VOL. 16, NO.4 | SUMMER 2012
Condo News DIGITIZED
Golden Horseshoe Chapter of the Canadian Condominium Institute
VOL. 1 • SUMMER 2019
Featured Condo:
UPPER MIDDLE PLACE 2019 Conference Highlights Condominium Boards Beware: Owners May Resort to the Solicitors Act to Reduce Legal Bills Charged to their Common Expenses Security: Keeping Up With The Times Building Health Check: Energy Management Cannabis in Our Condominium Communities Eight Months after Legalization Case Law Updates
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G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
From the President
Nathan Helder, B.Sc. GHC President
The Future is Now! Let’s Face it Together
It has been an eventful few months! Most recently, we hosted the Annual Trade Show & Conference on May 3 & 4 in Stoney Creek. The trade show was sold out with 42 booths. This exciting event included the popular Property Managers’ (85 in attendance) session on the Friday which included an update from CAO and CRMAO. On the Saturday, we started off with our Keynote Speaker, Rhonda Scharf, who humoured us with her presentation titled “Sometimes You’re the Windshield… Sometimes You’re the Bug”. The conference included concurrent sessions featuring topics such as Cannabis, Generations, Managing Weather Risks, Bullying, New Developments, Navigating Proxies, Green Energy, Planning for Aging Condos, Upcoming Changes in the Condo Act, and a Rapid Fire Legal Panel. Thank you to all of the sponsors, in particular our Partner Sponsor: SimpsonWigle LLP. Thank you to our Conference Committee members; Co Chairs Tania Krysa and Ryan Griffiths; Committee Members Carole Booth, Sally-Anne Dooman, Maria Durdan, Tom Gallinger, Patrick Greco, Steven Hill, Michelle Joy, Ed Keenleyside, Michelle Kelly, Sean Machado, Will Mackay, Rob O’Neil, Stephanie Sutherland, and Sara Vahrmeyer. At the conference, the attendees and exhibitors completed a survey. Surveying our members was one of the Action Items that was identified as being important (as per our 2017 Strategic Plan). One of the issues that came to the forefront was how the “Condo News” is being distributed. Since our primary purpose is to educate directors, ensuring that the “Condo News” gets into as “many hands as possible” is important. Passing a printed magazine around, along with increasing printing costs, is becoming problematic. With this in mind, we have decided to move to the digital world with the “Condo News”. We are excited about this transition as it will enable more people to have access to our magazine. When the Chapter split two years ago, both Chapters agreed to work together for a period of two years to produce the “Condo News”. As we approach the end of the two years, the GHC board of directors discussed this relationship at length and decided that it’s time to separate the Communications Committee and have the “Condo News” focus 100% on our own Chapter. We would like to thank the GRC’s participants in the Communications Committee and its magazine co-editors who have worked hard to produce an excellent magazine. We wish the Grand River Chapter well with its future communication projects. Finally, as the Chapter President, I am excited and encouraged to see the opportunity that’s in front of us! GHC-CCI began as a grassroots organization focused on educating unit owners and condo directors. In the age of change, whether it’s the New Condo Act, “Condo News” going digital, new Board of Directors, or new registered condos, we need to move forward. Let’s embrace the future and face it together by serving our communities.
Condo News – SUMMER 2019
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Communications Committee Update
Chair Carol Booth
Condo News
Elaine Edwards
is produced 4 times per year
Summer Issue (July) Deadline – June 30th
Ed Keenleyside
Fall Issue (September) Deadline – August 30th
Winter (January) Deadline – November 30th
Spring (May)
Jim Halliday Sally-Anne Dooman
Deadline – March 31st Articles of interest to condominium owners and directors are welcome. See details for submissions on page 36.
Hello Golden Horseshoe Chapter Members! To advertise contact:
We are pleased to present the first issue of the “Condo News” Digitized! The “Condo News” magazine is very versatile and user-friendly in its online format: you can download the entire issue, print single articles, or read it online via flipbook. With our new format, you can click on advertisers and go directly to their website. You will also find other links directly to our social media pages and event pages. The Golden Horseshoe Chapter of the Canadian Condominium Institute provides our members with a variety of valuable services such as: courses, seminars, quarterly issues of the “Condo News”, and a web site to answer general questions on condominium affairs. We urge you to share the “Condo News” with others in your condominium community. If you have any suggestions on articles or content, please feel free to email any of the Communications Committee members listed or the CCI office at admin@cci-ghc.ca Have a wonderful summer and enjoy the 2019 Summer issue of “Condo News” Digitized!
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G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
Golden Horseshoe Chapter of the Canadian Condominium Institute Box 37, Burlington, Ontario L7R 3X8 Tel: 905-631-0124 | 1-844-631-0124 Fax: 416-491-1670 Email: admin@cci-ghc.ca 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. 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. 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.
#LifeIsGolden
SimpsonWigle LAW LLP
Features 7 16
Feature Condo - HCC #81 by Michelle Joy
Condominium Boards Beware: Owners May Resort to the Solicitors Act to Reduce Legal Bills Charged to their Common Expenses by Erik Savas
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Security: Keeping Up With The times
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Now that the Smoke has Cleared: Cannabis in Our Condominium Comminities Eight Months after Legalization
by Joanne Richards
by Patrick Greco
31
Did You Know July is Smart Irrigation Month? by Rick Malda
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Building Health Check: Energy Management by Hannah Tough
34
Case Law Summaries by Bianca Stella
)VOUFS SU & 4VJUF )BNJMUPO 0/ - / 8 Phone: ] Fax: #SBOU SU 4VJUF #VSMJOHUPO 0N - 3 + Phone: ] Fax:
OUR BUSINESS IS CONDOMINIUM Over thirty years of helping our clients with all aspects of condominium law including: t "EWJTJOH #PBSET PG %JSFDUPST t %FWFMPQNFOU t $POTUSVDUJPO $MBJNT t 1SPKFDU 'JOBODJOH t .FEJBUJPO BOE "SCJUSBUJPO t -JUJHBUJPO t &NQMPZNFOU
OUR CONDOMINIUM LAWYERS .BSJB %VSEBO, ACCI +PIO . 8JHMF
CCI News & Events 3 4 10
President’s Report
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Getting to know the Golden Horseshoe Board
22 27 40 41 43
Q&A
Communications Committee Update 2019 Condominium Conference Highlights
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www simpsonwigle DPN
National Leaders’ Forum Report Welcome New Members New Member Profile Upcoming Events
Condo News – SUMMER 2019
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Property Management Guild Inc.
Golden Horseshoe Chapter of the Canadian Condominium Institute Box 37, Burlington, Ontario L7R 3X8 Tel: 905-631-0124 | Toll Free 1-844-631-0124 Fax: 416-491-1670 | Email: admin@cci-ghc.ca Website: Website: www.cci-ghc.ca
2018-2019 Board of Directors PRESIDENT Nathan Helder, B.Sc. (Member Finance Committee)
VICE-PRESIDENT Maria Durdan, B.A. LL.B., ACCI (Member Education Committee, Member Finance Committee)
TREASURER Tony Gatto, CPA, CA (Chair Finance Committee)
SECRETARY Sandy Foulds, RCM, BA (Board Liaison Membership, Social Media and Marketing Committee)
BOARD OF DIRECTORS Carole Booth, B.Ed., M.A. (Chair Communications Committee, Member Education Committee, Member External Affairs Committee, Member Governance/Policy Committee)
Richard Elia, B.Comm., LL.B, LL.M (ADR) ACCI (Member Education Committee)
Joseph (Joe) Gaetan, B.G.S. (Member External Affairs Committee, Member Governance/Policy Committee)
Tom Gallinger, BBA, FCIP Jim Halliday, B.Sc. (Member Communications Committee)
Laurie Hebblethwaite, QAO, CD (CCI National Liaison) Ed Keenleyside, B.A., (CCI) DSA (Member Education Committee, Member External Affairs Committee, Chair Governance/Policy Committee, Member Communications Committee) Kevin Shaw, B.Tech (Arch. Sc) (Board Liaison Professional & Business Partners’ Committee)
Stephanie Sutherland, BAS (Hons), LL.B., ACCI 6
G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
Canadian Owned and Operated
FEATURE CONDO
HCC #81 - Upper Middle Place Located at 2055 Upper Middle Road in Burlington, Ontario, our residents have an unobstructed, million-dollar view of the Escarpment, the Toronto skyline, including the CN Tower, or the City of Burlington and Lake Ontario.
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his sixteen-floor building is over forty years old, has recently been refurbished inside, and the outside brick has been covered with EIFS cladding. Suites are appealing because of the large square footage and the eight-foot ceilings. Most of the suites are owner-occupied, but a few are leased. There are a total of 150 units, ten suites on each floor, ranging from one bedroom plus a den, two bedrooms plus a den, and three bedrooms, all with in-suite laundry facilities and a balcony. Each suite has an electronic fire alarm warning unit and a central communication centre,
and the building was recently equipped with fibre optics for improved television and Internet reception. Our condominium is managed by a volunteer seven-person Board of Directors with the assistance of our Property Manager, Michelle Joy of Wilson Blanchard. A building of this age and with a
diverse demographic such as ours presents many challenges. Two of the more recent challenges have been the discovery of asbestos in some of the original building products used in construction, and the recladding of the building due to the breakdown of the outer brick, which was causing leakage through the walls.
