Co-Chair, Conference Committee) 1st VICE-PRESIDENT: Murray Johnson, (Chair, Volunteer Resources Committee, Member, Conference Committee, Member, Tarion Committee) Crossbridge Condominium Services Ltd. 2nd VICE-PRESIDENT: Marc Bhalla, Hons. BA, C. Med, Q. Arb, MCI Arb (Chair, Communications Committee, Member, CondoSTRENGTH Committee, Member, Marketing Committee) Condo Mediators SECRETARY/TREASURER: Bob Girard, B.Comm, FCCI (Member, Finance Committee, Member, Special Projects Committee, Member, Education Committee) YCC # 50 PAST PRESIDENT: Sally Thompson, M.Sc., P.Eng. (Chair, Ontario Caucus, (Member, Education Committee) Synergy Partners Board Members Brian Antman, CPA, CA (Member, Membership Committee, Chair, Finance Committee) Adams & Miles LLP Chartered Accountants Armand Conant, B.Eng., LL.B., D.E.S.S. Sorbonne (Chair, Legislative Committee) Shibley Righton LLP Maria Deo, BA LL.B. (Chair, Education Committee, Member, Marketing Committee) Fine & Deo Condominium Lawyers Brian Horlick, B.Comm., B.C.L., LL.B., ACCI, FCCI (Member, Special Projects Committee, Member, Communications Committee, Member, Conference Committee) Horlick Levitt Di Lella LLP Sue Langlois (Chair, Marketing Committee, Member, Communications Committee, Member, Volunteer Resource Committee, CCI N Liaison) Digi-Notice Lyndsey McNally, RCM (Chair, Membership Committee, Member, Marketing Committee, Member, Legislative Committee) Malvern Condominium Property Management Ernie Nyitrai, CCI (Hons) (Chair, Special Projects Committee, Co-Chair, CondoSTRENGTH Committee, Member, Volunteer Resources Committee) YRCC # 636 Vic Persaud, BA (Member, Membership Committee) Suncorp Valuations OPERATIONS MANAGER - Lynn Morrovat EVENT MANAGER - Josee Lefebvre ADMINISTRATOR - Crystal Xu

President’s Message

A Goal Without a Plan is Just a Wish!

Plan and budget for the board’s learning events, don’t let your community fall behind.

Back to school learning and planning doesn’t apply to CCI or to condo boards and residents, it is continuous and ever evolving and doesn’t stop for the summer. Even after almost 30 years in this industry, the enthusiasm and learning has not waned for me. Recent(ish) licensing and regulations to comply with, new legislation impacting condos (outside of the Condo Act) and increasingly complex documents and shared agreements to sort through and to understand forces all of us to stay abreast of the information and come up with innovative ways to deliver excellent service and communicate with condo communities. We listened to our members’ requests to provide variety for our event times and venues. We held some events during the summer recognizing that unlike school children our learning continues throughout the year. This old adage applies, “Live as if you were to die tomorrow. Learn as if you were to live forever.”

Our mandate is to bring the most up to date and relevant information to condominiums to ensure you are armed with the best administration and facility management practices, in addition to understanding new legislation requirements. We are very proud to deliver this via the website (www.ccitoronto.org), our award winning Condovoice magazine, classroom and networking events, blogs, facebook, webinars and a new series of videos released this summer.

Our planning starts at the beginning of the year and then we leverage our management team and pool of volunteers to deliver and execute the plan throughout

the year. Similar to condo boards, the CCI Toronto board makes short and long term goals to support our members. Our challenge to condo boards is whether they are including ongoing education in the plan to have a financially and socially responsible community. If not, do it now, as sometimes later becomes never. Boards are elected and therefore obligated to operate the community in the best interest and on behalf of the owners who elected them and this includes ensuring they have the information and education required to do so. The budget planning should include the investment of having educated board members. The CAO has an introductory, mandatory course for directors, however we know there is so much more information required beyond a basic understanding of the Condominium Act. CCI will continue to deliver the additional information and education required to support our members, especially during this cycle of evolution.

Events we are looking forward to this fall include our 30th anniversary celebration and AGM, the annual Condo Conference and we are also hosting the semi annual CCI National Leaders’ Forum. We encourage members to attend the AGM, we will have 4 positions open for elections with 3 incumbents wanting to run again and we will be celebrating our 30th year of having a CCI Chapter in Toronto. Come and see where we’ve come from and what our future will bring for you.

The annual Condo Conference brings excitement on many levels as we have a new venue, new presenters, a robust trade show and an exciting social event with huge – Continued on page 9 CONDOVOICE FALL 2019

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Condovoice Condovoice is published four times per year – Spring, Summer, Fall and Winter,

by Association Concepts on behalf of the Canadian Condominium Institute Toronto & Area Chapter.

EDITOR: Marc Bhalla ADVERTISING: Nina Simatos ART DIRECTION & DESIGN:

Atlanta Visual Communications Inc. All advertising enquiries should be directed to Nina Simatos at (416) 491-6216 Ext 129 or nina@associationconcepts.ca If you are interested in writing articles for Condovoice magazine, please contact Nina Simatos at (416) 491-6216 ext 129 or at nina@associationconcepts.ca. Article topics must be on issues of interest to Condominium Directors and must be informative rather than commercial in nature.

The authors, the Canadian Condominium Institute and its representatives will not be held liable in any respect whatsoever for any statement or advice contained herein. Articles should not be relied upon as a professional opinion or as an authoritative or comprehensive answer in any case. Professional advice should be obtained after discussing all particulars applicable in the specific circumstances in order to obtain an opinion or report capable of absolving condominium directors from liability [under s. 37 (3) (b) of the Condominium Act, 1998].

Authors’ views expressed in any article are not necessarily those of the Canadian Condominium Institute. All contributors are deemed to have consented to publication of any information provided by them, including business or personal contact information.

Consider supporting the advertisers and service providers referred to in this magazine, recognizing that they have been supporters of CCI Toronto.

Advertisements are paid advertising and do not imply endorsement of or any liability whatsoever on the part of CCI with respect to any product, service or statement.

Publications Mail Agreement #40047055 Return undeliverable Canadian addresses to Circulation Dept.

2800 14th Avenue, Suite # 210 Markham, ON L3R 0E4

From the Editor

Perfect Strangers

What is considered “community” varies across condominiums.

In some, residents are strangers. Little is known about one’s neighbours.

Whether it be due to high turnover of residents, short-term rentals and/or the sheer volume of people who call the condominium home, the culture of these communities, while not necessarily cold, tends to be private. You might not come across a familiar face when getting your mail and it would not be considered appropriate to knock on a neighbour’s door to borrow a cup of sugar… or elicit a vote in the upcoming federal election (notwithstanding politicians having the right to attempt to do so).

In other condominiums, people know each other. They may not necessarily be friends, yet residents regularly greet each other in passing and are generally cordial. It may not be considered a big deal to knock on a neighbour’s door unannounced or to know personal details about the lives of your neighbours.

These environments vary and ultimately come down to the people in them. They are not fixed and change over time.

It can be next to impossible to know the nature of the community you are getting yourself into in this respect… this type of information is not exactly set out in a Status Certificate! Nor is it something that can be genuinely appreciated in a viewing hosted by a realtor. It can only truly be known by those immersed into the community.

ing part in awkward elevator discussions or the risk of the community gossiping about them, while others prefer not having to look up the weather themselves to get the daily forecast and take comfort from the security of being in a community “where everybody knows your name”.

The tone set by a condominium community’s Board of Directors and property management can largely influence the type of community that is fostered. Consider…

• Does it seem that the notices posted in your condominium are referenced in the 1970 song “Signs” - as they all start with “No” and “Don’t” - or are they warmer in nature?

• How does your property manager interact with residents in the course of their day-today activities? Do they say hello or not bother to smile, greet and get to know residents?

• Is your community like Degrassi or Beverly Hills, 90210, with people grouped in cliques or has the social dynamic graduated from high school to truly become inclusive?

Beyond the Board and management, everyone forming part of the community can have influence by modelling the type of interactions they are comfortable having with neighbours.

It is important to remember that each person can have their own preferences. Remaining respectful and allowing your neighbours to have a say in the type of relationship you have with them (and they have with you) can make condo living most enjoyable.

There are advantages and disadvantages on both ends of the know-your-neighbours spectrum.

Some appreciate that more private communities do not impose an expectation of tak-

Marc Bhalla BA., C.Med., Q. Arb., MCIArb CONDOVOICE FALL 2019

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Brian Horlick B.Comm., B.C.L., LL.B., ACCI, FCCI Horlick Levitt Di Lella LLP

Timothy M. Duggan B.A., LL.B. Horlick Levitt Di Lella LLP

Case Law Update

Decisions From the Courts • A Residential Unit is Not a Hotel, Regardless of Length of Lease • When a Boardroom becomes a Ballroom

TSCC 2450 and TSCC 2477 are sister corporations, being phases 3 and 4 in a large condominium development. The corporations are located in close proximity to the Rogers Centre. Together, they consist of over 800 residential units plus recreation facilities.

The Kapoor family are owners of units in both condominium corporations and are directly involved in a company called North American Private Accommodations Inc. The website for this company advertises its services as including executive rentals as well as hotel apartments and shortterm rentals. This company provides its guests with check-in and check-out times as well as the ability to make online reservations through sites such as Expedia. com and Booking.com. Since purchasing their units, the Kapoor family asserts that they have rented out their units as executive rentals for a minimum of seven days to members of a single family.

In 2018, residents of the two corporations began expressing concerns about short-

term rental activity in the buildings. In response to the concerns raised, the boards decided to each pass new rules regulating transient tenancies and hotel-like activities in the units. The new rules provided in part that no residential unit was to be occupied under a lease or sublease for transient, hotel-like or hosting purposes.

These rules, of course, soon began to have a dampening affect on what was to that point a flourishing business.

Soon after, the Kapoor’s brought an application in the Superior Court of Justice where they sought a declaration that the rules were invalid and unenforceable. The condominium corporations then brought their own application seeking an order that the Kapoors comply with the new rules.

Under s. 58(2) of the Condominium Act (the”Act”), rules must be reasonable and consistent with the Act, the declaration and the by-laws. Accordingly, the Kapoor’s took the position that the rules were invalid and unenforceable as being inconsistent with the declaration which provided in part that there are no restrictions on the minimum or maximum length of lease of a residential unit.

One of the tasks the court had to deal with was to review the manner in which the condominium corporations had interpreted their declarations. To this end, the court’s position was that in reviewing a condominium corporation’s interpretation of its declaration, the standard of review is one of reasonableness. Referring to the Court of Appeal decision in LCC 13 v Awaraji, the court stated that it is for the condominium corporation to interpret its declaration and that so long as its interpretation is not unreasonable, the court should not interfere.

