CondoVoice - Summer 2009 by LS Graphics

www.ccitoronto.org

VOL. 13, NO. 4 • SUMMER 2009

P U B L I C AT I O N O F T H E C A N A D I A N C O N D O M I N I U M I N S T I T U T E - T O R O N T O & A R E A C H A P T E R P U B L I C AT I O N D E L’ I N S T I T U T C A N A D I E N D E S C O N D O M I N I U M S - C H A P I T R E D E T O R O N T O E T R É G I O N

CCI-Toronto welcomes its 1000th member - TSCC 1979 Plus: ■ ■ ■ ■ ■

HRTC and HST Shared Facilities Agreements: So Who’s in Charge? Working Towards Common Goals Condominium Mediation: Advantages and Benefits Condo Design Trends … and Existing Condos

Tips for Managing Your Condo in Poor Economic Times ■ Second-hand Smoke - How Many Laws can Dance on the Head of a Cigarette? ■ Obligations & Liabilities of a Condominium Corporation and its Board of Directors … and more PM #40047055 ■

Canadian Condominium Institute / Institut canadien des condominiums Toronto & Area Chapter 2175 Sheppard Ave. E., Suite 310, Toronto, ON M2J 1W8 Tel.: (416) 491-6216 Fax: (416) 491-1670 E-mail: ccitoronto@taylorenterprises.com Website: www.ccitoronto.org

2008/2009 Board of Directors PRESIDENT Armand Conant, B.Eng., LL.B., D.E.S.S. (Co-Chair, Legislative Committee, Chair, Conference Committee) Heenan Blaikie LLP

VICE-PRESIDENTS Mario Deo, LL.B. (Chair, Public Relations Committee Member, Conference Committee) Fine & Deo LLP Bill Thompson, BA, RCM, ACCI (Vice -Chair Membership Committee and Vice-Chair Education Committee) Malvern Condominium Property Management

SECRETARY/TREASURER Bob Girard, B.Comm, RCM, ACCI (Chair: Special Projects Committee, CAI Liaison) AA Property Management & Associates

PAST PRESIDENT John Warren, C.A. (Member, Education Committee Member, Legislative Committee) Adams & Miles LLP

BOARD MEMBERS Gordon Chong, DDS (Member, Legislative Committee) MTCC # 0620 Gina Cody, P.Eng., M.Eng., Ph.D., ACCI, FCCI (Chair, Education Committee, CCI-National Liaison) Construction Control Inc. Brian Horlick, B.Comm., B.C.L., LL.B., ACCI (Chair, Legislative Committee, Member, Conference Committee) Horlick Levitt Barristers & Solicitors Lisa Kay (Member, Public Relations Committee, Conference Committee, Website Committee) Maxium Condo Finance Group Julian McNabb (Member, Public Relations Committee and Membership Committee) Simerra Property Management Ltd. Vic Persaud, BA (Chair, Membership Committee, Chair Website Committee) Suncorp Valuations Ltd. Sally Thompson, P.Eng. (Member, Education Committee Member, Legislative Committee) Halsall Associates Ltd.

EX OFFICIO DIRECTOR Jasmine Martirossian, B.A., M.A., PhD.

ADMINISTRATOR - Lynn Morrovat ADMINISTRATIVE ASSISTANT - Josee Lefebvre

Contents Features

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HRTC and HST

Working Towards Common Goals

Condo Design Trends … and Existing Condos

Condominium Mediation: Advantages and Benefits

Tips for Managing Your Condominium in Poor Economic Times

Second-hand Smoke: How Many Laws can Dance on the Head of a Cigarette?

by John M. Warren

Shared Facilities Agreements: So Who’s in Charge? by Lou Natale

by Robert Durko

by Stanley Kedzierski and Bev Moroz

by Lavonne McCumber Eals

by Scott Newhouse

by Brian Horlick

Duty to Accommodate

Obligations and Liabilities of a Condominium Corporation and its Board of Directors

By Warren D. Kleiner

by Michael H. Clifton

CCI News 5 6 8 30 52

President’s Message Contributors Letters to the Editor Condo of the Year CCI Toronto Welcomes Its 1000th Member

55 59 61 62

In Memoriam – Mark Freedman New Members Upcoming Events CCI National Semi-Annual Meetings 2009

About our cover: CCI Toronto proudly recognized it's 1000th member - TSCC # 1979 with a memorative plaque. Featured on the front cover of this issue are: Left to Right – Ellen Shi, Brendan Murphy, Robert Iseman (Directors TSCC 1979), Julian McNabb (CCI Toronto Membership Committee), Tasso Eracles (Simerra), and GianPiero Di Rocco (Edilcan). Photo by Omid Morrovat.

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President’s Message t is with sadness that I start off my President’s message with news of the passing away of Mark Freedman – one of the condominium industry’s and community’s great names and contributors for over 25 years. As a condominium lawyer I have had the privilege of being on the opposite side of the table from Mark. He was always a true professional in all our dealings – advocating his client’s position with great intelligence and vigour – but always professionally and with great respect to all parties. His passing is a tremendous loss to us all. Please see our tribute to Mark on page 55.

On a happier note, by the time that most members are reading this message, they will likely have already received membership renewal notices for the 2009-2010 year. We hope that you find continued value in your CCI membership and will consider renewing your support of the Institute for the coming year.

CCI Toronto reached a milestone this past year in welcoming its 1000th member – TSCC #1979. We have featured this member of the front cover of this issue and in the article on page 52. CCI’s continued growth is vital in remaining to be seen as the Voice of Condominiums.

The CCI Toronto Board of Directors, supported by a dedicated group of Committee members has worked hard this past year in keeping the Chapter relevant, and in listening to and responding to the needs of our growing membership. We thank all of those members who took the time this year to provide us with feedback via our online member survey. If you have not yet responded, it is not too late to do so. Visit the Members Only section of the website at www.ccitoronto.org. We’d love to hear your views on how we’ve been doing, as well as your ideas and suggestions for new directions for CCI Toronto to pursue.

As a result of your feedback, our Education Committee has recently launched a new course for directors – ‘Condo 201’, which focuses on Meetings and Condominium Governance. The efforts of this Committee in the coming year will be geared toward turning our in-class course material into a training DVD format. We hope that this new format will allow for further education within the industry and that corporations will purchase copies not only for Board members but that they will also make the DVD’s available to all owners.

The Legislative Committee has also been hard at work. With the help of various sub-committees and through our partnership with ACMO, work on the Legislative Brief containing many suggested amendments to the Condominium Act, 1998, which began more than three years ago, is now in the final stages of completion. We thank everyone for their input over the years.

Highlights of other accomplishments over the past year include – a continued improvement in the CondoVoice magazine – now offering more articles and information for Condo Boards and Owners than ever before; the implementation of an internal search feature on our website – making the site easier to navigate; the launch of the Condo of the Year Contest – watch for the first annual recipient to be named in the fall of 2009; and the switch in venues for the Annual CCI-T/ACMO Condominium Conference to the Hilton Markham Suites Hotel and Conference Centre – we will be back there in 2009 so mark your calendars now for November 6th and 7th, 2009; and, of course, the great inroads the Joint Government Relations Committee has made in its numerous meetings with politicians, policy advisers and various bureaucrats in developing a good working relationship with the Ontario government on any matters that concern the condominium industry. So with a successful 2008-09 year now almost behind us – we are eagerly planning for an exciting 2009-10 year. The Board and Committees cannot do it all alone though – we value the support and input of our members and want you to remember that this is YOUR Institute. Your feedback and suggestions are always welcomed and we can be reached at ccitoronto@ taylorenterprises.com or at (416) 491-6216.

I wish you all a happy and safe summer! Cheers, Armand Conant President, CCI Toronto & Area Chapter

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Contributors JOHN M. WARREN, C.A., (HRTC and HST, page 12) is a partner with Adams & Miles LLP, Chartered Accountants who provide audit and financial services to over 200 condominiums. He is a Director and immediate Past-President of the CCI – Toronto and Area Chapter and a past member of several committees of ACMO. He writes regularly on financial matters in condominiums and is a frequent speaker at educational programs for managers and directors and at condominium conferences and seminars. LOU NATALE, BA, LL.B., (Shared Facilities Agreements: So Who’s in Charge? on page 16) is the head of the Condo Law Group at Fogler Rubinoff LLP which services the condominium industry throughout the Greater Toronto Area, the Golden Horsehoe and Cottage Country.

ROBERT DURKO, (Working Towards Common Goals, page 18) is the President and CEO of Trustlink Property Management Inc. focusing on small to large residential and small to medium commercial/industrial condominiums within the GTA. Robert has a BA in Psychology and Economics, graduating with distinction from the University of Western Ontario and also holds a RCM designation from ACMO. Robert has lived in a condo, has been an active board member and a property manager for 15 years. Robert is a professional member of CCI and ACMO.

STANLEY KEDZIERSKI and BEV MOROZ, (Condo Design Trends, page 20), are principals of West 49 Parallel Design Inc. in Toronto. West 49 Parallel specializes in new and existing condo design, retail design and commercial design. Their work can be viewed at www.west49parallel.com.

LAVONNE MCCUMBER EALS B.A., M.E.S., (Condominium Mediation, page 24) is a mediator for the Mandatory Mediation Program in Ontario, Toronto Roster. She has had over 26 years experience resolving various conflicts in non-profit housing and is currently a Professional Member of CCI Toronto & Area Chapter and an associate with A Place for Mediation.

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SCOTT NEWHOUSE, BA, RCM, (Tips for Managing Your Condominium in Poor Economic Times, page 27) currently manages the condominium division for Shiu Pong Management and can be reached at scott@shiupong.com.

BRIAN HORLICK, (Secondhand Smoke, page 37), has been successfully engaged in the practice of law for 25 years. He is a senior partner with the law firm of Horlick Levitt and is an expert in the area of condominium law. He is a director of CCI, Chair of the CCI Legal & Governmental Affairs Committee, Chair of the ACMO Associates Executive Communications Committee and is a regular lecturer on condominium law to property managers seeking to obtain their RCM designation.

WARREN D. KLEINER, (Duty to Accommodate, page 42). is a lawyer practicing condominium law with the Condominium Practice Group at the law firm of Miller Thomson LLP. Warren is also a member of the Toronto Chapter of CCI and ACMO. He is the editor of the Condominium Practice Group’s “Let’s Talk Condo” newsletter. Warren’s goal is to provide his condominium clients with efficient and cost effective services, while finding practical solutions to problems and keeping clients up to date with the evolving state of condominium law.

MICHAEL H. CLIFTON, MA, LLB, ACCI (Obligations and Liabilities of a Condominium Corporation andits Board of Directors, page 48) is a Condominium Management and Land Development lawyer with the firm Clifton Kok LLP in Ayr, ON. He holds bachelor and master degrees in philosophy as well as a degree in law and he was called to the bar in 2000. Michael earned his ACCI designation from CCI in 2008 and has served on the Golden Horseshoe CCI Board of Directors since 2006. Michael has co-authored two Ontario Condominium law books, “A Planners and Municipalities Guide to the Condominium Act, 1998” and “Essential Issues for Realtors on the Condominium Act, 1998”

Letters to the Editor “TheCondoVoice” is published 4 times per year – Spring, Summer, Fall and Winter, by the Canadian Condominium Institute - Toronto & Area Chapter.

EDITOR: Mario Deo MAGAZINE DIRECTORS: Lisa Kay and Julian McNabb ADVERTISING: Marie McNamee COPY EDITOR: Ruth Max COMPOSITION: E-Graphics All advertising enquiries should be directed to Marie McNamee at (905) 852-2802 or marie@mcnamee.ca

If you are interested in writing articles for TheCondoVoice magazine, please contact Marie McNamee at (905) 852-2802 or at marie@mcnamee.ca. Article topics must be on issues of interest to Condominium Directors and must be informative rather than commercial in nature.

The author, the Canadian Condominium Institute and its representatives will not be held liable in any respect whatsoever for any statement or advice contained herein. Articles should not be relied upon as a professional opinion or as an authoritative or comprehensive answer in any case. Professional advice should be obtained after discussing all particulars applicable in the specific circumstances in order to obtain an opinion or report capable of absolving condominium directors from liability [under s. 37 (3) (b) of the Condominium Act, 1998]. Authors’ views expressed in any article are not necessarily those of the Canadian Condominium Institute. All contributors are deemed to have consented to publication of any information provided by them, including business or personal contact information.

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

Advertisements are paid advertising and do not imply endorsement of or any liability whatsoever on the part of CCI with respect to any product, service or statement. Publications Mail Agreement #40047055 Return undeliverable Canadian addresses to Circulation Dept. 2175 Sheppard Ave. E., Suite 310, Toronto, ON M2J 1W8

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Proposed Condominium Classification System Dear Mario,

Many - if not all - who work in this field would applaud a system that rewards well run communities and encourages those whose do not meet certain standards to raise the bar or suffer the wrath of purchasers who will be better informed.

I personally feel that consumer awareness (and market value) is ultimately the carrot at the end of the stick by which Boards that have strayed can be led back to the right path.

The advantage of a rating system based on benchmarks is that it forces condominiums to measure themselves against the performance of other condos – the drawback is that there will always be condos at the low end of the spectrum and that makes it difficult for older communities to compete against newer condos.

The advantage of a rating system based on targets set by industry experts is that it allows those with knowledge of condominiums to set the goals and allows all corporations to equally strive to attain them – the disadvantage is the disputes that will inevitably follow over whether the targets are fair or biased. Mario has presented a concept that would see the independent experts in the field “certify” the performance of the community based on certain criteria. That plan might include a series of yes or no questions that do not place the burden of opinion on the auditor, engineer, lawyer etc. I am very interested in participating in the discussions and appreciate your including me in any working group that you may form. It should be noted that ACMO and CCI are looking to become part of the discussions when the government opens the condo act for revisions. The

window may be opening for ideas such as this to find support from the law-makers. Dean McCabe RCM, Regional Manager, Brookfield Residential Services Ltd.

Condominium Classification - the CondoVoice, Spring 2009

I read with interest Mario Deo’s proposal for a condominium classification system. Having been actively involved in condominium engineering since 1985 and as President of the Golden Horseshoe Chapter (GHC) of CCI since 2001, I have seen my share of distressed condominium corporations both from a physical and financial health (reserve fund) aspect.