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Our Condo has it all! ...
Main Lobby It was necessary to get our professional engineering firm involved in the asbestos issue, and after a study and investigation of a sampling of units, a policy was written for all owners to adhere to when doing renovations in their units, after approval of The Board of Directors. All residents are looking forward to the cladding project being completed by mid summer leaving the property construction zone-free until the next project gets underway. And there is always something that needs to be improved or rebuilt! HCC81 is fortunate to have a
healthy Reserve Fund, and therefore, the upcoming projects, i.e., underground parking garage repairs, replacement of the retaining wall along the right front of the property, landscaping improvements, etc., will be accomplished and managed according to priority and with available funds in line with our Reserve Fund Study. Upper Middle Place has many unique features, including a large lounge and
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G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
lobby, a well-stocked library containing books, CDs, movies, and the morning newspapers. There is a billiards room with an active group of men and women players; a fully furnished guest suite complete with 2-piece bathroom; a card room equipped with a large TV where movies are played every other Thursday evening; and separate Men’s and Women’s exercise rooms with sauna rooms. A workshop, fully equipped with
Pool Room
Craft Room Fully equipped Workshop room power saws, lathes, drills, and hand tools, and a craft room with up-to-date sewing machines and a knitting machine are well-used amenities. A party room that will accommodate a hundred guests with a fully equipped kitchen is used for many social activities and is available for residents’ private parties, too. The mixture of young and old residents, some of whom date back to when the building was first built, creates a friendly atmosphere and feeling of community. Our Welcome Hostess calls on new residents, providing them with information about their new community, shows them where their water shut-offs are, and answers any questions they may have about their new home. Residents are fortunate to have two drug stores, two restaurants, convenience stores, dry cleaners, hairdressers, banks, a major grocery store, flower shop, pizza shops, a veterinarian, doctors and dentists, and a Tim Horton’s all within a short walk of the building. Our husband-and-wife team of Superintendents and our Relief Superintendent keep the common elements looking great and deal with the many contractors providing services to us in an efficient, professional, and timely manner. Social gatherings for residents are held regularly, such as bridge and euchre, and we have a walking club and a knitting group. Volunteers help with various functions, such as our Annual Wine and Cheese Party, regular potluck dinners, Soup and Bun lunch, and Friendly Fridays. The building is surrounded with well maintained lawns, flower beds, trees and walkways, and we have a huge inground swimming pool, tennis/Pickleball courts, a barbeque area, and a car wash area. Underground parking is provided for the residents and there is plenty of outdoor guest parking. What more can we ask for….we have it all!
Card Room
Beautiful grounds Condo News – SUMMER 2019
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Conference Highlights Tania Krysa Conference Co-Chair Golden Horseshoe Chapter of the Canadian Condominium Institute
Ryan Griffiths Conference Co-Chair Golden Horseshoe Chapter of the Canadian Condominium Institute
Delegates then enjoyed some wine & cheese and visited all our exhibitors.
The 2019 Golden Horseshoe Conference was a resounding success. Thank you to our conference partner SimpsonWigle LAW LLP, and all our conference sponsors, speakers, and delegates.
Sponsored by:
It was an exciting program with a great team of speakers who both educated and enlightened our attendees’ practical skills on planning for their Condo’s future and working through some tricky day-to-day situations.
We kicked off the conference with our Property Managers’ session where Robin Dafoe, CEO and Registrar of the Condominium Authority of Ontario, updated us on Empowering Condominium Communities in Ontario. Ali Arlani, CEO and Registrar of the CMRAO, then updated members on the role of the Condo Manager in Relation to the Condo Board. Thank you to Elia Associates for sponsoring lunch:
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Ryan Griffith, Craig McMillan, Stephanie Sutherland
The winner of the Property Managers’ Session Draw Prize, a weekend for two in Niagara-on-the-Lake, was Craig McMillan from MRCM. Thank you to our prize sponsor:
G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
McMaster Children's Hospital is a pediatric academic health science centre serving the special and unique healthcare needs of children and youth using a family-centred model of care. Founded in 1988, McMaster Children's Hospital (MCH) has rapidly become a leader in pediatric evidence-based care, collaborative research and innovative leading-edge education.
On Saturday morning, we kicked off the conference with opening remarks from our conference Co-Chair Tania Krysa and President of the Golden Horseshoe Chapter of the Canadian Condominium Institute, Nathan Helder. The Golden Horseshoe Chapter of the Canadian Condominium Institute then presented the McMaster Childen’s Hospital with a donation of $2,500. Rhonda Scharf
Taking control of your own …through Rhonda Scharf’s realistic, easy, and fun approach to control. Rhonda left everyone laughing about life but most importantly, the knowledge on how to get back the life we want to have! Thank you to our Keynote Sponsor:
Nathan Helder, Marg Jones, Tania Krysa
Continued …
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Conference Highlights Cont’d Attendees closed out the day with the ever-popular Legal Panel, followed by the Best Booth award and delegate draw prizes.
Best Booth Award
Maria Durdan, Patricia Elia, Armand Conant, and Lou Natale
Andreea Agoston and Danielle Huber from Huber Windows presented with the Best Booth Award by Conference Co-Chair, Tania Krysa Danielle Huber and Andreea Agoston - Huber Window Cleaning
Prize Draw Winners
Thank you to all our sponsors; without their support, we would not be able to provide the calibre of events we put together for our members! Visit the Golden Horseshoe website to view all the photos from the conference at https://cci-ghc.ca/coursesevents/conference-2019
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Condo News – SUMMER 2019
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Getting to Know the Golden Horseshoe Board Ed Keenleyside Committee Affiliations: Education Committee, External Relations Committee, Governance Committee, Communications Committee
Q – What is the most interesting aspect of working in the condominium industry? A - I moved into my first (and only) condominium in 2006, and the first thing that struck me was the sense of community. Perhaps this was because the condo was brand new and everyone was facing the same transitions from living in single-family homes to living in a high-rise neighbourhood. From the start, I wanted to help make this as smooth a change as possible… so I joined the Board of Directors. It wasn’t long before I heard about the Canadian Condominium Institute, and the education courses they offered to new directors about the responsibilities of administering a multi-million-dollar development with all of its complex systems and challenges. Q – How did you first get involved in CCI? A - After taking two CCI courses, I asked about becoming a director. At the next AGM, my name was put forward as a candidate, and I was lucky to be elected. This opened many new doors, as my co-directors were lawyers, property managers, engineers, accountants, real estate brokers, and several retired condo owners like myself. Each had a story to tell, but more importantly, each had a wealth of condo information to pass on. The more I learned, the more I wanted to learn. When the Province of Ontario declared that the responsibility of administering a condominium would be left to owners, it was the CCI that provided a lifeline to naive individuals like me. If it hadn’t been for CCI, many condos would still be struggling today. Q – What is the best advice you’ve ever received? A - Perhaps the best advice that I have received as a condo owner is that condo living is not for everyone. While living in a single-family home, I made my own decisions and hired contractors that I knew and trusted. But when I moved into a condo, I learned that there was a Condo Act as well as a declaration, by-laws, rules, and procedures that I had to follow. Sometimes this slowed down the process of getting a job done, 14
but it also was necessary to protect the investments made by a wide variety of other owners. Q – What was your first job? A - I have had several careers: steelworker, Canada’s Air Force, electrician, high school teacher, city worker, researcher and author. At university, I became intrigued with political figures. Each one made an impact – not always positive, but always interesting. I sometimes thought that I’d like to visit with Winston Churchill or MacKenzie King. Each was different, and each played a role somewhat larger-than-life. Twenty years ago, I became interested in genealogy and delved into old records both here and abroad to learn more about my roots. My biggest regret in doing this research was that I started too late to ask my parents and grandparents many important questions. Growing up in Hamilton, Ontario almost meant that I was destined to work in the steel industry… and true to that expectation, my first full-time job was at Stelco. I grew up in a hurry as I took on the responsibilities of an adult for the first time in my life. I was surprised at how hard some worked while a few others looked for any excuse to slack off. I remember one of my co-workers, the late Cam Fraser, professional punter for the Hamilton Tiger Cats. Stelco had agreed to provide a job for him in the off-season… but Fraser spent more time sleeping or reading the newspaper in the locker room than he did actually working. I guess he was resting up for the football season. Q – What are you most grateful for? A - As a long-time Burlington resident and a lover of history, I have promoted and written about Burlington’s past. In 2015, I was wondering who the people were whose names were on the Burlington Cenotaph - eighty-two former residents who had died during WW1 or WW2. I began to research each one and ended up publishing a book that sought to put faces and personalities to each one. I am now working on two more local history books – one acknowledges the hundreds of people re-
G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
sponsible for making the Cenotaph a reality and who have cared for it ever since 1914 to the present. The other book is an illustrated history of the last Grand Trunk Railway station in Burlington. This book chronicles the rise and fall and the rise again of this valuable heritage property. The work that the Friends of Freeman Station have done to rescue this building and restore it to the way it looked when it was new in 1906 is nothing short of a miracle. This rather new interest in railways has brought back many memories and established some new ones. For example, my research turned up a small 1898 newspaper article describing a train accident in Burlington, when a passenger express train collided with a freight train parked on a siding. Perhaps at first glance this sounds like the fault of the passenger train’s engineer, but that was far from the truth. The rear brakeman on the freight had left a track switch open by mistake and the passenger train had no chance to avoid the disaster. But the action of the passenger engineer in slowing down his train saved his passengers from death or serious injury. Unfortunately, the passenger train engineer and fireman both were scalded to death. One sentence near the end of the article named a few of the passengers… and one happened to be my great-grandfather, Anthony Keenleyside. In closing, I can honestly say that I have few regrets and much to be thankful for. Throughout my life, there are few sounds that I love to hear more than laughter, especially children having fun. Co-operation always trumps confrontation – let CCI Golden Horseshoe Chapter help.
