CONDOVIRUS EPISODE 4
Rod: Good evening everybody. My name is Rod Escayola and I'm a condominium lawyer with Gowling WLG. Welcome to our webinar, our weekly webinar. This is episode 4. This being episode 4, you know me by now, I've decided to title this one "Rocky IV" which is the greatest fourth of a sequel in any Hollywood sequel. For those who are joining us for the first time this week, what we've put together is an industry wide crisis prevention cell. We've gathered professionals, from all walks of life and all sorts of professions, to help the condominium industry to navigate through these troubled waters. That's what we've done now for 4 weeks, I guess, we've been at this for a month. I can't believe that. And week after week we have these professionals that join us to give us practical knowledge and help us, as I said, navigate through these troubled times. So, I'm going to introduce my cast of characters. Many of them you'll recognize from prior episodes. Let's start with Sandy Foulds, who will be speaking on behalf of CCI. Good evening, Sandy. People are muted. I wonder if, Graeme, if you can unmute these people because it's going to be a long evening.
Sandy: Good afternoon.
Rod: Good. Then we have Katherine Gow, speaking on behalf of ACMO. Good evening, Katherine.
Katherine: Hi everybody.
Rod: Denise Lash, speaking on behalf of CAI, the Community Association Institute and also the founder of Lash Condo Law. Good evening, Denise.
Denise: Hi everyone.
Rod: Graeme MacPherson, from Gowling WLG.
Graeme: Hi everybody.
Rod: He' also the technician. David Plotkin, from Gowlings as well. Good evening, David.
David: Good evening. I see I'm Rocky. How did I get that title?
Rod: Look at that, eh? It's the beard. David and Graeme mainly are going to also the chat channel and, finally, we have Jason Reid, from the National Life Safety Group. Good evening, Jason.
Jason: Good evening everyone.
Rod: Okay, so, we have a full agenda tonight and as we've done in the past, it's going to be a bit of a rapid fire exchange of information. We have received hundreds of questions and I do mean hundreds of questions. As a result of that, obviously, we will not be able to answer all the questions that were sent out. We will do our best. What we've done is we've tried to put together the most common questions to try to answer them and we'll do our best to do that. Keep in mind, as I said, we won't be able to answer every question.
Now, my usual disclaimer. Please keep in mind that whatever information we're providing tonight is Ontario centric. When we refer to legislation we are referring to Ontario legislation. That's where most of us are from and that's where most of our attendees are from. Also keep in mind that the information we give you is sort of dated as of today, April 7th. The situation changes rapidly, on a daily basis, and so for those of you who will watch this webinar later on, on condoadvisor, keep in mind that the information is valid and accurate as of the date of this broadcast. Most importantly I'd like to stress the fact that we are providing general information and may not apply to your situation. Your specific situation may require a different approach, a different protocol. It's crucially important that you all reach out to your advisors, be they lawyers, property managers, engineers, whoever's advising you, and get information that's applicable to your specific situation. The last portion of my disclaimer, I have to advise everybody that this webinar is being recorded, and we try to upload it on the condoadvisor blog but it sort of takes us a while to get to that and we apologize for that. We're trying our best to get to it but it may take a couple of days to get there. Now, we have a chat channel. I see that people have discovered it already. Feel free to ask questions. We're going to do our best to answer some of these questions but do focus on the discussion that we're having because often we get a question that is about to come, or has just been covered, and you're too busy chatting with David and you didn't pay attention to the information provided. Okay. Now, let's move on. The first thing we're going to do is we're going to tackle the issue of essential services in Ontario. And that's because last Saturday, as most of you know, the Province has sort of focused and changed it's essential services. That threw everybody for a loop because we were trying to figure out who's essential anymore. It was a bit of a popularity contest. Are lawyers essential? Are managers essential? Now that we have the list of what is essential, I think that we need to do is figure out exactly how does that affect the services that managers and contractors and engineers are providing to the industry. Are we now sort of prevented from providing you these services in light of this new list of essential services. So I'm going to turn to you, Graeme. Maybe you could give us a bit of, let's take a step back, and maybe you can sort of set the table. There's orders in councils. There's orders preventing us to gather. There's orders asking us to close businesses. You can sort of clear this up a bit for us, Graeme?