The absolute disasters that clearly need intervention by way of an administrator, fortunately are in the minority. They often occur due to sheer ignorance of board members not understanding or worse, ignoring their fiduciary responsibilities, ignoring the advice given by their professionals, or as a result of boards getting sacked by the owners who don’t want the necessary fee increases. In the GHC there is a Kitchener conversion condo under court administration (soon after occupancy) where clearly the declarant among others caused the downfall, through no fault of the owner board or residents.

I could not agree more with Mr. Deo’s premise that for newly registered condominiums, it starts with the developers. May I be so bold to suggest that one way to address the corporations’ future physical and financial health is to ensure the reserve fund gets off on the right foot by realistic first year reserve transfers being budgeted by the developers.

We all know that the first year reserve transfer of 10% of the operating budget, per the Condominium Act is nonsense; especially for many conversion

condominium corporations requiring huge increases in the reserve transfer to address often imminent major expenditures for elevators, roofing and parking garages etc. Unless of course these time bombs are part of the developers’ “vision, marketing or branding” referenced in the article as needing protection. Even at 20%, the Class I Reserve Fund Studies my firm has completed indicate it is typically still not enough. One approach that would fit very elegantly into the current requirement for the declarant being responsible for the first year budget deficit would be to accrue back to the first year, the reserve fund shortfall determined after the Class I study.

Personally I don’t think a classification system is necessary. It would be burdensome, and likely promote accountant and engineer/architect shopping if boards don’t like the rating. The annual cost of the common elements being inspected every year needs to be considered.

Of course there are corporations that need help. A good start will be revisions to the Condominium Act to better address the initial reserve shortfall most newly registered condominium corporations face. This has already been recommended by the Legislative Committee of CCI on which I sit. Secondly, to address the often abysmal state of

conversions, make Section 9(4) of the Condominium Act, (third party inspection of residential rental properties prior to conversion) mandatory and to include all types of conversions (office buildings as an example). Thirdly, though no less important, I also see bizarre expenditures out of both the operating and reserve funds being made by uneducated boards. Accordingly, Section 29 of the Condominium Act (Board of Directors Qualifications) should be amended to include at a minimum, CCI Level 200 or equivalent training; indeed very self-serving of me given my well-paying job at GHC/CCI. Kim Coulter, B.Tech. (Arch.Sc.), ACCI, FCCI President, Coulter Building Consultants Ltd.

Mario, you’re on to something good.

A classification system that seeks to rate or score condominium corporations on such factors as financial health (operating and reserve), level of maintenance, curb appeal, and quality of governance (board and management) could be of huge value in improving the overall quality of condominium communities in Ontario. It could assist prospective purchasers. It would help owners and residents evaluate their

boards and management. It would give Boards targets to which to aspire.

Speaking selfishly as a regional manager for Brookfield, I think a classification system that also helps to identify where a condominium corporation is in its lifecycle would help to ensure a better fit between management resources and the corporation’s expectations, in turn ensuring a solid, productive and long-term relationship in which scarce and valuable resources are more efficiently allocated and allowed to ebb and flow with the lifecycle needs of a corporation. I think that a viable classification system can be achieved.

I wish you luck on your mission. If you need some help, count me in!

Rudy Petershofer, Brookfield Residential Services Ltd.

Dear Mario,

I was most interested to read your editorial about a proposed condominium classification system (which would essentially be established by way of provisions in condominium declarations). I find your idea inspiring, because the goal is clear and simple: reliable maintenance and financial Continued…

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Letters to the Editor Continued from page 11 management for condominiums.

As you know, the whole purpose of mandatory Reserve Fund Studies was to increase consumer confidence (in condominiums) by reducing risks (for example, risks of unexpected costs) in relation to long term building performance and durability. The resulting increase in consumer confidence was obviously beneficial to all condominium owners throughout the province.

It appears to me that your proposal is designed to take these concepts further – by requiring regular, professional monitoring of other aspects of condominium administration. This sort of mandatory professional review of condominium activities might well take consumer confidence (in condominiums) to an even higher level. If so, that could only be a good thing. Now, I do see a number of potential objections:

• This will obviously increase the annual cost to own a condominium. Condominium owners don’t want to be forced to spend more money on professionals. So, you will need to persuade condominium owners that

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these costs will be worth spending – because of resulting savings or gains in market value.

• This sort of “extra professional monitoring” is arguably only required in certain cases. Most condominiums in Ontario are extremely well managed. For instance, I would say that the vast majority of condominiums in Eastern Ontario are extremely well-managed. I understand that there are “horror stories” in Toronto – but we haven’t seen those sorts of critical situations in Eastern Ontario.

• I’m not sure that a classification or rating system can really work unless there is a completely independent “rating body”. Can the rating really be done by persons hired by the condominium corporation?

• For a rating system to truly work effectively, it would perhaps have to be mandated province-wide (perhaps by way of regulation under the Condominium Act).

• The mandatory appointment of an administrator (without any authorizing Court process) is quite a dramatic remedy.

I don’t mean to suggest that the idea is not a good one. Again, I feel that it has considerable merit. However, I offer the following alternative suggestion, for what it may be worth.

Just as you have suggested, provisions in the Declaration could require regular, professional review of the corporation’s ongoing maintenance and financial administration (for example, by architects, engineers and/or auditors). Those professionals could then be required to report (to the condominium corporation) any steps which they feel are required to ensure that the condominium’s administration (in certain defined areas) is considered “reasonably acceptable”. [I think of it this way: These steps would essentially be required for the condominium to receive a “passing grade” from those professionals.] These professional reports (along with statements of resulting steps taken by the condominium corporation) would be available to owners and to any persons who request a status certificate from the condominium corporation. This process would be voluntary. But any condominium corporation which has instituted the process might then argue that consumers should have greater confidence in the particular condominium because it has a system of “extra professional review” in place. James Davidson, Nelligan O'Brien Payne LLP

HRTC and HST

BY JOHN M. WARREN, C.A. here would we be without acronyms? We may never know but there are two new acronyms; HRTC - Home Renovation Tax Credit and HST - Harmonized Sales Tax that will have an impact on residential condominiums and their unit owners. Hopefully this summary will assist in planning for their effects.

Home Renovation Tax Credit The HRTC is a 15% tax credit available to individuals only for the 2009 taxation year. It is available only for qualifying expenditures in excess of $1,000 but not for expenditures more than $10,000, resulting in a maximum non-refundable tax credit of $1,350 ($9,000 x 15%). Only expenditures incurred after January 27, 2009 and before February 1, 2010 will be eligible for the credit. The credit will not be available in respect of expenditures made in that period if the agreement or contract was entered into before January 28, 2009.

Eligibility is family based such that eligible expenditures may be claimed by only one member of a family composed of the individual claiming the credit together with spouse and minor children. If two or more families share ownership in an eligible dwelling, each family may claim their own credit based on their share of eligible expenditures incurred. A credit may be claimed only for expenditures made in respect of a principal residence as defined under existing tax law. Renovations made to residential rental or business use properties will not be eligible and individuals who earn rental or business income from part of 12

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their principal residence will be able to claim the credit only for expenditures made either wholly for the principal residence areas or prorated for eligible expenditures that benefit the housing unit as a whole.

Expenditures will be eligible only for renovations or alterations that are of an enduring nature and which are integral to the building and would include the cost of materials, labour, professional services, fixtures, equipment rentals and permits. Expenditures to a related person are not eligible unless the related person is registered for GST. Examples of eligible expenditures would include kitchen, bathroom or basement renovations, new carpet or hardwood floors, building additions, decks, fences and retaining walls, a new furnace or water heater, painting the interior or exterior, re-roofing, resurfacing driveways and new sod or land-

scaping. Ineligible expenditures would include; routine repairs and maintenance, carpet cleaning, maintenance contracts and such items as tools, furniture, appliances and draperies.

All claims must be supported by receipts and whether expenditures are charged to the operating or reserve fund is not relevant to their eligibility. It is a reasonable assumption that eligible expenditures incurred by a condominium should be allocated to individual owners on the basis used to calculate each ownerâ&#x20AC;&#x2122;s share of monthly condominium fees. Invoices for eligible expenditures and the calculation of their allocation amongst owners should be accumulated in a package and preserved so that they can be provided to the taxation authorities should the need arise. We recommend that condominiums be conservative in the expenditures they determine to be eligible as disallowance of

invoices to one owner may have an impact on all owners. The allocation of expenditures between owners who move in or out during the eligibility period has not been addressed and we recommend that the corporation should not assume responsibility to make this allocation. It should inform owners that it will calculate the total amount of eligible expenditures made in respect of each unit; send it to the owner of record and that it is the responsibility of part-year owners to sort out amongst themselves who claims what proportion of the expenditures.

Harmonized Sales Tax

It is likely that the HST may not be terribly harmonious in condominiums unless steps are taken to explain its impact. Not only are many condominium expenditures not previously subject to the 8% Provincial Sales Tax (PST) going to be subject to HST, but the tax relief promised by the Ontario government to compensate, at least partially, for the extra costs of the HST goes to individuals while condominium corporations will have to pay the higher HST included costs. Fee increases in 2010 and 2011 will be high and without clear explanations owners will likely find it difficult to separate that part of these increases due to imposition of the HST from increases caused by inflation and other cost increases. Communicate early and communicate often is always important to ensure owners understand what it costs to operate their homes and will be especially so because of the significant impact of the HST on condominium fees.

material component. The cost increase should be determined by the amount of materials in the invoice - the greater the material component, the smaller the increase caused by imposition of the HST. It is also probably a reasonable assumption that suppliers will not automatically pass on the savings from elimination of the PST and that many costs may well rise by close to 8%.

The impact on condominiums is twofold. First, reserve fund study providers estimate that reserve fund expenditures, both those incurred and the estimates of future expenditures will increase, on average, by 5% to 7% assuming most of the PST savings on materials are passed on. Condominiums should update their reserve fund studies in 2009 so that increased reserve contributions due to implementation of the HST can be considered in their 2010 budget. Second, operating costs will increase. Current estimates are that electricity, gas, communications, cable television and contracts for manage-

ment, concierge, elevator and mechanical equipment maintenance, professional fees, landscaping, cleaning and similar services will increase by close to 8% and repairs, supplies and office costs from 5% to 7%, Water costs should not change as they are not presently subject to PST or GST nor will they be subject to HST and finally, insurance should not be affected as it is presently subject only to PST, which tax will continue, and will not be subject to HST.

There are also other implications to address. The garbage levy in Toronto is included in the water invoice for condominiums that have chosen municipal collection and it is not presently subject to HST while costs invoiced by private contractors will be subject to HST after June 30, 2010, creating a cost differential in favour of municipal collection.

Long-term contracts for such services as cable television and elevator and

To confuse matters further, the 8% PST paid now by suppliers when they purchase materials included in their contracts will disappear as of July 1, 2010 and owners may conclude that supplier invoices will go down 8% for elimination of the PST and then up 8% for the increase from 5% GST to 13% HST with no impact on costs. This is not the case because the HST applies to the total invoice amount including materials, labour, administration and supplier profit while PST applies only to the Summer 2009

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mechanical maintenance that go beyond June 30, 2010 should be renegotiated if possible, as their prices include provision for PST on material costs that will disappear after that date.

Salaries and wages will not be subject to HST while invoices for contract management, concierge and cleaning will include 13% HST and this may tempt Boards to hire employees directly to avoid the HST. Contracts are the norm in most condominiums with good reason; hiring directly means workplace safety insurance premiums and employer contributions to CPP and EI. To attract good employees it will be important to provide benefit packages equal to those provided by contractors and this may be difficult to do at the same cost. There are also costs for administration, supervision, scheduling, absenteeism, sickness, holiday and

vacation coverage and finally if employees do not work out there are termination costs. Care should be taken to consider all factors before a change to direct hire is implemented.

It is early days for both the HRTC and the HST and we will get a better handle on their effects as regulations and other information become available. However the impact, particularly of the HST, will be substantial and communication is essential to avoid misunderstanding. I strongly recommend that owners be informed early and often over the next year as events unfold.

Thanks to Glen MacMillan, C.A. tax partner at Adams & Miles LLP, whose memorandum on the effects of the HRTC in condominiums has been summarized in this article. ■

News Flash … Updates on HST and Ongoing Work on the Legislative Brief CCI members have been curious about CCI Toronto’s involvement over the past while since the HST has been announced. CCI has being working hard behind the scenes while the full impact of the tax on condominiums is being explored. In addition, CCI-Toronto President Armand Conant had the opportunity to attend a recent town hall meeting at which condo owners and government officials gathered to discuss the HST.

As a result of government connections made at this meeting, we are pleased to report that representatives of the joint CCI-T/ACMO Government Relations Committee have now secured a meeting with a Parliamentary Assistant to the Minister of Finance on June 15th to present ideas with a view to seeing if there is any possibility of the Government easing the impact of the tax on Condominium owners. Stay tuned for further updates as they become available.

We are also pleased to advise that with respect to the legislative Brief, the Government Relations Committee, after considerable effort, has finally arranged a meeting with the Minister of Small Business and Consumer Services to discuss the Legislative Brief. This meeting will also take place on June 15th – with outcomes and further information to follow.

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Shared Facilities Agreements:

So Who’s In Charge? BY LOU NATALE, BA, LL.B. FOGLER RUBINOFF LLP

ne of the most contentious and problematic areas of concern within the condominium industry today relates to the management, operation and governance of shared facilities. Speak to any condominium lawyer or property manager and they will likely agree.

