Condo November 2020

PM#40063056

Canada’s Most Widely Read Condominium Magazine

+

November 2020 • Vol. 35 #5

CANADA'S CONDO INSURANCE CRISIS Strategies for boards and managers

PA R T O F T H E

GOVERNANCE Hybrid meetings, impacts of CAT expansion, and Toronto’s condo of the year

P A R T

O F

T H E

5

Contents FOCUS ON: GOVERNANCE

DEPARTMENTS

30

Legal Chargebacks and Lessons Learned in 2020

By Sonja Hodis

Preventing Conflict Escalation

By Marc Bhalla

34

What the New Construction Act Means for Condos

By Gerard Gransaull

Inside One Condo Board’s COVID-19 Response

By Rebecca Melnyk

36

Design The Bright Idea Behind Bulbs

By Kent Ford

12

The Ins and Outs of Hybrid Meetings

By Ben Zelikovitz

22 24

FEATURE

IN EVERY ISSUE

17

6

Editor's Letter

8

Ask the Expert

38

New & Notable

Canada’s Condo Insurance Crisis

By Rebecca Melnyk

Our Business is to Make Yours Shine!

Whiterose is an Industry Leader with a long list of condos in the downtown and surrounding areas Whiterose Janitorial Services Ltd. believes in servicing its customers with professionalism, communication and appreciation. The Key to our success is service, quality and value. We clean beyond the surface!

Quality management begins behind the scenes prior to commencing a job all employees are evaluated and or training to the whiterose standard given special attention to health and safety policies.

Whiterose Janitorial Services is a full service company and a member of ACMO and CCI. Specializing in cleaning and live in & live out Superintendents for the past 30 years.

Spectrum of Cleaning Services: • Facility assessment • House keeping and general cleaning services • Customized cleaning service plan • Customized cleaning schedules • Window cleaning (Exterior high rise) • Garage cleaning • Marble restoration & Polishing • Carpet cleaning

Visit our website or call us today for your no-obligation quote!

WhiteroseJanitorial.com 1-877-253-3648 / 416-850-9676

Spectrum of Superintendent Services: • Building audit • Check Hvac • Perform generator tests • Cooling towers • Chillers • Compressors • Sprinkler system • Fire pump • Hot water tanks • Booster pump • On call 24/7 for emergencies

COMMITTED TO EXCELLENCE SINCE 1986

EDITOR’S LETTER

Weathering A Condo Insurance Crisis Condo insurance has

been a hot topic this year, with increasing premiums and declining capacity and the effects of a hard market trickling into condominium corporations across Canada.

A recent panel talk at the CAI Canada conference brought together industry members across the country to share their unique views and constructive feedback. In Ontario, numerous unit owner-driven claims coupled with workmanship claims are just two impacts. In Alberta, weather patterns figure prominently into the insurance landscape.

Calgary recently experienced a hailstorm in June that now ranks as the fourth largest claim in Canadian history at $1.2 billion. In B.C., Philip Dougan of Citadel Law Corporation, one of the experts quoted in this month’s cover story, says one impact is that stratas are not following through with mandatory repairs. Out of more than 30,000 corporations in the province, many are opting out of doing depreciation reports (reserve funds studies in Ontario), which are not being enforced. Additionally, he knows of one condo over 50 units that saw its insurance premium increase from $40,000 to $102,000 this year for exactly the same coverage.

More information on this pressing topic, including potential solutions, can be found on page 17.

Our governance issue also presents articles from knowledgeable contributors on a wide range of topics. The Condominium Authority Tribunal can now exclusively handle more types of disputes.

How will this impact boards and managers? Find out in our Ask the Expert column on page 8. Other pieces advise on chargebacks, hybrid meetings, preventing conflict escalation and landscaping with fall-planted bulbs for early spring colour. Another article explains what the new Construction Act means for condos; additional rules regarding prompt payment and the adjudication process came into effect last year.

Lastly, we interviewed the condo board at Palace Pier in Toronto. CCI Toronto and Area Chapter recently named the 46-floor tower as Condominium of the Year for its response to COVID-19.

As always, we hope you enjoy the issue and warmly welcome your feedback.

Associate Publisher Bryan Chong Editor Rebecca Melnyk Advertising Sales Bryan Chong Kelly Nicholls Blair Wilson Senior Designer Annette Carlucci Production Manager Rachel Selbie Contributing Writers Marc Bhalla, Kent Ford, Gerard Gransaull, Sonja Hodis, Victor Yee, Ben Zelikovitz Digital Media Director Steven Chester Subscription Rates Canada: 1 year, $60*; 2 years, $110* Single Copy Sales: Canada: $10*.

Elsewhere: $12 USA: $85 International: $110 *Plus applicable taxes Reprints: Requests for permission to reprint any portion of this magazine should be sent to info@mediaedge.ca.

Circulation Department Rob Osiecki circulation@mediaedge.ca (416) 512-8186 ext. 234 CONDOBUSINESS is published six times a year by

President Kevin Brown Director & Group Publisher Sean Foley Accounting Anna Kantor 2001 Sheppard Avenue East Suite 500 | Toronto, Ontario M2J 4Z8 (416) 512-8186 Fax: (416) 512-8344 e-mail: info@mediaedge.ca CONDOBUSINESS welcomes letters but accepts no responsibility for unsolicited manuscripts or photographs.

Canadian Publications Mail Product Sales Agreement No. 40063056 ISSN 0849-6714 All contents copyright MediaEdge Communications Inc. Printed in Canada on recycled paper.

Rebecca Melnyk Editor, CondoBusiness rebeccam@mediaedge.ca

/condomediaedge JTB_Condo_May_2020_FINAL.pdf

1

2020-06-16

12:16 PM

/condobusiness /condomediaedge

WORKING TOGETHER MAKING A DIFFERENCE Residential: high-rise/low-rise Residential: townhomes Commercial/Industrial ACMO 2000 Certified Company

Tel: 416-663-2220 | 905-832-2220 www.jtbgroup.ca | info@jtbgroup.ca PROUDLY SERVING CONDOMINIUM CORPORATIONS SINCE 2007

The CAT Expands The Condominium Authority Tribunal was set up by Ontario’s previous provincial government to provide a cheaper, faster alternative to taking common condo disputes to court. More recently, the government has expanded the CAT to exclusively handle more types of disputes. Condo Lawyer Victor Yee addresses the question: How does the expansion of the CAT impact condo boards and managers?

On October 1st 2020, the Condominium Authority Tribunal of Ontario (the CAT ) expanded its jurisdiction to include disputes about pets, vehicles, parking, and storage (“PVPS”) issues, including whether a condominium can charge back a unit owner for such PVPS issues. Previously, the CAT could

8 CONDOBUSINESS | Part of the REMI Network

only hear disputes regarding condominium records requests and record-keeping.

This expansion of the CAT’s jurisdiction into PVPS issues should be noted by condominium corporation boards and managers alike, since this will drastically af fect how a

ASK THE EXPERT

condominium should consider enforcing against P V P S issues post- October 1st 2020.

C o n d o m i n i u m s a re n ow n o l o n g e r permitted to enforce against PVPS issues in the Ontario Superior Court of Justice – all PVPS enforcement disputes must b e b rou g ht to the o nline C AT p o r t al instead, whether by the condominium corporation tr ying to enforce against a unit owner (e.g. a unit owner who allows his pet to defecate all over the common elements) or by a unit owner against their condominium cor p oration (e.g. a unit owner who wants to park his Sea-Doo in a parking space but the condo’s rules do not permit him to do so).

To date, the CAT has only very rarely award e d le g al c ost s to a su c c es sful party; Rule 4 6.1 of the CAT’s Rules of Practice explicitly stipulates that legal costs are not to be awarded “unless there are exceptional reasons”. This is vastly different from the “usual” rules for cost recovery in the Superior Court; the Superior Court has repeatedly held that legal costs should normally be awarded to the successful litigant, and has even held that in condominium litigation, the other “innocent” owners of a non-profit condominium corporation should not be forced to bear the legal costs of having to enforce against a violating unit owner.

Yet at the CAT, even if a condominium corporation is successful in its defence against a unit owner’s improper request for records, the CAT has refused to award the condominium with any of its legal costs. The CAT has also refused to award legal costs for a unit owner who was successful in the CAT Stage 3 Adjudication and proved that they were entitled to the condominium’s records after all.

S o now, c ond ominiums must think ver y carefully about the pros/cons and risks / benefits to enforcing against a P V P S v io l ation. C h arg in g b a ck the c o n d o m i n i u m’s $ 4 0 c l e a n u p fe e fo r cleaning up the owner’s pet defecation may ultimately result in the condominium having to spend many times that amount of money in legal fees, defending itself against a CAT Application that the unit owner brings to the online tribunal.

Many condominium boards and m a n a g e r s m ay u l t i m a te l y c h o o s e to simply refrain from enforcing against any

1

PVPS issues whatsoever, due to the costly risks involved. Without proper e nfo rc e m e nt of t h e c o m m u n i t y ’s declaration, rules, and bylaws though, “chaos will result” as the Superior Court once put it.