Graeme: Yeah, definitely. So there are a lot of emergency orders floating around and it can get confusing to nail down which one they're doing what. I'll just kind of very quickly go over what the kind of main orders in place are now and then we'll get more into what the differences in essential services are in a bit. When it comes to essential services what the orders tells us is that anyone who is responsible for a place of business, that has not been deemed as essential, has to ensure that that place of business is closed. What this tells us, because we sometimes get questions like, "Well, you know, what if, for example, our condominium were to ask somebody to come in and do some sort of work and it turns out that that business wasn't essential. Is the condominium now kind of on the hook for having invited them in?" On our reading of this order it more appears that the onus is on the business person, the service to restrict their own business. That said, you certainly want to keep using your judgment on essential versus non-essential. What we're also seeing with respect to businesses that the order tells us that the person who is responsible for that place of business, that's continuing to operate, must ensure that it's doing so in accordance with all of the laws in place, and as well as all of the recommendations and instructions from public health officials. If you are still an essential service, like management, we have to make sure that you're following all of the recommendations and instructions from our public health officials. Lastly, this one's kind of aside from business and more in terms of social gatherings. We all know that there is an order in place right now preventing gatherings of 5 or more. That 5 or more gathering applies to social events. If you're an essential business and you have 6 people in the office, and they all need to be there, as long as you are maintaining social distancing and employing all of the guidelines that public health tell us to employ, then you should be okay. That 5 people or less restriction applies to social gatherings.
Rod: Right. Very useful. I think it's important for everybody to ask themselves those questions with respect to the kind of services that are being provided, and whether or not it is essential, because there's some pretty hefty fines associated with breaches to these orders in council. Were you going to cover that, Graeme, or do I cover that? You're muted.
Graeme: I can do that right now, yes. You're right. The fines are aggressive. What the Emergency Act tell us is that anyone who fails to comply with an order, who interferes with someone who is exercising a duty under the order, is guilty of an offense. The fines and punishments are quite steep, or can be. For an individual you can be fined up to a $100,000.00 and a year in prison. If the director or officer of a company, that can be $500,000.00 and a year in prison. For a corporation it's a cool $10,000,000.00 as a maximum.
Rod: I was just going to say and you can't use your reserve fund for that. I'm sorry folks. Go on, Graeme.
Graeme: If you have a reserve fund that contemplates that, you're probably in good shape. No, it cannot be used for those fines.
Rod: Okay. Thanks so much. Now that we know what we can and can't do, and how these directives apply, I guess I'd like maybe to turn to David, and David maybe you can walk us through these changes to these essential services and how the definitions have changed since last Saturday at 11:59pm. Maybe the first one that I'd be interested to hear you speak about is management and how that has been affected, if it has been affected, by this new definition.
David: Yes. So what this new essential services list has done is it has limited the numbers down. The previous list was about 74 or so. We're now down to in the 40's. If you look at number 20 on that list, it groups maintenance, repair and property management services together, and it's now these roles are limited to strictly necessary to manage and maintain the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings. It is now, the definition of what a property manager can do, what part of the roles of property management are "essential" are limited to those titles. I know our managers are going to speak specifically about how this has, if it's changed, what they do on daily basis et al. But that's the new definition for management.
Rod: Right. If it doesn't fall within something that's strictly necessary, for the safety, security and sanitation, or for the essential operations of the residential building, normally you wouldn't be able to do that because it's not an essential service. So, Katherine, I'm going to turn to you. As that now sort of cleared your plate? Is there all sorts of stuff that you can't do anymore because you're not essential?