Disputes between condominium corporations relating to shared facilities can cause serious division and clashes not only between the representatives on the shared committee but also among the members of the Board of Directors of the sister Corporations. Unfortunately, the residents are almost always dragged into these disputes as unwilling participants. Many times these disputes are no different than the typical problems encountered within individual Boards where there are personality clashes or strong differences of opinions on fiscal matters and priorities. The big difference with disputes involving shared facilities is that these disputes are much more difficult and cumbersome to resolve simply because there are multiple Boards and Corporations involved in the dispute resolution process. 16

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One of the main reasons that these disputes arise in the first place and are so difficult to resolve is a direct result of the utter lack of legislative requirements and regulations governing shared facilities agreements (also know as “reciprocal”, “mutual use” or “costsharing” agreements). Surprisingly, the Condominium Act barely recognizes the existence of shared facilities. In fact, the phrase “shared facilities” is used only once in the entire Act. As a result, the actual shared facilities agreement, and not the Act, plays a significant role in determining the framework and relationship between the sister Corporations. This is made more problematic because the shared facilities agreements are drafted and implemented in most cases by the developers and their lawyers well before the condominiums are even constructed. Although many shared facilities agree-

ments look the same, there can be some significant differences in the way in which these agreements are structured and the degree of authority and duties delegated to the members of the shared committee (the “Committee”). Some versions of these agreements provide the Committee with full responsibility to make all decisions relating to the maintenance, repair and operation of the shared facilities, and in which case, the Boards of each sister Corporation must comply with those decisions. In other versions of these agreements, the Committee simply acts as an advisory

or “liaison” committee where all “recommendations” of the Committee must first be ratified by each Corporation before being implemented. In other words, each Board has a “veto” on all decisions thereby requiring unanimity among sister Corporations. In my view, these types of shared facilities agreements are a recipe for big problems, especially in cases where the “veto power” is used by one Board to control or frustrate the Committee.

In the 2006 decision of Ruperts Landing (SCC No. 78 v. SCC No. 50, et. al.), the Ontario Superior Court upheld the findings of an Arbitrator and confirmed the validity of a shared facilities agreement which gave the Committee the full power and responsibility to make decisions relating to the shared facilities based on a majority vote of the Committee members. In the case of Ruperts Landing, there are eight Corporations sharing a number of facilities. SCC No. 78 was unsuccessful in

arguing that the framework of the Act did not permit the shared facilities agreement to “delegate” to the Committee the decision-making authority of each Board and that all decisions of the Committee must be ratified by each Board of the sister Corporations. The Judge in the Ruperts Landing case agreed with the Arbitrator who stated in his decision that “requiring the unanimous approval of the Board of Directors of all eight corporations to make decisions regarding the Shared Facilities would create an unworkable, if not chaotic environment” and that it would be wrong, in this case, to allow one Board to have the “veto power over the rest of the Ruperts Landing Community”.

There is no doubt that in those cases where shared facilities agreements refer to “liaison committees” who merely make “recommendations”, that there is a much greater possibility for disputes to arise between sister Corporations.

Although unanimous consensus among Corporations who share facilities is a most desirable result, the reality is that not all issues can be decided through a unanimous vote. Furthermore, it is unclear how the arbitration process can be effectively used to resolve a “dispute” between Corporations if the terms of the agreement allows each Board to choose whether or not to ratify the recommendations of the “liaison committee”. What happens if one Board chooses for its own good reason not to ratify a “recommendation”? Is an arbitrator expected or able to second guess the Board?

One thing is for sure, and that is until the Act is amended to include some base requirements and framework for shared facilities agreements, lawyers will continue to be busy handling disputes involving shared facilities. ■

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Working Towards Common Goals BY ROBERT DURKO, B.A., R.C.M. uring my years of association with condominiums, I have been a property owner, a Director on the Board and presently, a property manager. Having been on all sides of the table, I have experienced the responsibilities, needs and demands in each situation. Following are some observations on aspects of managing, directing and living well within a condominium community.

A Director of a corporation plays a vital role in ensuring that the condominium establishes responsible guidelines that help lower operating costs without jeopardizing the integrity, building codes or by-laws of the condominium. Responsible guidelines encompass the main culture of the condominium, needs of residents and meets the economic demands of the corporation. Through these guidelines the property manager helps to facilitate and execute 18

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projects to completion. Other professionals such as the condominiumâ&#x20AC;&#x2122;s engineer, lawyer, auditor and investment advisor also play a critical role in the development process.

When projects are being developed, it is wise to involve the property manager from the beginning as his/her input on the process is vital. Addressing issues and concerns together as they arise will help maintain a harmonious and healthy working relationship. The board of directorsâ&#x20AC;&#x2122; relationship with the property manager can be a complex one when each offer different ideas on ways to accomplish a task. If the task is executed respectfully and professionally by the parties involved, it can be mutually rewarding and increase the value of the building. As a Director, keeping maintenance fees low and generating new ideas to reduce

operating costs is paramount, such as moving towards new energy efficient programs and technology. This is not always easy especially if the reserve fund is compromised when dealing with a deficit budget.

Difficult situations in a managerâ&#x20AC;&#x2122;s job can arise when Board members step down or upon the institution of a new Board. The most devastating situationis being involved in a requisition meeting for the removal of a Board. This is a time where exceptional managers adapt and more inefficient ones succumb to the anxiety of change. Change can be good, but it can be problematic if a large scale project is terminated and/or the new Board does not agree with the project even after corporation money has already been spent. Residents are often unaware of behindthe-scene problems or conflicts, and it

can take a toll on the manager who has been professional in the development of the requests of the Board. Trying to explain this to the condo resident can also be challenging. A good manager does not want to jeopardize relationships with the Board, management company, other residents and the building staff. There might also be a conflict with contractors, or other professionals that have put their time into a project and are left in the dark by the change. This could compromise the corporation’s relationship with an established supplier in the future.

achieve the betterment of their home and/or investment. As a Manager I respect the professional involvement he/she has to offer to help leverage the Board’s time by facilitating and consulting during the process. As a resident, I was eager to be informed on what was going on, and enjoyed reading the monthly newsletter. The relationship that is developed between the

Directors, Property Manager and Residents is essential. What ultimately makes a condominium community successful is having responsible guidelines. Implemented correctly, communication tools being used on a regular basis, the Board of Directors are committed to projects/guidelines and to each other until completion. ■

The day-to-day experience of a manager is unique in that many events can occur in just one day. It is the responsibility of the manager to keep the environment positive, productive and at the same time ensure the objectives of the guidelines from the Board are being met. Communication on a regular basis, whether good or bad, is important as it helps give the Board perspective on what is happening within the corporation. As emergencies arise and new problems occur, delays or changes can impact the initial process. The project may need to be revised and this can get confusing if there have been many changes and the focus of the project gets somewhat lost. If there is a lack of consistency with the approach it can jeopardize a Board’s reputation.

Residents can feel disconnected from the operations of the building and the ongoing changes if there are poor levels of communication. Sometimes the only information received is gathered through a chance meeting with the Superintendent, possibly leaving the resident confused and concerned about the problems occurring within the community. This type of communication can be extremely damaging to a Property Manager or Board. Proactive measures need to be instilled and encouraged when it comes to communicating with residents.

Wearing all the hats within a condominium setting has given me a greater appreciation for what Board members face when volunteering their time to

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Condodesigntrends ... and existing condos BY STANLEY KEDZIERSKI AND BEV MOROZ WEST 49 PARALLEL DESIGN INC. lthough the economy remains unsettled with fewer buyers and the condo building boom slowing dramatically, it is even more important that the revitalization of the older condominium buildings continue to maintain its investment value. Older condo buildings have a rare advantage in that they generally have larger suites than new condo product, however, per square foot resale values are usually lower on older unrenovated buildings.

In today’s new competitive condo resale market, it is to their advantage that condominium boards keep the interior design aesthetics of the common areas such as entrances, lobbies, and common corridors new and refreshed to reflect current design standards. The new condo buyer is generally younger, much more knowledgeable, sophisticated, and very conscious of design trends.

In the past few years, scores of new condominium buildings have been erected in the Greater Toronto Area, second only to New York City in North America. New condo buildings and existing condo retrofits have raised the bar when it comes to common area interior design. There is a shift to more design importance being given to key common areas of the building as far as aesthetics, function and ‘the experience’. 20

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There are many ways that an older building can apply the new condo trends to existing common area spaces.

TREND ELEMENTS It’s not just window dressing, the ENTRANCE is your first impression of the building. It defines its personality, the branding….the ‘curb appeal’. Key design features used successfully in new condos that can transform a dated entrance are as follows:

• PLANTERS and the PLANTING take on an architectural tone to compliment the building’s aesthetics. Planter trends are generally larger in scale, sculptural yet simple. Stainless steel planters, back lit planters or classic orangerie planters adding visual style. The new planting trends (no geraniums please), take on an architectural feeling, with tall standards, dramatic oversize tropical planting, and layered contrasting leaf textures and colours to set the tone.

• ENTRANCE DOOR HARDWARE such as door pulls are not only functional, but sculptural and will dramatically change a door. New door pull finishes such as polished or brushed stainless steel, nickel or bronze new hardware should complement existing materials.

• EXTERIOR SEATING such as classic garden benches in natural teak or cedar finishes age to a beautiful patina adding a sculptural element.

• ENTRANCE LIGHTING – the latest inroads in new exterior lighting design and performance for wall sconces, flushmounts, pendants, whether contemporary or traditional offer exciting options and add an impressive personality to a building entrance.

• CANOPIES such as glass/steel and well designed canvas awnings add a dimensional focus to entrances.

LOBBY Lobby stylization has taken on a new attitude — classic and mature; vibrant and youthful; artistic and funky — trending to the mixing of styles to speak to a broader audience. Lobby design, whether boutique style or grand scale, has become more hotel like, setting a new tone for the building interior design aesthetics. Lobby functions are becoming more diversified, acting as social meeting spaces, waiting areas, and where business transactions with real estate agents take place. Lobbies are augmented by the following design features: • COLOUR palettes such as paints, wall finishes are softer colours, neutral, off whites, taupes, earth tones, and not the hot colours of the season. Hot colours can be incorporated into the colour scheme in smaller elements such as pillows, accessories, area carpets or artwork.

• FLOORING such as hard surfaces trend to natural stone, or porcelains that look like natural stone….rich, expensive and elegant looking. Larger tile sizes have become more popular to visually expand the space. Durability and maintenance issues take importance as much as aesthetics. Wood still trends to mid to dark tones even though the lighter wood species and the new self sustaining wood products are becoming more popular especially in contemporary settings.

Soft surfaces such as carpeting trend to patterns either to compliment the interior design or accent. There is also a definite shift to cradle to cradle carpet specification. Area carpets – traditional but classic and contemporary graphic and colourful anchor furniture groupings.

• LIGHTING is the drama in interior spaces with new technologies in lamp types and performance. There are now greater choices in function and decorative fixture styles.

ARCHITECTURE • INTERIOR details contribute to the revamping, restyling and reinterpreting of a building interior. The trend is to define feature focus accent wall(s) with new wood paneling, such options as stone cladding, sculptural wall systems or water feature walls. More linear versus the traditional heavier grained wood veneers are being specified. The dramatic graining found in sustainable reconstituted veneers are finding their way into the contemporary setting.

• SEATING selection is based on definition of usage with small individual within a larger communal area. Trends include the diversity of styles using more benches and ottomans, fewer oversized pieces, classic lines with a few theatrical accent pieces.

• CONCIERGE desks are scaled down, becoming more hotel like. Back illuminated panels, stone/ wood/slab materials, dramatic accent lighting fixtures are common details.

The trend is to focus accent lighting onto interior architectural features, and hang ornamental pendants over seating areas, entrances, concierge desk, to define specific functions. Floor or table lighting add warmth giving a residential touch. Light coves and ceiling coffers incorporated into the interior design act as indirect soft general lighting.

• UPHOLSTERY with sensory appeal equals lush, rich and expensive fabrics. Softer palettes or colours favour traditional interiors with stronger accents and brighter hue upholstery for contemporary seating. Textural hand recognized fabrics add to the appeal with plain colours and subdued patterns that are not “trendy” that will date easily.

• ACCESSORIES focus on the ‘punch’ accents. Elements such as fireplaces and water features speak to sensory appeal, comfort and zen. Furniture such as breakfronts, armoires add to the investment. Commissioned artwork and sculpture are becoming more common and add to the investment value of the building.

CORRIDOR Interior design such as elevator lobbies, residential common corridors, suite entrances, and lighting have taken on a new importance.

• ELEVATOR LOBBY detailing have included special elevator door casing, special finishes to elevator doors. Stone or porcelain tiled floors are often used in these high trafficked Summer 2009

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areas giving a visual separation to the rest of the corridors. Framed mirrors, artwork, and furniture (code permitting) add to the special feeling and first impression when leaving the elevator cab.

• WALLCOVERING finishes are in softer palettes, neutrals, earth tones, textured and tone on tone rather than heavily patterned which add longevity. Today’s vinyl wallcoverings mimic silks, linens and grasscloths and like carpets are responding to the LEED requirements established by some condo buildings. • CORRIDOR CARPETING, traditional or contemporary are patterned and are sometimes mixed with solid accents and inserts. Nylons and even wools (budget permitting), looped, sculptured loop or loop tip sheered carpets hide traffic patterns and add longevity.

• SUITE ENTRANCE door detailing such as the door and millwork surround, door hardware, suite numbers, and lighting are given special importance. Rich wood finishes or shop sprayed millwork, brushed stainless steel or polished nickel lever handles with backplates and locksets, jet laser-cut out suite numbers, suite lighting wall sconces add visual attention and focus.

• LIGHTING fixtures complementing the corridor style must meet new lighting code standards for footcandle calculations and be ADA compliant. ■

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Condominium Mediation Advantages and Benefits situation that led to the conflict, the declarations, rules and by-laws affecting the matter and the personal situations that came into action with respect to the friction. Experienced condo folks know this increased understanding of the various components leads to the crafting of an acceptable solution which also increases the likelihood the interpersonal relationships will reestablish in a positive way.

BY LAVONNE MCCUMBER Eals, B.A., M.E.S. ondominium corporations, owners, renters, management and possibly some contractors have advanced beyond the general population in their understanding of how mediation can and does work for them. Many of you understand Mediation as a process overseen by an interested neutral third party whereby two or more parties in dispute can hear each other out, discuss interests and options and potentially come to a mutually agreeable solution. Interests involved can be substantive (having to do with money, resources or control); procedural (the process used to resolve the dispute); and/or psychological (feelings, emotional needs arising from the issue).