CONDO OF THE YEAR It’s Easy to Enter!
CONTEST!
TO ENTER, send an article (approximately 750-1000 words) answering the following: H What are the unique qualities and features of your condominium? H Are there any outstanding accomplishments of your corporation? H Were there any unusual and/or difficult problems encountered and resolved? H What is the overall environment of the condominium? H What makes residents proud to live there?
Each entry will be featured in an upcoming issue of the Condo News magazine. The winner will be selected by the GHC-CCI Communications Committee and will be presented with a prize valued at $500 at the Annual General Meeting.
Submit your article to: Golden Horseshoe Chapter of the Canadian Condominium Institute Mail: PO Box 37 Burlington, ON L7R 3X8 or email your contact information to: admin@cci-ghc.ca
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FEATURE
By Erik Savas SimpsonWigle Law LLP
Condominium Boards Beware: Owners May Resort to the Solicitors Act to Reduce Legal Bills Charged to their Common Expenses
W
hen a condominium board decides to initiate a court case to obtain an owner’s compliance with the Condominium Act, 1998 (“the Act”), the board will usually take comfort in the fact that section 134(5) of the Act provides a mechanism for the condominium to recover all of its legal expense. This section provides that where a condominium obtains an order of the court requiring the owner to comply and an order for costs, the condominium shall add to the owner’s common expenses the costs ordered by the court together with any additional costs incurred by the condominium in obtaining the order. While the “loser pays” principle is a hallmark feature of Ontario’s civil justice system, courts infrequently order the losing party to pay all the legal costs incurred by the successful party. Instead, courts commonly order an unsuccessful party in a civil case to pay the successful party’s
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“partial indemnity costs”. As a general rule of thumb, this means about one half to two thirds of the reasonable legal fees (plus HST) paid by the successful party to its lawyer, along with any reasonable disbursements (i.e. court filing fees, photocopies, fees to serve and file court documents, etc.). Section 134(5) is intended to “bridge the gap” between a court’s award of partial indemnity costs to a successful condominium litigant and the total amount that the condominium spent to obtain the court’s compliance order. In doing so, the section goes a long way to ensuring that none of the innocent owners in the condominium bear any portion of the costs caused to be incurred by the condominium as a result of the owner’s failure to comply. This does not mean, however, that the condominium has the proverbial “green light” to spend an excessive or exorbitant amount of legal expense to pursue an owner’s compliance. Notably, there have been a number of cases where courts have strongly cautioned against a “scorched earth” approach by a condominium seeking to enforce compliance by an owner. In fact, in an Ontario Court of Appeal decision issued in 2012, the Court of Appeal commented, “Section 134(5) does not give counsel (for the condominium) license to spend (the condominium’s) money with impunity.” This important statement by the Court of Appeal resonated in a recent case decided by Madam Justice McArthur of the Ontario Superior Court of Justice in Toronto. The case involved a condominium owner named Jean Temedio and her St. Catharines’ condominium and its legal counsel. By way of background, Ms. Temedio had been taken to court in the Fall of 2015 by her condominium for failing to ensure that her tenant refrained from causing noise for her neighbours. Ms. Temedio denied that there was any problem but the judge hearing the condo-
minium’s case disagreed. The judge issued a judgment in February 2017 requiring the tenant to comply with the noise rules and requiring Ms. Temedio to ensure that her tenant complied at all times, going forward. The judge also ordered that Ms. Temedio and the tenant be responsible to pay legal costs of $2,500 to the condominium. Shortly following this judgment, the condominium, under the authority of section 134(5), added the $2,500 cost
“
Appeal, the condominium informed Ms. Temedio that under the authority of section 134(5) it was charging to her unit approximately $29,000 for the costs incurred in defending her motion, which included the $5,000 award made by the Court of Appeal. When Ms. Temedio failed to pay the charge backs described above, the condominium registered a lien against Ms. Temedio’s unit and indicated it would be enforcing the lien through Power of Sale proceedings. In her case before Madam Justice McArthur in November 2018, Ms. Temedio requested that the legal bills issued by the condominium’s lawyers and charged to her common expense account be referred to an assessment under the Solicitors Act. Under the Solicitors Act, a client that receives a bill from a lawyer, or a third party that is liable to pay a bill from a lawyer, may, under certain circumstances, obtain an assessment of the legal bill to ensure that it is fair and reasonable in the circumstances. Ms. Temedio also requested that Madam Justice McArthur order that the condominium not enforce the lien pending the outcome of the assessment of the legal bills issued by the condominium’s lawyers. Madam Justice McArthur noted that since the legal bills relating to the condominium’s case before the judge that made the compliance order had been delivered by the condominium’s lawyers more than 12 months prior to Ms. Temedio’s application to have them assessed, Ms. Temedio was required to prove that there were “special circumstances” to warrant the assessment of the legal bills. To this end, Madam Justice McArthur
… the section goes a long way to ensuring that none of the innocent owners in the condominium bear any portion of the costs caused to be incurred by the condominium as a result of the owner’s failure to comply.
”
award to Ms. Temedio’s common expense account along with a further sum of $49,500, representing the additional actual costs the condominium incurred in obtaining the judge’s compliance order. Ms. Temedio failed to appeal the judge’s decision in time, so she made a motion to the Court of Appeal asking for an extension of time to appeal. However, the Court of Appeal rejected the motion, concluding that Ms. Temedio did not form an intention to appeal within the 30-day appeal period and that the proposed appeal appeared to lack merit. The Court of Appeal ordered that Ms. Temedio pay the condominium’s costs of her unsuccessful motion in the amount $5,000. Following this decision of the Court of
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“
… just because legal bills have been charged to an owner’s common element account under section 134(5) does not necessarily mean those legal bills are beyond the possible review of a court.
”
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observed that that the legal bills did not appear remarkable especially considering the fact that during the case before the judge that made the compliance order, Ms. Temedio’s counsel acknowledged that the case was not a simple, straightforward case and speculated that the condominium’s legal costs might be approximately $50,000. On this basis, Madam Justice McArthur noted that there was no reason to believe that the condominium spent money on the compliance case with impunity. However, Madam Justice McArthur concluded that there appeared to be special circumstances warranting an assessment of the legal bills relating to the Court of Appeal motion given the amount of the bills in relation to the nature of the motion. While Madam Justice McArthur directed an assessment for these bills, she concluded that the condominium was free to enforce its lien pending the conclusion of the assessment since it would be unfair to the condominium and its owners to order otherwise. Ms. Temedio has appealed Madam Justice McArthur’s decision to the Court of Appeal. As of this writing, the appeal has not yet been heard by the Court of Appeal.
G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
However, the main lesson here is that just because legal bills have been charged to an owner’s common element account under section 134(5) does not necessarily mean those legal bills are beyond the possible review of a court. If an owner is successful in obtaining an order that the bill or bills be reviewed by an assessment officer of the court, the assessment officer will consider a number of factors in determining whether the bill or bills are reasonable and fair in the circumstances. The bill or bills will be reviewed from the standpoint of the condominium as the lawyer’s client. Some of the more important factors the assessment officer will consider are: (i) the complexity of the issues; (ii) the importance of the issues; and (iii) the results obtained.
Erik Savas is a partner in the Burlington office of SimpsonWigle Law LLP and since 2002 has mainly practiced in the area of condominium litigation/dispute resolution.
FEATURE
Security: Keeping Up With the Times By Joanne Richards R3 Integrators
M
ost people would agree that for the majority of us, advances in technology have significantly improved our daily lives. The use of the internet in particular has allowed us to get tasks done faster and more efficiently without having to leave the comfort of our homes. In a matter of minutes, a unit owner can log into her home computer to check her bank account balance, pay bills, order a new coffee maker, sign up for an online course, and reserve her condo’s party room for an event she is hosting. Similarly, condominium corporations are also benefitting from improved technology and the use of the internet with regard to their security systems. By “security”, I am referring to enterphones (intercoms), video surveillance (cameras), and access control (fob systems). Over the last number of years, many manufacturers of security products have been working towards making their products more intuitive, easier to use, and more convenient to access.