The condominium corporation, on the other hand, took the position that the rules were valid as being consistent with the declaration which also provided that each residential unit shall be occupied and used as a private, single-family residence and for no other purpose.

In this case, the court was of the view that the condominium corporations’ interpretation of their declarations, which focused on the nature of the use rather than on the length of any lease of the units, was reasonable. The court was further of the view that if the use complied with the reCONDOVOICE FALL 2019

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ILLUSTRATION BY JASON SCHNEIDER

Kapoor et al v TSCC 2450 and TSCC 2477 (Ontario Superior Court of Justice, May 21, 2019)

quirement of a private, single-family residence, there is no restriction on the length of the lease. Additionally, the court noted that the condominiums’ interpretation of the meaning of “private single-family residence” was consistent with a number of previous court decisions which understood that such use was inconsistent with hotel-like operations, such as that which the Kapoors were engaging in.

The court referred to the decision in Ottawa-Carleton Standard Condominium No. 961 v Menzies where owners were leasing their unit on a repeated short-term basis in a hotel-like operation contrary to that corporation’s single-family dwelling provision. In the Menzies case, the court found that single family use cannot be interpreted to include one’s operation of a hotel-like business, with units being offered to complete strangers on the internet, on a repeated basis, for durations as short as a single night. The court was of the view that single family use was incompatible with the concepts of “check in” and “check out” times, “cancellation policies”, “security deposits” and “cleaning fees”.

The court was further of the view that it was therefore open to the condominium corporations to read the single-family use provisions as focusing on the nature of the use and to conclude that it did not permit a hotel-like operation.

After dealing with the Kapoor’s application, the court then dealt with the condominium corporations’ application for a compliance order under s. 134 of the Act. The court allowed the application and ordered the Kapoors to comply with the provisions of the Act, the declarations and the rules.

As a result of this, the Kapoors were prohibited from continuing to operate their short-term rental business.

The court held that unit owners in multi-unit residential condominium buildings are not entitled to perfect silence in their units

In this case, the Kapoors asserted, which assertion was not substantiated, that despite the short-term nature of their activities, they were in fact collecting identification from their guests to ensure that those guests were from a single family and so the terms related to single family use had to be interpreted differently.

Despite the above assertion, the court took the position that while the no minimum lease provisions made the case more difficult, the condominium corporation’s interpretation of their declarations was reasonable. Specifically, the court was of the view that it was reasonable for the condominium corporations to read the no minimum lease provisions and the single-family use provisions together in a manner that did not prioritize the no minimum lease provisions.

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Hogan v. Metropolitan Toronto Condominium Corp. No. 595 (Ontario Superior Court of Justice, January 22, 2019)

The applicants, Ms. Hogan and Mr. Davis, were the owners of a dwelling unit located on the ground floor of the respondent condominium corporation, having purchased their unit in 1982. The corporation’s common element amenities included a room known as the ‘boardroom’ that was located on the first level below grade, below the applicants’ unit. Historically, the corporation’s rules had not permitted the playing of music in the boardroom. However, in 2017, in response to requests from several unit residents, the corporation’s board of directors decided to amend the rules to permit the playing of music in the boardroom at a reasonable volume. Notice of this amendment to the rules was sent to the unit owners in August, 2017.

The applicants opposed the proposed amendments to the rules, as they did not want to be able to hear any music from the boardroom in their unit regardless of the volume of the music. To this end, the applicants, together with other unit owners, submitted a requisition for a meeting to vote on the proposed rule. The meeting took place

in October, 2017. Although the owners who attended the meeting favoured permitting the playing of music in the boardroom, due to procedural issues at the meeting the proposed rule was not passed.

Before the corporation could put forward a new rule for a new vote of the owners, the applicants retained counsel, who wrote to the corporation in November, 2017 to take the position that any audible music from the boardroom in the applicants’ unit, regardless of how loud it was, would be oppressive to the applicants. The corporation offered to conduct acoustical testing in the applicants’ unit to determine whether the noise transmitted to the applicants’ unit from the boardroom exceeded objective thresholds for noise transmission in a multi-unit residential building. This offer was refused by the applicants.

In April, 2018, the corporation circulated notice to the owners of a revised new rule that, like the first proposed amendment, would permit the playing of music in the boardroom at a reasonable volume. The unit owners, including the applicants, did not submit a requisition for a meeting of owners to vote on the revised new rule.

Instead, the applicants commenced this application, seeking a declaration that the proposed new rule was oppressive contrary to section 135 of the Act, and an order preventing the corporation from permitting any music to be played in the boardroom.

The applicants then brought an urgent motion for an interim injunction restraining the new rule from coming into effect. The applicants’ motion was heard by the court in May, 2018, and was dismissed.

In January, 2019, the applicants’ application was heard by the court. By the time of the hearing, the rule permitting the playing of music in the boardroom at a reasonable volume had been in place since May, 2018, and there was no evidence before the court of any complaints relating to that music. The applicants did not put evidence before the court that music played in the boardroom was above the applicable objective threshold. Instead, the applicants took the position that, because the corporation’s rules had prohibited the playing of music in the boardroom since they purchased their unit in 1982, they had a reasonable expectation that the rules would

not be changed. The applicants were of the view that they were entitled to hear no music from the boardroom whatsoever, regardless of its volume.

The court disagreed, noting that section 135 of the Act protects legitimate expectations and not “wish lists”. The applicants’ expectation that they would not hear any music whatsoever from the boardroom was properly characterized as a “wish list” item, not a legitimate expectation. Similarly, the applicants’ expectation that the corporation’s rules would never be amended was not a legitimate expectation that would be protected by section 135 of the Act. Citing previous decisions of the court in Dyke v. Metropolitan Toronto Condominium Corp. No. 972 and Wu v. Peel Condominium Corp. No. 245, the court held that unit owners in multi-unit residential condominium buildings are not entitled to perfect silence in their units, but rather are entitled to not have noise enter their units at a level above an objectively reasonable threshold. The court noted that there was no evidence whatsoever before it of the noise levels in the applicants’ unit (let alone whether those noise levels exceeded the objectively reasonable threshold), and that the rule in question did not permit music to be played if same was above a reasonable volume. The court held further that, by offering to conduct acoustic testing in the applicants’ unit (which offer was refused by the applicants), the corporation had acted reasonably and in good faith, and that there was no basis for the court to intervene. Given the foregoing, the court dismissed the applicants’ application, and awarded costs of $10,500 to the corporation.

Author’s note: this case reinforces the guidance given by the courts in the Dyke and Wu cases noted above with respect to noise entering a condominium unit and the circumstances in which the court will intervene. Given the communal nature of condominium living, some compromise between unit residents will inevitably be required, and the court’s decision in this case provides further confirmation that a unit owner’s subjective expectations regarding noise will not necessarily be protected by the oppression remedy provisions of the Act. While unit owners are entitled to be free from objectively unreasonable noise entering their units, they are not entitled to perfect silence. C V

President’s Message Continued from page 3 opportunities for learning and networking.

Even if you missed the early bird discount, there may still be time for you and your board to register and attend. Not only will it provide you with a well-informed board, you will leverage what you learned and make your community even better than it is today. Whether your takeaways lead you to conduct a major overhaul of your vision and restructure your planning processes or make incremental changes by tweaking or revisiting your communication platforms, you will gain knowledge from the speakers, vendors and other attendees.

We highly recommend using break times and the social event to network with people you haven’t met before, as learning opportunities also exist outside of the classroom setting.

We are hosting the semiannual Leaders Forum this fall for CCI National with a theme of Reaching New Heights. Watch the website for updated information or ensure we have your email address so you don’t miss this event. Representatives from across the country attend to share success stories, new opportunities and advances in the condo world.

I’d like to extend kudos to the board for always stepping up, making a difference and being the driving force to support condos to be financially and socially responsible by coming up with new ideas, sourcing great presenters and leveraging networks for our members.

Stay current, informed and empowered by attending our events, reading the Condovoice magazine and ensuring you are getting regular e-blast updates by providing (or updating) your email address. We hope to see you at the Condo Conference and many other events this fall.

We are all in this together - be excellent to each other!

Tania Haluk CCI-Toronto, President CONDOVOICE FALL 2019

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COMMITTED TO EXCELLENCE SINCE 1986

Joy Mathews BPHE (Kin) B.A., M.A., JD. Partner, Rutherford & Mathews

Warren Kleiner B.A. (Hons), LL.B. Partner, Shibley Righton LLP

Electronic Voting

Electronic Ballots Versus Proxies

Recent amendments to the Condominium Act, 1998 permit condominiums to pass by-laws that allow for electronic voting.

This has prompted lawyers and others in the industry to come up with ways to use electronic voting to increase owner participation in meetings.

The approach to electronic voting that has emerged is one that allows owners to submit electronic ballots for the election of directors and other matters that will come before a meeting, prior to the meeting.

Electronic voting has been the subject of much discussion and a lot has been written on the topic. Two diverging views seem to be emerging on the topic. One takes the view that electronic voting is a game changer that will increase owner participation in meetings. The other view is that electronic voting does not introduce anything new that will increase owner participation that is not already available with electronic proxies which provide owners with a greater ability to participate and that electronic ballots may in fact limit an owner’s ability to participate in a meeting.

In this article, we will address both the pro and con sides of the arguments.

PRO E-VOTING, by Joy Mathews Although there are concerns growing in the condominium industry that the increased use of new electronic voting technology may create a condo world that is less democratic and transparent, I just don’t see it.

Here are my thoughts.

1. Let’s Be Clear: The Legislature Has Spoken!

Before discussing the merits of e-voting in condominiums, it is important to note that a condominium corporation must pass a by-law before they can engage in e-voting.

By-laws require the support of at least 51% of ALL owners in a condominium, which often is difficult to obtain depending on the size of the condominium. For example, in a condominium of 100 units, this would mean at least 51-unit owners must vote in favour of the proposed by-law.

Electronic voting by-laws are considerably easier to pass than other by-laws.

Why? Because the legislature says so! Or,

in condo-geeky-legal speak, see Subsection 14(2)(a) of the Ontario Regulations 48/01 under the Condominium Act, 1998.

Unlike passing a traditional by-law, this section of the Regulations provides that only a majority of the owners who ATTEND the meeting for which the e-voting by-law is being passed are required to vote in favour of the by-law, not a majority of ALL the owners in the condominium. In other words, in a condominium of 100 units, provided you have established quorum for the meeting of the owners (which is only 25% or 25 units), the e-voting bylaw is passed if a majority of those who show up at the meeting and vote in favour of the by-law (which would only be 13 units). This is a significant difference in the numbers required, from 51 owners to only 13 owners for a 100-unit condominium!

In the author’s view, the lower threshold to pass e-voting by-laws speaks to the legislature’s intent to facilitate e-voting to improve the electoral governance of condominiums and, accordingly, the condo industry should look to ways to make it work effectively.

