Canadian Property Management * GTA & Beyond June 2019

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

VOL. 26 NO. 2 • JUNE 2019

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TABLE OF CONTENTS

CONTENTS 06

10

COVER STORY

06

CONSERVATION CUES COST-CUTTERS Unpaid energy and water efficiency specialists lumped in with agencies to be dismantled

12 IN THIS ISSUE

10

SUBSEQUENT OFFENCE UPSHOT

16

ACCESS TO BUSINESS OPPORTUNITY

Ontario introduces new slate of fines in Fire Protection and Prevention Act

Consumers increasingly dealing with mobility, hearing or vision impairments

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SERVICE FEE SCRUTINY

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UNWELCOME HOME BUSINESS

Residential landlords outspend commercial counterparts

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ELEVATED CONSEQUENCES Hazardous devices demand respect and attention

Amendments to Cannabis Control Act target drug dealers and abetting landlords

“IF PEOPLE AREN'T MOTIVATED TO DO THE RIGHT THING IN FEAR OF A $50,000 FINE, THEY LIKELY WON'T CHANGE THEIR WAYS AT THE THREAT OF A $100,000 FINE.”

RANDY DAITER, VICE PRESIDENT, RESIDENTIAL PROPERTIES, M&R PROPERTY MANAGEMENT


BUDGET RESTRAINT

CONSERVATION

CUES COST-CUTTERS Unpaid energy and water efficiency specialists lumped in with agencies to be dismantled BY BARBARA CARSS

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BUDGET RESTRAINT

T

echnical and policy specialists who provide unpaid guidance on energy and water conservation requirements in the Ontario Building Code have caught the attention of government cost-cutters. The 2019 Ontario budget lists the Building Code Conservation Advisory Council (BCCAC) among 10 provincial agencies deemed to be unnecessary or imprudent expenditures. The budget document lumps the 10 agencies with two that have already been dismantled — including GreenON, the entity that oversaw disbursement of funds from the cancelled cap-and-trade program — and projects collective savings of more than $125 million over five years from their dissolution. Meanwhile, as mandated, BCCAC members’ claimed expenses are posted on the Ontario government’s website and reveal peak spending of $1,345 to cover travel costs in 2015, dropping to $1,136 in 2016. “The Building and Development branch (of the Ministry of Municipal Affairs and Housing) provides us with coffee and lunch,” adds the council’s Vice Chair, Bob Bach, an engineer who has been a gratis consultant on the intricate nuances of energy performance in buildings for the past nine years. Although the cost-effectiveness of that free advice is now under scrutiny, the MadeIn-Ontario Environment Plan, released in November 2018, reflects admiringly on the Building Code and identifies it as an action area for introducing measures that could reduce both greenhouse gas emissions and electricity and natural gas costs for building owners. “Ontario is currently a leading jurisdiction in Canada when it comes to energy efficiency standards in the Building Code,” the Environment Plan states. “Today, Ontario’s Building Code ensures new homes built after 2017 use 50% less energy to heat and cool than houses built before 2005,

resulting in a much lower carbon footprint than older homes.” ADVICE ON COMPLEX REGULATIONS That’s no accident since successive iterations of the code have set increasingly stringent performance benchmarks along with scheduled dates for incremental improvements. Most recently, buildings designed and constructed after January 1, 2017 must be at least 13% more energyefficient than previously required. Expectations are stated in Section 12 of the code, relating to “resource conservation and environmental integrity in design and construction of buildings”, but two Supplementary Standards — SB-10 for Part 3 buildings or SB-12 for Part 9 low-rise housing — outline the approaches building designers can take to comply. This is where the BCCAC’s unpaid building code advisors have made key contributions. Beyond evaluating the costs and paybacks of technically feasible energy performance, they’ve considered how designers and modellers can test and verify designs, and how building officials will assess designs and enforce code requirements. They’ve also tackled a range of emerging issues during their regular meetings — recently, for example, related to electric vehicle charging stations in multifamily buildings. “The bottom line is that energy efficiency regulations are very complex,” observes Bach, who was approached to be a founding member of the advisory council in part due to his 1990s’ era professional involvement when the ASHRAE 90.1, Energy Standard for Buildings Except Low-Rise Residential Buildings, was first introduced as a reference in the Ontario Building Code. “We have a diverse group of people on the council, and our role has been to advise the Minister on energy efficiency and water conservation in the Building Code.”