However, there are three exceptions listed under Section 1(3) of O. Reg. 179/17 (the “CAT Regulation”) made under the Condominium Act, 19 9 8, S.O. 1998, c. 19 (the “Act”). Namely:

If the P V P S dispute involves a Section 9 8 Agreement (i.e. a w r it ten a g reement re g ard ing an owner’s modification of the common elements), the dispute would still go to private mediation/arbitration under Section 132 of the Act.

2

If the P V P S dispute involves an Ele c tr ic Vehic le Ch arg ing System A g re ement ( i.e. a w r it ten

CONSULTING ENGINEERS

MODERN IDEAS PROFESSIONAL SOLUTIONS Mechanical Electrical

Energy Audits

LEED

Services

- Boiler Replacement Design - Domestic Piping - Chiller Design - Emergency Generator Design - Fire Protection Upgrade & Design

- Maintenance Scheduling - Capital Planning Report / RFS - Building Audits - Project Mangement - Power & Lighting Design

416.250.7222 1700 Langstaff Rd. Ste 2002 www.me-eng.com info@me-eng.com Vaughan, Ontario L4K 3S3 www.REMInetwork.com | November 2020 9

ASK THE EXPERT

agreement under Section 24.6 of the General Regulation to the Act ), the dispute would still go to private mediation /ar bitration under S ec tion 24.7 of the General Regulation.

3

If the P V P S dispute involves S e c t i o n 117 of t h e A c t , t h e

dispute would still go to the Ontario Superior Court of Justice under Section 134 of the Act. This third exception will likely become very important to condominiums, as they try to look for an “escape hatch” that will allow the PVPS enforcement dispute to stay outside of the CAT’s jurisdiction

(where legal costs are very unlikely to be awarded) and remain in the Superior Court instead (where there’s the possibility of 100 per cent legal costs being awarded to the condominium).

For example, if a unit owner has a b a r k i n g p et d o g t h a t i s c a u s i n g a nuisance to others which is in v i o l a t i o n of t h e c o n d o m i n iu m’s declaration, bylaws, or rules, then the condominium will likely have to bring an online A pplic ation to the C AT to enforce against same. However, if that barking dog also poses a likely threat of personal injury to others, like biting individuals on the common elements, then the c ond ominium c ould argue that the PVPS dispute is outside of the CAT’s jurisdiction since Section 117 of the Act is triggered as well.

Of course, all of this could be solved if the CAT decides in a PVPS dispute that the ind emnit y clauses in a condominium’s declaration c an constitute an “exceptional reason” to award legal costs to a condominium corporation who is entirely successful in enforcing ag ainst a unit owner ’s P V P S violation. A ll of this could be proactively solved by the Condominium Authority of Ontario (the CAO), if the C AO’s b o ard of direc tors amend e d the CAT’s restrictive Rules of Practice to state that legal costs should normally be awarded to the successful p ar t y – whether it be a successful condominium corporation or a successful unit owner.

Either way though, something must be done, before condominium communities across Ontario descend into condo “chaos” due to boards and managers refraining from enforcing any of their condominium’s governing documents in PVPS cases. 1 Victor Yee is a condominium lawyer and litigator at Elia Associates, a law firm that specializes in condominium law. Victor has successfully represented clients at all levels of court in Ontario, in vari ous tri bun als throu g hout the province (including the CAT), and in condominium- related mediations and arbitrations. He c an be reached via email at vyee@elia.org.

10 CONDOBUSINESS | Part of the REMI Network

KITEC REPLACEMENT Complete package available including drywall and paint.

◆

◆

Replaced with uponor which provides a 25 year warranty on pipe and remedial damage.

Complete Building Replacement Recirculation Mains Replacement

◆

Distribution Mains

◆

Valve Replacement

◆

Balancing Valve Installation

We Beat Any Written Quote!

24 HOURS

416-789-7611 www.REMInetwork.com | November 2020 11

The Ins and Outs of Hybrid Meetings Since the start of the COVID19 p a n d e m ic , v i r t u a l l y e v e r y

BY BEN ZELIKOVITZ

industry has had to make adjustments to adapt to a new and ever-changing world. In-person meetings have become almost impossible, greatly restricting the ability of organizations to conduct business.

12 CONDOBUSINESS | Part of the REMI Network

GOVERNANCE

Upgrade Your

Comfort

Is your building over 20 years old?

Are you concerned about your indoor air quality?

Does your unit have a fan coil?

Speak to your Property Manager and Board of Directors about inspecting your existing vertical fan coil unit with Unilux CRFC, North America’s leading fan coil experts.

Condo corporations are among the affected group. Whether it be AGMs or turnover meetings, there are meetings that simply have to be held. Thankfully, technology makes it possible for these meetings to continue virtually. However, exclusively virtual meetings simply are not preferred by some corporations.

There may be gaps in technological abilities of participants, or resistance to digital processes and a desire for in-person interaction. This is where hybrid meetings come in, but are they truly the future of AGMs in the post-pandemic world?

What Are Hybrid Meetings?

Hybrid meetings involve conducting meeting activities both electronically and in-person. While they’re flexible and adapt to each situation, they generally involve two factors. First, participants are given the choice of attending the meeting in-person or virtually and voting either in advance or live during the meeting. Second, the meeting is live-streamed on a secure link for those who wish to participate virtually. Though new, this type of meeting has quickly found large amounts of demand.

Retrofit Fan Coil Solutions Condos | Apartments | Hotels | Assisted Living Proudly Manufactured in Canada

888.627.6727 info@uniluxcrfc.com www.uniluxcrfc.com

www.REMInetwork.com | November 2020 13

GOVERNANCE

“Hybrid meetings, while manageable, can easily become complicated.”

Why Choose A Hybrid Meeting?

Hybrid Meeting Best Practices First, limiting the number of people S e l e c t t h e r i g h t p a r t n e r : H y b r i d in a room for meetings is critical to m e e t i n g s , w h i l e m a n a g e a b l e , complying with COVID -19 regulations c a n e a s i l y b e c o m e c o m p l i c a t e d . and keeping participants safe. Second, Choosing a ser vice par tner that has o f f e r i n g a h y b r i d m e e t i n g g i v e s demonstrated success in this field can owners the option to decide if they’ll be the difference between a successful par ticipate in advance, in - person or meeting and a failed one. v ir tu all y. H y b r i d me etin g s are als o Pre pa re: T here c an be quite a few reasonably easy to execute with the moving parts in a hybrid meeting. The right circumstances and are effective more you prepare for them, the more DelProperty_Condo_March_2018_torevise.pdf 1 2018-04-13 2:44 PM when executed and planned correctly. likely your meeting will run smoothly.

50

C

M

20

Y

CM

MY

CY

CMY

K

14 CONDOBUSINESS | Part of the REMI Network

18

Be ready to adapt: With these types of meetings, things can change quickly.

Being able to think and react to changes is critical to success, and is an area in which an experienced partner can be extremely valuable.

T h i n g s To B e M i n d f u l O f W h e n Considering A Hybrid Meeting In some resp ec ts, hy brid meetings may actually be more complex than an exclusively vir tual meeting or an

GOVERNANCE

in-person meeting. There are audio and visual considerations, as well as voter eligibility and procedural requirements that must be considered.

For example, how do you balance questions from the vir tual and live a u d i e n c e s? H o w a r e p a p e r a n d electronic proxies sorted and tracked?

How do you prevent duplicate voting?

W ho and how is at tendance tracked for quorum pur p oses? H ow do you integrate hand raises for voting on s i m p l e m ot i o n s? I s yo u r AV s etu p suitable for a hybrid meeting? How do you integrate live in-person voting with virtual voting?

W hile hybrid meetings are the obvious option once in-person limits are increased to a reasonable size, they are not as easily executed as fully virtual meetings.

Despite this, hybrid meetings have p r o v e n t o b e e f fe c t i v e f o r c o n d o corporations both big and small. In a year where change is frequent, they’ve been a constant in helping corporations get the results they need, when they need them.

WE OFFER CATCH BASIN CLEANING AND PIT CLEANING! COST EFFECTIVE AND QUICK SERVICE IN THE GTA.

Call Mike or Kayla @ 905-565-0965

CBS_Condo_June_1/3squaread_2019v1.indd 1 2019-04-02 Five Recommendations WE OFFER CATCH BASIN CLEANING AND PIT CLEANING! • A virtual meeting and voting vendor COST EFFECTIVE AND QUICK SERVICE IN THE GTA. provides virtual attendance to the chairperson. Virtual attendance is integrated with in-person attendance on site at the meeting.

• In return, the chairperson will confirm who is eligible to vote virtually (e.g. ensuring that there are owners attending both virtually and in-person).

• All in-person voting should use the same method (e.g.paper or electronic ballots).

Do not mix.

• Test and retest your AV setup. Getting a bunch of laptops in the same room may not work, meaning a more sophisticated setup may be required.

• Encourage electronic proxy voting and discourage paper- based submitted proxies. 1

Ben Zelikovitz is a level 200 CCI Certified Director and co-founder of GetQuorum. He loves quorum, the Toronto Raptors, Maple Leafs, Liverpool FC and Drake. He is also a husband, fa t h e r, p e l o t o n ri d e r a n d washed-up hockey player.

www.REMInetwork.com | November 2020 15

1:41 PM

CANADA’S CONDO INSURANCE CRISIS What can boards do to manage surging insurance premiums and deductibles in their condos?