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ILLUSTRATION BY JASON SCHNEIDER

Owners Can Submit Electronic Ballots for the Election of Directors and Other Matters Prior to the Meeting

2. Keep Your Privacy to Yourself!

Confidential voting is an important concern to maintain electoral integrity at all levels of government, which equally applies to condominiums. Electronic voting should maintain this integrity, not degrade it. The author’s understanding of the standard approach used by e-voting service providers is that the results of the electronic vote would be delivered via a report to the designated point of contact for the condominium, which could be anyone, including the manager or another person (such as the auditor or lawyer).

The report would not indicate how each owner voted so confidentiality is always maintained.

3. E-Voting is a Condo Universe Game-Changer!

Electronic voting, although not as radical as E=mc², will be a gamechanger in the Condo Universe.

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Proponents of electronic voting anticipate that making quorum will be significantly easier.

Electronic votes are most similar to when an owner selects the 3rd box, and the proxy holder is to vote as instructed by the owner directly in the proxy. Once an owner signs a proxy and provides it to the proxyholder, they usually are no longer engaged in the meeting. The proxy holder merely attends the meeting with the executed proxy and when it comes time, the

Well, yes but….

Despite being a shiny new toy, e-voting will not solve the problem of owners’ lack of engagement, which is the real cause of not making quorum

The main reason is that electronic votes are basically the same as the current standard proxies with the 3rd box checked. For those who are not familiar with the new standardized proxies, there are now three ways for owners to participate in an owners’ meeting when submitting a proxy, which are as follows: 1st box: quorum purposes only, or 2nd box: routine procedures only , or 3rd box: as per the voting instructions indicated in the proxy (or if no instructions are indicated, giving

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their vote to their proxy holder with full discretion to vote in any way that he or she chooses).

proxy is read for the respective vote.

In one way, the new e-voting protocols are just a shinier version of the same traditional proxy. In fact, it makes the process fairer since the owner is in full control of their vote and can submit it directly without the need of a proxy.

4. Ok – Well, Not Everything Is Perfect In E-Voting World….

Although e-voting is likely a Condo Universe game changer, it’s not a complete solution to the lack of owner participation.

The real concern facing the issue of participation in condominiums during owners’ meetings is owner apathy. E-voting will not solve this problem.

Why? Voting is not equivalent to participation.

Anyone can vote, just like anyone can sign a proxy and check off box #3. Participation is more specific and purposeful then mere voting – it’s engagement. Despite being a shiny new toy, e-voting will not solve the problem of owners’ lack of engagement, which is the real cause of not making quorum. In our beautiful condoworld, although we change the tools, add some shiny bells and whistles, people are still the same.

The Solution: More Candidates & More Information E-voting’s biggest impact, however, may cause boards to focus more on their preliminary notices and, more specifically, request that any interested candidates put their best foot forward by requiring additional information from the candidates.

Although it is common to find the candidates’ resumes or brief statements indicating their interests and qualifications in the notice of meeting package, it is not required under the Act. However, if e-voting takes off as its proponents claim, then it may encourage boards to pass by-laws in accordance with the Regulations to stipulate additional information that must be included in order to be a candidate for the board. In this regard, with more information and the efficiency of e-voting, we really might see a sea of change in the democratic governance of condominiums.

CON E-VOTING, by Warren Kleiner 1. The Legislature Has Spoken!

The legislature has spoken, but what has it really said or what was it really trying to say?

The Act provides that owners may be present at a meeting in person or by proxy.

The original intention to allow electronic voting was to allow those who could not participate in person, to participate online.

Electronic voting by-laws are now being drafted to provide that an owner who submits an electronic ballot prior to the meeting is deemed to be present at the meeting.

By-laws must be reasonable. Therefore, a question arises whether a by-law that provides that an owner who is not in fact “present” and who is not able to participate contemporaneously at a meeting (whether in person, by attending online or via teleconference, etc...) is deemed to be present is reasonable and therefore valid.

This also relates to the question of whether those who submit electronic ballots count towards the quorum for the meeting. Is the meeting valid if less than 25% of the owners attend the meeting in person or by proxy and the 25% threshold is met by counting the units for which electronic ballots were submitted? We do not yet know the answer.

It is my view that to be present in person, as opposed to being represented by proxy, an owner should be able to participate in the meeting, whether by being physically present at the meeting or being present by electronic means, such as participating through a form of webcast that allows the owner to submit questions contemporaneously. However, we do not yet have any

guidance from the courts.

2. Keep Your Privacy to Yourself Electronic voting has been designed to protect the privacy of the owners with respect to how they vote. However, privacy of votes by ballots and proxies are protected by the provisions of the Act. This was not an issue that required a fix.

electronically. With electronic proxies, owners have the choice of giving the proxy holder full discretion to vote on the owner’s behalf or of voting directly on the proxy, in which case the proxy, for all intents and purposes, acts as a ballot. This has proven to be of great benefit to increase owner participation at meetings in many condominiums that have traditionally had difficulty getting quorum for meetings, and has helped many condominiums to conduct other business, such as passing by-laws. There really is not anything new with electronic voting that we do not have with electronic proxies, except that participation with an electronic ballot that is limited to solely voting on the specific matter on the electronic ballot.

Therefore, electronic voting does not seem to offer any benefits over using electronic proxies. How is that a game changer?

However, privacy of votes by ballots and proxies are protected by the provisions of the Act. This was not an issue that required a fix 3. E-Voting is a Game Changer Contrary to what many proponents of electronic voting have argued, although there is certainly a place for electronic voting in condominiums, it is not a game changer and does not eliminate the need for proxies.

Proxies are not just about voting, but also about participation in meetings generally.

Through a proxy, the owner can give the proxy holder the right to ask questions of the board and management at the meeting.

This is an inherent and important right of owners. There has been discussion in the industry about electronic voting replacing the need for proxies, but it does not. Even with electronic voting, there is still a need for proxies for those owners who wish to appoint a proxy holder to attend a meeting with authority to participate and vote on an owner’s behalf.

Electronic voting is an important development in condominium law, but does not replace or eliminate the need for proxies. What it does is provide an additional tool to allow an owner to participate in a meeting. However, such participation is limited to voting on matters prior to the meeting only.

Prior to the recent amendments to the Act that allow for electronic voting, electronic proxy platforms were developed allowing owners to submit proxies

4. Ok – Well, Not Everything is Perfect in E-Voting World….

On this point I am in complete agreement with my co-author. E-voting and electronic proxies do increase owner participation but will not solve the overriding problem of owner apathy.

As noted by my co-author, electronic voting may cause boards to focus on improving the information given to owners with notices of meeting so that they have more useful information to make a decision on a matter before submitting an electronic ballot. This would happen in a perfect world, but in reality and more often than not, it is unlikely to happen and owners wanting to submit an electronic ballot will have to make a decision on less than full information.

Electronic voting is promising and represents an additional tool to increase owner participation in meetings, which is a welcomed development in condominiums. However, there are still significant questions about how it will be applied.

Until the courts have addressed issues with electronic voting in condominiums, it is my view that using electronic proxies appears to be the safer alternative, and offers the same benefits as electronic voting and more. C V CONDOVOICE FALL 2019

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Murray Johnson R.C.M. Crossbridge Condominium Services

Communication

Unintended Consequences of Too Much Communication Owners are Getting Accustomed to the PIC’s, ICU’s, NOIC’s, Budget Packages, AGM Notices, Etc., and are Quickley Becoming Desensitized

I think it is this confusion, that in part, led to the current regulations requiring information certificates. Owners wanted more information; hello Periodic Information Certificate (PIC), Information Certificate Update (ICU) and New Owner Information Certificate (NOIC). Add this to the budget package, AGM Prenotice and AGM package and then pepper it with the many notices of fire alarm inspections, water shut downs and any other political or operational information that needs to be disseminated to the owners and residents and you end up with a steady stream of “official” condominium communication. One might even say a never ending barrage of communication.

Now let’s look to the marketing industry to see if we can find any parallels.

The neighborhood flyers that come in the mail, the endless real estate notices, penny saver, fast food coupons and on and on. What do the majority of people do with this relentless bombardment of paper? Ignore and toss! People have be-

come desensitized to the myriad of advertising that attacks them every day.

After all, doesn’t our friend Google offer all we need to do our shopping? Costco, Amazon, EBay are all a click away so who needs paper?

Back to our condominium world. We have only mentioned seven mandatory communication notices and we can assume one fire notice and perhaps three or four other operational notices per year. Owners are getting accustomed to the PIC’s, CONDOVOICE FALL 2019

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ILLUSTRATION BY JAMIE BENNET

It always amazes me when I attend Annual General Meetings to hear the board report start with a statement that the board is happy with the new level of communication and then the first comment from owners under New Business is “You never tell us anything.”

not yet gone to court…..was this a make work project?

ICU’s and other packages and are quickly becoming desensitized to anything condo.

Out of this barrage of communication, I would suggest that most important to most owners and residents would be the budget package: “How much more will I have to pay?”.

In the governments haste to satisfy the loudest of the panelists consulted during the drafting stage of the regulations, the unanticipated consequence of too much communication seems to have been overlooked. To add more apathy to this desensitization, the better things seem to be moving along in the life of a condominium community, the less likely residents and owners are to read this steady and unrelenting onslaught of communication.

Let’s agree that the PIC’s are a good thing because they inform owners on the risks associated with current court actions and changes to insurance that could/will affect the cost of living or curb appeal of ones real estate investment. We could even argue that the ICU and the triggers for issuing an ICU have some merit, but isn’t the NOIC a bit of overkill? We have to look at this “improved” communication holistically, in conjunction with the other mandated communication that is sent to owners, to fully understand why this desensitizing is taking root.

An audience who sees the notice or communication as yet one more bullet in the communication gun aimed directly at them.

We also need to look at what people are gleaning from this communication overload. The director disclosure is a great tool for ensuring that directors declare any conflict and yet owners are not seeing this as critical data, instead they simply want to know if the candidate is a resident owner, something that a simple rule or bylaw could look after.

Could a condominium be well served if the only mandated communication was the director disclosure and the Information Certificate Update? Of course the AGM and budget packages must remain.

The ICU would simply inform owners of changes as they occur….full stop! This starts to reduce the number of communication notices leaving only the critical notices for construction, fire alarms, elevator shut downs etc.. In other words, owners and residents would soon learn that most of the communication that comes their way will impact them on a daily basis and therefore should be scanned at a minimum.

While we are talking about communication, we should look at the suicide clause for directors that was placed into one of the communication tools. The ability for owners to request additional materials or agenda items for the AGM and the ability for directors not to agree (unless requisitioned) must surely be a clause designed to wean out the weak on the board. Owners ask and the board says no, without explanation: a perfect recipe for a requisition to change to the board. Huh? Who thought of this one?