That’s premised on the Minister’s willingness to listen. “I am worried that the dismantling of the Building Code Conservation Advisory Council is a step towards abandoning the progress Ontario has made on our Building Code,” says Mark Lucuik, a LEED Fellow, who is a principal and the Director of Sustainability with the engineering consulting firm, Morrison Hershfield. “I have encouraged the Minister of Municipal Affairs and Housing to consider these changes holistically in order to make informed choices that are in the best interest of Ontario residents.” FISCAL REVIEW INSPIRES RECOMMENDATION The recommendation to dissolve the BCCAC comes from the five-member Agency Review Task Force, composed of five Conservative Members of Provincial Parliament, and is affiliated with the government’s promised line-by-line review of provincial spending to promote transparency and uncover opportunities for cost savings. The budget’s hit list is drawn from 60 entities reviewed thus far, while another 130 are yet to be examined. The task force has recommended axing 10 agencies deemed to “have become unnecessary, or because there are more cost-effective ways of achieving those goals”. To that end, the budget states: “The Ministry could seek expert advice on conservation matters of the Building Code from working groups rather than through a provincial agency.” "The government is considering to transform the Council into a working group and remove its status as an agency under the Building Code Act to reduce red tape and streamline processes," confirms Conrad Spezowka, Spokesperson for the Ministry of Municipal Affairs and Housing. "The Ministry is exploring the mechanism for doing this. Because the group is established under the Act, it would require www.REMInetwork.com

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BUDGET RESTRAINT

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Asset Transformation Consulting Engineers Project Managers Materials Testing & Inspection

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an amendment to the Act through the Legislature." Yet, the working definition of an advisory agency, posted on the government of Ontario’s website, does not seem unduly odious. “Advisory agencies are composed of one or more individuals appointed by the government. These provincial agencies are established for more than three years. Advisory agencies’ administrative functions are carried out by the responsible ministry,” it states. CODE DEVELOPMENT EXPERTISE The 12-member BCCAC has fulfilled a different function than other advisory committees struck to support Building Code development. However, some of the BCCAC members, including Bach, have also served on other kinds of code-related committees in Ontario and for Canada’s model national codes. “There is a process for reviewing proposed changes in the building code, in general, for which they convene Technical Advisory Committees. That occurs every five years when they are preparing for the next Building Code, but they don’t look at the supplementary standards, which is really where energy and water conservation is dealt with,” Bach explains. “Technical Advisory Committees are the resource for new building code proposals. We’re actually upstream from that and we are only focused on energy and water efficiency.” The cost-effectiveness of continuing to develop an Ontario code parallel to the National building and energy codes is not addressed in the budget. As highlighted in the Made-In-Ontario Environment Plan, Ontario’s code has traditionally enforced some different and sometimes more stringent requirements than the national code. BCCAC member David Potter, Chief Building Official for the town of Newmarket, points to energy efficiency and accessibility as two of the most prominent divergences. However, national code developers have now tackled the ambitious multi-year task of revising the national codes to respond to climate change. “The national code is catching up to the province,” Potter says. The Ministry of Municipal Affairs and Housing could not provide an estimate for the portion of the projected $125 million in savings that is attributable to the BCCAC’s dissolution. ■


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SUBSEQUENT OFFENCE UPSHOT

Ontario introduces new slate of fines in Fire Protection and Prevention Act BY BARBARA CARSS

A

second Fire Code violation will push Ontario property owners, managers, corporate officers and directors into a steeper fine bracket under proposed amendments to the Fire Protection and Prevention Act. New legislation tucked into the 2019 Budget Measures Act introduces a distinct slate of penalties for “a subsequent offence” and clarifies that any conviction under the Act or its regulations will count as a first offence. Fire departments will also have more time to prosecute infractions with the addition of a new section to authorize action within one year of implicating evidence coming to light. Until now, the Act has been silent on timelines for prosecution so fire officials have had to default to the parameters of the Provincial Offences Act, which gives them just six months from the time an incident occurs. “That timing was extremely problematic for us,” says Jim Jessop, Deputy Chief with Toronto Fire Services. “These amendments will absolutely increase our ability to enforce the Ontario Fire Code and to deal with and mitigate other safety hazards not addressed in the Fire Code.”