MEDIATION BENEFITS: Given that all involved parties participate in crafting the solution with the Mediatorâ&#x20AC;&#x2122;s guidance, it generally follows that the parties reach a higher understanding of the 24

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People like things being fixed, tidied up and finished with. This is a particularly significant outcome when dealing with peoplesâ&#x20AC;&#x2122; home base, their condominium, their safe place to relax. Diminishing negative aftermath encourages people to approach potential conflicts before they fester beyond the individuals involved and grow to negatively affect their neighbors as well.

PRACTICALLY SPEAKING: Additional benefits from mediation include the potential for reaching a mutually agreeable solution more quickly than the court solutions with the tendency to impose a win/ lose solution where one party is simply deemed right and the other wrong. This often results in one party carrying the burden of the solution which can leave unresolved feelings of unfairness. Often disputes have aspects where each

party has valid points worthy of consideration. Mediation can assist the disputing parties to explore the various positions to consider the appropriateness of including these considerations in the settlement. Although mediation opens the opportunity for considering a broader range of issues it tends to be less costly than the litigation process and extends the range of possible satisfactory resolution.

REGULATED PROCESS:

The Condominium Act, Sec. 132 lays out the provision to submit a disagreement between the parties to mediation and/ or arbitration. Members of the ADR Institute of Canada Inc. follow a Model Code of Conduct for Mediators which includes commitment to the principle of self-determination which means the participants together will determine the settlement; the Mediator shall remain impartial and independent throughout the process and shall identify any conflict of interest arising. The

process is inherently confidential unless both/ all parties make a written agreement otherwise, or when legal issues supersede, or there is an actual or potential threat to human life, required Mediator’s report, unidentified data for research or educational procedures, mediator shall identify any limitations to confidentiality during individual sessions and shall maintain confidentiality regarding storage and disposal of any notes or files. The mediator is responsible to ensure that parties understand the Mediation process prior to commencing and are responsible to ensure a quality process, allowing and encouraging respectful participation.

CONFLICTS RESOLVED:

Potential conflicts run the gamete from reserve fund issues: a current defining issue is what falls under repair vs. general maintenance which raises the financial responsibility issue: is it replacement reserve or owner costs?

Such matters could better be resolved in the mediation arena since it is unclear by definition and therefore unpredictable in the Legal arena, which is responsible for building deficiencies, contractor, service and warranty issues?

Mediation can facilitate communication between corporation and owners, owner and owner, corporation and management staff, management staff and owners, corporation’s insurance and owner/ renter insurance companies to name significant stakeholders. Many areas of concern can disturb the condominium’s peace. For instance: Human Rights concerns, duty to accommodate, constructive discrimination and occupancy standards, financial issues, alterations to common elements such as satellite dishes, parking spaces, noise levels or pet concerns.

Coming to mutual agreement with the neutral, third party facilitator can be a worthwhile saving both in long term costs and aggravation. ■

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Tips for Managing Your Condominium

in Poor Economic Times BY SCOTT NEWHOUSE, BA, RCM SHIU PONG MANAGEMENT

condominium community is designed to last for an infinite period (likely 100+ years). During the life of these communities, we will inevitably see good and bad times, over and over again. Our job as property managers is to ensure that the community is well managed for the life of the community, not just year to year. Here are some tips of managing your condominium community through tough economic times.

We are not Cities â&#x20AC;&#x201C; Even Though it Feels Like it

I have heard from a number of managers, and I tend to agree, that managing condominiums is compared to being the mayor of a small city. Although this is true in many regards, we must not confuse the reality when it

comes to fiscal responsibilities for those communities we are managing. We are not small cities, nor are we small governments, and therefore it is not our obligation to help pull our economy out of the recession by increasing major project spending at our sites.

I have recently heard from one board member who said he would like to repave a roadway to help create jobs and take advantage of cheaper labor. After the Board reviewed the roadway with an Engineer, it was noted that the road does not need to be replaced for another 15 years! My recommendation is to continue to manage the major project spending for your site the same as you have in the past, as per the reserve fund plan and as your site inspections require.

Keep an Eye on the Arrears

One of the harshest realities of a poor economy is the ever-increasing unemployment rate. I have personally witnessed many of my friends lose their jobs recently and they are finding that the once hot job market no longer exists. Faced with high competition for available positions, they are inevitably taking less pay for the same work they did in years past, if they are fortunate to even be offered a position. Even with modest savings, when a person finds themselves without the same level of income (if any) as they had anticipated, they will find themselves in precarious cash positions at the end of each month. One of the first items people will delay is payment of common expenses. Although the Condominium Act has Summer 2009

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given us the ability to ensure collections for any arrears, we must be wary of the fact that should a higher % of ownerships fall into arrears for 30-60 days, this will have an impact on the cash flow.

The best way to combat growing arrears is to ensure prompt lien placement. I know this does not sound very compassionate to those in difficult times, however by placing a lien you have secured the arrears and are now in a position to negotiate with the mortgage firm for that property. Nine times out of ten the Bank will pay the arrears and simply add the arrears onto the outstanding mortgage.

What the Government Budgets

One trend that seems to happen with poor economic times is that the government comes out with unusual budgets. The most recent provincial budget includes a harmonized sales tax that

basically increases the sales tax from 5% to 13%. This means that any product or service (utilities included) will increase by 8%. This is something that will affect every condominium (excluding commercial) in Ontario.

My recommendation is that we increase the amount of communication with owners of the community. We need to ensure they are aware of any issue that can impact their community and their pocket book.

Be Fair to Your Trades I have heard many managers recently asking trades to reduce their costs to the condominium for the same services that they were providing in years past â&#x20AC;&#x201C; due to hard economic times. I am not in favor of this tactic, as I believe that managing the property is a team effort, between the trades and us. We are only as good as the trades that we employ

and if we try to grind down their costs, they will inevitably need to cut services for our sites. This will make the building look less appealing and eventually impact owners re-sales of their units. If you insist on renegotiating with trades, I recommend either freezing any increases or revisiting the services offered. Any reductions/freezes need to be mutually acceptable by both condominium and trade.

Conclusion The conclusion is that we cannot reverse the economic situation we are in and we cannot help to get us out of it, we can only work within the situation and make adjustments to ensure the community comes out of the poor times in the best position possible. â&#x2013;

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CONDO OF THE YEAR - fourth quarter finalist Harbourside, YCC #510 BY MICHELLE RAMSAY-BORG

Something for Everybody, Created By Everybody! CCI Toronto is thrilled to announce that Harbour Square (HarbourSide) has been announced as the fourth quarter finalist of the newly launched Condo of the Year Award. The following article was written as part of the corporation’s submission for entry to the contest. Our congratulations are extended to YCC #510! Further details on this contest may be found on page 32 or on the CCI-T website at www.ccitoronto.org. The 2009 annual grand prize winner will be selected from amongst the four quarter finalists in the early fall of 2009 and will be announced at CCI Toronto Annual General Meeting in November 2009..

Jane Jacobs famously said: “Cities have the capability of providing something for everybody, only because, and only when, they are created by everybody.”1

Although not as big as a city, thirty-year-old HarbourSide, one of Toronto’s first waterfront condominiums, is a full-fledged community with a population of about 2,000, making it the size of the village of Grand Bend on Lake Huron.

Our ‘village’ has long held the belief expressed so aptly by Ms Jacobs. We have encapsulated it in this guiding principle: What our Condominium will be depends on its owners and residents.

The beauty of this principle—which headlines the “President’s Message” in every issue of our newsletter—is that it encourages both vision and inclusion. It is the key to our success in “providing something for everybody”.

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Introducing HarbourSide Near the foot of Bay Street; steps from the financial and entertainment districts; and minutes from access to trains, planes, ferries and highways; HarbourSide combines the best of many worlds.

Our Directors have always shared two highly prized skills: professional expertise and governance experience. As a result, their commitment to meeting or exceeding all legislated, fiduciary and ethical expectations has always

Completed in 1979, the 37storey HarbourSide complex contains 602 suites that range from efficiency studios to penthouses and terrace homes.

published our award-winning2 UPDATE newsletter ten times a year for 28 years, and sponsors several popular events such as the annual photo contest.

2. Energy: responsible for the recently-completed Phase I Energy Retrofit which is expected to reduce our natural gas consumption by 40%, representing an annual saving of $216,500 and a carbon footprint decrease of 700 tons per year.

3. Finance: whose goals include keeping the annual maintenance rate below the cost of living and handling major expenses without depleting the reserve fund.

Amenities include the:

• comfortable HarbourSide Lounge and elegant Tiffany Room, both wonderful venues for events;

• south-side 7th floor landscaped terrace with patio furniture, BBQs and a deck overlooking the lake; • quiet north-side garden terrace;

A mandatory annual maintenance inspection of each suite includes verifying the condition of balcony railings and checking for potential fire hazards.

• billiards room and library-conference room; • 6O-foot saltwater pool;

• fully-equipped gym with change rooms, saunas, a squash court and a fitness classroom; and, • a car wash bay and free visitor parking in the garage.

We also appreciate a 24/7 concierge, well-lit enclosed parking— accessible only by people with security fobs—and excellent round-the-clock security services, including parking garage patrols.

been exemplary. One of the Board's key responsibilities is providing direction and oversight to Brookfield Residential Services Ltd., with whom we share a relationship characterized by trust and respect. The Board also oversees the work of seven committees, including: 1. Communications:

which

has

5. Property: whose projects-such as the Lounge and Tiffany Room renovation, slated for 2009, are closely followed by residents.

6. Security: which is responsible for our recognized leadership in adopting new safety and security technologies; putting in place effective emergency preparedness measures; and, setting high standards for security and crime prevention.

What We Are and Will Be ‘All-in’ Governance Close to 50 residents, including owners and tenants, contribute their time and efforts to the Board of Directors and seven Board committees, which in total hold 100 or more meetings a year.

4. Human Resources: whose responsibilities include matters related to our 35 full- and part-time staff, and our IS contracted security and cleaning staff.

A comprehensive resident survey resulted in a number of new amenities, including a large deck that overlooks Lake Ontario, and BBQs and additional furniture on the terrace.

7. Waste Management: ad hoc sub-committee planning the implementation of the ‘Best Practices’ recommendations that resulted from a site-wide waste management audit conducted by Spinnaker Recycling Corp. consultants.

The Harbour Square Joint Committee-which includes the Summer 2009

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Do you think your condominium has what it takes to be named as the

CCI Toronto Chapter

Condo of the Year?

CCI is pleased to announce the condo of the year award, open to all CCI Toronto & Area Chapter corporate members. The contest will open July 1st, 2008 and will run until June

30th, 2009. Quarterly finalists will be selected by the CCI-Toronto Membership Committee

and the winner of each quarter will be featured an upcoming quarterly issue of the CCI CondoVoice magazine. The Grand Prize winner will be selected from amongst the four quarterly finalists by the Public Relations Committee and will be announced in the fall of

2009. The grand prize winner will be announced at the 2009 Annual General Meeting and will receive a street entry sign for their corporation – a prize worth up to $5,000.

Judging Criteria for this award will include any or all of the following: • Good Governance

• Forward 'Thinkingness'

• Social Fabric of the Community

• Consistency

• Energy Initiatives

• Environmental Concerns

• Effective Use of Committees

• Any other unique approach or program

• Communications Interested applicants should forward their submission, including photos and an article outlining why they feel their corporation is worthy of this award to:

CCI Toronto and Area Chapter, 2175 Sheppard Ave. East, Suite #306, Toronto, ON M2J 1W8 or email to ccitoronto@taylorenterprises.com

For further information, please visit the CCI Toronto website at www.ccitoronto.org

president and one director from each of three condo corporations: YCC 288 at 33 Harbour Square; YCC 510 at 55/65; and MTCC 949 at 77/99-completes our governance structure.

Additionally:

• The Board reviews its priorities regularly, adjusting its spending to take into account urgency, cost, and government requirements.

• Committee Chairs stay informed on upcoming legislation in areas such as waste management, energy consumption, privacy, etc. to ensure that our condo is prepared to make the transition to changed requirements at a minimum cost.

The Joint Committee meets every quarter to discuss services and expenses in common to all three corporations, including the popular transportation service provided by our fleet of four buses.

• The Board continuously encourages residents to offer suggestions, many of which have been implemented.

A Tradition of Forward Thinking and Open Communication

The Board's forward thinking led it to purchase defibrillators. As a result of that purchase, and the subsequent in-house training, two staff members recently saved a resident's life, for which they received a Toronto Emergency Medical Services Citizen Award.

• Additionally, the Board holds regular resident update meetings, chaired by the President.

Many get-togethers, like our Canada Day picnic and kids' Christmas party, are powered by volunteers who set up, cook, serve, cleau up and make sure that Santa drops in.

• Day-to-day, we post operations and special event notices in elevators and high-traffic areas.

• Month-to-month, residents are informed of the business of the

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SUMMA PROPERTY MANAGEMENT INC. PROFESSIONAL PROPERTY MANAGEMENT & CONSULTING

“Your condominium deserves personal attention and service.”

Over 24 years experience! We provide Professional Condominium Property Management with attention to detail. Your property is important to us! Regular on-site visits and inspections, attendance at all meetings. We are available to be personally contacted by Board Members at almost any time – not just ‘business hours’. We provide Superior Service and a commitment to quality property management no matter what size your condominium is! At Summa we take pride in managing your property! 416.913.7990 416.728.2429 (Cell) propman@summapm.com www.summapm.com

When experience and quality counts!

PROVIDING EXCEPTIONAL SERVICE TO THE CONDOMINIUM INDUSTRY FOR OVER 25 Y EARS SPECIALIZING IN COMPLETE PROPERTY MANAGEMENT SERVICES: Residential High-rise & Townhouse Condominiums Industrial & Commercial Condominiums

Hands-On Management Individually Designed and Tailored To Meet And Exceed Your Communities Needs For more information, please contact: Gary Atkin, RCM, ACCI Matthew Atkin, RCM, CMOC, ARM, CPM or Nathan Atkin, B.A., RCM

G.S. Atkin Property Management Specialist Inc. One Shady Lawn Court Mississauga, Ontario L5N 1H2 24-Hour Emergency Line (905)-567-6820 Direct Line: (416)-258-6011 Fax: (905)-567-6930 Website: www.gsa-pm.com Email: info@gsa-pm.com

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Board and its committees via reports published in our newsletter and, of course, Board Meeting Minutes are available for viewing at any time.