Does the average owner take any action knowing that some legal action has been filed, the insurance company has been notified and has confirmed they will cover the cost of defense? With the inclusion of so many mandated communications, the risk of conflicting statements becomes exacerbated. The ICU notes that a claim is outstanding against the corporation, the Status Certificate will need to be updated to show this, the next PIC will have to be issued with this new information, can details even be discussed if the case has

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It’s hard to change legislation once it’s entrenched operationally and processes have been developed to comply, which only highlights that the quality of the message needs professional attention. This could include notice boards with journalistic input into how the message looks and reads, short and concise cover letters or executive summaries of a package (for those inclined to simply ignore and toss).

No matter how a condominium chooses to address communication, it still needs some level of professional attention. What was once a simple request to “post a notice” is now so much more. It is yet another layer of communication to a desensitized audience who is more likely to ignore the content than to read it. An audience who sees the notice or communication as yet one more bullet in the communication gun aimed directly at them.

So what’s the take away, how does a board start to sensitize owners to communications? How do you force “someone else” to read something that “you” think is important? I only wish I had the answer. I have spent many years managing floods, changes of directors, resident complaints, legal claims, maintenance repairs, contract management, staff supervision, regulatory mandates and yet I can’t remember ever sitting with a board to develop a comprehensive communication strategy. This may not have been needed in the past but I assure you things are different today and a new skill set is required, one that I and most of my peers were never trained on.

This condominium management industry in Ontario grew from a needs base almost 54 years ago. It grew from a cottage industry business to what it is today, but our mindset is still at the cottage. We have avoided change, resisted formal protocols for volunteer boards and resisted the “business” side of managing a community.

We have grown up, with grown up needs and new skills, perhaps the largest consequence of too much communication will be the cost of yet another expert supporting the condominium community. This new consumer protection is getting pretty expensive! C V

Josh Milgrom B.A.(Hons), JD. Lash Condo Law

Cover Story

The Ideal Condo Board Communicate, Act Swiftly, and Adapt

These directors are tasked with managing a budget, enforcing their governing documents, complying with the Condominium Act and other relevant legislation, attempting to satisfy the owners (or at least most of them), and for many condos, directing a manager to facilitate the dayto-day operations of a complex and everevolving condo community.

How do you make sure that your board has the skills, the tools, and the support necessary to succeed? How to you put yourself in a position to sit up at the head table at

your next AGM with pride to share the year’s worth of accomplishments with the owners at the AGM – and to have them applaud your efforts?

Starting Point Each director should be operating within the confines of and be guided by the Condominium Act. This establishes the legal boundaries and sets the stage for the board to make all of its decisions.

At a bare minimum, a director must act honestly and in good faith, and exercise

reasonable care, diligence and skill while performing their role.

Directors should become familiar with their condo’s governing documents. And while a director doesn’t need to be able to recite the Condominium Act or the declaration on command, they should know what types of issues are covered in the documents so they know where to look when an issue arises.

Sometimes boards play years’ worth of broken telephone, transferring bad habits from one board to the next. Rather than fall in the same trap, it’s important to think critically about the long-standing assumptions that may be guiding a board down the wrong path by asking questions and satisfying yourself that the assumpCONDOVOICE FALL 2019

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ILLUSTRATION BY R.O. BLECHMAN

With thousands of condos in Ontario, and a board of at least 3 directors for each one, directors are responsible to govern over 1.3 million homes.

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tions are grounded in the governing documents.

Whether an item, such as a fan coil unit or a window, falls within or outside the boundaries of a unit, or whether a particular exterior portion of the common elements falls within the shared facilities, are issues that can be often misunderstood and incorrectly applied. This can go on for years unnoticed, with a corporation spending substantial funds unnecessarily.

In the majority of cases, a board would not be required to continue making the

Condos that have failed to act swiftly have been found by the courts to be in breach of their obligations under the Condominium Act

same mistake over again, but rather can learn from their mistake and correct them moving forward.

Communicate Communication is a critical element of having a successful board. The discourse surrounding communication is often focused on how best to communicate with owners: and while much can be said about tailoring the type, style, frequency, and medium of communication to a community, two critical aspects of communication tend to receive less attention.

First is the importance of two-way com-

munication. In order for communication to be effective, owners need to be – and feel – heard. A board that circulates quarterly newsletters, sends out eblasts, and posts notices, but doesn’t listen to or value owners comments and concerns is destined to struggle. Owners may become disgruntled, frustrated, and unappreciative of the board’s efforts, regardless of the board’s accomplishments. Town hall meetings and other ways to solicit feedback, such as surveys, are great tools that can be utilized by boards to improve communication and, importantly, owners’ level of satisfaction with the communication.

Second, communication amongst the directors should not be overlooked. Internal board politics and quarrels can quickly occupy valuable meeting time. Set expectations for communication and workload, delegate tasks, establish boundaries, and constantly communicate to make sure that each director is participating as expected and are working cohesively.

While email is a great tool to converse between board meetings and to share information, it is no substitute for a comprehensive discussion and debate at a board meeting. Email should be reserved for situations where substantial discussion or back and forth is not necessary, except in extenuating circumstances. Items can be lost in a chain of emails, tone of voice can be misinterpreted leading to conflict, and the Condominium Act does not permit board decisions to be made over email.

Act Swiftly When an issue arises, take swift steps to tackle the problem head-on. Whether it is an owner complaining about smoke migrating into a unit, a director who is improperly liaising with contractors or disclosing confidential information to owners, or learning that your condo is in store for a substantial special assessment, issues have a tendency of escalating and getting exponentially more difficult to resolve once left festering.

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Whether that means engaging professionals, convening a special board meeting in the event of an issue which requires urgent action, or calling an owners’ meeting, condos that have failed to act swiftly have been found by the courts to be in breach of their obligations under the Condominium Act. Boards should take advantage of opportunities to be proactive. Put in place preventative maintenance programs, engage professionals to diagnose and resolve issues, and update your governing documents to make sure you have the tools to address problems when they arise. A condominium corporation with a strong

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set of by-laws and rules is substantially better situated to address problematic owners and residents than one with outdated and basic governing documents.

Adapt Condos go through different stages – from turnover through to aging buildings. The challenges that arise in each stage vary; so too should the board’s actions and solutions to those challenges.

When it comes to litigation and enforcement issues, encourage your fellow directors not to get too set in their position, or to make decisions based on emotion.

The ability to consider different perspec-

tives, evaluate the situation, and maintain an open mind can lead to substantially better outcomes, particularly in litigious matters. Litigation is a costly, potentially divisive, and time consuming endeavour.

To the extent possible and reasonable, settlement outside of the courtroom should be strongly considered throughout the course of litigation and as new information or changing situations arise.

As directors are still getting accustomed to the legislative changes, including mandatory training, and the introduction of CAO and CAT, the ability to adapt to changes is even more important in today’s constantly evolving condo environment. C V

Jake A. Fine B. Mgmt, JD. Associate Fine & Deo Condominium Lawyers

Harassment in the Workplace

Workplace Harassment – A Refresher Course Harassment is an Issue Plaguing Nearly Every Workplace, and That Includes Condominium Corporations

Across the country today there is a broad social imperative to combat workplace harassment. Indeed, the issue has perhaps never been more prominent in the public consciousness.

Social media, with its global reach, has been a driver of this response. Campaigns such as the #MeToo movement have created a social platform and a network of support for those who have previously felt uncomfortable reporting issues in their workplace.

But, the response has not been isolated to social media. Legislative bodies have begun to rethink how workplaces should respond to incidents of harassment. To this end, we have seen legislative changes in Ontario, including to the Occupational Health and Safety Act, R.S.O. 1990 (“OHSA”).

Harassment in Condominiums Workplace harassment is an issue plagu-

ing nearly every workplace, and that includes condominium corporations.

As we saw in a most recent edition of this publication, professionals at even the highest levels of this industry are often faced with behaviour that is shocking and downright appalling.

The ongoing prevalence of workplace harassment has inspired those who have experienced it to speak out. Whether it is commentary on how to ensure the safety of other workers, or a social media campaign such as #ImNotAJoke, the industry is taking notice of the harassment faced in condominium corporations.

The stubborn nature of the problem necessitates continual reviews of the obligations and duties imposed upon a condominium corporation and its board of directors, its owners and its management. As they say, knowledge is power.

The following is an elevated view of a condominium corporation’s obligations under the OHSA with respect to workplace harassment. It should be noted that the following is not legal advice, but rather a general overview of the process and duties imposed

on a condominium corporation in regards to workplace harassment. Each case must be assessed on its own unique facts.

Obligations of the Condominium Corporation A condominium corporation has a positive statutory duty to ensure the safety and security of the workplace for all workers, and to ensure that the workplace is free from any type of violence and harassment, whether physical or oral.

Without getting bogged down in minutiae of all the relevant legislation, a condominium corporation: 1. as the deemed occupier of the common elements, has a duty to keep the common elements reasonably safe; 2. under the Human Rights Code, has a further legal duty to maintain an environment free from discrimination and harassment; and, 3. as a workplace under the OHSA, a condominium corporation must establish a workplace harassment policy and program to implement that policy.

The workplace harassment program is to include, among other things, measures and procedures for reporting incidents of CONDOVOICE FALL 2019

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ILLUSTRATION BY JAMIE BENNET

There is nothing new about harassment in the workplace, sexual or otherwise. An unwanted leer, an act of bullying, or an “accidental on purpose” brush of a co-worker’s body— the problem is ongoing, and we are only beginning to fully understand it.

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harassment, how incidents will be investigated and how the information obtained will remain confidential.

What Constitutes Workplace Harassment?

Workplace harassment is defined in the OHSA as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

The definition of workplace harassment also includes workplace sexual harassment.

However, instead of parsing an ambiguous definition, it may be easier to ask “would a reasonable person in the complainant’s position find the conduct or comments to be objectionable?”

Examples of workplace harassment include, without limitation, bullying, aggressive behaviour, offensive comments and/ or degrading or belittling another person.

Similarly, examples of workplace sexual harassment include inappropriate touching, sexually offensive gestures, and asking about another person’s sexual experiences.

Who is Protected?

Under the OHSA, a “worker” is defined in part as someone who provides a service for monetary compensation. In the context of a condominium corporation, this includes not only the employees of a condominium corporation, but also any agents of a condominium corporation, including independent contractors. It does not include the directors of a condominium corporation, unless they are being compensated for their services as directors.

When is Duty to Investigate Triggered?

A condominium corporation has a duty to investigate not only if there is a complaint of workplace harassment, but if there is an “incident” of workplace harassment. The Government of Ontario suggests that the obligation to investigate arises whenever a supervisor becomes aware of any potential incident of workplace harassment. A supervisor is someone who has charge of a workplace or authority over a worker.