More Efficient Security Systems Are Managed Offsite: Remote management of a security system via the internet now allows security installation companies and, more importantly, Property Managers the ability to program intercoms and access control systems from their offices. For a Property Manager, this means less time standing in front of an intercom system making the necessary change requests and less time for a new unit owner or
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tenant to wait to get their information programmed in. Unit owners should be happy to know that a reported lost or stolen fob can be removed from an access control system in a matter of minutes. A lost or stolen key to a condo, on the other hand, will require that lock to be changed and allnew keys to be distributed to unit owners. Access control is considerably more secure, more cost effective, and more convenient than using traditional keys. Some security companies will even offer to manage these systems and are able to do so without having to visit the condo.
Property Managers Have a Limited Time at Each Condo: The actual time allocated for a Property Manager to visit individual condos on a weekly or monthly basis may differ from one condo to the next depending on their specific contacts with the management company, but nevertheless, their time on site is very limited. A Property Manager attending a condo in which there is no remote access to the security systems may have to spend a considerable amount of the allocated time programming the intercom, adding or deleting fobs or reviewing video footage from the camera system. Little time may be left to perform visual checks of the building and to address deficiencies that need their attention. A Property Manager that has remote access to the security systems will have more time on site to do these other important checks since the security items have already been handled back at the office.
sible for acts of vandalism, property damage, or unwanted garbage dumping. Typically, incidents are reported within a few days of occurring, but it is not always possible to get to the condo to review the video footage. Again, with remote access, a Property Manager is able to view the incident from their office and in doing so, is able to address the incident in a more timely manner.
Increased Thefts in Storage/ Locker Rooms: Recently, more incidents of break-ins and thefts into storage/locker rooms have been reported. Typically, unit owners are given keys to these areas, which they then pass on to tenants and family members. In many cases, these keys are easily duplicated and become unaccounted for. Over the years, the amount of keys “out there” could be in the hundreds. Personal locks on storage units are also easily cut and removed by thieves. The most cost-effective and secure way to minimize these thefts is to install access control on these doors and to install latch guards over the locks to
Address Vandalism and Illegal Garbage Dumping Sooner: It goes without saying that video surveillance systems in a condo help to deter bad behaviour, discourage unauthorized visitors, and to assist the Property Manager in finding out who may be respon20
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prevent the prying of the doors. Of course, the installation of cameras in these areas will also provide additional security coverage for these hot spots.
Easily Controlled Access to Amentiy Rooms: In many condos, the Party Room or Amenity Room is a fantastic place to hold birthday parties, dinner with family, and lunch with friends. A typical problem, though, is how to secure the room from the other unit owners for the duration of the scheduled party. In many cases, this task is left to the super of the condo to unlock the door before the party and relock the door after the party. In other cases, the key to the room is given to the unit owner and then collected a later time. In either case, there is an inefficient use of time and resources. With remote management of the access control, a Property Manager is able to log into the system from the Management office, assign the Party Room to the specific unit owner that is holding the party while at the same time “locking out” all other residents. A schedule is ap-
plied to the room that allows the particular unit owner to be granted access before the party for preparations and during the party but locked out past a specified time.
Moving Forward: Security systems should be an essential element of every condominium. Is your condo keeping up with the times?
Joanne Richards - After graduating from McMaster University and Sheridan College, Joanne started her career as an operations supervisor for a waste management company. Several years later, she switched gears and became a sales rep for an international paramedical company. Using the skills she learned from both of these positions, Joanne joined R3 Integrators in 2010 and took on the role of Business Development Manager.
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Submitted by Laurie Hebblethwaite Remy Consulting Engineers Ltd. (RCEL)
Q:
nWhat are the advantages of nhaving engineering oversight on large-dollar projects?
A:
nEngineering can provide the conndominium with peace of mind to ensure the job is being carried out in accordance with applicable codes and standards. Material selection for projects is paramount to ensure the long-term performance of the repair/replacement. Projects will also have firm contract documents signed by the contractor, condo, and engineer, which will ensure culpability by all involved. This will include, but not be limited to, warranties, safety requirements, etc.
less than 10 years.); the second reason is the item is past its projected useful life and is deteriorating. Scenario number one is typical with newer-build condos: a builder will use a lower-grade material which will typically cost less than a better product and not last as long. This is allowed by code, but it usually leads to premature failure. In scenario number two, the engineer should specify the best available material to ensure long-term
Q:
nWhat if the engineer specinfies a material and the contractor who is carrying out the job wants to use something else?
A:
nAs part of the task of putting nspecifications together for bidding, the engineers should carry out a detailed investigation of the item to be replaced/rehabilitated (e.g. Roof). There are two reasons for this. First is the repair/rehabilitation required due to premature failure (e.g. something that is expected to perform for 20 years fails in 22
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performance. Yes, this may cost more than the lower grade, but in the long run it will be more financially beneficial to the condo as they will not have to replace as often as they would with a lower-grade material. If the contractor wants to “suggest� a different material/product, the engineer should only allow it if the suggested material/ product meets the same expected performance as the specified material.
Q:
nDuring the project, what if the contractor nclaims they need extra money for something that was not known or something extra needs to be replaced?
A:
nAs stated above, the engineer, in putting the specifincations/bid documents together, endeavours to account for all possibilities to ensure the project will stay within expected cost estimates. Specifications/bid documents should carry cash allowances just in case something unforeseen comes up. This way, the condo can budget for this if required but, in the same vein, will not have to pay if not used. If there is no engineering oversight and the contractor claims they need extra money for something, who is going to be responsible to determine if the request is justified and it was in fact carried out? There have been documented cases where condos have been taken advantage of because they did not want to utilize engineers as a cost-saving measure. However, in the long term, it has had long-term consequences.
Q: A:
n What if there are issues such as something falling napart after the project is completed?
nAs stated earlier, the contract documents will ensure nwarranties are in place, and therefore the contractor will be obligated to make good on all the work carried out. If the issue is due to material performance, the manufacturer's warranty will “kick in� with the item being replaced. Without engineering oversight, there may not be any firm warranties in place, or anyone to enforce warranties on behalf of the condo.
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FEATURE
Now that the Smoke has Cleared: By Patrick Greco Partner, Shibley Righton LLP
Cannabis in Our Condominium Communities Eight Months after Legalization
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hen the news was first released that recreational cannabis would be made legal in Canada, subject to provincial regulation, it was understandably met with joy, fear, and every emotion in between. For some, this was viewed as long overdue – the legal recognition of something that many people did anyway and that even most police had stopped enforcing against. For others, it was viewed as a matter of grave concern: would "reefer madness" run rampant in the streets? This range of reactions was also present in our condominium communities, some of which met the news with relief and others with concern. With the clock ticking before legalization on October 17, 2018, condominium corporations were faced with the question of what type of community they saw themselves as on the issue of cannabis. Boards had
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to decide whether to maintain a live-andlet-live attitude similar to how most buildings had previously dealt with nonproblem tobacco smoking, or if they would instead try to get ahead of legalization by setting pre-emptive expectations about cannabis use via changes to their governing documents. Today, over eight months since legalization, most would agree that the impact on day-to-day life in Canadian society has been minimal. Those who smoked cannabis anyway likely continue to do so. Indications are, somewhat surprisingly, that it is actually older Canadians, and not children, who have been the largest group of first-time users. Police report only a very minor increase in high driving charges and state that this could be attributable to officers being better trained to spot signs that may have always been there in the past. Similarly, the majority of condominium corporations have not experienced a significant increase in cannabis-related complaints. Some communities have experienced a slight uptick in incidents, perhaps as the result of formerly secretive smokers who might have gone for a walk prior to legalization now feeling emboldened to smoke within their units and on their balconies. What we haven't seen, however, are previously respectable properties turned into dens of sin and crime. Nor have we seen open war between smokers and non-smokers. Instead, the unexpected cannabis-related issue emerging in many condominium communities is the interplay between cannabis use and human rights. Medical cannabis use was legal in Canada long before recreational legalization. As a legal form of treatment prescribed to those with a number of medical diagnoses, a medical cannabis user in a condominium community – even a community that has otherwise prohibited cannabis use on the property – will often be permitted to continue to use cannabis on the property on the
basis of this being an accommodation on the basis of disability protected under Ontario's Human Rights Code (the "Code"). The Code takes precedence over the Condominium Act and a corporation's declaration, by-laws, and rules.
“
… the unexpected cannabis-related issue emerging in many condominium communities is the interplay between cannabis use and human rights.