BY REBECCA MELNYK

16 CONDOBUSINESS | Part of the REMI Network

FEATURE

A flood in Fort McMurray this past spring costing $100 million in damages. A June hailstorm in Calgary, now ranking as the fourth largest claim in Canadian history at $1.2 billion. These are just two examples of recent catastrophic losses impacting insurance across the country and contributing to a hard market, where premiums are increasing and capacity for many types of insurance are decreasing.

As impacts trickle into condominium corporations, a seminar called “The Condo Insurance Crisis: Where do we go from here?” addressed provincial concerns and solutions. The panel talk took place at CAI Canada’s V-CON (DO) virtual condo conference that brought together board directors, property managers and various professionals across Canada.

One concern is reduced capacity. “This means while some insurance companies are still willing to insure condominiums, they’re reducing how much they write of it,” said Tom Gallinger, vice-president of Atrens-Counsel Insurance Brokers. “They feel it’s a risky area to insure at the pricing levels they’re at. . . they want to reduce their exposure to those big losses that could occur.”

Companies are also being more selective, insuring specific condos and shying away from others that have claims or other “undesirable factors,” such as the age of the building, wiring, piping, plumbing or even geographical conditions.

“Some companies have chosen to exit the marketplace all together,” noted Gallinger. No matter what prices they charge, they assume certain conditions will impede their ability to make money.”

Those left in the marketplace are raising their premiums and deductibles quite significantly in certain cases.

Boards and managers are also facing budgeting issues, unable to anticipate what premiums and deductibles will be the following year. Finding the right coverage is also harrowing for many corporations and unit owners. There is less availability of ACT-compliant insurance; legislation in the Condo Act requires a corporation to carry an insurance policy, but it doesn’t tell the insurance companies they must insure the policy.

“We are seeing corporations trying to pass some of the insurance responsibility onto unit owners,” said Gallinger. “And also with higher deductibles—we are seeing corporations with the ability to charge those deductibles back to owners.”

www.REMInetwork.com | November 2020 17

FEATURE

OUTLOOK FROM ONTARIO In Ontario, there are numerous unit owner-driven claims related to items, such as an overflowing bathtub or a neglected toilet seal.

“That’s one of the things that has consistently caused these attritional losses, which have basically caused an impact to the amount of money those insurance companies have in the pot for condominium claims to be paid out,” said Gallinger. “We have also seen some impact from workmanship claims.”

Concerns are mounting for the quality of buildings being constructed in the Greater Toronto Area and possible issues in the early stages of condo development coupled with the aging infrastructure of existing buildings.

Proactive maintenance of the physical structure itself is impacting the market, but it’s an issue that might escape a corporation’s control.

Solutions What can condominiums do to cope?

Gallinger suggests passing a standard unit bylaw and removing some highexposure areas of the corporation, such as flooring, which is known to greatly contribute to attritional losses. Another oppor tunity, for now, is passing an insurance deductible bylaw to eliminate t h a t n e e d to p rove n e g l i g e n c e — potentially saving unrecoverable costs that would have to spring from common expenses.

Getting a regular replacement cost appraisal keeps your value accurate, he said. “Without one, insurance companies

Many buildings in downtown Toronto operate above aging water main infrastructure, which was not designed for the modern era.

“We saw a very large water main burst claim cause over $3 million worth of damage to a condo corporation, but also a number of surrounding businesses in Toronto were impacted by that,” Gallinger said. “That is something that is really leading to insurance companies to drive up their pricing—understanding this infrastructure is only going to be getting older.”

For corporations in Ontario who feel far removed from rough weather events in Alberta and B.C., Gallinger suggests they “take heed.” Natural catastrophe claims in Ontario have increased: wind storms in May of 2018 caused “significant damage” for his clients, all the way from Windsor to Ottawa. “We’re seeing this stuff happen more frequently than we have in the past and that’s causing some impact.”

will inflate the value over time and you’re going to be over-insuring your property and paying too much.” Another important aspect is claims management and attending to losses early on.

“Before a claim even happens, have an action plan with individuals on site, whether it be concierge, security staff or building management staff, of how you’re going to handle that situation,” he said. “Most corporations have a fire plan. . . not all corporations have a water damage plan.”

Corporations should also be thinking about claim retention and claim prevention. “The rule of thumb in this marketplace is three times your deductible is probably a good

time to consider talking to your broker about whether to put through that property claim.”

Preventive maintenance is also key. Paying for repairs and renovations now will bring less challenges in the future.

“Unlike a liability incident that may occur at your corporation or a lawsuit, a property damage claim does not have to be submitted to your insurance,” he added. “So, you can always talk to your broker about that, provided you speak with an independent broker that represents multiple insurance companies and make sure it is the right decision based on your corporation’s history, the nature of the loss and any other factors.”

“We saw a very large water main burst claim cause over $3 million worth of damage to a condo corporation.”

18 CONDOBUSINESS | Part of the REMI Network

FEATURE

OUTLOOK FROM BRITISH COLUMBIA In B.C., strata corporations are required to repair and maintain the common elements by law. But Lawyer Philip Dougan of Citadel Law Corporation knows of many cases where the repair bill has been so high that corporations voted to sell their property for redevelopment, rather than repair the damage.

“If a strata is not taking care of its repair and maintenance obligations very strictly, then that will start pushing over into the insurance world because if you don’t repair the leaky roof, well then, the leaky roof will cause problems within the strata itself,” he said.

Solutions Stricter enforcement to obtain and fund depreciation reports (reserve fund studies in Ontario) is key. In B.C., these reports are mandatory in the Strata Property Act, but stratas can opt out of them, unlike in Ontario where condo corporations must complete and fund such reports. Having one would “even out the savings process so that the repairs are getting done in a reasonable time and pace,” without a huge expense all at once, proactively reducing the risk for flood or fires.

Another solution is to pass new bylaws forcing owners to become their own risk managers. “We have been advising clients to require their owners to get their own unit insurance,” said Dougan. “We think

In B.C, stratas must also insure original unit fixtures, but depending on particular claims, they aren't necessarily responsible to replace these items.

The tensions arise in stratas when determining who is responsible for any particular loss, said Dougan. Individual strata owners are not required to have their own insurance, and there have been confrontations over who is responsible for the deductible.

He finds the lack of follow-through for mandatory repairs problematic as people are looking to their insurance as a “fail-safe.”

This is driving costs up for insurers who must create higher premiums and deductibles.

it’s simply in the best interest of all owners, and a policy at $300 or $400 a year to cover your potential liability on a deductible of $50,000 or $100,000 is a no-brainer.”

Within these bylaws, owners should be required to replace their old appliances on a regular basis, like an older dishwasher which is culpable of leaking. Every building should also include must-haves, like water level switches and water shut-offs. At least in B.C, 70 per cent of claims are flood related.

“The math is very simple, if you stop having claims, eventually the premiums and deductibles will at least stay still, if not potentially go down.”

Strata corporations already have a right to enter and inspect a unit. He suggests expanding that current standard bylaw

to allow professionals retained by the corporation, like a plumber, to enter and inspect hoses, appliances, plumbing and fire detection systems for example.

Another suggestion is to allow insurers to dictate requirements for the stratas— for instance, ensuring stratas adhere to the depreciation report if they want coverage.

“Insurers themselves can also start looking at these ideas for bylaws and enforcement and saying those are the kind of bylaws we want you to have,” he said, stressing the significance of this in B.C. He recalls a 50-unit building he recently worked with. “Their last year’s insurance premiums were $40,000,” he said. “This year’s was for $102,000—for exactly the same coverage.”

“The math is very simple, if you stop having claims, eventually the premiums and deductibles will at least stay still, if not potentially go down.”

www.REMInetwork.com | November 2020 19

FEATURE

OUTLOOK FROM ALBERTA Weather has been a key impact to the insurance market in Alberta. As Tony Reed, vice-president, client executive at BFL Canada Insurance Services put it, “you can experience all four seasons in one day.” It remains the top area in Canada with the most claims.

“Hail out in Alberta will come in for about 10 minutes and cause hundreds of millions of dollars in damage to units,” he said, pointing to the recent storm in June.

Solutions The province recently ushered in changes to its Condo Act in January 2020. Parts of that legislation are expected to deeply impact the current insurance market.

For instance, when damage occurs in an owner’s unit, a condominium corporation can now chargeback the deductible up to a maximum of $50,000.

“The majority of claims in Alberta are due to weather changes: when it goes from minus 20 to plus 20, people want to open their windows to cool the apartments down and this causes freezing,” added Reed. “It’s amazing when you put a bit of financial responsibility onto the individual with the $50,000 deductible or $25,000 deductible—now they remember to keep those windows closed.”

New rules also make corporations responsible for overseeing repairs to units where losses have occurred, making sure proper restoration professionals are hired and a certification of insurance is in place so work is efficient. A new bylaw under the Act also states a corporation may demand that unit owners carry coverage.

In addition, one of the largest problems he tends to see are old bylaws, but now new regulations supersede them. Where in the past a corporation could charge back the deductible as long as negligence was proven, now at least, corporations can “recoup some of these deductibles.”