Katherine: Something that's happened in the past as a property manager, and I think most condominiums are already familiar with it, is as much and whenever we can do our work remotely, we are doing that. The problem is, or the shame is, is that there remain a good deal of tasks and responsibilities that cannot be done remotely. Some buildings are fortunate enough to have great systems where they can electronically identify and validate that some of the security patrols are taking place. That things like file programming can take place offsite. That instructions of the property for safety and security purposes can take place. That instruction to staff can be validated. Notices, changes to how the condominium itself is going to function, what the expectations are for residents. That cannot be all done remotely. So that does often necessitate attendance onsite. That's the reality of it.
Rod: What's interesting, I think from what you're saying and what we discussed when we prepared for this, is that we sort of conclude, we're scratching our heads, is there something that a property manager does that is not sort of strictly necessary to maintain the safety, security, sanitation and essential operation of the building? There aren't many things. Everything you do, even the PIC's that you send out, even all of these notices, all of that is essential to the operations of the building. How does this definition, Sandy, how does this definition impact maybe what you'd expect your superintendent, or concierge, to do?
Sandy: Your superintendent's duties really have not changed at all. They're doing everything that they've done in the past, including their safety and security inspections, cleaning if that's part of his or her duties, and actually more cleaning than ever before, dealing with essential contractors, owners issues, and of course, emergencies in your buildings as they arise. The only difference now is how your super is doing these duties. They need to take social distancing and personal health precautions into account all day long. This definitely slows down his or her day. You need to make sure your supers have all the supplies they need to do their job safely. And really, it's most definitely not your supers duties to police the building, to enforce quarantine, isolation or to break up social gatherings. We'll get into a bit more of that later.
Rod: We've done a list actually. You'll see the devils in the details here. Jason, from National Life Safety Group, if I turn to you, and I'm going to ask you this, an important element of condo living involves security. Be it parking control, access control, security guards, is this new definition affecting in any way this kind of requirement?
Jason: No, I think the patrols status will actually increase. I think what we're seeing is boards and property management organizations are taking a proactive role and saying, "Okay, we've got some of the load off the security guards or the concierge at the front desk, specifically with packages and escorts and access issues." But they're seeing an opportunity where, really, to increase their virtual patrols. So the concierge or security may have access to an array of security cameras and they're actually using those cameras to do a 360 view of wherever they're covered. Then they're actually documenting that review. So where they can't leave due to manpower they're actually, at times, increasing security. I think that's vitally important for the simple reason is, your eyes and ears used to be your residents. Your eyes and ears used to be your visitors and the vehicles coming in your parking garage. All of those should be reduced significantly right now. So the enhanced security will benefit the community. Parking control, concierge and security are essential services, as you mentioned, Rod. I think the only other item I would think noteworthy in the security and concierge access, our issue is access to the systems. Operational continuity of CCTV systems as well as logins, access control, even your front desk computer. We've got to start looking at third party software logins. Typically we have the A game that works 8 to 4 at a lobby and if that person doesn't show up one day we may lose some of that access.
Rod: Right. And in fact, Jason, security is not only covered under maintenance, but it's also covered under item 6 of the list of essential services. It's pretty clear. Security services for residences is an essential service. So folks, as you've seen so far, pretty much if you have any of these staff or employees or contractors, they still are within the essential services as defined by the Province. But what we're going to do now is we're going to dive into more contentious examples. We're going to try to identify various other sort of routine task, or work that needs to be done, and to see if at the end of the day, and the game today is, to see if it falls within what's required, strictly required, to maintain safety, security, sanitation or the essential operations of the building. If it falls within that it's got to continue. If it doesn't fall within that I would caution, the average condo corp out there, and I'd wonder whether or not we were entitled to expect and demand it. Now believe it or not, perhaps the most contentious of these tasks that people have on their minds right now, is landscape. Lawn care. Cutting hedges. Pruning trees. We had a raging debate over that, believe it or not, and so I'm going to turn to you, Sandy, of Wilson Blanchard Management, I'm going to turn to you, where did we land on this one? Is that an essential service?