Conducting the Investigation A condominium corporation must conduct a thorough investigation which is “appropriate in the circumstances”. Due to the

relative newness of the amended provisions of the OHSA, there has been a debate surrounding what is considered “appropriate in the circumstances”.

What is clear, however, is that the investigation must: 1. be conducted promptly – within 90 days or less; 2. be objective – the investigator should not be the alleged harasser or the complainant, be involved in the incident or complaint, or under the direct control of the alleged harasser; 3. be thorough – interview all parties involved in the incident or complaint and any relevant witnesses; and, 4. maintain confidentiality.

In addition, in the investigation each party must be afforded procedural fairness. The alleged harasser should have the opportunity to hear the case against them and to respond to specific allegations made. If a board member or property manager is unable to conduct a fair and impartial investigation, an external third party may be required to conduct the investigation.

Can the Board or Property Manager Conduct the Investigation?

There is also some debate as to whether an investigator can be internal to the corporation, or whether they should be an external third party.

The answer to this question is fact-driven and will depend upon the nuances of each case. Driving factors include cost, complexity and the independence of the investigator.

Some matters will clearly not require a lengthy investigation, and therefore the matter can be handled internally. An example of this may include a harassing email from a unit owner to the property manager.

Other matters, however, may be more complex and may require a lengthy and in-depth investigation. An example of this may include ongoing allegations of bullying by one worker against another.

It will be incumbent on a condominium corporation to assess the incident and properly determine which course of action is most appropriate.

The Results Details of the incident should remain confidential, unless disclosure is necessary to investigate, take corrective action or is otherwise required by law.

The results of the investigation and any corrective action taken should be summarized and provided to the parties in an executive summary.

The parties should be advised of the results within ten days of the conclusion of the investigation.

Harassment of Directors As previously mentioned, the definition of “worker” under the OHSA does not include the board of directors, unless the directors are being compensated for their services.

So what happens when a director is harassed by a unit owner or another director?

The harassment of directors is not condoned, and there are separate procedures to deal with such harassment.

This topic, however, is the subject for a different article.

The Minimum is Not Enough A condominium corporation should be determined to take all necessary steps to ensure that no harassment takes place on the property.

By law, a condominium corporation must only review its workplace harassment program and policy at least once annually.

This may not be enough.

Educating workers on workplace harassment and reviewing the condominium corporation’s specific workplace harassment policy and program on a regular basis is a vital step in helping to protect workers, and in preventing further occurrences of workplace harassment.

When it comes to the safety and well-being of its workers, a condominium corporation shouldn’t live by the minimum standard. C V References: Occupational Health and Safety Act, R.S.O. 1990 Condominium Act, 1998, S.O. 1998, c. 19 Occupiers’ Liability Act, R.S.O. 1990, c. O.2 Human Rights Code, R.S.O. 1990, c. H.19 https://files.ontario.ca/workplace_harassment_en.pdf CONDOVOICE FALL 2019

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James Russell Newsletters et Cetera

ABSOLUTE WORLD - PSCC 939

you told me you just chatted with the members of a condominium board who once spent eight hours constructing a green wall from supplies they purchased themselves from their local garden store, I would guess you were fortunate enough to have met the superhero board of Absolute World.

ABSOLUTE SUPER HEROES

Oh, and did I mention that the same three board members also hand-purchased furniture for their naked terrace and business centre and transported it back to their building in a rented van? “Those two are an inspiration,” says Nicole Lee Pack, the board’s treasurer and newest member, “it’s exciting working with them.”

Absolute World is the fifth addition to the quintuple tower complex that graces the southeast corner of Absolute Avenue and Hurontario. The condominium is just steps away from the commercial and

municipal centre of Mississauga and adjacent to her sister tower, which is admiringly referred to as the ‘Marilyn Monroe’ building because of its resemblance to Ms. Norma Jeane Mortenson’s curvaceous countenance.

Within Absolute World’s impressive exterior are 442, one and two bedroom suites. PSCC 939 also includes twenty townhouses, five commercial units, and a 48th floor lounge that offers a spectacular panoramic view of the GTA and beyond. The six level parking garage is shared by all five-condo-

Opposite, left to right: Jon Record, President; Caroline Suarez, Property Manager; Jack Pereira, Treasurer; (not present, Oz Seydali, Treasurer)

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Absolute World’s architecture elicits wellearned admiration, but residents know that the condominium’s most impressive feature is their board

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Absolute World’s new property management company and onsite property manager, Caroline Suarez, have brought a neverbefore level of excellence to Absolute World.

“I love it here,” says Caroline minium corporations, includes dedicated entrances for residents of each building.

A single gatehouse provides visitors with information and directions.

Crowning Absolute World’s fifty storeys is Mississauga’s unofficial lighthouse, equipped with a 360 degree, blazing beacon that not only radiates a welcoming glow for wayfarers far and wide, but according to their website (absoluteworld. ca), the beacon is used to raise awareness for “Nondenominational, non-political, registered national charitable events 26

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or causes.” In the recent past, Absolute World’s beacon has flashed solid blue, for World Autism Awareness Day; orange and yellow, for World Day Against Child Labour; dark and light blue, for International Nurses Day as well as unique colour schemes for thirteen other charities and celebrations. To mourn last year’s tragedy that resulted in twenty people killed or injured aboard the Humboldt Broncos’ team bus, Absolute World’s beacon went dark.

Sitting in the middle of the five condominium complex is a three level, 30,000 sq. ft.

recreation centre with basketball and squash courts, indoor and outdoor pools, cardio and weight rooms, 50+ seat movie theatre, library, running track, five guest suites and separate male and female steam rooms.

Absolute World was completed in 2012 but its beginnings extend more than a decade into the past. It was in 1994 that Hazel McCallion, then Mississauga’s mayor, announced the design competition for Absolute World and her sister building. The six finalists were chosen by a panel of architects and civic officials.

The public was then encouraged to vote for their preferred design.

Above left to right:

The competition’s winning design attracted Jon Record’s attention, “We’re gonna live in that building someday,” Jon said to his partner the first time he set eyes on Absolute World. Jon, president of the board since 2016, was one of the lucky few to land a suite as the entire building sold out the first day.

Josh Henry Superintendant

Stanley Ankrah Security Site Supervisor

Caroline Suarez Property Manager Tyler Robinson Security Guard/Concierge Shanaka De Mel Administrator

During his daily marathon training runs, Jack Periera watched with interest CONDOVOICE FALL 2019

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Her sister tower, is admiringly referred to as the ‘Marilyn Monroe’ building because of its resemblance to Ms. Norma Jeane Mortenson’s curvaceous countenance as Absolute World rose from its cavernous beginnings toward the stars. “It was extremely affordable,” he says of the approximately $200K he paid for a unit that includes a panoramic 220 sq. ft. balcony. “We (Absolute World’s residents) have one of the best views in the GTA,” Jack adds then notes that his suite, like those of Absolute World’s other owners, mostly young professionals, has more than doubled in value.

“We have a younger crowd (of residents),” says Jon, a young professional himself. Yet thanks to Absolute World’s community-friendly floor layouts and despite the torturous hours that young professionals endure, Jon adds, “I literally know all my neighbours.”

That sense of community includes their two concierges, who not only know most CONDOVOICE FALL 2019

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of the residents by name but the names of their dogs as Absolute World’s fourlegged residents make a habit of stopping at the front desk’s ‘treat bar’ to hang out with their friends and discuss global warming, NAFTA and fire hydrants.

Absolute World’s three-member board consists of Jon Record, President; Jack Pereira, Vice-President; and Nicole Lee Pack, Treasurer. Together with management, they plan and organise Absolute World’s many social activities, including their popular pumpkin carving contest, catered BBQ, food drives, popcorn popped in the lobby, game nights and movies three times a week.

The incoming 2016 board took a ‘hands on’ approach to their job. Working with both a new Property Manager and management company the board embarked on a plan to improve the comfort and liveability of the building that included not only purchasing furniture, but also improving resident’s access to Absolute World’s

many amenities. “We wanted it (Absolute World) to feel like a home instead of just a building,” says Jack. The board turned to technology to help them communicate that new culture and sense of community to residents. Monitors in each of Absolute World’s elevators allow the board and management to provide residents with news, reminders and important announcements. The screen’s information

can also be accessed on resident’s smart phones via a live feed. Additionally, the board enjoys the good fortune of having a building full of ‘email savvy’ residents so communication is instantaneous. The board also incorporates tech into their fall AGM with a projector and screen, which, along with providing building-specific information, is used to project ACMO (The Association of Condominium Managers of CONDOVOICE FALL 2019

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Ontario) videos about the administrative and technical aspects of condominium life.

Absolute World’s website (absoluteworld. ca) is unique in that it contains a ‘realtors’ page with both a greeting message and a link to a Realtor’s Guide that contains an overview of the building’s amenities and design features. The Guide also advises realtors how to obtain a set of ‘Amenity Keys,” which allow agents and their clients access to the gym, terrace and Absolute World’s other spectacular amenities.

When residents file an ‘incident report’ by clicking the ‘contact us’ icon, the information is transmitted not only to the management office but each member of the board receives a copy as well.

Absolute World’s new property management company and onsite property manager, Caroline Suarez, have brought a never-before level of excellence to Absolute World. “I love it here,” says Caroline, an industry veteran and the corporation’s property manager for nearly a year, “The board is amazing. Great ideas and feedback (to management).” An ad-

ministrator, three contracted cleaners, two superintendants and two concierges assist Caroline.

Absolute World’s young demographic and changing consumer practices have required the board to make several unforeseen upgrades to their relatively new building. “We created a parcel storage area due to the overwhelming demand of online shopping by our residents,” says Jon. By ‘overwhelming’ he is referring to the approximately one hundred parcels delivered to Absolute World per day. The board is also in the process of assigning dedicated parking spots for the cavalcade of vehicles that make 80 to 100 food deliveries a day.

With an eye to aesthetics, the board has plans to replace the lobby’s pillar lights with units that mirror their ever-changing roof top colour scheme, a lovely addition that wasn’t part of Absolute World’s original design. Past upgrades include: • A lighting retrofit in the common areas that involved removing approximately one hundred fixtures and converting them to LEDs.

• Installation of motion sensitive lighting in every garbage room, which are equipped with a bi-sorter for compost and garbage and a second chute for recycling.

Though lionised in the Toronto Star, Globe and Mail, and a host of Canadian trade publications, Absolute World’s reputation for excellence extends far beyond Canada’s borders, which is why the board occasionally receives requests from international-based photographers wanting access to Absolute World in order to photograph the interior and its iconic facade.