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For example, complicated investigations in the aftermath of a fire can take months to uncover all the contributing factors and related safety inadequacies. “Because of the timing, we were not able to move forward with dozens of prosecutions in cases where building owners had failed to comply,” Jessop advises. The extended period for prosecutions, more stringent fines and additional flexibility for the province and municipalities to recover costs from property owners are set to come into force in late June, but there has been little formal communication of the government’s intentions. They were revealed in the final chapter of the provincial budget — entitled Details of Tax Measures — in a list with nine other planned legislative initiatives, and have received scant attention. “We were not consulted,” reports Tony Irwin, President and Chief Executive Officer of the Federation of Rental-housing Providers of Ontario (FRPO). SUBSEQUENT OFFENCES Monetary penalties will jump significantly for the new subsequent offence category.

Notably, corporations are currently subject to fines of up $100,000 for contravening the Act or any of its regulations. That cap will rise to $500,000 for a first offence and to $1.5 million for a subsequent offence. For individuals, conviction for any offence under the Act, not just those related to the Fire Code, will come with a first-time fine of up to $50,000. Subsequent offences will trigger fines of up to $100,000. The same increments apply for fines imposed on directors or officers of a corporation who are aware that the corporation has violated the Fire Code, or who knowingly commit an offence under the Act or any of its regulations. This will match maximums already in place for offences under the Ontario Building Code Act. The Building Code Act further authorizes fines of up to $10,000 per day for a continuing offence when convicted parties fail to bring their buildings back into compliance with a Chief Building Official’s order — a penalty that is not paralleled in the amendments to the Fire Protection and Prevention Act. The current $2,000 maximum fine for tampering with or removing a posted notice from the Fire Marshal will take the most


REVENUE

extreme upswing as it, too, will be pegged at $50,000 for a first offence and $100,000 for a subsequent offence. “There seems to be a growing trend to adopt an enforcement approach that’s geared toward generating revenue for government agencies,” says Randy Daiter, Vice President, Residential Properties, with M&R Property Management. Fire departments can also begin to pass through costs when it is necessary to close properties considered an immediate threat to safety. “In cases where the building owner is either unwilling or unable to comply with the Fire Code, we have the ability to request authority (from the Fire Marshal) to close the building. We get permission to literally go in and change the locks and close the building,” Jessop explains. “In the past, the costs of everything from staff time to locksmiths to erecting fencing to keep the public out were borne by the municipality, which we do not think is appropriate.” COMPLIANCE PARTNERS The Fire Code’s oversight of existing buildings makes it a more common compliance challenge for landlords and their property managers than the Building Code’s more scoped application to new construction and major renovations. That’s particularly true in the residential sector where tenants can inadvertently or purposely compromise life-safety protections — propping open fire doors, disabling smoke detectors in their own units or even vandalizing equipment. Industry insiders predict the new fine regime will come with a hefty cost hit. “That first offence could be something like a door closer not working properly and now it puts you in line for a substantial fine,” Daiter notes. “Landlords are often held responsible for tenants’ actions simply because it’s easier to charge and fine a landlord than it is a tenant. Similarly, under the current rules, many landlords would plead guilty and pay the fine, largely because it’s easier to do that than to go to court to try to defend against the charge,” Irwin says. “This is really going to change how they approach these types of matters.” Reputable landlords and property managers endorse fire departments’ efforts

to deal with what Jessop terms “a minority of owners who are wanton and reckless, and are endangering tenants, occupants and responding firefighters”. However, Irwin and Daiter reiterate that tenants and service providers also play a role in fire safety. “With elevators, the TSSA (Technical Standards & Safety Authority) has made the elevator contractors more responsible and, that way, they are getting better results,”

Daiter submits. “Maybe there should be a similar mechanism to make sure service providers are really ensuring Fire Code compliance with professional rigour.” Nor is it a given that steeper fines will temper wanton and reckless behaviour. “If people aren’t motivated to do the right thing in fear of a $50,000 fine, they likely won’t change their ways at the threat of a $100,000 fine,” Daiter maintains. ■