Sandy: Well, that's still a very good question. Landscape Ontario has published on their website that section 20 of the newest essential workplaces list refers to maintenance, repair and property management services strictly necessary to manage and maintain safety, security, sanitation and essential operation of properties and buildings. We've all heard that. However, it notes that this section does not specifically describe horticultural activities. This is where debate went on. They're currently lobbying the government for clear answers. But in the meantime they are taking the position that member companies are urged to not work unless they can cite specific government permission, provide upgraded safety protocols and have confirmed insurance coverage. So that is straight from Landscape Ontario's website. Now the reality is many landscaping companies are determining that their weekly maintenance is essential service and have implemented safety protocols for their staff. Landscaping, as we know, is a huge priority for many condo corporations, especially townhouses. But, is cutting the grass every week being done for esthetic purposes or is it a necessity for safety and security? Most definitely parts of what our landscapers do, on a weekly basis, is extremely important and required. They clean the catch basins to make sure that they don't flood. They pick up litter. They trim bushes to ensure clear, safe paths and they remove broken or low hanging branches for resident's safety. The true answer, right now, is we are just waiting for Landscape Ontario to obtain a clear mandate on this issue. As quickly as possible as this is our landscaping season, it's now starting.
Rod: Right. Right, right, right. Well, I heard you mention security and so that of course brings me maybe to ask Jason, what's your take on that? Is there an element of security behind this kind of work, landscaping work?
Jason: There is an element of it. It was modeled after the broken window theory that was launched in the United States. It's when you have a derelict building or a building that doesn't seem to be maintained. It seems to be more of a target for mischievous activity, if you will. There's many studies that have identified that keeping your building maintained, such as cutting the grass, keeping limbs away from windows on ground floor units, keeping the trees trimmed allows the effective use of your exterior lighting and allows you to contribute to that crime prevention through environmental design. There's a lot involved here. But, I would also agree that I wouldn't constitute putting down mulch as a security kind of benefit.
Rod: Right. So you see that's the challenge that we have. Every time we'll ask ourselves the question, I found that chat people are asking all sorts of questions, if you don't cut the grass it's going to be maybe more rodents, maybe more insects and so on and so forth, but at the end of the day you have to ask yourself, is that sort of an essential element to the operations of the building? And that's how you're going to be able to figure out, once and for all, whether or not it's covered. Let's switch topics. What about window washing? Is that essential to the operations of a building? Does anybody want to take this on? Maybe Sandy or Katherine?
Katherine: I think we agreed, Sandy, that I would talk this on and it kind of leads from the last comment into this comment. Part of what our discussion, our debate last night turned into, is what are we doing and why are we doing it? I think if look at all of the services that we would typically provide, now is a new, a different and a unique time, I revert back to some advice that we provided to folks in previous webinars. We want to, first and foremost, try to be the voice of calm and rationality and try to be consistent in our communications to homeowners. One of the things that I think is true is that everybody is saying, as loudly as they can, using as many expletives as television will provide, that folks should stay at home and it's not quite business as usual. I'll also be the first to admit that cutting the grass, today, is probably not an emergency. And there may or may not be something that is different by way of an emergency later on. But the things that a condominium corporation needs to consider when they're looking at any of the work that's going to take place is, first and foremost, from a safety perspective, can the work be done safely? How you're going to protect both the common elements from a safety perspective and the workers from a safety perspective. Some of the items, in particular, that are important have to do with sanitation. So the ability of people who are working being able to sanitize. I make mention of this in reference to this because, for instance, when we are talking about townhomes and whether or not you would do something like landscaping at townhomes. They've never had the opportunity to sanitize at the townhouse complex. There aren't those facilities but that was also easier done by crews in the past because they probably stopped off at the gas station or Tim Horton's, the I don't know where to do that. So it's a bit of a debate. I know that people who are in their homes, safe at home, would really love to have clean windows. The question will be whether or not those window cleaning systems can be accessed without going through any resident's space. So if you're in an exclusive use terraced area, if you're going through a resident's home in order to access those roof anchor devices, that's not possible. Not at all. Today, do I think that window cleaning is not essential? Nothing is going to be damaged if you don't clean the windows. I do know it would make a significant difference to how people feel while they're safe at home.