But while Absolute World’s architecture elicits well-earned admiration, residents know that their condominium’s most impressive feature is their board. Toward the end of my interview, Nicole, speaking about her two fellow board members, said, “It’s very inspiring to see how passionate they are.” Inspiring and passionate are accurate descriptions not only of the tower’s design, but Absolute World’s entire board of superheroes. C V CONDOVOICE FALL 2019

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1151 Denison Street, Unit 15 L3RUnit 3Y415 1151 1151Denison DenisonStreet, Street, Unit 15

L3R L3R3Y4 3Y4

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Bill Colucci B.A., B.E.S., R.C.M, HTG. TECH, ACS, ALB Senior Property Manager, YCC 26

Condominium Boards

Extra Expense or Added Benefit?

The Case for Professional Directors on Condominium Boards

basis (there are only a handful of condos that remunerate directors), so the work of directors is a great benefit to the condo at no cost.

While we do not wish to fault those who are inexperienced, and, indeed, as in other industries, any novice can benefit from guidance, training and tutorship, there is a case to be made for “professional directors� – i.e. condo industry experts hired by the corporation to assist the board in making decisions.

While education plays a large role in decision-making, directors presently may serve for as long as 6 months without any professional education, by which time they are statutorily required to complete what is basically a level #101 education. A professional director can provide assistance and guidance to bridge any gap in experience, skill or knowledge.

However, before considering the value of a professional director, it is worth assessing the pros and cons of the status quo.

The foregoing begs the following question: Why should a condo hire a professional director if it already has a property manager?

Directors are often owners or other individuals who have a vested interest in the well-being of the property (and, indeed, a condo corporation can pass a by-law requiring directors to be owners), so the typical director will be motivated to ensure the best interests of the condo and its occupants.

Additionally, directors act on a voluntary

For one, while a polite property manager, who is an employee of the Corporation and serves the board, may often be reticent to tell the board of an obvious decision-making flaw, a professional director would have no such trepidations since they should be participating on an equal footing with the rest of the board.

Furthermore, the condo industry is growing, as is the responsibility of managers, so often the manager is alone attempting to advise a board who has ingrained opinions that may be correct or practical in another industries, environments, or cultures but are just plain wrong in condominiums in Ontario. A professional director would provide a supplementary objective perspective to ensure good decision-making.

While boards and owners are often hesitant to spend money since they usually and immediately translate this into what it will cost them personally, most managers with the skills to serve as professional directors can easily explain how a 10% saving on any one of the major contracts or maintenance costs will immediately pay back more than the cost of his or her service. A professional director should not be viewed as an expense to a condo; he or she is an investment.

If a board is considering hiring a professional director, it should look to a seasoned CONDOVOICE FALL 2019

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ILLUSTRATION BY MAURICE VELLEKOOP

Condominium board directors possess a wide array of skills and education. Some directors are highly skilled professionals from the corporate world, while others have not had the benefit of these experiences.

The make-up of the directors often dictates the professionalism/morality of the board.

Many managers have experience dealing with the good, bad and ugly.

manager. Since condominium management has often been a second career for so many in the industry, many professional property managers are facing retirement or a career change, or perhaps want a second income. There is no shortage of skilled managers who would gladly sit in on board meetings once a month, receive and send some tactful emails, and advise and counsel for a fee. Property managers

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have the cross-industry experiences, legal understanding, people skills and exposure necessary to address problems quickly and efficiently. Professional board members, however, must still be elected by the owners. As well, the Condominium Act, 1998 requires a corporation to pass a remuneration bylaw before a condo can remunerate a director. A remuneration bylaw is only valid for 3 years.

The concept of a professional director is not new; however, it is due. Boards will almost certainly save more money (and time and effort) with someone helping them to make good decisions, as compared to the cost of the professional director. As the condo industry continues to evolve, boards should strongly consider if they would benefit from the experience of a professional director. C V

Marc Bhalla B.A, C.Med., Q.Arb., MCIArb Condo Mediators

Dispute Resolution

Beyond the Act

Did you know that the mandatory mediation and arbitration provisions provided by the Condominium Act, 1998 (the “Act�) do not speak to the only circumstances where a condominium conflict is required to proceed to mediation and, failing settlement, arbitration instead of court?

Unlike what is imposed by law, the other circumstances that I speak of are initially optional without many even realizing it until they are bound to alternative dispute resolution.

I am referring to dispute resolution clauses in contracts that a condominium corporation enters into.

Many do not bother to review such clauses, particularly as there are usually more contentious and important issues to negotiate.

Yet, they offer tremendous opportunities and advantages if done right.

Unfortunately, such clauses are not as standardized as many assume and they often get overlooked or taken for granted in the course of finalizing a contract. This can result in missed opportunities to avoid complication in the event that a dispute arises

and uncertainty when a conflict initially surfaces.

nity reputation and property value preservation.

The Advantages Effective dispute resolution clauses in service and other contracts offer several advantages to both condominium corporations and those with whom they enter into agreements: 1. Maintaining Privacy. In addition to being slow and costly, proceeding through the court system is public in nature. It can be preferable to everyone involved in a dispute to address it privately.

2. Process Guidance. A long standing criticism of the mandatory mediation provisions of the Act is that they require mediation yet fail to offer any process guidance or instruction as to the procedure to be followed.

Without prescribed forms to use to propose mediation, guidelines for mediator selection or anything more than a deadline after which mediation can be considered to have failed - even if it did not actually take place - the practical reality is that the first thing feuding parties need to do to address a dispute that falls under the mandatory mediation requirements of the Act is to agree on how mediation will come together.

Similar frustrations apply to arbitration as well, unless the condominium has a good mediation/arbitration by-law in place to set this out.

The delay, frustration and cost that can result from this can be avoided if process guidance is offered up front. With respect to contracts, a dispute resolu-

Dispute resolution clauses in contracts can call for the private resolution of any dispute that may arise, avoiding the impact of negative publicity, regardless of the ultimate outcome of the conflict.

This is simply an agreement between parties to the contract to address any disputes that may arise through private mediation and arbitration. From the perspective of a condominium Board, there is often merit in keeping conflict, and even possible resolution terms, away from the public eye – including in consideration of commu-

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ILLUSTRATION BY JAMIE BENNET

When Mediation and Arbitration Are Also Mandatory

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tion clause can set out precisely how mediation and arbitration would come together. After all, it is usually easier to agree on such terms at the contract negotiation stage, before any conflicts actually surface, rather than after the emergence of an issue.

and the division of engagement costs can avoid many of the stumbling blocks that can innocently or intentionally get in the way of a mediation or arbitration coming together.

3. Leveraging Flexibility. Mediation and arbitration can be flexible processes while going to court is rigid.

Consider scheduling. Court dates are assigned and adjournments can lead to postponement and time wasted attempting to have your day in court.

Mediation and arbitration usually allow parties to have a say in scheduling and can take place online, in segments, and otherwise at a date and time that at least takes into consideration the schedules of the participants as they are set.

This need not be too specific or detailed. It can be set out in general terms to acknowledge the flexibility advantage or to otherwise empower the process facilitator to guide scheduling as they see fit.

What to Include It can be helpful to address the following in contractual dispute resolution clauses: 1. Process Initiation Protocols. Clearly establish how one can invoke the dispute resolution clause in a contract to start the mediation or arbitration process. This can set out the way in which a mediation or arbitration proposal can be delivered, timelines for a reply and other helpful guidance surrounding the determination of location and scheduling.

Not only can this avoid confusion, frustration and delays, but it can also offer comfort over the unknown of how/if this would work otherwise.

2. Mediator/Arbitrator Selection Guidelines. Believe it or not, games can be played when it comes to selecting a mediator or arbitrator that can be proactively avoided through a dispute resolution clause.

Advanced consideration of mediator/ arbitrator availability, qualification

It can also be helpful to set out a protocol for addressing disagreement over the selection of the mediator or arbitrator to set out a clear way to overcome any related obstacles that might arise.

3. Page Limits. Establishing page limits for mediation briefs and related submissions can avoid the risk of voluminous materials inflating costs and unnecessarily complicating matters.

To the extent that there is any hesitancy to set any particular page limit in stone, as the nature of the dispute may impact what is reasonable, such clauses can empower the mediator or arbitrator selected to set what they consider to be fair limitations.

What to Avoid It may be important to avoid the following common hurdles in contractual dispute resolution clauses: 1. Overly Narrow Specifications. Particularly if there is hope that the contractual relationship will be long-term, it can be a mistake to get overly specific and neglect what could change over the passage of time. For example, referencing a specific ADR practitioner, roster or authority from which the mediator or arbitrator will be selected can become a problem if they fail to be available in the future.

General guidelines, such as qualification criteria that references the mediator or arbitrator having a designation of the ADR Institute of Canada or a similar designation that confirms the process facilitator’s qualification to practice through education, experience and insurance can “set the goal posts” in a way that will stand the test of time.

2. Over Simplification. Consider that mediation/arbitration by-laws usually consist of double digit pages while contractual dispute resolution clauses are often limited to a paragraph.

It can be a mistake to keep language too general, as this risks failing to offer any real value when needed. Such can be misinterpreted and create disputes as to what the clause means - leaving everyone no better off.

There needs to be a balance struck between being prescriptive in terms of what is desired and flexible to avoid complicating or frustrating the process through the unknown variability of the future.

3. Neglecting the Clause. It can be very easy to overlook a dispute resolution clause in a contract or to chalk it up as standard, fine print wording. This is particularly the case as these clauses usually appear toward the end of the contract, when a reader’s eyes are tired and they look forward to being done with the document.

While there may be more important aspects of the contract to concentrate on as it is being negotiated, opportunities to avoid the problems that can occur when dispute resolution clauses are insufficient, unenforceable or not included exist. Consider them before signing the contract.

Many condominium communities engage their legal service provider to negotiate and/or review contracts before they enter into them, and are wise to do so.

Dispute resolution clauses in contracts could be deemed to be invalid if, for example, they are viewed as an attempt to contract out of the Act. Wording can be interpreted against the drafter if contract terms are subject to differing interpretations and serve to drag out and complicate the resolution of the dispute. Also, it can be easy to neglect appeal and cost award rights if they are not addressed up front; to that end, it may be beneficial to at least capture intentions surrounding those considerations.

Dispute resolution clauses in contracts can be very helpful in realizing the advantages that come with private, prompt and cost efficient dispute resolution offered through mediation and arbitration. These opportunities merit giving these clauses the time and attention they deserve. C V CONDOVOICE FALL 2019

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Patrick Greco B.A. Sc., LL.B. Partner, Shibley Righton LLP

Kickback Seminar

Condo Conflicts, Contracts and Kickbacks Improper Inducement? Property Managers are Encouraged to Use the “Sniff Test”

John Warren led off by defining some commonly-heard terms such as “conflict of interest” and “kickback”. Warren also stressed the importance of board members, property managers and others not only avoiding actual conflicts of interest, but also perceived conflicts.