Something for Everybody HarbourSide Community

No week goes by at HarbourSide without several opportunities for interaction and sharing in a social setting:

• Our Communications Committee stages special events throughout the year including the Annual Photo Contest.

• The 7th Floor Lounge Steward plans frequent social get-togethers and parties.

• Residents have our pick of several free fitness classes sponsored by our Condo Corporation.

Waterfront Community

HarbourSide has long been a hatching ground for community-builders. A large group of our residents is very active in organizations along the Central Waterfront, notably the York Quay Neighbourhood Association and the Queens Quay Harbourfront BIA (Business Improvement Area). One resident, Ulla Colgrass—who was the founding Chair of the YQNA—was recognized by the Toronto Star for her community service.

• Volunteers organize our Annual Arts and Craft Show.

• Volunteers organize affordable bus trips to the Orillia and Niagara Falls casinos. • A group of our volunteers, nicknamed the ‘HarbourSide Grannies’, supports the global organization, Grannies in Lesotho.

• Attend and participate in consultation sessions and meetings hosted by elected officials, the City, Toronto Port Authority, Waterfront Toronto, Commun-ity Air and others; and, • Turn out for neighbourhood events such as the Giant Community Fundraising Garage Sale.

• Dozens of residents and owners, ranging in age from teens to seniors and singles and couples alike, initiate, lead or help out with clubs, classes, hobby groups, parties, fundraisers and outings.

• A succession of devoted volunteer librarians have, over the past three decades, built and maintained our library of thousands of books – all of which were donated by residents.

YCC 510 residents make up a large contingent of volunteers who have worked tirelessly to build a community along the Central Waterfront over the past three decades.

HarbourSide residents are amongst the waterfront's most dependable supporters of events such as the Mayor's 20-Minute Clean-Up.

Among their results are improvements of parks and monuments, removal of illegal posters, recognition of history and landmarks, and plans for new parks and connections to the city. In addition, HarbourSide residents:

• Support Harbourfront Centre and the Harbourfront Community Centre;

DONNA SWANSON ACCI, FRI

Real Estate Brokerage

As you can see, leading and nurturing our ‘village’ requires commitment and time and thanks to a large corps of great volunteers. We are gifted with both in abundance. Add the dedicated staffincluding a few who have celebrated 25 years of service with us-and you have HarbourSide: a vibrant community worthy of CCI’s Condo of the Year Award. 1 Jacobs, J. The Death and Life of Great American Cities. Random House, New York, NY, USA, 1962.

UPDATE won the 2007 CCI Award for Most Outstanding Condominium Newsletter. ■

For your Real Estate Needs call: 416-515-2121

• Real Estate Broker of Record - s peci al i zi ng i n Co ndo mi ni um Sal es since 1982 • Current condominium Owner, Pas t Pres i dent and Di recto r • ACCI - An Associate of the Canadian Condominium Institute • Pas t Di recto r of Toronto Chapter of CCI • FRI - Fellow of the Real Estate Institute of Canada and current Di recto r of Toronto Chapter of REIC

Email: donnaswanson@sympatico.ca Summer 2009

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Second-hand Smoke How Many Laws can Dance on the Head of a Cigarette? BY BRIAN HORLICK HORLICK LEVITT BARRISTERS & SOLICITORS moking, and the dangers posed by exposure to second-hand smoke, is a very contentious issue in modern society. This issue is contentious, in part, because smoking is not only a matter of personal choice but also a matter of public health and well-being. It is a social issue fraught with legal implications, and, in this regard, it is instructive to examine the legal treatment of smoking and of second-hand smoke.

Legislative Treatment An argument often made by smokers or advocates of smokers’ rights is that smokers have a right to smoke if they choose to do so. While this is true in the abstract, it is also subject to everincreasing limitations. Thanks to a variety of federal, provincial and municipal laws and by-laws, smoking is now prohibited in most public places, most workplaces and office buildings, and motor vehicles in which children under 16 are riding, to name a few. One such law is the Smoke Free Ontario Act, which prohibits smoking in any

enclosed public place. “Enclosed public place” is defined as the inside of any building, structure or vehicle that is covered by a roof, and to which the public is ordinarily invited or permitted access. The Ontario Government, in a bulletin which accompanied the Smoke Free Ontario Act, specifically stated that smoking is now prohibited in elevators, stairwells, hallways, parking garages, laundry facilities, lobbies, exercise areas and party or entertainment rooms, among other common areas of condominium corporations. As such, in addition to any provision in the declaration, by-laws or rules which may prohibit smoking on certain common elements, Ontario provincial law also prohibits smoking in these places.

The Law of Nuisance But what of those people who wish to smoke in their own units, and not in the corridors or lobby? A fundamental principle of property ownership in Canadian law is that owners of real property are entitled to the quiet enjoyment of their property. As such, any

person who is held to be responsible for an act indirectly causing physical injury to property or substantially interfering with the use or enjoyment of property, where this injury or interference is held to be unreasonable, is liable for a claim in the tort or civil wrong of nuisance. This claim can arise whether the interference takes the form of excessive noise, offensive odours, drifting smoke, or any other form, and can arise even if the interference emanates from another property owner’s activity on his own property, if the interference that such activity causes is unreasonable. It is a cliché, but true nonetheless, that a person’s right to swing his fist ends at his neighbour’s nose. Cartwright v. Gray, an 1866 Upper Canada (later Ontario) Court of Chancery case, dealt with a claim in nuisance for drifting smoke. The plaintiff, Richard Cartwright, had sold a part of his land near his residence to Mr. Gray, who subsequently set up a carpenter’s shop on that land. As part of the operation of the carpenter’s shop, Summer 2009

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Mr. Gray burned the wood shavings and other refuse of his business, and the prevailing winds tended to carry the smoke toward Mr. Cartwright’s house. Mr. Cartwright and his family found that the smoke was sufficiently thick so as to interfere with their use and enjoyment of their land, and independent witness accounts at trial supported this. The court in that case held that Mr. Gray was entitled to operate his shop on his land, but not in a way that interfered with Mr. Cartwright’s reasonable enjoyment, stating that “A man may not use his own property so as to injure his neighbour.

When he sends on the property of his neighbour noxious smells, smokes, etc., then he is not doing an act on his own property only, but he is doing an act on his neighbour’s property also...”. This issue of drifting smoke that was

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addressed by the court in this case, by necessity, factors significantly in many discussions regarding second-hand smoke. How does a smoker’s right to do as he chooses balance with his neighbours’ rights to not be subjected to his second-hand smoke?

Smoking in Condominiums and Apartments

The court has had reason, on one occasion at least, to consider the issue of smoking in a condominium context. Raith v. Coles, a 1984 British Columbia case, concerned owners of two abutting condominium units. John and Gloria Raith, an elderly couple, owned a condominium unit that was above another unit owned by George and Lydia Coles. Mr. Coles (and possibly Mrs. Coles, although neither the applicants nor the court were sure of this) was a cigar-

smoker who frequently smoked in his unit. The cigar smoke drifted upward and into the Raiths’ unit, despite the Raiths’ efforts to prevent it from doing so. These efforts included installing fans and keeping their doors and windows closed. Unfortunately, the Raiths were unable to stop the cigar smoke from drifting into their unit.

As a result of the constant infiltration of smoke, Mr. and Mrs. Raith stated that they both had suffered emotional strain and health problems. They finally felt that they had no option but to bring a court application for an injunction preventing Mr. Coles from smoking in his unit.

Second-hand smoke in a rental housing setting has also been considered, at least at the Ontario Rental Housing Tribunal. In Feaver v. Davidson, a 2003 tribunal case, Aimee Feaver applied for an order terminating the tenancy of Kenneth Davidson because he had substantially interfered with her reasonable enjoyment of her living

premises. Ms. Feaver lived on the main floor of a house and rented the basement to Mr. Davidson. The house had previously been owned by Mr. Davidson’s parents, who sold it to Ms. Feaver and her husband, and Mr. Davidson continued to live in the basement after the sale.

The very idea of such an action may seem far-fetched at first blush, and the court acknowledged as much, stating that one might initially wonder “whether such an application was bordering on the frivolous...”. However, the court treated the matter seriously, and thoroughly examined the evidence that Mr. and Mrs. Raith brought before it. The court found that the Raiths had done everything that they reasonably could have done to prevent the smoke from entering their unit, but that their attempts had not been successful. Of great importance, the court found, was the fact that Mr. and Mrs. Raith’s complaint was based on health problems that both had suffered as a result of the cigar smoke, and not merely on “a simple dislike of the smell”.

In the end, the court granted the injunction, with County Court Judge Selbie stating that he “consider[ed] it to be unreasonable if a person, knowing that the smell is deleterious to others, persists, unless, of course, it can be shown that he has no control over its presence. There is no such suggestion here.” The judge went on to say that “There are many things a person may not do in his house or castle – in the case of these respondents, one of these things now is that he may not allow there to be emitted or discharged a noxious substance, in this case, cigar smoke and odour, from his premises...”.

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Ms. Feaver and her husband knew at the time that they purchased the house that Mr. Davidson smoked in the basement, but did not object as they had purchased the house as an investment and did not plan to live there themselves. However, Ms. Feaver and her husband subsequently separated, and she moved into the house and lived on the main floor.

From the beginning of her residence in the house, Ms. Feaver could smell Mr. Davidson’s smoke, and she took a variety of measures in an effort to reduce or eliminate the smell. Mr. Davidson was entirely cooperative with these measures, except that he refused Ms. Feaver’s requests that he stop smoking in his unit. Unfortunately for Ms. Feaver, the lease between she and Mr. Davidson was silent on the issue of smoking. Ms. Feaver eventually brought this application. The Ontario Rental Housing Tribunal

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found that the tenant had a prima facie right to smoke in his unit, but that his right to smoke had to be balanced against the landlord’s reasonable enjoyment of her home.

Accordingly, the tribunal declined to grant an order terminating the tenancy, but did order the tenant to stop smoking in his unit and stated that the landlord would be able to apply for an order terminating the tenancy if the tenant did not comply.

Smokers’ Rights Smokers are subject to a variety of restrictions on where they may smoke, as set out above. One argument that has been raised from time to time is that certain of these restrictions on smoking violate the equality rights of smokers. The Canadian Charter of Rights and Freedoms guarantees certain fundamental rights of Canadians. Section

15(1) of the Charter states that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The equality rights violation argument states that smokers smoke because they are addicted to nicotine, and that nicotine addiction should be considered to be a physical disability. As such, according to this equality rights violation argument, prohibitions on smoking discriminate against smokers based on their disability, and in so doing violate the Charter.

This argument was advanced in McNeill v. Ontario (Ministry of Solicitor General & Correctional Services), a 1998 decision. In that case, Peter McNeill was a prison inmate

who, the court noted, made “frequent attendances at the Wellington Detention Centre.” Mr. McNeill brought this application in response to a smoking ban imposed by the prison. The prison imposed the ban in accordance with a City of Guelph by-law which prohibited smoking in public places, and in order to protect the health of inmates and staff. Mr. McNeill felt that this ban was discriminatory; he claimed that nicotine addiction was a disability included under s. 15 of the Charter and, as such, the prison was violating his Charter rights.

In response to this claim, the court stated that “Nicotine addiction and the symptoms of withdrawal that result when one discontinues smoking are not a mental or physical disability within the meaning of s.15(1) of the Charter.” It further stated that smokers make up “a significant segment of society who have not been discriminated against historically based on their addiction.” Accordingly, Mr. McNeill’s application was dismissed.

The Condominium Act Given that the body of case law (such as it is) seems to weigh in favour of the rights of non-smokers, one might ask

how a condominium corporation that wishes to do so might prohibit smoking in its units. The answer seems relatively simple: by amending the corporation’s declaration or by passing a rule.

Section 58 of the Act states that a board of directors may make rules respecting the use of the common elements and of units to promote the safety, security or welfare of the owners and of the property and assets of the corporation, or to prevent unreasonable interference with the use and enjoyment of the units. These rules must be reasonable and consistent with the Act as well as the corporation’s declaration and by-laws.

There is nothing in the Act with respect to smoking, and it is not typically a subject that is addressed in a declaration or in by-laws. As well, a board that wishes to make or alter any rules can only do so after giving notice to the owners and giving those owners an opportunity, if requested, to approve those rules at a meeting of the owners. As such, the passage of a no-smoking rule in an existing condominium may require majority support of the owners.

Although a non-smoking provision is not typically found within a condominium corporation’s declaration, one certainly could be inserted. If the condo-

minium wished to amend its declaration, it would require the support, in writing, of the owners of 80% of the units in order to do so.

The Future?

What of new condominiums? Section 7 of the Act states that a condominium declaration may contain conditions or restrictions with respect to the use of the units. As such, a declarant who wished to develop and market a smokefree condominium corporation could do so by including a blanket no smoking rule in the declaration.

Such an idea has already gained traction in British Columbia, where, in 2006, a condominium development called Envy was announced as Canada’s first entirely smoke-free condominium, where no person would be allowed to smoke anywhere on condominium property. Given the popularity of this development — in October 2006, half of the units in Envy had already pre-sold for February 2008 occupancy — it seems likely that it will not be the last to butt out. ■

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Duty to Accommodate BY WARREN D. KLEINER

veryone in Ontario has the right to be free from discrimination because of handicap or perceived handicap in the areas of employment, services, goods, facilities, housing, contracts and memberships in trade and vocational associations. This is provided for under the Ontario Human Rights Code (the “Code”).

This article discusses issues involving disabilities and a condominium corporation’s obligation to accommodate such disabilities.

Condominiums need to be primarily concerned with discrimination because of handicap or perceived handicap in the area of housing. Persons with disabilities have the right to equal treatment. This right includes the right to accessible housing.

The Code defines “handicap” in Section 10(1). It includes any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness. It includes diabetes, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device. It also 42

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includes a condition of mental retardation or impairment, a learning disability or a function in one or more of the processes involved in the understanding or using symbols or spoken language, a mental disorder, or an injury or disability for which benefits were claimed or received under an insurance plan established under the Workplace Safety & Insurance Act, 1997. Disability includes both present and past conditions, and includes a subjective component, specifically, one based on perception of disability.

Inaccessible buildings and non-inclusive housing designs are one of the obstacles often encountered by persons with disabilities and the Code requires that there is a duty to accommodate persons with disabilities.