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REVENUE

SERVICE FEE

SCRUTINY Residential landlords outspend commercial counterparts

BY BARBARA CARSS

A

majority of Ontario landlords opted to e-file applications to the Landlord and Tenant Board (LTB) Tribunal in the first year it was possible to do so, but a sizable minority relinquished the potential $15 discount and submitted traditional paper documents. An even smaller proportion of tenants took advantage of the online portal, as 59% spent the extra $5 dollars it costs them to apply through paper-based channels. The Financial Accountability Office (FAO) of Ontario’s recently released tally of approximately 1,100 provincial service fees reveals that landlords paid more than $12.5 million toward the administrative costs of the 100,706 applications they filed with the Tribunal between April 2017 and March 2018. Tenants chipped in another $377,000 for 7,723 submissions. “E-filing began in earnest in the spring of 2017, but, in a lot of scenarios, it’s more of a convenience for the Board than applicants,”

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observes Joe Hoffer, a partner with Cohen Highley LLP, whose work regularly takes him to one of the LTB offices. “We are at the Board almost every day picking up Notices of hearing and it is more convenient for us, administratively, if we just drop off our applications at the same time.” Including $95,200 associated with 4,688 applications from the coop housing sector and $175,000 from all parties’ requests to review an order, the LTB accounts for just 0.45% of $2.9 billion in Ontario fee revenue collected during the period the FAO scrutinized. Nevertheless, the volume and sum of Tribunal admin charges exceed most other tolls tied to commercial real estate and/or professional and skilled personnel who work in the industry. FLOW-THROUGH COSTS TO REAL ESTATE In comparison, the Assessment Review Board garnered about


REVENUE $320,000 from 1,760 non-residential appellants challenging the value assigned to their properties, while the Local Planning Appeal Tribunal collected about $629,000 from 2,099 appellants disputing planning decisions. The Building Materials Evaluation Commission exacts the highest single fee developers/building owners are likely to encounter — $11,000 to seek permission for innovative construction materials, systems or designs not explicitly authorized by the Building Code — but it was levied just six times during the year. Building service providers’ registration and license fees account for another modest fraction of provincial fee revenue. The Ministry of Municipal Affairs and Housing took in about $1.3 million in various examination and licensing fees for building officials, designers and design firms, and sewage system installers. That includes nearly 3,350 practitioners who each paid $150 to take an exam required to prove their qualifications to apply the Building Code. If demand remains relatively stable, the Ministry’s fee revenue should increase in 2018-19 and again in 2019-20 since 23 of its administration charges rose by 2 to 2.8% at the beginning of this year. Together, security guards, private investigators and their employers submitted about $3.4 million in license fees to the Ministry of Community, Safety and Corrections with the bulk of that in $80 outlays from nearly 39,600 individual guards and investigators. Meanwhile, landscapers, grounds-keeping and pest control contractors and building owners/managers with in-house grounds-keeping services were among the 5,500 proponents who paid $90 to $200 for pesticide licenses, collectively rendering $701,000 to the Ministry of the Environment. E-FILING UPTAKE The Landlord and Tenant Board Tribunal accepts online applications for four categories of appeal, aligned with the two most common appeals that landlords and tenants make. In 2017-18, landlords paid more than $10.7 million to submit: 47,578 applications to evict a tenant for non-payment of rent and collect rent owed; and 11,397 applications to terminate a tenancy and evict the tenant. Tenants paid nearly $223,000 to submit 2,829 applications related to subjugation of their rights and 1,814 addressing neglect of maintenance. Landlords’ fees in both cases were $175 for online applications — an option that 52% of appellants chose — or $190 for paper-based submissions. Tenants were charged $45 for online applications or $50 for paper-based applications, with just 41% opting to e-file. Hoffer speculates owners/managers with larger and more regionally dispersed portfolios may be the most enthusiastic e-filers since staff in a central location can coordinate the process and submit required forms to any of the eight LTB offices province-wide. “Then they’d have to have their staff in the different regions pick up the Notices of hearing at whichever LTB office was involved,” he adds. Tenants may be less aware of the e-filing option or lack online access and/or the credit or debit card required to facilitate the process. Alternatively, they can submit paper applications at an LTB office, at a larger number of designated ServiceOntario centres or by mail. “Many times tenants file in response to a landlord’s application and they may get the idea to file when they go to the Board office and ask counter staff for help,” Hoffer advises. “As time goes on and