Kickbacks can be very difficult to uncover, but some clues include a director or manager who strongly promotes one supplier/contractor over another, especially if there is no clear reason for doing so and/or there is some other unusual circumstance, such as that individual having recommended the supplier/contractor in the first place.

While there is no fail-safe way to avoid conflicts, it is crucially important that Board deliberations on contracts be properly-minuted, especially declarations of conflict, and that proper closed bidding be conducted for all substantial contracts.

Tania Haluk followed with the condominium management perspective. With property managers under more scrutiny than ever, including by the Condominium Management Regulatory Authority of Ontario (CMRAO), it is crucial that managers put in place clear policies, along the lines of those recommended by Warren, to ensure transparency and, in the process, protect both the communities they serve and their own reputations. Foremost in guiding these policies should be the reminder that all actions must be in the best interests of no one other than the condominium corporation and its unit owners.

When in doubt, directors and managers should put themselves in the shoes of a stranger and ask themselves whether

their actions would “pass the sniff test”.

If they do not, then they should be reevaluated.

The provisions under section 40 of the Condominium Act regarding director conflict of interest are often misunderstood. Patrick Greco closely scrutinized them and emphasized that a conflict can arise where a director’s interest in a contract or transaction is direct or indirect but that the contract or transaction and the director’s interest in it must be “material”, that is, of such a nature that it would reasonably influence a person’s decisionmaking process. Similar to Warren’s advice, Greco emphasized that directors must be fully transparent in making sure that their conflict disclosures are properly minuted.

However, Greco advised that directors must also govern their conduct by the general Condominium Act duties to act honestly, in good faith and to exercise the care, diligence and skill that a reasonably prudent person would exercise.

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ILLUSTRATION BY CLAYTON HANMER

Some people will say that it is only meanspirited slander; others will insist that it is a pervasive cancer. But there can be no denying that kickbacks and similar activities are always on the minds of those in the condominium industry. This was the topic of discussion of the CCI Toronto educational event on June 18, 2019. The presenters for the evening were John Warren, Tania Haluk, Patrick Greco and Mario Deo.

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to by the CCI Directors’ Code of Ethics, which makes explicit duties such as confidentiality. Greco closed by offering examples of different situations in which director conflicts could arise, and what a continuum on which these exist.

Mario Deo closed the formal presentations by looking at two key issues: bidding and tendering law, and property management duties under the Condominium Management Services Act (CMSA) and the CMRAO which it created. Every condominium corporation should have a formal policy, included in its property management contract, requiring that every contract over a certain value, usually $25,000 or $50,000 must be put to a formal bidding and tendering process. Bid packages should contain detailed language regarding how bids will be handled and evaluated, and giving the board discretion to choose bids other than the lowest bidder.

Deo reminded those in attendance that, in return for a supplier/contractor submitting a qualifying bid, a board is legally bound to treat the bidder fairly and in accordance with the stated conditions of the tender process or else risk liability.

Some people will say that it is only meanspirited slander; others will insist that it is a pervasive cancer. But there can be no denying that kickbacks and similar activities are always on the minds of those in the condominium industry

Deo then reviewed the very broad powers granted on the CMRAO to investigate property manager conflict, stating that they are actually more powerful than those given to the police. These powers govern the new property manager conflict of interest provisions which prevent CMRAO licensees from accepting gifts which could reasonably be seen to influence their decisions as property manager.

Similar to board members, property managers are encouraged to use the “sniff test�

to consider whether receipt of a gift could be seen as an improper inducement.

The session closed with a barrage of questions from audience members in attendance, the majority of who were directors. This level of interest showed that there is certainly a pent-up interest in this topic within our condominium industry. Hopefully this session was not a one-time thing, but will instead be part of an ongoing dialogue about this very important issue. C V

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member

NEWS Upcoming Events

CCI Toronto Will be Celebrating its 30th Anniversary This Fall!

Date: October 24th, 2019 Location: Parkview Manor, 55 Barber Greene Road In addition to our celebratory event, the membership the AGM and 30th Anniversary celebration. Make committee (with the support of the special 30th anniver- sure to follow us on social media and watch out for sary committee) will be selecting a Condo of the Decade e-blasts with more information! showcasing past winners of the Condo of the Year contest!

Any questions you may have can be directed to us at The winner will be recognized on October 24th at info@ccitoronto.org or at 416-491-6216.

The Holiday Luncheon is Back!

Date: December 20th, 2019 Location: The Forth, 629 Danforth Ave. Back by popular demand, we invite you to join us for CCI-Toronto’s second annual Holiday Luncheon that will be held on December 20th 2019 at The Forth.

Attendees will enjoy a holiday lunch buffet and legal seminar.

Our expert panel will speak on the topic of Case Law & Condo Legislation: The Year in Review and What’s Coming, as they will discuss 2019’s major cases and court decisions impacting condo owners, and predict what will be the key legal issues in 2020.

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CONDOMINIUM MANAGEMENT. ELEVATED.

Condovoice Facebook - @CCIToronto Youtube - CCI Your Condo Connection LinkedIn - Canadian Condominium Institute Toronto Chapter Instagram - CCIToronto twitter - @ccitoronto itunes - CCI Toronto CV+

Visit Us ON SOCIAL MEDIA

It’s more than a condominium. It’s one of your biggest investments – and your home. Shouldn’t every aspect of it be of the highest quality?

For 40 years, ACMO has worked to improve the quality of the condominium management profession. With access to quality education and a strong network of professionals, condominium managers with the RCM designation provide a higher level of service to you, your fellow board members, and the industry as a whole.

Bring a higher standard home. Choose a manager with the Registered Condominium Manager designation. | ACMO.org

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PROOF #:1 DOCKET #: CLIENT:

ARTIST: MC

DATE: April 3 2017

14017 ACMO

AS:

FINISHED SIZE: FLAT SIZE:

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member

NEWS

CCI Was There

Recap on CCI-T August Seminar Hot Questions & Cold Beers Event was a Big Hit CCI-Toronto held a well-attended summer social event at The Forth on Tuesday, August 20th2019. This Hot Questions & Cold Beers event attracted 85 attendees, and the feedback was very well received!

The event invited participants to join an interactive session with CCI-T’s expert panel, including a property manager, engineer, insurance broker and lawyers to talk about all things condo.

The event invited participants to join an interactive session with CCI-T’s expert panel Our panelists included Lyndsey McNally, Deobrah Howden, Doug Levitt, Richard Pearlstein, Sally Thompson and Tom Gallinger answered the questions relating to the topics of Kitec, Insurance, Private Water, Mental Health and Reserve Funds that were proposed by the crowd.

Prior to the dinner and main session, participants had an opportunity to mix and mingle with other directors and CCI members. C V CONDOVOICE FALL 2019

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NEWS

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www.ccitoronto.org Check out CCI Toronto & Area Chapters new Website!

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member

NEWS

CCI-T Welcomes New Members Condominium Corporation Members: DSCC # 0311 PCC # 0073 PSCC # 1046 YRSCC # 1406

Individual Members: G. Collins R. Jegins

Professional Members: Bold Engineering Yu-Ta Chen

Lakeview Property Management Services Inc. Daniel Gallagher

Business Partner Members: Ace Condominium Management Inc Andre LeBlanc Active Security Enterprises Inc. Amar Dhoot Ainsworth Inc. Amber Forrest Bell Canada Christina Morano

Full Service Maintenance Group Luis Romero IRC Building Sciences Group Trevor Duwyn

JPS Canada Air Desa Contracting Inc. Systems Inc. Jean-Paul Moniz Dionisios Glavas Duke’s Royal Guard Inc. Jon Duque

PAC Building Group Corporation David Petrozza

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member

NEWS

CV Goes Swimming

CV Selfie Amir (Below) and Gabriel (Right) catching up on the ‘New Rules for Pools’ in Hallendale Beach, Florida before diving in!

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Alex Young HBA, JD Gardiner Miller Arnold LLP

condominium

owners

Timely ideas, insight, inspiration and information of particular interest to condominium owners

The Condo Act

Amended Condo Act: Two Years Later

It is now almost 2 years since the first wave of changes under the amended Condominium Act, 1998 (the “Act”) came into force on November 1, 2017. With the changes, the government promised a revamped condominium regime with increased communication and transparency to owners. Have the changes delivered? The jury is still out. While we continue to acclimate ourselves to the new legislative requirements, here are some helpful tips for condo corporations to live by.

Director Disclosures Under the Act, directors must submit certain disclosure statements, failing which they are disqualified from the board. These disclosures provide increased transparency to owners. The disclosures address topics such as whether the individual is an owner, occupant or in arrears of common expenses over 60 days, among other prescribed items.

There is no statutorily prescribed form of director disclosure, so boards should ask their corporation’s lawyer for a precedent form. The new preliminary notice that corporations must send to owners before an owners’ meeting notifies candidate directors of the opportunity to submit their written disclosures for inclusion in the subsequent notice of meeting package. If a candidate director fails to provide their disclosures by the deadline, including where a candidate is nominated or nominates himself/herself from the meeting floor, the candidate may provide his/her disclosures orally at the meeting.

However, since meetings run long as is, and to avoid the risk of the corporation’s minute taker missing any oral disclosures, it is wise to bring extra blank disclosure forms to the meeting to provide to such candidates to fill in while other candidates gives their speeches. Once completed, the chair should read the disclosures aloud for the owners’ benefit.

Record Requests Record requests have historically been an area rife with disputes for condos. Under the Act, there is a new meticulous process for addressing requests. The requester submits the request in the prescribed form, the board responds to the requester within the prescribed time using the prescribed form (which includes a statement of the fee) , the requester responds to the board in the prescribed form (paying the fee) and the corporation (finally) provides access to the records (along with an accounting of the actual costs of preparing the records). The foregoing process is an overly complicated way of addressing a potentially simple reCONDOVOICE FALL 2019

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ILLUSTRATION BY JASON SCHNEIDER

Like it or Not, Here are Some Helpful Tips for Condo Corporations to Live By

quest. Since the formal steps are largely to the benefit of requesters, as they are the prelude to a requester bringing a record dispute before the new Condo Authority Tribunal, corporations would be wise to have requesters dispense with the formalities if the record request can be easily accommodated at no cost (such as by email).

Proxies Proxies are a useful tool for allowing owners to count towards quorum and have a say in the affairs of the corporation while not being physically present at a meeting.

However, filling out the new prescribed form of proxy has proven to be a complicated endeavour for some. Notably, the various proxyholder representation options have led to confusion. Although counterintuitive (since proxies are meant to be straightforward), corporations would be wise to provide separate instructions in their notice packages explaining how to complete the proxy form. In reviewing proxies, meeting chairs should exercise discretion when interpreting proxies containing technical deficiencies. Where the owner’s intent can be reasonably inferred, the chair should not interfere with the democratic process by invalidating the proxy needlessly.