Accommodations can take many forms, including but not limited to, physical

modifications, visual fire alarms and doorbells for the hearing impaired, automatic door openers and closures, lower counters, etc. In some circumstances it can require waiving or changing a rule that is otherwise applicable to the residents in a condominium. This may require, for example, the waiving of a rule prohibiting dogs in a building to allow for guide dogs.

Boards of directors are increasingly facing the question of how to respond to requests from disabled residents to make common areas and facilities accessible at the corporation’s cost.

It is clear that condominium corporations have a duty to take steps to accommodate people with disabilities. A condominium corporation cannot avoid taking reasonable steps to make the property accessible to people with disabilities on the basis of cost, unless

the cost would result in undue hardship to the corporation and the owners.

Three considerations are prescribed in the Code to assess whether an accommodation would cause undue hardship. These considerations are: 1. cost; 2. outside sources of funding, if any; and 3. health and safety requirements, if any.

No other considerations, other than those that can be brought into the three standards set out above can be properly considered under Ontario Law. For a business, it would normally have to be shown that the costs of accommodation would risk putting the corporation into bankruptcy. Although a condominium corporation is not a business, it is possible that a similar threshold would be applied to a condominium corporation with respect to its obligation to accommodate in determining whether an accommodation amounts to undue hardship.

Undue hardship is a high standard. The guidelines under the Ontario Human Rights Code contemplate that the undue hardship standard is necessary to ensure equality. In this sense it is reasonable, and accommodation to the point of undue hardship is therefore considered

to be reasonable accommodation. Individual accommodation has also grown in significance as a central principal of human rights law.

Once a prima-facie case of discrimination is found to exist, the legal burden shifts to the person responsible for accommodation to show the discrimination is justifiable. A prima facie case is found to exist if, on first appearance, the evidence leads to the conclusion that there was discrimination. This means that the burden shifts to the condominium corporation if a case of discrimination is found to exist on its face. Therefore, if there is a prima-facie case of discrimination, based on a complaint from a resident in a condominium, the legal burden will shift to the condominium corporation to show that discrimination is justifiable.

Often it is clear whether discrimination has occurred. In others, an assessment must be undertaken. Three broad inquiries to be undertaken have been suggested by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. The inquiries are based on: 1. differential treatment; 2. an enumerated ground under the Code; and

3. discrimination in a substantive sense.

The questions to ask include:

1. Was there substantively differential treatment either because of a distinction, exclusion or preference, or because of a failure to take into account the complainantâ&#x20AC;&#x2122;s already disadvantaged position within Canadian society?

2. Was the differential treatment based on an enumerated ground?

3. Does the different treatment discriminate by imposing a burden upon, or withholding a benefit from an individual? and

4. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

Section 17 of the Code creates an obligation to accommodate individuals specifically under the ground of disability. The defence of undue hardship is only available if it can be shown that the needs of the person cannot be accommodated without undue hardship. With respect to disability, it should be noted that section 17 recognizes that discrimination against persons with dis-

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abilities is not always grounded in negative stereo-types. It can be based on a failure to accommodate actual differences. Various sections of the Code operate to prohibit discrimination that results from requirements, qualifications or factors that may appear neutral but would have an adverse effect on persons with disabilities. Section 17 also emphasizes the need for individualized accommodation because the ground of disability can mean different things depending on the individual and the context.

The practical result is that in most cases of discrimination on the grounds of disability, individualized accommodation will be necessary.

This means that although a corporation may take steps to make a property generally accessible to comply with a request of a specific individual, additional accommodation that is particularized for a specific individual may be necessary in the event of a request, notwithstanding the steps taken previously to make the property more accessible.

In most cases, our advice to clients is to take the necessary reasonable steps to comply with the request of the disabled resident to make the property accessible.

requests from residents. There is rarely any advantage to be gained by attempting to avoid making the property accessible. As well, this avoidance may result in the corporation having to defend its actions at the Human Rights Tribunal.

Every condominium corporation should be taking accessibility into account when carrying out any renovation or refurbishment of the property. Every condominium corporation should be taking accessibility into account when carrying out any renovation or refurbishment of the property. For example, the installation of ramps and/or elevators or other lifts, should

be considered when renovating a lobby, recreation facility, or any common area. The costs to a corporation are inherently greater when steps have to be taken to retrofit an area pursuant to a specific request for accommodation as opposed to having to take proactive steps as part of a major renovation or refurbishment. It is also important to consider that expending funds to make a property accessible can increase the market value of the units. In our view, boards should be proactive on the issue of accessibility both as a cost saving measure and as a market positioning strategy.

Taking into account accessibility when carrying out renovations and refurbishments of common areas in the condominium corporation is rarely considered unless an individual has raised the issue. When corporationâ&#x20AC;&#x2122;s carry out reserve fund studies, we have found that various expenditures are not taken into consideration. These costs include design costs, project management costs, as well as added costs associated with ensuring that the renovation or refurbishment is done in such a way as to provide accessibility to those with disabilities. Many corporations try to

A board of directors could be faced with many different choices to accommodate an individual. Some of those choices may provide full, better, or more appropriate accommodation, however, often that course of action is more costly. The duty to accommodate requires however that the most appropriate accommodation be determined and then undertaken. This obligation again is subject to the defence of undue hardship. Meeting the needs and respecting the dignity of the individual and promoting the best integration and full participation while ensuring confidentiality are factors to be taken into account when determining the most appropriate accommodation. As our population ages, boards of directors will increasingly face these types of

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“Quotable Quote” The issue related to a special assessment for major repairs to an aging building:

“A special assessment for major repairs to an aging building is a little like a slow moving freight train travelling across the Prairies, you can see it coming from miles and miles away, but are usually asleep and suitably surprised by the time it arrives.” Joe Ryan, BA, LL.B. Fine & Deo LLP

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avoid incurring costs to make common areas accessible. This would not be an issue if the costs were incorporated into the initial estimates calculated by the reserve fund study engineers and incorporated into the reserve fund study and plan for the future funding of the reserve fund. Not taking these matters into account at the time that the reserve fund study is being undertaken, is in our view, a mistake.

Boards often try to balance the added cost of making a part of the property fully accessible against the fact that the vast majority of unit owners and/or residents will not benefit from those costs that are to be incurred. The human rights regime in Ontario, however, does not allow a board to choose not to make an area accessible on this basis. The only basis to refuse the request of a disabled individual is on the basis of undue hardship, which unfortunately is a very high standard to meet. Although boards of directors have a fiduciary obligation to the unit owners, and a responsibility to always act in the best

Boards often try to balance the added cost of making a part of the property fully accessible against the fact that the vast majority of unit owners and/or residents will not benefit from those costs that are to be incurred. interests of the unit owners, the board also has an obligation to comply with Ontario Human Rights Legislation. It is not in the best interests of unit owners to try and save money by avoiding making a property accessible. Doing so

can result in the corporation being required, by order of the Human Rights Tribunal, to nevertheless incur the cost in the future and face the possibility of being responsible for the corporation’s and residents’ legal costs.

In summary condominium corporations have a duty to accommodate individuals with disabilities. Condominium corporations must deal effectively, quickly and fairly with claims of discrimination. Corporations should consider developing anti-discrimination policies and procedures to resolve complaints. Dealing promptly with issues of discrimination save time and money. The best defence against a human rights complaint is to be fully informed and aware of the responsibilities and protections under the Code. This can be achieved by condominiums developing disability accommodation policies and procedures and by conducting an accessibility review of the corporation’s property. ■

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Obligations & Liabilities of a Condominium Corporation and its Board of Directors BY MICHAEL H. CLIFTON, MA, LLB, ACCI CLIFTONKOK LEGAL COUNSEL he duties and obligations of condominium corporations and their boards of directors are real and serious legal obligations. Unit owners electing, or seeking to be elected to, a board of directors, may benefit from an understanding of those basic duties and obligations. Recently, we were asked to prepare a brief outline of the same for the general information of unit owners of one of our clients at the time of election of directors. This memorandum is adapted from that document.

This memorandum is not an extensive analysis of condominium or board obligations or the relevant provisions of the Condominium Act, 1998. It sets out the basics that every director and unit owner should understand about the essential duties and liabilities that hang over every condominium corporation. For detailed analysis of particular cases or concerns, the reader should consult legal counsel directly.

Condominium Corporations Condominium corporations are legal entities that are ‘creatures of statute’. As such, they have only those legal objects, rights, duties and powers that are granted to them by their governing statute, which, for condominiums in Ontario, is the Condominium Act, 1998.1 48

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The condominium corporation (as well as every director and unit owner and resident) is required to comply with the Act, and the declaration, by-laws and rules of the corporation (s. 119(1)).

The condominium corporation has a statutory duty to “control, manage and administer the common elements and assets of the corporation” (s. 17(2)). In conjunction with this, the condominium corporation is required to repair all regular common elements of the corporation after damage (s. 89(1)). In addition, subject to the provisions of the declaration of the condominium, the condominium corporation is responsible for maintenance and repair of the common elements and repair after damage of the units (s. 89(1), 90(1) and 91).2

The corporation cannot neglect its duty to care for the property of the condominium without being in breach of its governing law.

Condominium Boards of Directors General The powers, duties and functions of the board of directors (“board”) of a condominium corporation are also set out in and governed by the Condominium Act, 1998.

The board of directors is to manage the affairs of the corporation (s. 27(1)). Accordingly, the duties of the board are to the corporation as a whole and not to the individual unit owners. The board must ensure that the corporation carries out its duties in accordance with its objects that are defined by the Act. The majority of work performed by the board of directors is to be done without necessity of seeking direction from or approval by the unit owners.3

This does not mean that the board is not ultimately accountable to the unit owners (they always have the power of remove and replace the directors, and that statutory right to demand that the board comply with the Condominium Act, 1998, and other governing documents, by court order if necessary), but it does mean that the board is expected to carry out its obligations in an independent and authoritative manner in accordance with applicable law defining the scope and purposes of the same. The board is ultimately responsible for its decisions and should neither fetter nor derogate from its responsibility. Likewise, while in the best condominiums unit owners take active interest in the goings-on and operation of the corporation, they should not seek to micromanage or assume or undermine the authority of the board that is seeking to

carry out its duties in accordance with applicable law.

All business of the corporation is to be conducted through board meetings at which a quorum of the board is present (s. 32(1)). Standard of Care

A corporate director is a “fiduciary”. Fiduciary obligations import requirements to loyal and honest fulfillment of duties and compliance with relevant law.

Pursuant to the Act, each director of a condominium corporation in Ontario must carry out his or her duties in accordance with the statutory standard of care (in addition to applicable principles of common law); namely, to (s. 37(3)): (a) act honestly and in good faith; and (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in compa-

rable circumstances. Conscious failure to take reasonable steps to ensure the corporation carries out its objects and performs its duties in accordance with the Act, would violate such standard of care.

Conflict of Interest

In addition to the foregoing comments, acting in “good faith” means that the intentions, as well as the actions, of board members must be focused on the good of the corporation as a whole and not, for example, on such director’s or another unit owner’s personal issues or interests. In conjunction with this, a director must disclose any material direct or indirect interest he or she has in an actual or proposed contract or transaction of the corporation (s. 40(1)). Subject to limited exceptions, the director having such conflict of interest shall not take part in discussions about nor vote in respect of the contract or transaction, and the director shall not be

counted toward quorum in the meeting at which it is discussed (s. 40(6)).

Where a director complies with these requirements and acted in good faith in respect of the contract or transaction in question, the director will not be responsible to report the amount of his or her profit or gain from the contract or transaction, and the contract or transaction is not voidable solely because of the conflict of interest (s. 40(7)). Also, in certain circumstances, even if a director has not fully complied with the disclosure requirements of the Act, the unit owners may approve a contract or transaction in respect of which a director has a conflict of interest (s. 40(8)). Treatment of Corporation Funds

Unit owners are obligated to pay common expenses, including contributions to the reserve funds of the corporation (s 84(1) and 84(3)). Whoever receives money paid to the

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corporation as contributions to the common expenses, including reserve fund contributions, is trustee of the same and must keep and use such funds strictly for the performance by the corporation of its duties and obligations (s. 115(1)). Improper handling of corporation funds can result in fines to the perpetrators of up to $100,000 for corporations (i.e., property management companies) and up to $25,000 for individuals (i.e., directors) (s. 137(1)).

Use of corporation funds for improper purposes is a violation of the Act. Similarly, the failure to use corporation funds for proper and necessary purposes (i.e., for performance of the duties of the corporation) would also violate the Act, in so far as the same would likely involve neglect of the corporation’s obligations.

Each condominium corporation must have at least two bank accounts in its own name: a general account for operating expenses and a reserve fund (s. 115(2)). The operating funds and reserve funds of the corporation must not be co-mingled (s. 115(4)).

Operating funds are used to fulfill the general obligations of the corporation, including regular maintenance costs. The reserve funds of the corporation must be used only for the “major repair and replacement” of the common elements and assets of the corporation (s. 93(2) and s. 95(1)).

The board does not require the consent of the unit owners to make expenditures out of the reserve fund of the corporation (s. 95(2)).4 The board would require approval from the owners, in the form of a condominium by-law, for any borrowing. This should include a standing by-law that authorizes general borrowing for budgeted expenses (s. 56(1)(d)) and separate by-laws authorizing any specific borrowing that is over and above the expenditures listed in the condominium’s budget (s. 58(3)). There are many other provisions of the Act that detail obligations of the board 50

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relating to finances and financial reporting for the corporation. It may be noted there is no specific obligation in the Act to prepare annual budgets for the corporation, but there are many provisions (such as the aforementioned relating to borrowing by-laws) that do not make sense, or cannot be properly complied with, unless the board prepares an annual budget. Record Keeping and Confidentiality

There are numerous records of the corporation that the board is required to ensure the corporation maintains (s. 55 and others). In addition, the board is often privy to confidential information of the unit owners and residents and the employees of the corporation.

The corporation is subject of the Personal Information Protection and Electronic Documents Act as well as other privacy laws. In addition to complying with other requirements of such legislation, the board must therefore ensure that all personal information collected is stored and treated with significant care and the board must not disclose anything without careful consideration of what is being disclosed, to whom and for what purposes.