the level of tenant awareness goes up, maybe we will see an uptick in tenants e-filing.” Landlords also submitted more than 41,000 applications in 2017-18 related to; above-guideline rent increases; sublets; ending a tenancy with the tenant’s agreement; varying rent reductions; collecting owed rent; and determining whether the Residential Tenancies Act applied to units in question. Rarer matters included: 29 applications related to tenants changing the locks; five requests to review a work order arising from provincial maintenance standards; and one request to transfer a tenant from a care home. SUB-METERING APPEALS Just six tenants paid the $50 fee to apply for a rent rebate or other reparations related to unit sub-metering for electricity consumption. However, the avenues for appeal through the LTB are limited and tied to landlords’ conduct rather than that of unit sub-metering providers. Tenants can argue that landlords did not properly inform them of expected electricity costs, failed to provide an appropriately energyefficient refrigerator or to disconnect sub-meters from electric heat sources, but there is no opportunity to contest unit sub-metering providers’ pass-through administrative charges at the Tribunal. Meanwhile, the Ontario government’s newly adopted Restoring Ontario’s Competitiveness Act rescinds the Ontario Energy’s Board authority to regulate those charges. Sub-metering companies are also among the building service providers who pay provincial fees as a cost of business. That includes an annual $800 registration fee for each license they hold, and a $1,000 fee for every application filed with the Ontario Energy Board. ■

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HEALTH & SAFETY

ELEVATED

CONSEQUENCES Hazardous devices demand respect and attention BY CYNTHIA R. C. SEFTON

O

wners, operators, manufacturers or service providers to elevators and escalators have a legal obligation to prevent incidents. In Ontario, the Technical Standards and Safety Authority (TSSA) is the designated regulatory authority under the Technical Standards and Safety Act 2000, and under Ontario Regulation 209/01, Elevating Devices. As well, the Ministry of Labour may investigate where a breach of the Occupational Health and Safety Act (OHSA) and regulations occurs. In two examples from Toronto, occurring more than 10 years apart, companies were convicted and paid large fines after deaths or injuries were found to be in connection with unsafe elevating devices. UNSAFE OPERATION In January 2006, the hydraulic cylinder of a parking elevator failed in a downtown Toronto office tower. The elevator was installed in 1972, and the owner and the maintenance contractor had agreed that the latter would perform monthly inspections and maintenance. Although the contractor billed the owner for such services, it failed to perform this task starting about eight months prior to the accident. Five people were injured. On a TSSA prosecution, the trial judge convicted the contractor on five counts and fined the company a total of $500,000. The appeal court upheld both the convictions and the fines. The contractor’s employee added 100 litres of oil on August 12, 2005, without being able to account for the substantial loss of oil. The court found that this ought to have indicated to the contractor that the elevator’s safety had been compromised. However, the contractor permitted the unsafe elevator to be put back into service.

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THE STEPS THAT COULD HAVE PREVENTED THE OUTCOMES IN THESE TWO CASES WERE NOT EXCEEDINGLY COMPLEX. The appeal court held that what is “safe” is to be determined by the standards in the industry, including any alerts or safety notices from the regulators. The TSSA had issued a Safety Alert Bulletin in 1999, which stated that any unexplained loss of oil indicated cylinder leakage from corrosion and required that the elevator be immediately taken out of service. MAKESHIFT REPAIR In February 2019, the owner and operator of a condominium and event space pleaded guilty on a prosecution by both the TSSA and the Ministry of Labour. A worker was killed in 2016 when a freight elevator door fell on him. Another worker was investigating a temporary makeshift repair during an elevator malfunction when the repair failed and the door fell. The event company was found to have failed to ensure that the freight elevator was maintained in a good condition, contrary to the OHSA. The owner and operator pleaded guilty to permitting the elevator to be operated without ensuring that necessary repairs were made under the TSSA legislation. The companies were each fined $100,000 plus the mandatory 25% victim fine surcharge. COMPLY AND DEMONSTRATE COMPLIANCE The average person likely does not consider that an elevating device can pose a hazard

to workers and to the public. However, those who have responsibilities for these devices must consider the hazards. Lack of regular inspection, failure to identify and correct potential problems and the use of temporary makeshift solutions resulted in injury and death. Building owners/managers must ensure that those who perform work or services are familiar with and put into use all available safety information and best practices. Know the requirements of the applicable legislation and be in a position not only to comply, but to be able to demonstrate compliance. Discover any system gaps prior to the accident, not afterwards. The steps that could have prevented the outcomes in these two cases were not exceedingly complex. They involved attention to details and monitoring of these details, rather than assuming that everything was working properly. However, in 2006 and 2016, these steps were overlooked, ignored or put off for another day, resulting in terrible consequences. ■ ___________________________________________ CYNTHIA R. C. SEFTON IS A PARTNER AND LITIGATOR WITH AIRD & BERLIS LLP, FOCUSING ON OPERATIONAL RISK MANAGEMENT, PRODUCT LIABILITY, WORKPLACE LAW AND INSURANCE RELATED MATTERS. FOR MORE INFORMATION, SEE WWW.AIRDBERLIS.COM.