A new bylaw requirement called the standard insurable unit description is a way for boards in Alberta to clearly define what is covered under the corporation’s

insurance and what a unit owner is responsible for.

“What this has done is clearly define what an improvement and betterment is, allowing unit owners to make sure they purchase the proper insurance.”

The new Act also allows the board to oversee the hiring of the proper trades so repairs can be done efficiently. When there is a claim, and an insurance company is paying for a new roof or siding for instance, Reed suggests corporations take the opportunity to look for potential upgrades— better shingles or other products that are more resilient to rough weather. Of Ontario, he says, “if there are some water issues or flooding, look into moving HVAC equipment to the roof or installing a sump pump in the elevator shaft.”

“Hail out in Alberta will come in for about 10 minutes and cause hundreds of millions of dollars in damage to units.”

20 CONDOBUSINESS | Part of the REMI Network

ChipmunkTel_Condo_May-June_2020_FINAL.pdf

PHONE LINES FOR PEANUTS

1

2020-06-22

4:47 PM

ATTENTION!

Condo Management Companies & Condo Boards Reduce your communication costs by more than 50%

with more than 80 years of....

Entry Door Phone, with Secure Log File

owning, managing, building, and adding value

Elevator Phones On-Site Management Office with Advanced Voice Mail

“

We are using Chipmunk Tel in several of our buildings.

It’s a great solution and implementation was quick and painless. Our clients are literally saving hundreds, and in some cases thousands, of dollars a year.

– David Pal, Regional Manager, Zoran Properties Inc.

l Cal ay Tod

”

Call us at 647-479-6905 or email us at info@chipmunktel.com to speak to one of our Condo Phone Reps.

TorontoDecorating_Condo_November_2016_FINAL.pdf

1/4 Ad 1

THE ENFIELD GROUP INC. “ADDING VALUE AND PROFILE TO PROPERTIES DETAIL BY DETAIL”

1

Contact: Greg Fraleigh, RCM, President Tel: 905-689-7341 Fax: 905-689-7452 Toll Free: 1-800-263-6952 Email: gfraleigh@enfield.net

www.enfield.net 2016-11-10

9:19 AM

2020-06-22 4:52 PM Enfield_Condo_October_2015.indd 1

2015-10-20 8:56 AM

BACK FLOW PREVENTERS C

Testing • Design • Installation

M

Y

CM

MY

CY

CMY

K

Your plumbing & mechanical service experts

CALL 416-789-7611 www.REMInetwork.com | November 2020 21 Jermark_QP_Condo_June_2016.indd 2

2016-06-24 8:59 AM

MANAGEMENT

Preventing Conflict Escalation Many condominium communities embrace the concept of preventative

BY MARC BHALLA

maintenance. When it comes to elevators, drains and HVAC systems, the notion is to proactively inspect and maintain to avoid the cost and uncertainty of problems arising. The belief is that in spending some money up front, condominiums are able to save in the long run.

Similar philosophies can apply to handling conflict, though it is harder to quantify the cost savings available when conflict is addressed early. The value of taking proactive steps may be less obvious when you consider the human factor of ongoing relationships as opposed to physical buildings and equipment. This is particularly the case as interactions between people can be unpredictable, time-consuming and awkward.

Some situations can appear to re s o l ve t h e m s e l ve s , w h i c h c a n n ot b e s aid for unc le ane d lint traps or neglected fan coil units. It can also

be harder to know what t ype of behaviour contributes to conflict and, by extension, conflict prevention.

S of t s k i l l s a r e r e q u i r e d . T h e s ame a p p ro a c h c an b e re c ei ve d in drastically dif ferent ways in various circumstances. There is no one -size fits - all approach for board members, condominium management and others who present as the “face” of a condominium communit y. That said, there are strategies that can be helpful to consider in recognition of the fact that reactive approaches to conflict can be quite costly.

22 CONDOBUSINESS | Part of the REMI Network

“Talk Less, Smile More” This catchphrase from the popular musical Hamilton is sound advice for anyone engaging in interactions as a representative of a condominium corporation, particularly w hen th at in d i v i d u al al o ne is n ot empowered to decide what will be done about a particular issue. Being friendly can invite trust and build rapport. This is a good way to manage conflict. When condominium representatives talk more than they listen, they can be perceived not to be listening or viewed as thinking they have all the answers. Both sentiments can escalate conflict.

GOVERNANCE

“While many preventative

maintenance programs are presented as checklists to be ticked off, proactively managing conflict does not work in quite the same way.�

Invite Feedback Condominium boards and managers can take being approachable to the next level by inviting thoughts and suggestions. It can be all too easy for condominium residents and owners not to be sure where to present their questions or when to expect a reply.

Highlighting how feedback can be provided and when it will be addressed establishes shared expectations around communications that can strengthen relationships. Issues can be identified earlier on than they otherwise would. It helps minimize the risk of conflict escalating as a result of misunderstanding.

One example is to invite questions ahead of the Annual General Meeting. Not only does this offer more of a chance for one to pose a question; it also provides time to prepare a response and to consider where potential issues may emerge.

Communicate Progress While many preventative maintenance programs are presented as checklists to be ticked off, proactively managing conflict does not work in quite the same way. Rather than waiting and reacting to something being complete, condominiums can share their plans, progress and challenges. T his most often takes place through community e - blasts, newslet ters and notice boards. Keeping members of the community in the loop as to what is going on can help ensure that they feel

engaged and valued. It can also avoid the surprises and misconceptions that give rise to the escalation of conflict.

The strategies shared can sometimes be considered trite or unimportant. They are optional, go beyond what is legally required and are not always simple an d str ai g ht f o r w a r d t o c a r r y o u t .

Some might even suggest that they invite conflict by asking for issues to be raised, which might otherwise not be. The preventative approach is not about keeping eyes closed; it is about

opening them. It is about engagement, awareness and a willingness to take early action. Rarely is it the case that a dispute, which ends up costing a condominium communit y tens of thousands of dollars, did not present oppor tunities that could have been embraced earlier for a fraction of that cost. 1 Marc Bhalla, LL.M. (DR), C.Med, Q.Arb, MCIArb is a mediator and arbitrator. He can be reached at mbhalla@elia.org

2300 Yonge Street, Suite 2900 Box 2384 Toronto Ontario Canada M4P 1E4

T F w

416 489 5677 416 489 7794 condolaw.to

CONDOLAW.TO

www.REMInetwork.com | November 2020 23

GOVERNANCE

Inside One Condo Board’s COVID-19 Response CCI Toronto and Area Chapter named Palace Pier Condominium of the Year 2020.

In February, before the World Health Organization declared a

BY REBECCA MELNYK

global pandemic, talk among the condo board at Palace Pier was of various news reports piling in. Wuhan. Most of China. All of a sudden, Italy.

“It was very mysterious and scary in the sense that nobody really knew what to expect, and nobody really knew what the ultimate ramifications were,” says Condo Board President Al Pace. “We seriously thought we needed to look into this matter and be on top of it and, frankly, get ahead of it.”

There were under 15 confirmed cases in Canada at the time when Board Secretary Thelma Beam walked down to the lobby and saw the property manager had placed

hand sanitizer stations everywhere. That was t wo weeks before any of ficial confirmation on March 11. “I thought to myself, I guess it's here now. We then realized we were in a situation that was going to get a lot worse.”

Emails that were bouncing back and forth between the board members—what they should be doing, how they should be doing it—swiveled into weekly COVID-related Zoom meetings, starting at 9 a.m. every Friday and lasting for one hour.

24 CONDOBUSINESS | Part of the REMI Network

“During that [initial] meeting, we found it to be incredibly productive; each and every one of us had been bringing more facts and information to the table to consider, and then we decided we should have a meeting the following week; it was very organic,” says Pace. “Nothing will be able to replace seeing the other member in-person, even if it is electronically.”

Palace Pier stands in the Humber Bay Shores neighbourhood of Toronto. When it was designed in 1978, the 433-unit, 46-floor

GOVERNANCE

tower was the tallest residential building in Canada at the time. According to its website, residents can walk, jog or cycle on the Martin Goodman Trail, which runs along the water and through parkland. Dining and entertainment are within walking distance as well as marinas, boating and the TTC’s Humber loop.

This year, residents have been spending a lot more time at home. How they were kept up-to-date with weekly highlights was one reason why CCI Toronto and Area Chapter recently named Palace Pier Condominium of the Year 2020. Of the condo’s response to the pandemic, Chair of CCI-Toronto’s Marketing Committee Farzad Lahouti said, “As a condo director myself, I can’t help but be impressed at what Palace Pier has accomplished.”

“Palace Pier Responds With COVID-19 Plan” was the title of a newsletter sent out in February to the community. Beam, who is the editor, remembers wanting to call it the “pandemic edition''; instead it was deemed a “special edition” because the WHO hadn’t yet officialized it. A first sentence, “Coronavirus is here in Ontario. Should we be worried?” begins a long list of facts and to-dos, including a sanitizer recipe and advice for residents returning from affected areas.

“We have a lot of travelers here. So we wanted to make sure that people knew what they had to do when they returned,” she says. “We couldn't take the risk—that people wouldn't take it seriously and do nothing.”