Notwithstanding this, in certain circumstances most (but not all) of the records of the corporation are to be accessible to unit owners for examination (s. 55(3)). However, the Act requires that such examination must be for purposes “reasonably related” to the purposes of the Condominium Act, 1998.

Pursuant to section 55(4), unit owners are not entitled to examine any of the following records: (a) records relating to employees of the corporation (other than employment contracts); (b) records relating to actual or pending litigation or insurance investigations involving the corporation; or (c) records relating to specific units and owners (except where the requesting party has a permitted interest in such unit under section 55(5)).

Furthermore, where the corporation has specifically entered into a confidentiality agreement with any party, such agreement should not be breached by disclosure to a unit owner without certainty from legal counsel as to the possible consequences of such disclosure. A board granting access to records contrary to the provisions of the Act would be in breach of its statutory obligations as well as general legal obligations relating to privacy and confidentiality. Liability and Indemnification

Subject to the Condominium Act, 1998 and the by-laws of the condominium corporation, the board is personally liable for its management of the affairs of the corporation. Failure to comply with the Act, governing documents of the corporation and other applicable law,5 could result in significant liabilities for the condominium corporation and/or individual directors. However, pursuant to section 37(3) of the Act, a director shall not be found liable for a breach of his or her duties, if relying in good faith upon:

as a result of which the person is adjudged to be in breach of the duty to act honestly and in good faith. 1 All statutory references in this memorandum are to the Condominium Act, 1998 unless otherwise indicated. All references to “the Act” mean the Condominium Act, 1998. 2 The declaration of the corporation may alter these obligations. The obligation to repair the common elements after damage, however, cannot be changed.

3 This is the point most commonly misunderstood by unit owners and which often leads to acrimonious arguments in annual general meetings. Often unit owners want more information and more involvement than is appropriate or required by law. Their demands are often accompanied by unwarranted suspicious and aspersions as to the intentions and ambitions of the board. The obvious solution for such unit owners is simple: stand for election to the board yourselves; be volunteers and helpers, rather than thorns in the sides of board members who, typically, are already giving far more time, energy and concern to the welfare of

the condominium than the measure of gratitude or support they receive from its owners and residents.

4 The use of the reserve fund without unit owner approval is consistent with the express duty of the condominium corporation for “repair after damage” of the common elements and assets of the corporation (s. 89(1)). In short, the board has no option, pursuant to its statutory obligations and those of the condominium corporation, to carry out the repairs for which the reserve fund is kept, and therefore does not require further approval for the use of such fund. This is another sometimes “sticky” point for many unit owners. The reserve fund is obviously an important component of their investment in the property, and many owners like to be certain about its use. While there is nothing wrong with this intention, it is nevertheless not a requirement for the board to get unit owner approval for appropriate expenditures from the reserve fund, nor can unit owners’ express approval justify any improper use of such funds. 5 Which includes diligently fulfilling the sometimes uncomfortable duty of requiring the same compliance by unit owners and residents of the condominium. ■

(a) the financial statements of the corporation’s auditor (or certain other persons), or

(b) “the report or opinion of a lawyer, public accountant, engineer, appraiser or other person whose profession lends credibility to the report or opinion”.

In addition, the corporation must purchase and maintain directors and officers liability insurance if it is reasonably available (s. 39).

Further, the by-laws of a condominium corporation may provide for the indemnification of a director for liabilities arising as a result of carrying out the duties of the board or corporation (s. 38(1)); however, note that pursuant to section 38(2):

No director or officer of a corporation shall be indemnified by the corporation in respect of any liability, costs, charges or expenses that the person sustains or incurs in or about an action, suit or other proceeding

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Summer 2009

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Member News

CCI Toronto Welcomes Its 1000th Member! BY JULIAN MCNABB, SIMERRA PROPERTY MANAGEMENT some experiences from the 1000th member, a relatively new corporation in Toronto.

he Canadian Condominium Institute was formed in 1982 as an independent, non-profit organization to encourage and promote a strong condominium marketplace in Canada. The CCI Toronto Chapter is the largest of the fifteen CCI Chapters, representing over 100,000 condominium units within the GTA. CCI members consist mostly of condominium corporations but also include individual unit owner, trades and professionals.

Since the inception of the CCI Toronto Chapter in 1989, the number of members has grown to over 1000. In recognition of this CCI Toronto chapter achievement, I thought I would relay 52

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Summer 2009

Encore Condos at the Met, TSCC 1979, is located in the heart of downtown Toronto at 25 Carlton Street. It is a unique building in that it houses both high-rise condominium units as well as two types of townhouses which are made up of multi-story condominium units and Granby Street Maisonettes that include a Granby Street address, all in one complex. Residents of Encore are made up of young professionals who take advantage of the location and it’s proximity to downtown Toronto, and students who attend both Ryerson and Toronto Universities. Located a half a block from Yonge and Carlton Streets, and a ‘stone’s throw’ from College subway station, make Encore a very desirable location in which to live.

Like any new condominium in Toronto that has recently been registered and turned over to the owners to form an elected Board of Directors, Encore has faced its fair share of learning curves. The three Directors that were elected were essentially thrown into the deepend and quickly realized that they had a lot of questions, as most new Directors do.

Upon recommendation from Property Management, it was suggested the new Directors enroll in upcoming CCI Toronto Chapter educational courses.

Robert Iseman, President TSCC 1979 says, “Being elected to the Board of

Directors by my condominium community was quite an honour and I certainly hope to perform to the best of my ability. As a new Director, I knew that the learning curve would be steep and that I had to accelerate from zero to 100 in nothing flat.”

“The recommendation from our Property Manager was to enroll in the CCI Condo Level 200 course, which lasted 5 weeks, and, incidentally, started only 2 days after I was elected. Not having much time to research the course, I wasn’t sure exactly what to expect, but after the first class, I was on fire with excitement.”

“For the most part, the classroom contained other Directors (to my relief both novice and experienced) with a few real estate professionals and property managers in the mix. The information shared was up-to-date and the instructors provided a relevant overview of the condominium industry. Over the first couple of weeks, I found that the instructors provided a valuable introduction to Directors’ roles and responsibilities, by-laws and declarations, and a solid introduction to the inner workings of condominium corporations.”

“I was able to put my new knowledge to work right away: shortly after my appointment, I was approached or contacted by several of the owners & residents, and, happily, I was able to provide well-informed direction for each of the issues raised.”

“There is so much information related

to condominiums, and I’m not sure that I’ll ever know it all, but I’m committed to continuous learning. I am also happy to serve as an integral component of my community, and to contribute to the welfare of my fellow condo owners and residents. Thanks to the CCI Condo Level 200 course, I feel better prepared to work towards creating a successful condominium community.”

Brendan Murphy, Treasurer, TSCC 1979 writes, “Being an Assistant Facility Manager in the commercial property management field, I have a unique appreciation for the work that is involved with maintaining a facility and keeping its occupants happy. In my position, I represent CBC Real Estate (my client) and manage the building according to the mandates they set out for me.”

“CCI has helped me understand I am (in a sense) now in the “client” role and that I have a different set of responsibilities. The course I took back in April

provided me with invaluable information on the condo corporation structure and my role within it. The speakers were all very informative and at times, even entertaining. (An achievement when the material itself can be somewhat dry).”

Says, manager Julian McNabb; “Having attended the Condo 201 course myself, it was terrific to see the large turnout of Directors and residents from a variety of different condominiums from Mississauga, Scarborough, North York, Etobicoke and of course Toronto. Condo 201 is a 3 hour course designed to cover Governance and the roles of the Board/Management in a Corporation, the Financial aspects of a Condominium Corporation and the financial responsibility of the Board, and finally the Board Meetings themselves and some helpful information and suggestions. Each participant who attended the course was provided with a useful binder with notes from the course, which they could take back to their Condominium Corporation

as well as a copy of Gerry Hyman’s Condominium Handbook. At the end of each of the three topics, each speaker was able to take questions, which provided useful clarification and site-specific answers. I can see that CCI is a much-needed resource in the Toronto condominium community as a source of answers or direction on where to get answers.” Anyone interested in attending any of CCI Toronto’s courses, are advised to register early to avoid disappointment. For more information, please contact CCI Toronto at 416-491-6216. Certainly the Board from CCI Toronto’s 1000th member has benefited so far from the resources and education that has be made available to them, and hopefully other Condominiums looking to take advantage of the vast amount of information available from CCI, will also be able to add value to their respective boards and condominiums too. ■

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In Memoriam

Mark Freedman, LL.B, ACCI, FCCI Our thanks to Stephen Karr, Harris, Sheaffer LLP for preparing this tribute became one of the primary “go to” condominium lawyers in the City of Toronto. He caught the eye of “The Condominium Magazine” in its February, 1984 edition, where it profiled Mark as “fast, rising, smart and ambitious. A lawyer to watch for.” Four years later, the same magazine named Mark Freedman its “Condominium Man of the Year”, calling him “one of this country’s top

he Canadian Condominium Institute has lost a great friend and the condominium community at large has lost an industry giant, a pillar, an icon, with the tragic and untimely passing of Mark Freedman, a prominent Toronto condominium lawyer on May 9, 2009, from NonHodgkin’s Lymphoma. He was 55 years old.

Mark was one of those rare and special individuals who was not only a brilliant lawyer but a dear friend, a warm and caring individual and a true inspiration. To everyone who knew him, worked with him, admired and respected him, he was an individual who embodied decency, integrity, leadership and professionalism. Mark lived each day to its fullest, devoted to his clients, to his partners and colleagues and to CCI. He gave generously of his time to CCI and his impact with this organization continues to be felt to this day.

Mark Freedman was a founding mem-

Continued…

ber of CCI and served on its national board of directors from 1986 to 1997. He also served first as President and then as Chairman of the CCI National Board of Directors from 1993 to 1997 and received the FCCI designation in 1998.

Freedman began his legal career at Macauley, Lipson, moving to Gordon, Traub & Rotenberg in 1982, where he established himself as a leading expert in condominium matters and quickly

It is my privilege to pay tribute to Mark Freedman. I am honoured to have known him for the past 25 years. Mark was the consummate professional and the ultimate gentleman. He was brilliant, creative and caring. He was my teacher, my mentor, my friend. He was a pillar of strength for the condominium concept.

Among Mark’s greatest gifts were his engaging smile, his calm demeanour, his innate ability to foster simple resolutions to complex conundrums and the time that he always generated in his busy life for everyone who required his wise counsel.

On behalf of my colleagues at DEL and throughout the condominium property management profession, I wish to express our sincere and heartfelt condolences to Mark’s dear wife Judy. We share your loss and we will all miss Mark deeply and dearly. Saul York President & CEO DEL Property Management

Mark Freedman was one of the brightest and most innovative condominium lawyers in Canada. For over 20 years, I had the pleasure of working with Mark on new condominium developments, sitting across the table from Mark when we were on opposite sides representing our respective clients in resolving building deficiency issues and working together in volunteer organizations like the Canadian Condominium Institute (CCI). In all instances, Mark was the consummate professional, focused on the job at hand and getting things done.

During his tenure as CCI National President, Mark was the first to suggest and implement the annual Spring Meeting for CCI at one of its chapter locations. This helped to solidify CCI as a true national organization. Mark was a tremendous colleague and friend and I will dearly miss him.

Peter Leong, P.Eng. Manager, Building Sciences, Genivar

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Those who knew Mark found in him a man who was measured and persistent, passionate yet progressive. He loved his work, but not as much as he loved his wife, Judy. I was privileged that he considered me a friend. Don Kramer

Mark and I were good friends for the past 30 years, but we became especially close during the year we coauthored the book on the new condominium act published by the Law Society, and throughout the years thereafter. Mark was a great lawyer and a well-respected colleague and mentor, and an even better human being, who always helped others, and constantly contributed to worthy causes on behalf of those less fortunate. What distinguished Mark from others was his caring nature, combined with a tremendous positive attitude and “can do” approach that pervaded everything he set out to do. This explains, in large measure, why he was so successful and accomplished in life, both in the realm of law and business, and in the development of great personal relationships with others. Our friendship never had the “highs” and “lows” endured by most friendships, just only “highs”, because Mark was the most accommodating and genuinely good-natured person that I knew... always respectful of others, and exceedingly loyal. I feel truly blessed to have been Mark’s friend, and I, along with countless others who had the good fortune of knowing Mark, are most-assuredly the better for it. Words really can’t express just how much Mark will be missed by his friends and family, and by the condominium community at large that he was so proud to serve, but I assure you that Mark will never ever be forgotten!

Harry Herskowitz Delzotto Zorzi

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Mark Freedman was one of CCI’s great gentlemen. He validated how CCI enables us to develop professional relationships and friends across the country. Although we often reconnected only annually, Mark was always warm and encouraging. I, along with others, will miss his smile and his involvement in the condominium world. Deborah Howes, FCCI Past President CCI

condominium lawyers, an innovative thinker, who, time and time again, has proved to be one step ahead of the industry”.

In 1992, Mark Freedman was instrumental in founding the law firm of Harris, Sheaffer. Over time, Mark, together with his partners and staff, helped establish Harris, Sheaffer as one of the leading law firms specializing in condominium development and condominium law.

Mark had numerous legal achievements. He was certified as a specialist in real estate law by the Law Society of Upper Canada and was qualified as an expert witness in the area of condominium law in proceedings before the Ontario courts. He was qualified as an arbitrator and mediator and was involved in the registration of over 500 Condominium Corporations. He, with others, contributed greatly to the legislative process amending the Condo-

minium Act. Mark co-wrote with his friend and colleague, Harry Herskowitz, the seminal textbook on the Condominium Act, in Ontario, entitled Condominiums in Ontario – A Practical Analysis of the New Legislation. He wrote numerous articles, presented papers and lectured extensively for the Law Society of Upper Canada, the Canadian Bar Association and was also a well known speaker and panellist at numerous CCI /ACMO conferences, including chairing numerous case law sessions on Saturday mornings with equal doses of humour and gems of legal knowledge. He was a great teacher and mentor to countless lawyers and other professionals who would call him seeking his sage advice on their condominium issues, which he would always deliver that advice professionally and without hesitation. His endeavours were not limited solely to professional pursuits. Mark suf-

Mark was a wonderful person whose knowledge of the Condominium Act, Ontario Home Warranty Plan Act and the condominium industry as a whole was immense which combined with his ability to clearly and fairly present an issue made him a popular and busy lawyer.