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ACCESSIBILITY

ACCESS TO BUSINESS

OPPORTUNITY Consumers increasingly dealing with mobility, hearing or vision impairments

A

ccessibility is already a major determinant of where approximately nine million Canadians choose to spend their money, and it is projected to continue gaining market influence. Just 14% of respondents to a recent survey — conducted by the Angus Reid Institute on behalf of the Rick Hansen Foundation — express no concerns about mobility, hearing or vision impairments either now or within the next 10 years, while 64% recognize the possibility they’ll face a new or worsening ailment in the coming decade. A representative randomized sample of 1,800 Canadians were asked about their experiences and perceptions relating to barriers in the built environment, and policies and programs to support accessibility. The findings (considered an accurate societal snapshot with a 2.3% margin of error, 19 times out of 20) depict generally greater confidence in public spaces than the private realm, with shopping malls receiving the best rating for ease of access.

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“This research demonstrates the increasing prevalence of disability across our nation and the growing importance of ensuring the places we live, work and play are accessible for people of all abilities,” says Rick Hansen, Founder of the Rick Hansen Foundation. “It also outlines a significant consideration for businesses and service providers in planning accessibility infrastructure. Having universal standards that measure where we’re at and provide a road map on how to move forward is critical.” Underscoring issues and opportunities for residential developers, rental housing landlords and condominium boards, one third of survey participants acknowledge that their homes could be problematic for residents or visitors with a disability. More than one quarter of those who currently report a disability are planning to move — double the number who will renovate or make alterations to their existing dwellings.

“While one in three Canadians currently say they have issues getting around their own home, a full majority say they are anticipating challenges moving around at home in the future,” reports Shachi Kurl, Executive Director of the Angus Reid Institute. Half of the survey respondents who report neither challenges of their own, nor connections to people with disabilities, nevertheless indicate that it would be appealing to move into a new home that has attained certification for accessibility. That percentage jumps to 78% among those who currently experience a mobility, hearing or vision limitation. Fully 90% of survey respondents place a priority on accessibility, although 37% maintain that cost feasibility should be considered. New construction is tagged as the most obvious place for that to happen. More than two-thirds of respondents endorse universal accessibility in new buildings, while that expectation drops to 31% for existing buildings.


ACCESSIBILITY INFLUENCING SPENDING DECISIONS Upwards of 81% respondents who have an impairment or are likely to be accompanying someone with a disability report that malls, large chain stores, large chain restaurants, public buildings and medical offices are not difficult to enter or navigate. Fewer than 50% offer the same assessment of other people’s homes. Smaller independently owned stores and restaurants are also deemed less welcoming. Respondents who identify as “affiliated” with people with disabilities actually have a somewhat more negative view of these venues than respondents who have disabilities themselves. Forty-five per cent say small restaurants are “difficult” spaces and 48% say the same of small stores, whereas 40% of respondents with disabilities say small restaurants are “difficult” and 43% give that rating to small stores. An equal and sizeable percentage of both groups — 23% — apply the label, “difficult”, to movie theatres. An observer with lived experience theorizes that friends and family may simply be more shocked at circumstances they

“PEOPLE WITH DISABILITIES ARE OFTEN USED TO FACING BARRIERS IN THEIR LIVES AS IT’S SOMETHING WE ENCOUNTER DAILY.” encounter less frequently. Regardless, it’s a group with economic clout. “People with disabilities are often used to facing barriers in their lives as it’s something we encounter daily,” reflects Brad McCannell, Vice President, Access and Inclusion, with the Rick Hansen Foundation. “There are many more caregivers than there are people with disabilities, and they are also making many of the decisions about which places to frequent or avoid. So this has significant implications.” Notably, 531 respondents, representing nearly 30% of the total database, report they try to avoid properties they know or suspect to be inaccessible. Absence of elevators or too many stairs is the most common deterrent, which 56% of this group cites as a reason for staying away. Other noted barriers