”
The first wave of challenge to medical cannabis use was on the basis of nuisance. Similar to a person with a disability whose service dog bites other residents or pees in the hallway, medical cannabis use, particularly smoking, cannot be permitted to cause a serious disturbance to other residents. However, the key word is "serious". A mere whiff of
cannabis in the hallway or smoke occasionally wafting from a balcony will likely not be sufficient to override a medical user's rights under the Code. Contrary to commonly-heard arguments, it is also not correct to tell a medical user that they should simply switch to a different form of cannabis, such as an edible or an oil. Different forms have different effects on people, and many medical users report that smoking provides the fastest and most reliable relief when needed. Condominium corporations may be called upon to get involved in these situations. One discussion that a board and/or management can spur is about the medical cannabis user's usage pattern. Is the person physically able to take a short walk to smoke? Can they smoke on their balcony? While such dialogues must be conducted with the utmost sensitivity and confidentiality, they can often lead to practical solutions. A condominium corporation may also be asked to conduct testing on the common elements to determine whether a deficiency exists that is permitting smoke migration, or to work with a medical user to determine if additional ventilation systems may mitigate the risk of disturbance to others. It is important for board members and managers to remember that, despite cannabis' historical stigma, the use of medical cannabis is an accommodation
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for a disability. Condominium corporations who treat medical users as "trouble-makers" do so at their own peril of legal liability. The second, more intriguing, challenge to medical cannabis use comes from other individuals in the condominium community who themselves have a disability for which they seek accommodation that is in direct opposition to cannabis use. An extreme example is that of a recent case that made the news of a condominium resident with an actual cannabis allergy. A more common example is someone who suffers from a respiratory condition that is triggered or worsened by the presence of smoke. Balancing competing human rights claims in a condominium can be difficult. The Ontario Human Rights Commission has recognized this and has issued a "Policy on competing human rights", which boards and managers are encouraged to review in detail; proposes a
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three-step framework for analyzing and resolving disputes, as summarized below: 1) Recognizing competing claims What are the claims about, do they connect to legitimate rights, and is the interference with someone's rights more than minimal? 2) Reconciling competing rights claims Are there solutions that everyone can live with or that get as close as possible? 3) Making decisions If an agreed resolution is not possible, a responsible party (such as a condominium board) must make a decision that is consistent with human rights and other laws, as well as court/tribunal decisions and other applicable policies.
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This is early days for these issues. As societal views on cannabis evolve, and the products available to medical users expand (such as oil vaporizer pens that create less smell), we may see broadlyaccepted solutions that permit cannabis users and non-users alike to peacefully co-exist in our condominium communities. Patrick Greco is a partner in the Condominium Law practice group at Shibley Righton LLP, where he enjoys the full perspective gained from providing both solicitor and advocacy services to condominium clients. Patrick has appeared before all levels of court in Ontario and has particular expertise in Tarion appeals before the Licence Appeal Tribunal. Patrick sits on the CCI Golden Horseshoe Professional Partners Committee and Conference Committee. In his free time, Patrick can be found chairing a lively owners’ meeting in a party room near you.
The following article is a daily journal description of the 2019 CCI springtime meeting … with a bit of Newfie humour sprinkled in. Submitted by Ed Keenleyside
I’se the b’ye that builds the condo And I’se the b’ye that lives there I’se the b’ye that loves the view And down the hall lives Lizer.
I
t’s Wednesday, May 29, 2019 and I’ve just registered for a Newfie soiree, otherwise known as the CCI National Leaders’ Forum. In recognition of this ominous occasion, I’ve amended the traditional Newfie folksong (above) to reflect CCI’s unique purpose. Our CCI Registrar has just informed me that over 110 attendees are registered to join our Newfoundland hosts for the next four days, and all of these guests have “come from away”. Many attendees are combining this conference with an extended holiday in Canada’s youngest province. Laurie Hebblethwaite, for example, arrived several days ago and has been exploring the coves and inlets, many stick-to-your-ribs dinners, the friendly and helpful people, and sights such as icebergs in almost every harbour. Our hosts arranged a meet-and-greet in the hotel, where we connected with many familiar faces, enjoyed delicious food like mouth-watering corned beef on rye and entertainment by a group of mummers, who entered the room singing, “It’s Christmas in Newfoundland, so welcome the mummers in.” The chatter in our meeting room spilled out into the lobby as some went for a chilly stroll and others retired for a libation in their rooms. This ended my first day on The Rock. Thursday, May 30th dawned an hour and a half earlier than yesterday. The highlights of today’s sessions were reports from various National Committees. I’ll focus on the three that deal with CCI certification, promotion, and marketing. For many years, CCI has supported three methods of recognizing the ded-
ication and commitment of its members, these methods were ACCI, FCCI, and DSA. The ACCI and FCCI were exam-based accreditation for professionals, while DSA (Distinguished Service Award) was a way to recognize those not covered by the ACCI and FCCI programs. Changing times, new government guidelines, and the complexities of administering a myriad of exams indicated that change was needed. Therefore, ACCI has been revamped and changed to LCCI (Learning CCI) and will not be exam-based. Instead, applicants must meet five mandatory criteria and one elective criteria, so the new LCCI will also be open to all. The main change to the Distinguished Service Award is that it will be open to all. Applicants will still be nominated by their chapters. Normal applications will be limited to one person per year; however, if a chapter wishes to nominate more than one candidate, the National executive must approve that application. CCI National is moving ahead with its plan to establish a Library. When implemented, this will provide online access to articles from across the country. CCI National is also in the process of changing its website. This is being coordinated by LS Graphics and should be ready for launch on Canada Day 2019. No cost estimates were provided for these two initiatives. The CCI Marketing Committee presented a detailed report which outlined a proposal for a professionally driven marketing plan. It was hoped that this proposal will be ready to present to CCI National executive at the 2019 Fall conference and trade show in Toronto. This is a far-reaching program that the committee hopes will revitalize CCI and position it for a sustainable future. The estimated cost of this proposal is $125,000. No suggestions were introduced on how this money could or would be raised. Thursday came to a close with a dinner at the Rooms of St. Condo News – SUMMER 2019
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John’s. This is a huge provincial multi-functional complex. Some of the departments include an art gallery, a museum, a theatre, a children’s learning centre, provincial archives, extensive genealogy records, a library, a book and artisan shop, and a restaurant. Since we were there in the evening, most of the departments were closed. However, its glass open concept design allowed us to peek into many of the otherwise closed areas. The catered 4-course meal was delicious and enjoyed by all. Since St. John’s street layout follows the rugged contour of the area, buses were provided so that no one could get lost. Friday, May 31, 2019 – This morning’s program focused on team-building exercises. The participants were divided into groups and given a Lego set to build… Sounds pretty straight forward, doesn’t it? However, the first thing we noticed was that some of the instructions had been removed. Periodically throughout the “game”, other handicaps were added… like tying a hand of one person to a hand of another person. Confusion reigned as at least ten people of each team frantically grabbed at all the labelled bags, soon mixing the contents into a jumbled mess. Those of you who are familiar with Lego sets will know that the aforementioned melee will lead to failure for all and maybe fun for some. This exercise in frustration was followed by a few timely pointers on creating a podcast. The few of us who are nontechie, know that podcast training will result in a very steep learning curve, while the tech-savvy majority roll their eyes in disbelief at our fumbling around. Friday ended with a “Kitchen Party” at a local craft brewery. Our reserved room was three floors up… which was OK when we were sober but presented a few challenges at the end of the evening, when several attendees were well lubricated. The food was tasty and plentiful. The music was lively and Celtic, but in order to provide a dance floor, tables were scarce, and several people had to sit wherever they could squeeze a chair in. As the beverages took effect, the inhibitions melted away and audience participation raised the decibel level to that of the engine room of a cod fishing boat. Newfoundland has a colourful history. Necessity and homeowner affordability have ushered in the age of condominiums. Most condominiums range in size from 25 to 50 units, with some exceptions. In all of the province, there are fewer than 140 registered condo developments, with most located in St. John’s. Newfoundland is the only province where over 60% of the population still lives in rural settings rather than cities. The laid-back lifestyle and rugged geography are two factors that have resulted in some interesting condo developments. Newfoundlanders are great recyclers, as evidenced by the two condominium designs that follow. First, we see two developers 28
pondering an idea for a highrise condo. In the photo below, a recently completed stacked-townhouse complex blends the rocky surroundings with colourful and unique unit designs and has won praise far and wide.
While the previous two examples are tongue-in-cheek ideas of the author, this is an actual street affectionately known as “Jellybean Row”, in St. John’s. This colourful expression of individuality is not a one-off development, but rather is quite a common sight in St. John’s as well as elsewhere in Newfoundland. What if condos looked like this?