Property management and the security department sat down and compiled a list of travelers, many of whom spend winters in the U.S. Others were in China or Europe; some in hot spots. The team then called people to find out their plans for returning.

“As soon as we had that schedule in place, we contacted every single person and helped them with accommodations here as much as we could,” says Senior Property Manager Donald Balla. “When they were quarantined, we followed-up with them on a daily basis to see how they were doing.”

As normal operating procedures like the valet service grinded to a halt, rather than furlough anyone, valets were re-deployed with different duties, such as delivering mail, groceries and packages, and picking up garbage for those in quarantine. The valets also took on specific cleaning routines, a need which had ramped up considerably.

Top: Elevator buttons are cleaned after each use. Bottom: Senior Property Manager Donald Balla and Office Manager Alexandra Lo. Photos courtesy of Palace Pier.

www.REMInetwork.com | November 2020 25

GOVERNANCE

Left: Valets were re-deployed with different duties, such as delivering mail, groceries and packages. Top: Condo board members meet virtually. Photos courtesy of Palace Pier.

“Seeing the valet personnel cleaning the elevator buttons from inside and outside every time someone left the elevator created a sense of security for the owners,” says Balla. “They really felt comfortable that our board and management were taking every action possible to keep them safe.”

One of the first protocols implemented at Palace Pier was shutting down amenities in early March.

“A lot of people thought that was a little draconian, but in retrospect, it ended up being the right thing to do,” says Pace. “We were kind of going out on a limb, but we had the full consensus of the entire board; we knew it wouldn't be the most popular

decision with all of our residents, but we knew it was the right thing to do.”

To close or not to close. To re-open or not to re-open. Those were questions many condos were mulling over in the past few months.

“There were some critics who suggested we shut everything down very quickly,” says Pace. “Even though we were among the first, if not the first building (under Crossbridge Condominium Services’ portfolio), to shut down all of our amenities, we were also one of the first to start re-opening our amenities on a very case-by-case and surgical basis.”

“Our community is a bit of a dichotomy in the sense that there are people who want to keep everything shut down and

people who can’t have it open up quickly enough,” says Beam. “We have to tread a very fine line in how we manage this.”

In light of wavering restrictions [at the time this article was written Toronto was in a modified Stage Two], there is dismay when having to take a step back. Some residents in the building “felt the whole pandemic ruling was overblown and [they] should get back to ‘business as usual,’ as quickly as possible,” says Beam. A majority, however, wants the board to take necessary precautions to keep the building safe.

“We get that people are feeling frustrated.

There is bound to be frustration and fear of further restrictions. We sympathize,”

“Our community is a bit of a dichotomy in the sense that there are people who want to keep everything shut down and people who can’t have it open up quickly enough. We have to tread a very fine line in how we manage this.”

26 CONDOBUSINESS | Part of the REMI Network

GOVERNANCE

“We were kind of going out on a limb, but

we had the full consensus of the entire board; we knew it wouldn't be the most popular decision with all of our residents, but we knew it was the right thing to do.” she says. “But at the end of the day, the corporation must comply with the law.”

At its weekly Friday COVID meetings, the board assesses amenities to see if any are affected by new legislation.

“As a manager, I find these board meetings to be the best thing I have experienced in my career in the condo industry,” says Balla. “The way we discuss things and the way that we reach conclusions are so beneficial to me and my staff.”

He recalls someone asking him a few months ago if anyone from the board worked for the government. “This is how important those COVID meetings with the board were because we were steps ahead; everytime the government made a formal decision, we had already done it.”

“Even though there are more meetings, you sort of get a lot of things done that would take up a tremendous amount of time at a board meeting,” adds Pace. He cites Zoom as one silver lining to the crisis. “We never did that before, and this really gives us a lot more flexibility. Going forward, we’re going to be able to have our meetings anyplace, anytime, and having shorter meetings to deal with issues of importance is going to be something we’ll be able to do more often.”

Pre-pandemic, the board has always strived to be on top of issues as they arise.

“Proactivity is something we’ve always been conscious of and sensitive to,” says Pace. “We’ve got a great board though; it's a functional board. That isn’t always the case; there are some different factions in different buildings. Even though everyone on the board has some strong opinions, we’ve got common sense and allow everyone to completely voice their opinions and positions and the facts they’re basing their suggestions on. We always move forward on a consensus basis; it’s a huge strength that we have.” 1

www.REMInetwork.com | November 2020 27

SPONSORED CONTENT

TEAMS IN THE

“NEW NORMAL” S

ay goodbye to traditional house calls.

Bid farewell to business as usual.

COVID-19 has rewritten the rules for service professionals and challenged companies to pursue safer (and more creative) ways to serve their customers.

No doubt, these are challenging times for service providers of every stripe. This includes those in the telecommunications field who play a vital role in keeping Canadians connected and informed both now and in the post-pandemic days ahead.

“COVID-19 challenged our teams in a lot of ways when it first began,” recalls Greg Stokes, Director of Sales at Rogers Communication in Toronto. “Our sales staff and technicians were used to knocking on doors, making home visits, or meeting face-to-face with clients.

In some ways, you could argue that we were put to the test and therefore had to adapt and find innovative ways to continue to serve our customers.”

When the pandemic hit, he adds, everything changed: “Suddenly, we couldn’t do those in-person meetings or customer visits anymore. We had to stop and quickly re-think how we were going to keep our customers connected to all of the things that matter most while doing so safely and with the most effective service possible.”

SPONSORED CONTENT

Certainly, new social distancing rules, health risks, and shifting guidelines have challenged organizations to deliver their typical levels of care in an environment that is anything but “typical.” And like many reactive organizations, Rogers responds to the challenge with a mix of enhanced training, communication, and remote technology solutions.

“We had a ‘self-install’ program before the pandemic, and that has become essential to our service delivery strategy today. We made a few enhancements to this program to include contactless delivery which was needed given the current health situation,” says Stokes, explaining, “Without the ability to enter the home, our field teams now rely on a live video assistant tool, which is sent to our customers via text message as a link. It allows our technicians to conduct video calls with customers over their mobile device and guide them remotely through installations or other service matters.”

In addition to digital technologies, Rogers introduced advanced health and safety protocols to ensure staff handle equipment drop-offs (e.g., Ignite TV box, modems, etc.) safely and hygienically. Moreover, in cases where more direct client interactions were required, staff were outfitted with personal protective equipment (PPE), both for their safety and to put customers at ease.

“We rely a lot on virtual platforms right now. Our Pro on the Go service for wireless customers along with our Enhanced Self-Installation for home services offer remote set-up support. However, there are certain customer interactions that need to happen face-to-face,” says Stokes. “There are always people who aren’t tech-savvy or don’t have the ability to self-install. In those cases, we work with our field teams to find innovative ways to help those customers, whether it’s enlisting a friend or family member to help us during those virtual communications or, in some cases, entering the home with full-body PPE gear.”

A team transformation Pandemic education and communication are a top priority at Rogers. This includes training field and sales staff to ensure they’re following social distancing and the most current pandemic protocols.

“That training has been given to everyone,” insists Stokes.

“From the top executives on down, our human resources and health & safety teams have done an admirable job of staying up-to-date on what’s going on and communicating the different changes that need to happen as things evolve with regards to national and provincial guidelines.”

The success of this training relies on accurate and timely information. To that end, Rogers leans on a network of public and private sector experts to stay current on COVID-19 risks and responses and pass that information down to every stakeholder.

“We already had an emphasis on team communication beforehand, but there was a shift when the pandemic hit,” recalls Stokes. “More than ever, our CEO and Executive Leadership team is now working very closely with other industry partners and government off icials to keep up with the changes and get that information out to our teams, sometimes on a weekly basis.”

On top of this, Rogers conducts bi-weekly info sessions that invite staff to participate in virtual forums with Rogers’ leadership and health and safety committee members. These sessions are streamed in real-time and allow attendees to table their questions and concerns with Rogers’ leadership and healthcare professionals.

“Over the past few months, we’ve learned that the situation can change quickly. Because of this, there are times when key communications can’t be drafted and sent out quickly enough to keep up,” notes Stokes. “By hosting these weekly calls, though, we can reach out to the entire organization, answer questions submitted and voted on by our teams, and keep everyone on the same page.”

The route ahead The 2020 pandemic has altered the way organizations serve Canadians. Even when the crisis clears, many of the adapted safety guidelines and protocols will likely remain. Accommodating this “new normal” is key, but it requires a renewed focus on training, technology, and industry collaboration.

“At the end of the day, our goal is to ensure our teams have the guidance and resources they need to support their customers, especially during a time like this,” says Stokes. “Now more than ever, Canadians rely on network connectivity to allow them to work from home, learn online and stay connected to the people and information they need.

We’ve continually adjusted our strategies, strengthened our networks and continue to come up with different ways to deliver on our customer promises.”

“It hasn’t been easy,” he adds, “but we’re always learning and adapting as a team and as an organization.”

Greg Stokes is Director of Sales with Rogers Communications. For more information, visit www.about.rogers.com or call 1-888-764-3771.

LEGAL

Chargebacks and Lessons Learned in 2020 No owner wants to hear the word “chargeback” and no condominium corporation

BY SONJA HODIS

wants to find out after they start lien proceedings that their “chargeback“ is uncollectible.