include: doors that are difficult to open; absence of ramps; narrow doorways and/or corridors; inaccessible washrooms; and lack of accessible parking. Schools and workplaces get a generally positive review, with 83% of respondents with a disability reporting that these venues are easy to enter and navigate. However, the survey designers caution those results may be somewhat skewed. “It’s worth noting that the question was only asked of those who are currently working or going to school,” the accompanying report states. “Anyone with challenges significant enough to prevent working or seeking education outside the home may have a different perspective on the accessibility of a typical school or workplace.” ■

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HEALTH & SAFETY

UNWELCOME

HOME BUSINESS Amendments to Cannabis Control Act target drug dealers and abetting landlords BY BARBARA CARSS

P

roposed amendments to Ontario’s Cannabis Control Act could bolster efforts to dislodge drug dealers from residential buildings. To date, police have not had the authority to immediately shut down and eject occupants of dwelling units where unlicensed cannabis sales/distribution occurs or where people younger than 19 use, sell/ distribute or cultivate cannabis. That’s set to change as part of Bill 108, the More Homes, More Choice Act, introduced in the Ontario legislature on May 2. The omnibus legislation amends 13 provincial statutes, focusing extensively on the planning and environmental approvals process and other administrative criteria related to housing development. Tweaks to cannabis control rules pertain to safety and quality of life in existing residential buildings and neighbourhoods. “The amendments address situations where landlords knowingly allow tenants to run drug-dealing operations out of rental properties. Those landlords are typically small landlords who are aiding and abetting the operation,” says Joe Hoffer, a specialist in residential tenancy and municipal law with Cohen Highley LLP. “Most professional landlords, particularly in a relatively robust rental market, will be delighted to have the police evict their drug-dealing tenants and free the unit up for re-rental.” The proposed amendments would repeal two sections of the Act that prohibit closure of residential properties. With this reversal,

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GTA & BEYOND

JUNE 2019

the police or other designated officials could exercise the same authority they already have to lock down commercial, industrial or institutional properties in the course of laying cannabis-related charges. Occupants of single-family housing or apartments in multi-residential rental and condominium buildings could be barred from entry until the completion of legal proceedings, although they would have the ability to apply to the court and post a cash bond to regain access. Following a conviction that confirms a dwelling has been a venue for unlawful sales/distribution of cannabis, it could be closed for up to two years. However, the Act allows “any person who has an interest in the premises” to regain access if they meet the court’s conditions and pay a cash bond. A new owner taking possession of the property, or a landlord who has leased or will be leasing to a new tenant, could also apply to the court to have a closure order overturned. NUISANCE BEHAVIOUR PERIPHERAL The proposed amendments could offer incidental support, but won’t likely to be the most effective means to control other nuisance scenarios. Even if neighbours have convincing grounds to suspect the presence of cannabis purchased from unlicensed sources and/or underage possession in fraternity/sorority houses or short-term rental properties, the evidence may not be easily detectable. If it’s a lawful quantity to possess,

occupants don’t have to account for the origin or ownership of cannabis on the premises. “When accusing a holder of cannabis of having purchased from an unauthorized supplier, the police and the Crown have the burden of proof,” Hoffer advises. “There really is no leverage with these amendments that will allow condo corps to deal with Airbnb issues because there is generally no direct link between Airbnb and people illegally distributing or selling cannabis.” He suggests regulators are primarily targeting illicit cannabis-related businesses rather than cannabis users’ behaviour. “In my view, the main purpose for the ability to bar access to a dwelling unit is to shut down dwelling units that are consistently in use for unlawful purposes, such as gang premises or grow ops,” Hoffer says. “In my view, there is no downside for professional landlords. The only downside is for landlords who turn a blind eye to drug dealers.” For landlords who run afoul of the law, other proposed amendments would set a minimum threshold for fines. Currently, a first-time conviction for knowingly permitting unlawful cannabis retailing or distribution to occur onsite is subject to a maximum fine of $250,000, while subsequent convictions could come at cost of up to $100,000 per day that the offence occurs. Those caps would remain, but with a new assurance that fines could not be lower than $10,000 for a first conviction and $5,000 per day for each day of the offence under a subsequent conviction. ■


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