But now back to the CCI Leaders’ Forum summary…
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Saturday, June 1, 2019 was billed as the National Conference and Trade Show. The most immediate result was the minimizing of breakfast from a full spread to a continental style layout. The normal buffet area was taken over by exhibitors’ booths. The first seminar was a timely topic entitled “Dealing with an Aging Population”. While some condos are geared to seniors, all condos have some senior owners or residents. The speakers stressed the legal responsibilities of a condo board. A board sometimes treads a fine line between concern and caregiver. The next of kin of seniors at risk should be informed, which reflects genuine concern, but condo boards should not take on personal care, which falls into the care-giver category. Fiscal responsibilities should not be ignored even if predominantly older owners wish to put off or ignore necessary expenditures. In larger, more diverse condominiums, it is important to balance the desires of millennials with the reluctance of fixedincome seniors. The next seminar dealt with the effect of climate change on insurance. Of those present, very few had thought that global warming had any direct effect on their condo corporation. Perhaps the most obvious effect is that weather-related damage claims are resulting in increased insurance premiums and deductibles. Climate changes are resulting in extreme and unusual weather-related damages. This especially true of water infiltration. Highrise condominiums have many places where water can come in. Water damage insurance claims account for twelve times more claims than from fire or smoke. Climate fluctuations make insurance claims unpredictable, and that in turn means that premium increases are difficult to plan for. Just before lunch, the keynote speaker for the day was introduced. Trent Landon is an educator in Newfoundland and has many years’ experience in dealing with bullies. His message is just as relevant in condominiums as it is schools. Trent maintained that there are no easy or “pat” answers to all bullying situations, but he offered several suggestions to an attentive audience. Remember that condo bullies want one of two things: attention or a reward of some kind. Their other object is to demand that everything be done their way. In dealing with bullies, condo directors should: • Remember that everyone is entitled to be heard; • Keep an open mind; • Check their ego at the door; • Strive for mutual respect; • Don’t avoid confrontation, but control the dialogue; • Listen – pause – respond; • Take the high road; • Put yourself in the bully’s shoes; Condo News – SUMMER 2019
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• Ask questions; • Don’t perceive yourself as a super-hero and the bully as simply the villain; • Be informed/knowledgeable about the topic of concern; Perhaps the most difficult job for a condo board is to control the use of social media by the bully. Attempts of a board to curb social media use usually results in a “no-win” situation. In most cases, the best course of action is to ignore the bully’s social media messages and move on. Trent’s keynote address was very well received, and the number of questions were evidence of the keen interest of all those in attendance. This is where I must close as I had to leave for the airport… But the following two topics were presented in the afternoon – “Cannabis Beyond the Smoke” and “Preparing for the Unimaginable”. The printed outline reminded the audience that there are other concerns of cannabis besides legalization and nuisance smoke. For example: How does smoking and/or growing cannabis affect condo insurance, or the physical building or the
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owner’s property values? The last seminar dealt with preparing for the unknown. Police and Fire Department representatives discussed the importance of an Emergency Preparedness Plan, emphasizing that such a plan is of little value if it sits on a shelf and is not presented to all condo residents and/or owners. Condo boards need to involve their local emergency service providers, including police, fire department, and ambulance personnel. I can honestly say this was a very interesting and productive Leaders’ Forum. I will leave you with a photograph I took from Signal Hill of St. John’s and its very busy port. My heartfelt thanks is extended to the Golden Horseshoe Board of Directors that allowed me this opportunity to meet and learn from condominium supporters from across Canada.
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FEATURE
Did you know that July is Smart Irrigation Month throughout the U.S. and Canada? By Rick Malda
D
id you know that July is Smart Irrigation Month throughout the U.S. and Canada? It’s an initiative of the Irrigation Association, the leading membership organization for irrigation equipment and system manufacturers, dealers, distributors, designers, consultants, contractors, and end-users. First launched in 2005, Smart Irrigation Month helps to promote the positive impact that efficient irrigation and water use provides. A well-designed, properly installed and appropriately maintained irrigation system can be the most efficient way to
irrigation timing for early-morning watering, added value to your home or business property, and minimized plant loss during drought. With irrigation systems that deliver exactly the right amount of water at the right time to lawns, plants, and trees, you can be assured of environmentally sound and efficient results. A certified water management professional can also save you money. keep a landscape healthy. The benefits of an automatic irrigation system include reduced labour for watering, convenience, full landscape coverage, easy control over
Rick Malda is President of Arizona Outdoor Solutions. He can be reached at rick@arizonaoutdoorsolutions.ca
Top 10 tips for using irrigation water more efficiently: 1.
Complete an Irrigation Audit.
2.
Install Smart Irrigation Controllers or rain sensors on sprinkler systems.
3.
Adjust irrigation timers according to seasonal needs.
4.
Detect and repair all leaks in irrigation systems.
5.
Water trees and shrubs, which have deep root systems, longer and less frequently than shallowrooted plants which require smaller amounts of water more often.
6.
Set sprinklers to water the lawn or garden only — not the street or sidewalk.
7.
Water the lawn or garden during the coolest part of the day (early morning is best). Do not water on windy days.
8.
Have system serviced regularly.
9.
Use mulch around shrubs and garden plants to reduce evaporation from the soil surface and cut down on weed growth.
10. Raise your lawn mower cutting height — longer grass blades help shade each other, cutting down on evaporation. They also inhibit weed growth.
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FEATURE
Building Health Check: Energy Management By Hannah Tough Marketing Coordinator Priority Submetering Solutions
E
nergy management is more than an energy audit and quantitative data about your building – energy management is about taking action. Your building has a heartbeat and each component inside the building needs to be healthy in order to function at peak performance. Taking action to improve your building’s performance capabilities will ensure a long life and help you guarantee your residents’ well-being.
1. Make energy management a priority There is a lot of chatter surrounding what energy management is and is not. Make energy management your own project by defining what it looks like for your condominium, encouraging every resident to be on board with the program. This could mean posting up the regulated rate for electricity in common areas or having a graph comparing water usage year over year. By educating residents on their energy usage, it ensures the topic of energy management and savings will be easier to discuss. Ask the experts in energy management what the best options are for your building specifically. Do not let sales talk get in the way of achieving actual results. Every building is different and will need a custom-built energy management plan in order to start seeing money and energy savings. Do your research on your own building first, ensuring you are
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familiar with your building’s inner workings. This may include the HVAC system, water piping, electricity wiring, hydro bills, and how old various structural and mechanical parts of the building are.
2. Set goals Once you know what energy management will look like in your building, the next step is providing tools for property managers, tenants, consultants, and vendors to ensure everyone is working on the same page and for the same result.
“
the most decreased electricity usage over 3 months incentivizes all residents to reduce electricity usage. It is a win-win situation. Another idea is to host an educational evening with the local utility provider or your submetering company. They can assist residents in better understanding their utility bills and allow them to ask questions. Include some interactive games that explain the stages that water goes through before it reaches your tap. For example, you could have pictures cut out and the residents must place them in order from where the water utility journey begins, through the lifecycle, and where the waste water ends up.
… Do your research on your own building first, ensuring you are familiar with your building’s inner workings.
making changes. Trees and greenery also increase property value, clean the air, and reduce flooding and erosion. Another example is to focus on composting or start an organics collection in the building. Provide each condo with a plastic carrying bin so residents can collect compost for a few days before bringing it down to the larger bin. Include information packages about what items should be placed in the garbage and what can be composted. If you are able to reduce the amount of trash your building throws out, you could reduce your Solid Waste bill. Consider the internal and external parts of your building as one cohesive system. When you decide to upgrade internal energy systems with submetering or new piping, for example, don’t forget about the outside of the building, too. Energy management should be a com-
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Personalizing the goals set out by the building will ensure residents feel they can participate in and contribute to the discussion and action being taken. A survey could be conducted to see where residents’ thoughts are at. What do residents and employees of the building think the best course of action is to ensure energy usage is reduced? The survey could ask questions like: Do you think all outdoor areas should have sensor lighting to reduce unnecessary electricity usage? Always leave a space for further comments and recommendations, inviting feedback.
3. Make everyone accountable for their decision making Incentives are powerful tools for participation. A prize for the suite that has
4. Live green There are small steps a building management team can take to get the ball rolling with energy management. Start by planting more greenery or trees in the outdoor common areas. This action will set an example, showing the condo community that the building is serious about
prehensive approach to investigating your building’s energy functions and creating a roadmap for the next ten years of functionality. Good energy management is one aspect of good management. Don’t forget that small changes can have big impacts: even simple flowers in the lobby can brighten someone’s day. Condo News – SUMMER 2019
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FEATURE
Case Law Summaries Friedrich v. MTCC No. 1018, 2019 ONSC 1153 By Bianca Stella, L.L.L., J.D., L.L.M. SimpsonWigle Law LLP
Overview Fredrich v. MTCC No. 1018, 2019 ONSC 1153 highlights that the Court is reticent to intervene and substitute their own judgment for those made by the board of directors of the condominium corporation without considerable evidence that such measure is necessary. Mr. Fredrich was a unit owner at MTCC No. 1018 whose vehicle was vandalized in the condominium’s underground garage. Prior to this incident, the condominium board decided to change the entry to its parking garage at level 1 from a telephone system to a motion sensor with monitored CCTV, and a security guard visit every two hours. Mr. Fredrich blamed the vandalism on the condominium corporation’s negligence in changing the provisions of the security for the garage. The Court held that under the Condominium Act, 1998, the board’s business judgment is entitled to deference. In reviewing decisions rendered by the directors and officers, Canadian Courts have been guided by the “business judgment rule”. While the business judgment rule was developed in the context of for-profit businesses, it has been applied when reviewing decisions rendered by condominium boards.1 As representatives elected by the unit owners, the directors of these corporations are better placed to make judgments about their interests and to balance the competing interests engaged than are the courts. In reviewing a condominium board’s decision, the court will determine whether the directors acted honestly and in good faith and exercised the care, diligence and skill of a reasonably prudent person. Mr. Friedrich’s case was dismissed against the condominium corporation as he failed to provide enough evidence to support his position that the condominium corporation’s change in the security system was unreasonable and foreseeably caused Mr. Friedrich’s loss. There was no breach of applicable standard of care found on the part of the condominium corporation.