Amlani v. York Condo Corporation No. 473 (Amlani), a case from the Ontario Superior Court of Justice which was recently upheld on appeal, provides us with some important guidance on chargebacks and how a condominium should handle them. It reaffirms that condominiums must take steps to ensure that they actually have the legal authority to charge back before they do so. It also reminds us that condominium corporations need to act reasonably and in a cooperative manner when dealing with owners, especially if the owners themselves are acting reasonably.

Amlani involves a condominium in the Greater Toronto Area. Mr. Amlani purchased a unit in this condominium in 2013 specifically as it did not ban smoking. He was a long-time smoker. In 2015, complaints about smoke coming from his unit were resolved, but in 2017, new

30 CONDOBUSINESS | Part of the REMI Network

complaints were received. Mr. Amlani attempted to resolve these new complaints, but the condominium insisted that he stop smoking.

He decided to move out of the unit until the issue was resolved.

These new complaints were the basis of the court action.

Under the Condominium Act, 1998 as amended (the Act), there are various provisions that allow a condominium corporation to charge back costs to a unit that are in addition to the monthly common expense fee.

If not paid, the condominium corporation can collect those additional charges by registering a lien. Here are a few examples: • Insurance Deductible – s. 105 • Costs incurred to obtain compliance order - under s. 134 • Maintenance and repair costs when an owner fails to do it themselves – s. 92

LEGAL common elements and/or all other units except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the corporation.

All payments pursuant to this clause are deemed to be additional contributions toward the common expenses and recoverable as such.

At the end of the day, the condominium was not able to enforce their lien for the chargeback of approximately $25,000.

They had to pay the owner $9,679.75 in damages under the oppression remedy provisions in s. 135 of the Act, and they had to pay the owner’s legal costs of $113,340. These amounts are in addition to the condominium’s own legal costs incurred.

The condominium, in this case, took a huge risk and the cost consequences which will now be borne by all owners are significant. The Amlani decision is a good reminder of the importance of carefully reviewing your declaration’s indemnification provisions as well as the statutory provisions which allow chargebacks to make sure that you actually have the legal authority to charge back the type of costs you are looking to recover.

Although Amlani is a recent case on this issue, it is not the first case that has disallowed a condominium the ability to charge back legal fees based on similar wording in a declaration. A failure to carefully review your indemnification provisions can be costly, as seen in Amlani.

The Amlani decision also provides a good nudge to all condo directors and managers to have the corporation’s indemnification provisions reviewed in order to determine if an amendment is • Costs incurred for an owner’s failure to comply with a s. 98 agreement – s. 98 In addition to the Act, most condominium declarations have an indemnification provision which allows the condominium to charge back certain costs and collect them as they would unpaid monthly common expense fees.

However, not all indemnification provisions are created equal. The Amlani case is a perfect example of how relying on an indemnification provision in your declaration is risky business.

In Amlani, the condominium relied on an indemnification provision in their declaration to charge back legal fees incurred to enforce the rules. The subject matter of the dispute centred around smoking in a unit. YCC No. 473’s indemnification provision is a typical one you see in many condominium declarations (especially older ones) unless the declaration was amended and the indemnification provision was strengthened. YCC No. 473’s indemnification provision states: Each owner shall indemnify and save harmless the corporation from and against any loss, cost, damage, injury or liability whatsoever which the corporation may suffer or incur resulting from or caused by an act or omission of such owner. . . to or with respect to the

Trust.

Mechanical & Electrical Engineering Electrical Di stribu on Upgrade s designed for your building

1 Concorde Gate,Suite 808 Toronto, Ontario 416.443.9499 mcgregor- allsop.com

www.REMInetwork.com | November 2020 31

LEGAL

“Condominiums need to be careful when they decide to chargeback costs to an owner and must ensure they have the legal right to do so before they start lien proceedings.” necessary. Most original indemnification provisions need to be amended as the authority to charge back is very limited. From my own experience, when I was drafting provisions to amend declarations a few years back to include smoking/cannabis restrictions, I advised my clients to take the opportunity and also revise the indemnification provisions in the declaration and strengthen it by expanding the situations in which a chargeback could occur.

A properly drafted indemnification provision may avoid the situation YCC No. 473 found itself in. The courts have upheld charge backs with properly drafted indemnification provisions in the past. See Italiano v. TSCC No. 1507 as an example. In that case, the condominium’s declaration stated: In the event that the owner of such residential unit fails to abate the noise, the board shall take such steps as shall be necessary to abate the noise … and the owner shall be liable to the corporation for all expenses incurred by the corporation in abating the noise, which expenses are to include reasonable solicitor’s fees on a solicitor and his or her own client basis and shall be deemed to be additional contributions to common expenses and recoverable as such.

KITCHEN STACK PRESSURE CLEANING

Your plumbing & mechanical service experts

CALL 416-789-7611 32 CONDOBUSINESS | Part of the REMI Network

Referencing section 1(1) of the Act, which defines a “common expense” to include common expenses specified in the declaration and section 7 of the Act, the court upheld the condominium’s ability to charge back the costs of an arbitration to the unit owner. I do not think that Amlani has eliminated the ability of a condominium to rely on a properly drafted indemnification clause in a declaration to charge back costs that are covered by that clause as a common expense. All that Amlani does is reinforce the long-standing principle that the condominium’s ability to charge back pursuant to an indemnification provision is limited by the wording of that provision.

Unfortunately for YCC No. 473, the indemnification clause they were trying to rely on to justify the chargeback did not cover the type of costs they were trying to recover. In YCC No. 743’s declaration, in contrast to the provisions of the declaration in TSCC No. 1507, legal costs for enforcement steps were not defined as a common expense in the declaration.

Condominiums need to be careful when they decide to chargeback costs to an owner and must ensure they have the legal right to do so before they start lien proceedings. A failure to do so could lead to a significant loss of money for the condominium as illustrated in the Amlani case.

In addition, the court in Amlani, as well as other cases, has made it very clear that the courts will look to the conduct of the condominium corporation when deciding issues. In this case, YCC No. 473 may have received less of a financial hit had it dealt with the owner in a more conciliatory manner to begin with and followed their own bylaws, which required the condominium and owner to use best efforts to resolve any disputes through good faith negotiations.

A final lesson from Amlani is to check your own bylaws and declarations to see if such a provision and obligation exists in your own governing documents. Even if it doesn’t, it would still be in the condominium’s best interest to act in good faith to avoid a claim against them for oppression and the damages that may flow from such a successful claim. In Amlani, it may have saved the corporation at least $10,000, if not more. 1 Sonja Hodis is a litigation lawyer based in Barrie who practices condominium law in Ontario. She advises condominium boards and owners on their rights and responsibilities under the Condominium Act, 1998 and other legislation that affects condominiums. She represents her clients at all levels of court and Tribunals and offers mediation and arbitration services. Sonja can be reached at (705) 7374403, sonja@hodislaw.com or via her website at www.hodislaw.com.

NOTE: This article is provided as an information service and is not intended to be a legal opinion. Readers are cautioned not to act on the information provided without seeking legal advice with respect to their specific unique circumstances. Sonja Hodis, 2020 All Rights Reserved.

Knowledge looks great on you High level decision makers and influencers depend on us to be their trusted information source within the Canadian Real Estate Management Industry

Canada’s Most Widely Read Condominium Magazine

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

Apartment

September 2019 • Vol. 34 #4

CANADIAN

SEPTEMBER 2018

SERVING THE FACILIT Y CLE ANING & MAINTENANCE INDUSTRY

JUNE 2019

VOLUME 16 / NUMBER 4 / SEPTEMBER/OCTOBER 2019

VOL. 34 NO. 2 • JUNE 2019

PRODUCTIVE

OUTSOURCING

ENERGY

COMPACT PORTFOLIOS

BANK OF CANADA’S HQ

� NUISANCE ANIMALS: KEEPING RACCOONS AT BAY

COMMON AREA RENOS

MODERNIZATION MEETS PRESERVATION

HUMAN CENTRIC

LIGHTING

Publication Agreement #40063056

� GREEN ROOFS: SUSTAINABLE SHELTERS FOR PESTS?

ON THE LEVEL

PA R T O F T H E

P A R T

PA R T O F T H E

PA R T O F T H E

PA R T O F T H E

O F

T H E

P A R T

O F

T H E

P A R T

O F

T H E

P A R T

O F

PA R T O F T H E

PA R T O F T H E

P A R T

O F

T H E

+

Upgrading the resident experience

FOCUS ON LIGHTING

Canadian Publications Mail Product Sales Agreement No. 40063056

P A R T

O F

T H E

P A R T

O F

CREDIT

T H E

P A R T

O F

T H E

TRENDS

Leverage our award-winning insight remisubscribe.com Apar Apartment CANADIAN

VOLUME 16 / N NUMBER UMBER 2 / JUNE 2019

> SOCIAL MEDIA COLUMN Sponsored by MediaEdge

WHO'S WHO 2019

June 2018 • Vol. 33 #2

Costa advised that he no longer wished to occupy his role as president. The emergency meeting took place at the defendant’s (MTCC 1292’s) premises.