Despite poor health, he had an abundance of energy which flowed over into his volunteer work with the condominium industry. Mark co-authored a definitive book on the condominium law, which is widely utilized in the industry. His enthusiasm for the aims and objectives of CCI in the early years, helped CCI to become the great and relevant institution it is today.

It was clear to all who knew him that Mark believed in what he did. He defended those beliefs passionately and would fight vigorously for them.

Mark was truly a “great guy”. He will be missed by the condominium industry, the legal profession and by countless other people whose lives he touched. Gina Cody Construction Control Inc.

fered from Gaucher Disease, a rare and devastating genetic disease that affects 1 in 60,000 people worldwide. Gaucher Disease, caused by an enzyme deficiency, affects the blood system and bones. Excruciating pain is a common complication. When Mark realized that there were no resource centres or organizations for Canadian Gaucher patients, he created one and established the National Gaucher Foundation for Canada and became a leading advocate for Gaucher patients. Mark was instrumental in successfully lobbying various levels of government for approval of enzyme replacement therapy, a very effective, but expensive treatment for Gaucher Disease, which can stop the progression of the disease thereby significantly improving the quality of life for all patients. He also successfully lobbied the government to fund the drug so that patients could obtain this prohibitively expensive life saving treatment. Mark also continuously lob-

bied other provincial governments for funding of other lesser known diseases.

Freedman was to be honoured in late May, by the Ontario Bar Association where he was to receive an “Award of Excellence in Real Estate” for his enormous contribution in serving the legal community.

Mark is survived by his beloved wife Judy, and by his parents, brothers, sister-in-laws, nephews and nieces.

All of us in the condominium community and the CCI family are diminished by his tragic departure, but his legacy will be enduring. He was certainly one of the leading lights in the condominium industry and has left a lasting imprint on many people who had the privilege of knowing him. He will be remembered fondly.

Mark Freedman was on the National Board of Directors of CCI in my early days as a National Director and I remember him with fondness. He was warm and gracious in welcoming me as a newcomer to the National Board, and very soon thereafter, to the Executive, and he was a great help to me. Mark never failed to apply his calm reason and formidable intellect to the CCI issues of the day and his retirement from the Board left a gap that was difficult to fill. He will be missed. Rob Giesbrecht Pitblado LLP

❧ ❧ ❧

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Summer 2009

New Members

CCI Toronto Welcomes the Following New Members Corporate Members

DSCC # 0224 MTCC # 0585 MTCC # 0788 MTCC # 1121 PCC # 0197 PSCC # 0843 PSCC # 0850 TSCC # 1442 TSCC # 1708 TSCC # 1802 TSCC # 1963 TSCC # 1976 TSCC # 1980 TSCC # 1989 TSCC # 1990 TSCC # 1997 YRSCC # 1133 YRSCC # 1138 YRSCC #1144

Individual Members J. Osborne R. Aiken

New Trade Members

Professional Members

Graham Linton Interior Care Ltd.

Bob Aykler Aykler Real Estate Inc.

Dante A. Capannelli Capannelli Law Professional Corporation Elizabeth Ruby Cityzen Property Management Inc.

Michael Gwynne Miller Thomson LLP

Sandro Velocci At Your Service Janitorial Professionals Inc.

Dianne Neaimi JDM Plumbing Services, A Division of 1773983 ON Inc. Anthony Romanin Lidio Romanin Construction Company Limited (LAR)

Dennis Luciani Overhead Door Company of Toronto

Paul Leal PLC

Andrea Shewchuk Regal Security Inc.

Lawrence Vrbanek Royal Locksmith &Security Hardware Inc.

Vilma Garriga Sure Green Landscaping & Snow Removal Inc. Vic Arambamoorthy Vic's Plumbing & Heating Co. Ltd.

Summer 2009

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Summer 2009

Upcoming Events

Mark Your Calendars Condo 101 Course Dates & Times:

Saturday, September 17th, 2009 from 7:00 pm to 10:00 pm, or Saturday, January 16th, 2010 from 9:00 am to 12:00 pm, or Thursday, June 3rd, 2010 from 7:00 pm to 10:00 pm

Location:

Novotel North York Hotel

Cost:

$60 for CCI Members and $95 for Non Members

This half-day seminar will focus on the topics that every Director should be aware of and will provide participants with a basic knowledge of the condominium Act. The course is an excellent means to find out what you need to know to be effective as a condominium owner or director. The information presented will be of interest to those purchasing a condominium or to those who want to know what a condominium is and what it means to live in one.

Level 200 Course Dates & Times:

Tuesday, September 30th, October 7th, 14th and 21st from 7:00 pm to 10:00 pm or, Saturday, February 20th and 27th from 10:00 am to 4:00 pm

Location:

Novotel North York Hotel

Cost:

$300 for CCI Members and $400 for Non Members

This informative four night or two day course is a must attend for all new Directors or Condominium Residents who want a better understanding of the way Condominiums function and should operate. Topics covered include: The Directors' Role, Insurance, Property Management, Budgets and Finance, Reserve Funds, Physical Building Management and Effective Meetings.

Level 201 Course Dates & Times:

Saturday, November 21st, 2009 from 9:00 am to 12:00 pm, or Saturday, April 10th, 2010 from 9:00 am to 12:00 pm, or

Location:

Novotel North York Hotel

Cost:

$75 for CCI Members and $125 for Non Members

This half-day course will teach Directors all they need to know about proper Governance and how to ensure a well functioning Board. The course will also provide valuable information on how to run effective condominium meetings. Topics covered will include: Board Confidentiality, Conflict of Interest, Notice of Meetings, Proxies, Nominations and Elections, Role of the Board and Management, By-laws and Rules, Directors Code of Ethics and more!

Level 300 Course Dates & Times:

Tuesday, May 4th, 11th, 18th and 25th, 2010 from 7:00 pm to 10:00 pm

Location:

Novotel North York Hotel

Cost:

$75 for CCI Members and $125 for Non Members

Designed for the dedicated condominium director, the CCI Level 300 course will run for four consecutive Tuesday evenings from 7:00 p.m. to 10:00 p.m. beginning May 4th, 2010 through May 25th, 2010. Upon completion of the course, participants should understand all aspects of reserve funds, major repairs and replacement, financial management, common problems and solutions, legal responsibilities… and in the last session, learn about mediation/arbitration and the new enforcement remedies available under the Condominium Act, 1998.

13th Annual CCI/ACMO Condominium Conference: Building Better Communities – From the Foundation Up Dates: Times: Location:

Cost:

Friday November 6th and Saturday November 7th, 2009 8:00 to 6:00 on November 6th and 8:00 to 3:00 on November 7th Hilton Markham Suites Hotel and Conference Center – 8500 Warden Ave. Early Bird rate for members registering before Sept 30th is $ 275. Non-member fee is $400.

This popular two day conference and trade show designed for condominium managers, directors, owners and others interested in ‘everything condominium’ will focus this year on ‘From the Foundation Up”. The spectacular line up of speakers and topics to be covered this year are sure to offer information and solutions to managers and directors alike. Session topics this year will include: Keep the Cash Flowing, Holistic Branding, Aging In Place, Condo Rapid Fire, The ABC’s of Tarion, Working with Challenging People, Insurance is NOT Boring, Protecting Your Assets, Motivating the Unmotivated, Aging Buildings and Condo Governance. Sponsorship and exhibit opportunities are still available – visit www.condoconference.ca for full conference details.

PM Expo Date: Location:

December 2nd – 4th, 2009 Metro Toronto Convention Centre – South Building

CCI-Toronto is proud to present an educational session to be presented at this year’s PM Expo show. Check the PM Expo website at www.pmexpo.com for further details as they become available.

To register for these CCI Toronto courses and/or to obtain further information, please visit the website at www.ccitoronto.org or call the office at (416) 491-6216.

Summer 2009

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Member News

CCI National Semi-Annual Meetings 2009 BY BIL THOMPSON, MALVERN CONDOMINIUM MANAGEMENT n May 21 and May 22, 2009, the National Board of the Canadian Condominium Institute held its semi annual meeting in Hamilton, Ontario. The meetings and activities were graciously and professionally hosted by the Golden Horseshoe Chapter. The Golden Horseshoe Chapter also held a conference, aptly named “Condos Are For People” on Saturday May 23rd. The meetings were held in the Hamilton Sheraton Hotel. The conference was directly across the street in the Hamilton Convention Centre. Both facilities were well prepared to handle the needs of CCI. Many chapter Board members attended this National event in addition to the National Directors. Their invaluable perspectives were welcomed in all of the sessions and helped to create the atmosphere of cooperation and understanding that was prevalent throughout the event.

and clear direction for moving forward on the new structure of the National Council and Executive Council which will replace the existing Board of Directors at the fall annual general meeting. Discussion ensued regarding the best methods of transition and continuity, together with the respective roles of the Councils. Each chapter will now be required to pass a rule regarding the election or appointment of a representative to the National Council, which will have to be completed by no later than September 2009. It is certainly an exciting time in the history of the Canadian Condominium Institute. It appears that CCI has grown out of its infancy and is now a challenging teenager, with all that that entails. Thank you to Rob Giesbrecht and John Peart for leading the session.

The National Board met at 8:00 a.m. on May 21st to update the Board on the progress of each of the committees and get some valuable feedback from the members who represent each chapter across Canada. The clear focus of the meeting was on the future. Great discussion and direction was carried out on topics like membership, education, and chapter training. A task force was struck to investigate the ACCI designation and membership barriers to report back to the Executive Board.

By far, the focus of the day was to get a better understanding

CCI National and Toronto Directors attend a dinner at the Heritage War Planes Museum in Hamilton. Left to Right: John Warren, Armand Conant, Jackie Conant, Denise Lash, Janice Pynn, Jeff Moses and Beatrice Warren.

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Summer 2009

The Condos are for People conference featured a line up of terrific speakers. Left to right: MPP Sophia Aggelonitis at podium, seated: Kim Coulter, Ray Wilson, Armand Conant, Janice Pynn, Gina Cody, John Warren and Pat Cassidy.

All afternoon was spent in committee meetings. Every committee met and some very lively discussions and decisions were made to help move CCI into the future. It should be remembered that most of the decisions of CCI are actually planted, grown and harvested at the committee level. The new Executive Council will be charged with the responsibility to give those committees mandates and direction and review their progress on a regular basis. I guess you could say that they want to make sure we aren’t planting corn, when we really need tomatoes! The new structure of CCI should be more successful at achieving that. On Friday May 22nd, a Chapter Clinic was held. The focus was on being an effective Board for a Not-for-profit organi-

zation. Although it would appear that this would be a topic that most of our condo professionals would be well versed in, there are aspects that are not always considered. Jamie Bleay, Ron Danks and Deborah Howes did an excellent job of making us all sit back and rethink our approach and reevaluate our responsibilities. We thank them for telling us all about what we already knew, yet tend to forget. The entire audience left with a renewed focus on the goals of CCI and the responsibilities of its Directors. Saturday May 23rd was a day of great activity which was

Dinner at the Cave Springs Cellar was a highlight of the week! Seated are l to r: Don Peter, Denise Lash and Lisa Kay Standing l to r are: Helen Neville, Bob Girard, Armand Conant, Jackie Conant and Jon Juffs.

hosted and organized by the Golden Horseshoe Chapter. There were many hours of concurrent sessions featuring more than forty speakers from across Canada. There was a trade show that ran all day. The sell out crowd was treated to lunch, coffee breaks and even a close out wine and cheese reception. Thank you to all for the hard work put out by all of the volunteers to make the National event and the Conference and Trade Show a great success. It is this volunteer effort that helps to make a better living environment for millions of Condominium and Strata owners across the country. ■

The “Condos are for People” tradeshow was another highlight of the week.

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www.ccitoronto.org 64

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CLASSIFIED

List of Advertisers A.R. Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 ACMO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Adams & Miles LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Atrens Counsel Insurance Brokers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Atrens Management Group Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Ben Engineering Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Brady & Seidner Associates Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Brokers Trust Insurance Group Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Brookfield Residential Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Brown & Beattie Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Carma Industries Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Certified Clean Air Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63 Chubb Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Condominium Living Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Construction Control Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Coulter Building Consultants Ltd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 CPL Condominium Design Interiors . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 CPL Connoisseur Painting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Criterium Jansen Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 D-Tech (Nexus) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Davroc Consulting Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 Donna Swanson Real Estate Brokerage . . . . . . . . . . . . . . . . . . . . . . . . . .35 Dryerfighters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Enbridge Electric Connections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Enerplan Building Consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Enhanced Management Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Esquire Management Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Fine & Deo Barristers & Solicitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Firenza Plumbing & Heating Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Fogler, Rubinoff LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Four Season Duct Cleaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 G4S Security Services Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Galaxy Fire Protection Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Gardiner Miller Arnold LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Genivar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Gerald R. Genge Building Consultants Inc. . . . . . . . . . . . . . . . . . . . . . . . .66 GSA Property Mana gement Specialists Inc. . . . . . . . . . . . . . . . . . . . . . .34 Gulesserian Associates Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Heenan Blaikie LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Horlick Levitt Barristers & Solicitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 ICC Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 J. Edick & Sons Landscape Contractors Ltd. . . . . . . . . . . . . . . . . . . . . . . .64 J.J. Molnar Realty Advisors Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 LAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Larlyn Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 M & E Consulting Engineers Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Maple Ridge Community Management Ltd. . . . . . . . . . . . . . . . . . . . . . . .25 Mareka Property Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Markham Garage Doors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Maxium Condo Finance Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Metro Group of Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Miller Thomson LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Morrison Hershfield . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Nadlan-Harris Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Ontario Screen Systems Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Professional Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Pro-House Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Provident Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Rainbow International . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Rikos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Rogers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 Royal Grande Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . .6 Samuel Property Management Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 ScotiaMcLeod . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Simerra Property Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 SR Wise Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Stratacon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Summa Property Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Suncorp Valuations Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Training Wheel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Trustlink Property Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Vertical Network Solutions Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Waste Solutions Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Whiterose Janitorial Service Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Wilson Blanchard Management Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 YARDI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

thecondovoice

Summer 2009