Swan v. Durham Condominium Corporation No. 45 Overview The Superior Court of Justice for Ontario recently rendered a decision in Swan v. Durham Condominium Corporation 2019 ONSC 1567, a case that serves as a cautionary tale for directors of condominium corporations who do not take their obligation of good faith in the manner of exercising their duties as seriously as they should. 1
Yusin v. Saddle Lakes Homeowners Ass’n, 73 A.D.3d 1168 (N.Y. App. Div. 2010); and Black v. Fox Hills N. Cmty. Ass’n, 599 A.2d 1228 (Md. Ct. Spec. App. 1992).
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Mr. Leslie Arthur Swan was first elected to the board of the condominium corporation in June 2009, and subsequently elected President of the Board. He was known as a whistleblower and on a crusade to hold the other board members accountable for what he alleged was improper conduct. Mr. Swan believed that the Board lacked authority to contract out the Secretary’s recordkeeping function to a third-party company known as MCD Enterprises (MCD) and maintained that MCD should not be privy to the affairs of the corporation. The other board members considered Mr. Swan’s demeanor to be “insulting, threatening and confrontational”. On August 4, 2009, a member of the board circulated a requisition under section 46 of the Act to convene a meeting of the unit owners to remove Mr. Swan as a director. The reasons cited were that Swan as a director failed to “act honestly and in good faith”. On August 11th,
2009, Mr. Swan launched a claim against the corporation for defamation and proceeded to use the corporation to launch actions against two if its own directors. Mr. Swan then accepted service of his own claim against the corporation on behalf of the board which created an obvious conflict of interest. On September 2, 2009, Mr. Swan advised the Board that it had been served with an action, and that the corporation was potentially in default since it had not filed a defence. No earlier defence could have been filed by the condominium corporation since it was Mr. Swan who accepted service on its behalf. On September 17, 2009, at a scheduled meeting, Mr. Swan was removed as director. In May of 2010, the condominium corporation commenced an application against Mr. Swan under section 134 of the Act, seeking a declaration that he had breached the applicable standard of care as a director contrary to section
37(1) of the Act. Under section 37(1) of the Act, every director and every officer of a corporation in exercising the powers and discharging the duties of office shall act honestly and in good faith, and exercise the care, diligence, and skill a reasonably prudent person would exercise in comparable circumstances. Mr. Swan was declared by the court to have acted in bad faith in the exercise of his duties as a director. As a result, the Court found that Mr. Swan was not entitled to be indemnified for his costs under section 38 of the Act. Therefore, under the statute, board members are disentitled to indemnity if their liability or cost-incurring conduct amounts to bad faith conduct as this breaches the duty of loyalty to the Corporation. The condominium Corporation registered a lien for its legal costs against Mr. Swan’s unit pursuant to section 85 and 134 of the Act. Section 134(5) of the Act gives a condominium corporation a
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broad right of recovery for costs incurred in obtaining compliance orders; it also provides an effective enforcement mechanism for the collection of those costs. This shifts the financial burden from the innocent unit owners to unit owners whose conduct necessitated obtaining the order. It is important to note that the language of section 134(1) is very broad as it refers to “any provision” of the Act. It does not limit its application to compliance with a provision pertaining to a unit owner’s use of their unit or the common areas. As such, the condominium corporation’s costs of the application related to securing Mr. Swan’s compliance with the provisions of the Act or applicable bylaws due to his failure to fulfil his duties as a director would fall under section 134 of the Act. Condominium corporation directors in Ontario who engage in bad faith behavior will be subject to judicial condemna-
tion should the condominium corporation pursue legal action.
Simcoe Standard Condominium Corporation No. 431 and Simcoe Standard Condominium Corporation No. 434 and Marc Atkins 2018 Carswell ONT 8892 ONSC 3105 Overview In Simcoe Standard Condominium Corporation No. 431 and Simcoe Standard Condominium Corporation No. 434 and Marc Atkins, 2018 ONSC 3105, the Court rejected the condominium corporation’s attempt to limit the unit owners’ rights to requisition a meeting to remove the board of directors. Two condominium corporations (SSCC No. 431 and SSCC No. 434), were established by the same developer as vacation residences. Requisitions were delivered
to the condominium corporations requiring meetings of owners for the purpose of removing the board of directors. The underlying issue that led to this call for meetings of the owners and vote to remove the two boards of directors related to a special assessment that had the effect of doubling the common expense charges for the owners in the two condominiums and litigation commenced by the two boards on behalf of the condominium corporation against the developer of the two condominium developments. The condominium corporations brought an application for an order prohibiting the use of proxies at the meetings, regulating the communication with and between owners of units leading up to the meetings and vote, and regulating the conduct of the meeting. The court found that the Corporations had no basis to refuse to call meetings as required by section 46 of the Condominium Act,
Do you have an article for the Condo News? • Send a high-resolution headshot and a brief bio of three or four lines. • Include your credentials next to your name. • Confirm article subject approval before writing. • 750-1000 word limit. • Email article in Word format. • Write for an audience that includes condominium owners and directors. Avoid technical language. • If using pictures or graphs within the article, limit to three or fewer. • No self-promoting content within article. • Editors will approach authors about any major edits, but may insert minor changes (e.g. grammar, spelling, etc.) without notice. • Cite any content taken from another source.
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1998. If owners of units in the condominium corporations are dissatisfied with the governance provided by the boards, they can require that a meeting of owners be held to consider an issue or issues, including a proposal to remove one or more directors: Condominium Act, 1998, s. 46. The Court found that the statutory criteria for meetings to be requisitioned under section 46 of the Act were met. Even though the boards felt there was misleading information to the owners circulated about issues underlying the call to remove the board of directors, the corporations were free to communicate with the owners and provide the information they felt the owner should have to make an informed decision about the issues. The Corporations sought to deny the use of proxies at the meetings of the owners primarily on the basis that the proxies would be obtained on the basis of misleading information. Both the Condominium Act, 1998, s. 52 and the bylaws of these condominium corporations provide for the use of proxies at meetings if certain requirements are met. The Court did not have authority to deny the owners their statutory right to vote by proxy and in doing so would not have been justified in any event. The Corporations sought an order limiting communication to an official mailout containing the positions of each side and banning all other communication with and among unit owners prior to the meetings. The necessary companion to right to vote is the right to discuss important issues that would be subject to vote. The court found that such confined view of communication between owners was not consistent with the democratic model in the Condominium Act, 1998. The Court did not place any restrictions on the communication leading up the meetings. The condominium corporations were unsuccessful in its application and costs were awarded to the Respondent.
Manorama Sennek v. Carleton Condominium Corporation No. 1166, 2018 ONCAT 4 Overview Sennek v. Carelton Condominium Corporation No. 1166, 2018 ONCAT 4 serves as a reminder that the tribunal will not entertain applications brought by individuals who attempt to re-litigate issues that have already been determined by the courts. Ms. Sennek sought an order from the Tribunal requiring the condominium corporation to pay a penalty to her for failure to maintain a record over a 91-month period from 2010 to 2018. The Tribunal held that Application was a continuation of a previous dispute brought by Ms. Sennek in Small Claims Court in February 2016. The dispute between Ms. Sennek and the condominium corporation arose out of a lien that the condominium corporation had registered against Ms. Sennek’s
property. The condominium was seeking to recover the costs of removing a frame around Ms. Sennek’s raised garden bed from her front yard to her backyard. In February 2016, Ms. Sennek commenced an action in Small Claims Court action against the condominium corporation. Within these proceedings, the condominium corporation asserted that the record Ms. Sennek was seeking did not exist. Ms. Sennek alleged that this was false and failed in several attempts to have the courts make a finding that this record existed. In the application brought before the Tribunal, Ms. Sennek took the alternative approach to claim that the Corporation’s assertion that the record does not exist means that the corporation has therefore failed to maintain a record that is required to be maintained under the Act and the Regulations. The timing of the Application to the Tribunal was two weeks after the Court of Appeal decision of February 8, 2018, Carleton Condominium Corporation 116 v. Sennek, 2018 ONCA 118, upholding Justice Sheard’s decision declaring Ms. Sennek a vexatious litigant. On August 24, 2017, Justice Sheard issued an Order under s. 140 of the Courts of Justice Act, prohibiting Ms. Sennek from commencing any action, application, motion or proceeding against the condominium corporation, or its employees, board members, condominium manager and solicitors without obtaining leave of a Judge of the Ontario Superior Court. The principles of a vexatious litigant are enumerated in Land Michener Lash Johnston v. Fabian, 1987 CanLII 172 (ON SC), 1987 CarswellOnt 378 (H. Ct.), which may be summarized as follows: • Bringing of one or more actions to determine an issue which has already been determined • Where it is obvious that an action cannot succeed, or if the action
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would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief; • Bringing a proceeding for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; • Rolling forward grounds and issues into subsequent actions; and • Persistently taking unsuccessful appeals from judicial decisions. The courts have held that the above principles are not exhaustive and that applicants need not establish all of them.2 Courts have also rightly concluded that the power to declare someone a vexatious litigant must be “exercised sparingly and with the greatest care”.3 The grounds for the order included Ms. Sennek breaching or failing to comply with orders, initiating complaints to the Law Society, and initiating multiple proceedings since August 19th, 2015 against the condominium corporation, its officers, directors and its solicitors. The various complaints were deemed unfounded and the statement of claim against counsel was dismissed as “frivolous, vexatious and an abuse of process”. The Tribunal evaluated the purpose of Ms. Sennek’s application and deemed the application as vexatious on the basis that it was an attempt by Ms. Sennek to continue a dispute already determined by the courts and thus brought for an improper purpose. Ms. Sennek’s application was dismissed without holding a hearing according to s. 1.41 of the Condominium Act, 1998.