At the emergency meeting, the plaintiff and Mr. Da Costa entered into a heated argument, which led Mr. Da Costa to “lose it” and strike the plaintiff on the head with a chair. Mr. Da Costa was charged by the police and received a conditional discharge for assault with a weapon. iff commen The plaintiff commenced a civil action against Mr. Da Costa fo for his use of force as well as MTCC TCC 1292 for fo failing to ensure her safety and nd failing to employ security meet measures at board meetings.

MTCC 1292 brought a motion summary judgment otion for su to dismiss the plaintiff’s plaintiff’ claim against it nly opposed by Mr. Da Costa which was only given his crossclaim MTCC 1292 ossclaim against ag on and indemnity. inde for contribution

SPONSORED BY:

F O R B UI LDIN G O WNERS , A S SE T AND PRO PERTY M A NAG ER S

BALANCING THE BOOKS Will new cost pressures force corporations to revise their budgets this year?

AL EDG THE DIGITAL EDGE INNOVATIVE INN IN NO OV VA V ATIVE A TIVE WAYS WA W AY A YSS TO Y TO FILL FILL SUITES SUITES SUIT ES FASTER COMPETITIVE VOL. 34 NO. 3 • AUGUST 2019

P A R T

O F

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

T H E

INCLUSIONARY

ZONING

board meeting be liable for failing to ensure the safety and security of those lawfully on the premises?

Publication Agreement #40063056

T H E

In Omotayo v. Da Costa, 2018, the defendant occupier, Metro Toronto Condominium Corporation 1292 (MTCC 1292), was successful in dismissing the plaintiff’s claim and the assailant’s crossclaim when a member in attendance at a condominium board meeting struck another meeting attendee with a chair.

Justice Nishikawa found that the duty the condominium corporation owed to the plaintiff did not include preventing an assault that occurred during their condominium board meeting.

Facts of the case T he plaintif f, J ac queline O mot ayo, was a resident and former chair of the condominium corporation. The defendant, Jose Da Costa, was also a resident and former president of the condominium corporation. An emergency board meeting was held on Oct. 4, 2011, to discuss the future organization of the board as Ms. Omotayo had recently been removed from her position as chair and Mr. Da

By Steven Chester

SERVING THE FACILIT Y CLE ANING & MAINTENANCE INDUSTRY

Let’s face it, we all want our businesses to be social media rock stars, and we know it ain’t easy.

It’s becoming more prevalent that some of the most popular social media platforms have been infiltrated by those who game the system.

This includes those that buy fake followers and “likes” in order to create the illusion that their social media profile is more popular than it is.

These fake followers are predominantly bots – accounts run by software designed to look and act like real people.

APRIL/MAY 2017

New services are also popping up that allow authentic social media accounts to become part of the bot game. By signing up for the service, the user authorizes their account to automatically like, follow and randomly comment on other users’ posts, and in turn they trade that fake engagement with other users. Sound harmless enough? The thing is you have no say in in the message your account is spreading or where it ends up.

CARING FOR FRAGILE FLOORS

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

MALL GERMS: TOP FIVE HOT SPOTS

Ask yourself this: What’s more important, having 50,000 cosmetic followers, or having

500 followers who are in your target market REMEDYING FOUR that actually want to hear from you?

COMMON CARPET As a consumer, it’s even simpler, as PROBLEMS deceptive tactics are easy to spot. If you’re using underhanded methods to promote your business, this can be viewed as a reflection of your product or service. Your integrity is at stake.

This is one of the more complex topics that can’t be fully covered in this space. As always, I invite you to stay social and continue the conversation on Twitter at @Chestergosocial where I’ll share a link to the full article.

SCENT OF

SUCCESS Steven Chester is the Digital Media Director of MediaEdge Communications. With 15 years’ experience in cross-platform communications, Steven helps companies expand their reach through social media and other digital initiatives. To contact him directly, email gosocial@mediaedge.ca.

www.REMInetwork.com | June 2018 15

14 CONDOBUSINESS | Part of the REMI Network

Whiterose Janitorial Services’ Albert Crimi savours more than three decades of achievements

PA R T O F T H E

PA R T O F T H E

CANADA $15.00

O F

BY DAVID ELMALEH AND GABRIELA CARACAS

shareholders, town hall, or any similar type of meeting) can attest to the tension that often arises. The law is clear that occupiers have a duty to maintain

Repositioning Challenges and Opportunities

INSURING YOUR

PROPERTY PA R T

PM#40063056

PM#40063056

4TH ANNUAL WHO’S WHO A ranking of the Canadian condo industry’s major players and portfolios

Anyone who has ever been to a board meeting (or a partners,

PA R T O F T H E

MARKET UPDATE

PART OF THE

+

Occupiers’ liability: A board meeting gone wrong

STANCE

plus

Want to stand out on social media?

Don’t fake it

P A R T

O F

T H E P A R T

TECH SECTOR SPINOFFS EVOLVING RETAIL APPETITE OPERATIONAL SUPPORT TALENT ENTICEMENT TACTICS PROPERTY TAX DEFINING DEMAND

O F

T H E

PM#40063056

Canada’s Most Widely Read Condominium Magazine

PA R T O F T H E

CO-LIVING

Ask the Expert: Budget-friendly renovations

PM#40063056

PA R T O F T H E

Q3 SALES ACTIVITY

T H E

RETROFIT INVESTMENT POLICY UNCERTAINTY PASSIVE HOUSE APPLICATIONS ESG GUIDANCE ELECTRICITY COST ALLOCATION INCENTIVE STRATEGIES

plus

PA R T O F T H E

CO-GENERATION

AT CARLETON U

CANADA $15.00

Stephanie Toomey’s honest approach to business key to building long-lasting employee, client relationships

FORWARD THINKING HOUSING SOLUTIONS FOR A BETTER TOMORROW

What to consider when refreshing public spaces

PM#40063056

� GET IN LINE WITH ONLINE TRAINING

PM#40063056

Sustainable Conductors for Cost Savings

REAL ESTATE MANAGEMENT INDUSTRY

P A R T

O F

T H E

What the New Construction Act Means for Condos Construction is a billion-dollar industry in Canada. While most large projects at

BY GERARD GRANSAULL

condominiums proceed relatively smoothly, there is always risk of friction for contractors and owners alike. Recently, changes were made to modernize the Construction Lien Act with regard to lien and holdback rules to make it easier and more likely that contractors get paid for their work in a timely manner and to improve the resolution of disputes. Here are some key takeaways for condominium boards, managers and owners.

After a long period of consultation with stakeholders, the Construction Lien Act became the Construction Act on July 1, 2018. At that time, new amendments to the construction lien and holdback regulations came into effect. Prime contracts signed after July 1, 2018 (and before October 1, 2019) must comply with these new regulations. On October 1, 2019, additional new rules regarding prompt payment and the adjudication process also came into effect.

Contracts signed after this date must comply with all the new rules.

Lien Period Increases from 45 to 60 Days Previously, the contractor had 45 days to register a lien. The new provision in the Act ups this to 60 days. Additionally, the lien

perfection period is up from 45 days to 90 days after the last day to file a lien, which means the contractor has 90 days to start a lawsuit and register the action with the owner. Both of these make it easier for the contractor to make a claim against the title of the property, so extra diligence is required on the part of owners, managers and consultants to limit the risk.

Definition of Substantial Performance Revised A project is “substantially performed” by definition after the majority of the work required under contract has been completed, and the “improvement is ready for use, being used for the intended purpose, and when the improvement

34 CONDOBUSINESS | Part of the REMI Network

is capable of completion…” Previously, substantial performance could be claimed when the work remaining was three per cent of the first $500,000, two per cent of the next $500,000 and one per cent of the contract balance. These have been revised to: Three per cent of the first $1 million and two per cent of the next $1 million.

One per cent of the contract balance remains the same.

The net effect of this is to make it slightly easier for the contractor to claim that the project is substantially complete and should not materially impact the corporation and the engineer providing project oversight.

Calculation of Completion Revised A project has to be deemed “complete” in

LEGAL

A lien is a form of security given or taken over an item of property to secure the payment of a debt or performance of some other obligation. In the case of construction, liens can be placed against titles of properties by constructors to allow them to get compensated for completed work.

A holdback is a statutory requirement in Ontario that an owner hold back 10 per cent of an invoice payment as a means of security to ensure all parties working on a contract are paid (eg. sub-contractors). The holdback can be released once the lien period has expired.

order for the contractor to request holdback. Prior to July 2018, the calculation for completeness was “the lesser of $1,000 or one per cent of the contract value.” This has been revised to “the lesser of $5,000 or one per cent of the contract value.”

The impact of this is relatively minimal for the corporation, but fairer to the constructor who can now rightfully apply for release of holdback sooner. On a large project, $5,000 is a more just approximation of “minor” work remaining.

Prompt Payment Rules For prime contracts struck after October 19, the Act introduces a 28-day time limit to pay the contractor on receipt of a “proper” invoice (a “proper” invoice has a specific definition in the Act, outlining exactly what an invoice must include). This enshrines fair payment for approved work for the contractor, and the deadline cannot be modified in the Supplemental Conditions of the contract. Significantly, the 28-day period includes the time required for the corporation’s engineer to process the invoice and CFP. This benefits the contractor and corporation as it requires the consultant to process CFPs almost immediately.