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Under the Act, there are many new deadlines for which corporations must keep track

Deadlines Under the Act, there are many new deadlines for which corporations must keep track. For example, the new preliminary notice must be sent at least 20 days before the notice of meeting, which notice of meeting must be sent at least 15 days before the meeting. The preliminary notice itself specifies deadlines for owner submissions (such as the disclosure statements).

As another example, the new periodic information certificate must be sent within 60 days following the end of the first and third quarters of the corporation’s fiscal

year. To keep track of deadlines, corporations should use a date calculator spreadsheet. Ask your corporation’s lawyer for a precedent.

Agreements to Communicate Electronically Corporations that have not already done so should ask owners to complete and submit to the corporation the government’s form of Agreement to Receive Notices Electronically, which, as the name indicates, permits the corporation to deliver notices (e.g. information certificates) to owners electronically (e.g. by email), thereby saving the corporation time, effort and money compared to paper notices. For the corporation to enter into the agreement, the board must pass a resolution setting out the methods of electronic communications it will use for serving notice.

Conclusions Sometimes the practicalities of condo operations and management fly in the face of technical legislative requirements. Corporations should act judiciously to ensure they are meeting the requirements in the most effective and efficient way possible. C V

Beverley Varcoe FRI, CRES, SRES, MVA Broker, Royal Lepage Your Community Brokerage

Ryan Cunliffe Sales Representative Propery.ca Realty Brokerage

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Lock Boxes

How to Fix The Lock Box Fiasco Suggestions to Help Property Managers to Cure a Problem of Epidemic Proportions The lock box situation at many condos has reached epidemic proportions. From what we have seen in many buildings there is no organized method of dealing with these lock boxes, and some buildings have hundreds on the fence, on racks and in the stair wells. Yes, hundreds of abandoned lock boxes!

Most of the lock boxes appear to be from REALTORSÂŽ that have not been removed after the sale or closing of a unit.

Which is obvious when there are only a few units for sale in the building, yet a hundred lock boxes in the assigned location.

Some are filthy dirty, and some rusted shut and have clearly been there for years.

It is difficult to plan showings in a condo at the best of times with the issue of parking and entering the building. This chaotic lock box situation in so many of the condos is very frustrating for both the agent and the buyer/tenant doing the showings. Occasionally we have had to cancel a showing because we never did find the correct lock box.

In some buildings the property manager has moved the lock boxes behind the concierge’s desk to monitor them. This was done specifically to track the illegal Airbnb rentals in the building. This has made the situation more manageable, but on that note some of the owners have moved

their lock box to a public fence or another location for the short-term rentals if they are not legal in the building.

We called a few lock companies and the boxes can be opened by a professional.

There are also videos on You Tube with suggestions about how to open a lock box.

You can also send in identification and the lock box numbers back to the manufacturer to get the master codes. Without professional help the lock boxes are impossible to get open even with all these suggestions. They are secure but are simply a mess to have in the building or outside on the fence. If there are keys inside any of the lock boxes, it is worth bringing in a

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• • • •

lock company to open them. Even if most keys cannot be identified, the fobs are all the same for the building and expensive so they are worth saving.

The Toronto Real Estate Board has a list of ‘Best Practices & Tips for the Use of Lock Boxes’.

The list includes the following security measures: • Confirm the person asking for access is a Member.

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• Change the manufacturer’s default code.

• Confirm the code through the listing brokerages office.

• Never write the code on a listing or business card.

• Do not use a code that is obvious, such as a birth date.

• Label or affix the Member’s identity on the lock box such as a ribbon or business card. (we are recommending the name, phone & date are on the box) • Never label a lock box with a condominium suite number, but do have

some way to indicate which lock box the key belongs to.

Permission may be required from the Condominium Property Manager to place the lock box on a common element.

Remember to check the security of the lock box on a regular basis.

Call the Listing Brokerage to report any problems with keys or lock boxes.

Remember to remove the lock box prior to closing. (The lock boxes are not always removed prior to closing and this is causing the problem. Which is hard to understand considering the boxes cost around fifty dollars or more.)

There is also a long list of MLS® Rules in place pertaining to the use of lock boxes and keys: including R-530, R-535, R-540, R-545, R-550, R-551 and R-555.

A copy of the rules is available from any member of TREB. Space here does not allow for the lengthy explanation of the professional use of lock boxes but this will give you an idea that the rules are extensive. When these rules are not followed is when the property manager of the building needs to step in and deal with the situation.

After speaking to a number of property managers and Realtors that focus on condos, as well as doing our own research, we have come up with a list of suggestions to help fix the lock box fiasco. We

have found some lock boxes that were cut off and left on the ground which is not recommended! Here are our suggestions and we hope this will help solve the lock box problem in the buildings you manage. You will need the help of a friendly REALTORÂŽ to complete some of the suggestions on this list.

1 Put up a notice in the common areas and send it out directly to all owners that all the lock boxes will be removed by a certain date if they are not labeled with a date, contact person and phone number.

Do not put the unit numbers on the box.

Some buildings keep a record of the lock box owners and contact information.

2 Check what is currently for sale and for rent and contact those Realtors to label their lock box’s immediately. Check to see if any of the lock boxes are there for units rented on Airbnb and other sites if they are legal in the building.

3 Check what has sold over the past few months because those lock boxes may still be on for buyer or tenant showings before closing.

4 Cut off all the remaining lock boxes and keep them in the office for a month or two in order to give people plenty of time to claim the box and the keys inside. You will need heavy duty wire cutters and a special steel saw for the larger boxes.

5 Keeping track of the lock boxes will help to track of the legal and illegal Airbnb units in the building. Then the property manager would know what activity is happening in the vacant units. We have also heard about a problem situation when people are renting a unit for a year and then are illegally renting them out on short term Airbnb and other similar sites.

6 Some lock boxes in the building may be for family, home care workers and trades people so you have to check with everyone in the building before removing them in case of an emergency. The lock boxes in some buildings are labeled with the company names for heath deliveries for seniors, home care suppliers, etc.

7 Some buildings are very large but at

least a clean out of the lock boxes once a year would help to keep the situation under control. In fact, this should be done throughout the year and then a total clean out planned for a specific date. For example, every June 1st the lock boxes that are not labeled are all removed.

Remember, any lock box removal has to be in the warmer months because some boxes are frozen shut in the winter.

We hope these suggestions will help the Property Managers to Fix The Lock Box Fiasco! C V CONDOVOICE FALL 2019

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Advertiser’s List COMPANY PAGE 360 Community Management 32 ACMO 46 Ace Condominium Management 12 A.R. Consulting 36 Atrens-Counsel Insurance 28 Atrens Management Group 8 Berkley Property Management Inc. 58 Brown & Beattie Ltd. 58 CapitaLink Property Management Ltd. 36 Cion Coulter Engineers & Building Services 19 Condo Concierge Inside Back Cover Criterium-Jansen Engineers 18 Crossbridge Condominium Services 28 Dryerfighters Inc. 58 Duka Property Management 30 Eagle Audit Advantage 46 Elia Associates Inside Front Cover First Service Residential Outside Back Cover Gardiner Miller Arnold LLP 2 General Property Management 59 Green Leaf Landscaping 44

COMPANY PAGE Horlick Levitt Di Lella LLP 14 ICC Property Management Inc. 34 JCO & Associates 44 KingsGuard Security Inc. 54 LAR Condominium Refurbishment Specialists 40 LEaC Sheild 49 Lionheart Property Management Inc. 51 Maple Ridge Community Management 43 McIntosh Perry 20 Monster Plowing Co. 38 Nadlan-Harris Property Management Inc. 36 RJC Engineers 50 Shibley Righton LLP 4 Synergy Partners 44 Tator, Rose & Leong 58 Trinity Engineering 20 Unilux CRFC Corp.

42 Wei CPA Professional Corporation 58 Whiterose Janitorial Service 10 Wilson Blanchard Management Inc. 56

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Mario D. Deo B.A., LL.B. Partner, Fine & Deo Condominium Lawyers

The Last Word

Suffering in Silence Harassment of property managers seems to be becoming an epidemic.

The harassers are rude, self-entitled, crazed, and, sometimes, mentally-ill unit owners and/or residents that simply will not stop their intolerable conduct. Generally, the conduct consists of verbal and written insult and/or constant attendance at the management office with rude, abusive and vexatious behavior.

ILLUSTRATION BY JAMIE BENNET

The definition of harassment in the Occupational Health and Safety Act (“OHSA”) is: engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought to reasonably be known to be unwelcome. The definition is very wide, and on its face, easily protects workers. However, many condominium corporations are unaware that “workers” include employees of contractors that work at the condominium corporation.

Managers suffering harassment may not be able to perform their duties to their complete potential, as they are being affected by the negative consequences of a narrative to which they, of course, do not want to be a party. It is a debilitating, timewasting but preventable problem.

While the entire cross-section of management personnel is being affected, it seems to me that the individuals most affected 60

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are female managers. Most of the affected managers are completely unwilling to report harassment or abuse because they do not want to endanger their employer’s contract with the condominium, are afraid of the subject unit owner/resident, or simply want to maintain the peace by suffering in silence. Of the four to five calls I receive per week from managers suffering abuse, the majority of the managers reveal that they do not want to be seen as “complainers” and do not want to affect their employer’s reputation. In many instances, the managers also decide to leave the industry because of the harassing behaviour that they have had to endure, and because they do not see the light at the end of the tunnel.

When harassment occurs, the OHSA obligates the employer, which includes the management company and the condominium corporation, to carry out an investigation. How this may be conducted and how it concludes is beyond the scope of this article. However, it is important to note that even if the harassment is not reported, the obligation to investigate exists if an employer knows or ought to have known that a worker is being harassed.

So what are the solutions? Nothing is perfect, but you may try the following:

• As we know, management offices are typically a single or double room with only one door. If a situation arises wherein an improperly intense unit owner engages the property manager, the circumstances can become extremely unbearable for many reasons. One of the best solutions may be to install a sign stating that all interactions in the management office may be videotaped and recorded. This step should not be taken without first receiving legal advice regarding such an installation. I have found in my own office, that once such a sign was posted, the behavior of individuals vastly improved.

• Appoint one or more members from the board to ask, at least monthly, if there are any incident(s) of harassment that the manager wants to report.

• Have and refer to a workplace violence and harassment policy and program, which all corporations must have by law and which must be reviewed annually.

• Communicate to all owners that harassment of any of the corporation’s workers will not be tolerated and will result in legal consequences.

I find that when these matters are dealt with through an OHSA investigation or a section 117 application (in extreme circumstances), the results are quite satisfactory. C V

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