Bianca Stella is a litigator in the Condominium Law Group at SimpsonWigle Law LLP. She often acts in compliance cases involving mediations, arbitrations, and applications before the Ontario Superior Court of Justice.
2
Howie, Sacks, & Henry LLP v. Wei Chen, 2015 ONSC 2501 (CanLII)
3
Howie, Sacks at para 27, quoting with approval from Dobson v. Green, 2012 ONSC 4432 (CanLII)
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G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
Golden Horseshoe Chapter
Open to all Members of the Golden Horseshoe Chapter of the Canadian Condominium Institute This year, there are three (3) terms expiring on the Board of Directors of the Golden Horseshoe Chapter of the Canadian Condominium Institute. If you wish to put your name forward as a Director, please email or fax a brief bio and photo, and a short letter explaining why you want to be on the Board. Your bio will be included with the Agenda package, which will be sent to all members in September. As a volunteer director, you will be responsible to: • Adhere to the Director Code of Ethics as posted in the members-only section of the CCI-GHC website at https://cci-ghc.ca/membership/members-only/code-of-ethics • Attend approximately 10 board meetings per year in various locations throughout our chapter boundaries • Attend National events • Participate in one or more chapter and/or national committee[s] • Participate as a speaker or helper for weekend/weekday seminars and conferences • Be a promoter of Golden Horseshoe Chapter events
Email: admin@cci-ghc.ca or fax 416-491-1670 - Deadline for submissions is August 16, 2019.
Please be sure to renew your membership before September 30, 2019, to be eligible to vote at the upcoming Annual General Meeting. The notice of AGM will be sent to all members mid-August 2019. Membership renewals - second notices will be going out in mid-July. On behalf of the Golden Horseshoe Chapter Board of Directors, have a wonderful summer!
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to our Newest Members: CONDOMINIUM CORPORATIONS
BUSINESS PARTNERS
INDIVIDUALS
Halton Standard Condominium Corporation #645 (Oakville)
BIA Contracting Inc. (Burlington)
Paul Nelson (Burlington)
Normac (Mississauga)
Uta Saunders (Acton)
Service Master Restore (Burlington)
Golden Horseshoe Professional & Business Partner Directory Find the right product and service company for your next condominium project online in the Golden Horseshoe Professional & Business Partner Directory
START YOUR SEARCH NOW
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G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
New Member PROFILE
Hello to the CCI community! It feels a bit strange to be writing a new member profile as FirstOnSite is a past member that is happily returning. In 2018, I was lucky enough to take a year away from my work life to welcome a new addition to my family, when Archer McCutcheon was born on January 8, 2018. While he was a bit of a surprise (not a girl as we had been told), we couldn’t be more thrilled. With my absence, my FirstOnSite team made a decision to step back from CCI for 2018, and man, it was a hard year to not be in the office! Each time we saw a windstorm or flooding hit the area, I would think of those who were likely affected by it and it was a difficult reminder that I can’t do everything. I am very proud of my
FirstOnSite team and all of the long hours and hard work that went into a successful year. One huge difference since the last time I participated with CCI locally is that we now have two distinct chapters! Congratulations to both Grand River and Golden Horseshoe as they continue to grow and develop their own unique personalities and preferences. While many of the faces are familiar, there are also a number of new members that I look forward to meeting and introducing FirstOnSite and our services to. While we are best known for our superhero abilities after a flood has occurred, my team is more than emergency water mitigation: we are the team that understands how an emergency situation is different in a condo. Multiple stakeholders and multiple insurance demands
J&W Condominium Management Ltd
create an environment that can easily go sideways if not properly managed. We are the team that ensures a fire is cleaned up efficiently and the damages are contained. We are the team that you will want in the case of trauma cleanup or vehicle impact. My Project Managers make me proud every day with their professionalism, knowledge, and empathy in a wide variety of situations. Thank you to all the CCI members who are familiar faces at the meetings, and to those I don’t know yet, please come say hello! Kristin McCutcheon Business Development Manager, Hamilton/St. Catharines/Kitchener/ Guelph FirstOnSite Restoration
Millards Chartered Professional Accountants
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Mark your Calendar… for the
Fall Leaders' Forum
November 6-9, 2019 Delta Hotel Toronto, Toronto, ON
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G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
2019 Annual General Meeting & Complimentary Members'
Wine & Cheese Reception Wednesday, October 23, 2019
Fall Back to School Enhanced Director’s Course Four Day Course: • Monday, September 23, 2019 • Tuesday, September 24, 2019 • Monday, September 30, 2019 • Thursday, October 3, 2019 Art Gallery of Burlington 1333 Lakeshore Rd. Burlington, ON L7S 1A9 Course Time: 6:00 – 10:00 pm (Includes a 15-minute refreshment break)
Sponsorship for this event is available for $500.00 Includes logo on all material (printed and web), logos on all eblasts, one table-top display and one complimentary registration to course.
Table-Top Display for this event is available for $250.00 Includes one reserved table with the opportunity to provide promotional material on that table, and one complimentary registration to course.
Register online:
https://cci-ghc.ca/course/register Thank you to our sponsors
Royal Botanical Gardens Auditorium B 680 Plains Rd W, Burlington, ON L7T 4H4 • Registration – 6:00 pm • Annual General Meeting – 7:00 pm - 8:00 pm • Wine and Cheese Reception – 8:00 pm - 9:00 pm Come out and voice your concerns, tell us how we’ve been doing over the past year, and exercise your right to vote for the 20192020 Candidates. Nominations for the Board are now being accepted and all members of the Golden Horseshoe Chapter of the Canadian Condominium Institute are invited to stand for election. Candidates for the GHC-CCI Board can be Professionals, Business Partners, Directors of Condominium Corporations, or Individual Unit Owners in good standing. If you can’t attend, we encourage you to forward your proxy to the office, in order that your vote will still count! The members’ Wine and Cheese Reception will commence immediately following the Annual General Meeting and is a terrific forum to meet and mingle with other CCI members in a casual and informal setting. We hope to see you there! * Reception is complimentary to all GHC-CCI members, but we ask that you pre-register for this event by completing the online form at https://cci-ghc.ca/reg/2019AGM.
AGM Sponsorship Opportunities Sponsorship: $300 plus HST Includes: Table-Top Exhibit and Company Logo on all signage and on event promotional eblasts to members.
Reserve your spot at https://cci-ghc.ca/reg/2019AGM Thank you to our Sponsors
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ADVERTISERS INDEX
A DVE R T I S E
T hank you to our Advertisers!
In the Award-Winning Condo News!
Without you, this publication would not be possible! Atrens-Counsel Insurance Brokers . . . . . . . . . . .2 Brown & Beattie . . . . . . . . . . . . . . . . . . . . . . .21 Chown Property Management Inc. . . . . . . . . . .23 Cion|Coulter . . . . . . . . . . . . . . . . . . . . . . . . . .29 Garden Grove Landscaping . . . . . . . . . . . . . . .42 Gelderman Landscape Services . . . . . . . . . . . .23 J&W Condominium Management Ltd . . . . . . . .41 Key Property Management & Consultants Ltd. .38 McIntosh Perry . . . . . . . . . . . . . . . . . . . . . . . .35 Millards Chartered Professional Accountants . .41 Precision Management Services Inc. . . . . . . . . .36 Property Management Guild Inc. . . . . . . . . . . . .6 SimpsonWigle LAW LLP . . . . . . . . . . . . . . . . . . .5 TAG Management . . . . . . . . . . . . . . . . . . . . . .42 Wilson Blanchard Management . . . . . . . . . . . .26
To Advertise please visit www.cci-ghc.ca or contact admin@cci-ghc.ca
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G O L D E N H O R SESHOE CHAPTER OF THE CANADIA N CO N D O MI N I U M I NSTI TUTE
Connect with us…
VISIT OUR WEBSITE www.cci-ghc.ca
Golden Horseshoe Chapter
GOLDEN HORSESHOE CHAPTER OF THE CANADIAN CONDOMINIUM INSTITUTE Box 37, Burlington, Ontario L7R 3X8 Tel: 905-631-0124 • Toll Free 1-844-631-0124 • Fax: 416-491-1670 Email: admin@cci-ghc.ca
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