Act also defaults to a monthly invoicing schedule if not specified in the contract. Corporations that wish to control the billing can choose to include a milestone payment schedule in the contract.

What happens if the owner disputes an invoice? The Act specifies provisions that work to protect the contractor: any party who wishes to dispute an invoice must issue a notice of non-payment within 14 days from receipt of a proper invoice; unpaid invoices are subject to interest; and the contractor has the right to suspend work on site.

As always, it is preferable to negotiate with the parties to avoid formal disputes, but non-payment of a progress invoice does not mean that work must stop.

Mandatory Adjudication In large projects, disagreements between parties will arise. The corporation’s engineer can often act to smooth them over, but some are inevitable. To facilitate and accelerate the resolution of disputes, the new Act mandates that the parties enter binding (temporarily) adjudication. The adjudicator can be chosen or is assigned.

Adjudication services are available for on-going projects for disputes that may include valuation of services or materials, payments including change orders, and notice of non-payment under the new prompt payment rules.

A party who wishes to file a dispute must deliver a written notice of adjudication. The adjudicator must file a decision within 30 days of receiving the documents. The adjudicator’s decision is binding on the parties unless and until the issue goes to court or the parties settle. This mechanism could have a major impact on

construction activity and imposes short timelines on all parties, so diligent and organized project management is even more essential to forestall and respond to disputes.

It is clear that these updates to the Construction Act will impact how construction projects are administered and managed in Ontario. For condominiums and their consultants, it will require additional oversight and likely some advance planning, particularly around the prompt payment rules—to get procedures in place before the work starts in order to ensure the major repair progresses smoothly and their hard-earned reserve fund savings are protected. 1 Gerard Gransaull, P. Eng. is Director, Building Science – Building Condition Assessment, for WSP in Canada.

NOTE: The material and information contained in this article does not constitute legal advice in any way. Condos needing more in-depth information should consult their counsel.

KITCHEN STACK PRESSURE CLEANING

Your plumbing & mechanical service experts

CALL 416-789-7611 www.REMInetwork.com | November 2020 35

Jermark_QP_Condo_June_2016.indd 1

2016-06-24 8:59 AM

DESIGN

The Bright Idea Behind Bulbs Most GTA condominium grounds lack planted interest, texture and colour in

the month of April and into early May.

BY KENT FORD

Most

perennials don’t begin to show any interest until late May, with shrubs only sporadically prior to that.

Boards often become frustrated with this lack of early spring impact and, as a result, engage in a frenzy of pansy planting in the containers on either side of the main entrance. This approach leaves the balance of the landscape palette sorely in need of more—that extra touch that can enliven a condo property, while leaving its neighbours behind in the desolation of a post-winter state.

The ubiquitous pansy, like any other annual, can amount to a big-ticket item that bears little or no return on investment. They have to be planted every year and torn out by mid-July due to their lack of heat tolerance, leaving behind gaps in the landscape that have to be filled in a hurry.

The solution? Fall-planted bulbs. Usually what comes to mind for most when they hear these words are tulips—those keepers of the May time festivals such as the Canada Tulip Festival held in Ottawa each year. Despite their grand performance and eye-catching and massive colour displays, these varieties of tulips are trashed immediately after they are spent blooming.

New bulbs are planted again the following fall. The repeat cost is a sore point reality; if left in the ground, they would only partially re-bloom the following year and less so the next year, leaving only masses of floppy vegetable-looking foliage behind until early July— not an effective long-term, low-maintenance or cost-effective solution for the average condominium manager seeking to achieve both.

With a bit of research, however, and a great landscape design, a plethora of alternate fall-planted bulbs can be found. These bulbs should always abide by three crucial characteristics.

1

Perennialization This is a term for fall bulbs that will not only return the following year, but will send out little off-springs known as bulblets. This not only increases the number of bulbs for future beauty, but also strengthens and enhances the performance of the original parent bulbs.

Bulbs were incorporated into the planting design and installation at Citysphere Condominiums in Toronto. There are benefits to planting the bulbs in large groups or drifts to maximize visual impact and create the illusion of a forest floor alive with spring colour and interest.

2

Favourites From Our Short List

3

Galanthus ‘Elwesii’ – Snowdrops: As the name implies, these very hardy and long-lasting white blooms often flower through the snow.

Tidy and Compact Habit Nothing looks worse than a tall tulip, daffodil or narcissus that has flopped over once blooming starts. Tighter growing varieties are not only less likely to fall over; they are less prone to damage by pets or sports as their foliage and flowers can withstand some foot traffic.

Early Season Bloom Time Nothing lifts winter doldrums like colour in the landscape when it is least expected in late March and early April. Such bulb varieties also provide a six-week jump ahead of the schedule of the common tulip and daffodil.

36 CONDOBUSINESS | Part of the REMI Network

Very Early Bloomers Iris Reticulata ‘Harmony’- Dwarf Iris: Very early bloom time, as early as late March, depending on the site and will multiply over the years to produce more and more blooms.

Snow Crocus ‘Ruby Giant’ – Snow Crocus: As the name implies, these are a well-known harbinger of spring and like their

DESIGN

other March and April blooming siblings are effective in large drifts at the base of trees.

Early Bloomers Tulipa ‘Dasystemon Ta r d a’: Tulip a ‘ P uchella E aster n St ar ’ and Tulip a ‘Saxatilis’ – Botanical Tulips: While the typical May blooming tulips have the liabilities of flopping foliage and dwindling bloom-ability from year to year, botanical tulips multiply (naturalize) over time, have a low and tidy growth habit and an array of colours. The three noted here are great choices for the condominium landscape as they appear tough against the effects of dogs, rabbits and other sources of damage that can occur within the common elements.

Building Science & Structural Engineers Building Structure Parking Structures Building Envelope Reserve Fund Studies Performance Audits

Narcissi ‘Thalia’- Thalia Narcissus: We are all familiar with daffodils and narcissus, which come into their own in time for the Canadian Cancer Society’s spring fundraising drive. In the landscape, they pose one central challenge: they will multiply over time, but only if the foliage is left in place once the flowers have finished. For some, this provides a visual problem as that foliage must wither completely before being removed and, in most cases, that occurs no earlier than Canada Day. Thalia narcissus has narrow almost grass-like foliage that is short and more pleasing to have around after its pure white fragrant flowers have finished their show.

rjc.ca

Later Bloomers Allium ‘Globemaster’- Ornamental Allium: Beginning in May and into early June, there is no better show stopper on condo grounds than alliums. These are members of the onion family and sport perfect purple spheres 8 inches to 10 inches across and appear to float in the landscape.

They are a must-have if you want your property to make an impression.

Plugging fall-planted bulbs into the right bed and the right design will illuminate them to their fullest and brightest potential in the spring landscape. 1 Kent Ford is founder of KFDG Inc., a Torontobased Landscape Design and Project Management Firm www.kentforddesign. com. He can be reached at 416-368-7175 or kent@kentforddesign.com

www.REMInetwork.com | November 2020 37 Atrens_Condo_March_2018.indd 1

2018-03-14 1:51 PM

NEW AND NOTABLE

MINTO PILOTS HIGH-RISE AIR LEAKAGE TESTING

This test is one of the first completed in the GTA and makes Minto the first developer in Ontario to complete a baseline measurement for high-rise air leakage.

“Testing the air tightness of a building is an important metric because it helps us understand its longevity over the years as it’s used, as well as the comfort of residents in their homes,” says David Robins, division president, Minto Communities GTA. “We decided to do our air tightness testing at Minto Yorkville Park during construction, which allows us to make improvements while we’re still completing our work.”

While air tightness testing for high-rise buildings is not practiced or mandatory in Ontario or the GTA, it offers a range of benefits to residents and building performance such as energy savings.

The results fared well below standard rates even in regulated municipalities such as Washington State. The developer’s plan is to now incorporate findings into future projects.

The building’s barrier, where thick plastic is installed to prevent leakage, is tested for its effectiveness. Minto partnered with experts from RDH Building Science to complete guarded air tightness testing, which involves isolating individual floors and capturing air leakage only through the building enclosure. The test floor and the floors above and below are pressurized and depressurized identically throughout the process.

Minto Yorkville Park is a luxury 25-storey high-rise tower recently completed in the heart of the Yorkville community. 1

Minto Communities GTA was recently recognized with an EnerQuality Award for Building Innovation for an air leakage testing project completed at its Minto Yorkville Park high-rise.

38 CONDOBUSINESS | Part of the REMI Network

KITEC REPLACEMENT Complete package available including drywall and paint.

◆

◆

Replaced with uponor which provides a 25 year warranty on pipe and remedial damage.

Complete Building Replacement Recirculation Mains Replacement

◆

Distribution Mains

◆

Valve Replacement

◆

Balancing Valve Installation

We Beat Any Written Quote!

24 HOURS

416-789-7611 www.REMInetwork.com | November 2020 39

It’s what’s on the inside that counts.

Trust Rikos to handle the important things behind your walls.

Retrofit vertical fan coil units Kitec plumbing replacement Plumbing riser replacement

416.410.3815 rikos.com

Local solution > global problems.

Since 1999.