Rod: Who's tackling garage cleaning then? Is that essential to the sanitation or essential operations of a building?
Katherine: The component that I do think is terribly important, as Sandy mentioned previously, is cleaning of the catch basins and the pits. And that's typically done in connection with the underground garage wash. The second problem is where people will go. Most often we take advantage of the fact that people are away at work when we clean the garage and that won't be possible. I would recommend that we make sure that the building's catch basins are all cleaned, and in particular because we're still doing spring clean up. Leaves and things like that. I think that's necessary. That will help prevent back ups and that can be an even bigger problem. Jason made reference to floods and things of that nature. We want to make sure that things can go away from the site safely. Those are very important things.
Rod: Okay. I'm going to go back to David now, switch topics and maybe David, he can help us understand the definition of construction under this new list. Because, at the end of the day, there's a lot of work that's coming up on us. This is construction season. People have been waiting all winter to start fixing roofs, cladding and whatnot, and so where are we left with? Are you there, David? No. I see he's sort of in slow motion. Are you there, Dave?
David: Yes. You're not able to hear me?
Rod: I hear you now.
David: You hear me now? Okay. Perfect. Alright. We saw in the last essential services list that the construction industry had a whole number of bullet points and it seemed to include almost every single construction worker that exists. I have a number of friends in the construction industry who were not thrilled about that. At this point, aside from what we saw before in the maintenance and repair, there's also under item 30, in the new essential services list, residential construction projects where there's 3 items. I see they're up on the screen. If permitting has been granted for single family, semi-detached and townhomes, an above-grade structural permit has been granted for condominiums, mixed use and other buildings, or the project involves renovations to residential properties and construction work was started before April 4th, 2020. So that's the main changes that would affect condos here. Work that was already started prior to April 4th and any above ground structural work for which a permit was granted as well.
Rod: Okay. Very good. Graeme, I think you had some stats from our latest condoadvisor survey. Do you want to talk about these?
Graeme: Yeah. Absolutely. In the latest survey, what we've seen in terms of delayed work is that 14% of our respondents have indicated that they have not delayed any work, which I guess leads us to extrapolate that 86% of our respondents have. The most popular response that we did receive for the delays was actually a complete tie between the garage pressure cleaning and capital work, like cladding, roofing, caulking and window replacements.
Rod: Okay. Very good. I guess now what we're going to do is we're going to drill in. We're going to try to see how does that definition apply to all sorts of work and, Denise, I'm going to turn to you now. Denise from Lash Condo Law. How does this apply to common element work?
Denise: It's quite interesting because here we see the word essential is not really used. So, as long as the work had been started before April the 4th, the work can continue. And corporations are trying to decide whether they should or they shouldn't continue, of course. If they decide that they don't want to continue they have to make sure that they deal with their agreements and speak to the contractor. The contractors will then decide whether they should postpone or not. That's the first step. But there may be other reasons where you don't want to leave unfinished. It could pose a health or safety risk. Consider both factors in deciding whether to proceed or not but, ultimately it's up to the corporation, if the work was started before April 4th, whether to proceed or not. I have received questions about phased work. Because, of course, there are corporations that had proceeded with a particular phase and now they're onto their second phase.
Rod: Maybe let me just jump in.
Denise: Sure.
Rod: Let's give a real example here and we'll build on that because we're getting this quite a lot. So this is the example. There's a corporation that has a multi-phase sort of project. Let's say they're working on their waterproofing the building envelope. And they worked on it all the way to October, then they stopped for the winter, they put away all the scaffolding and next week they were scheduled to start again. They were scheduled to mobilize again and put scaffolding up again and start working on the building envelope. Let's assume there's some water infiltration, but I mean it's not a solid deluge, it's a bit of water infiltration. So, how do we deal with that?
Denise: Well, there's a couple points there. I don't think that number 30 was meant to apply to the phased approach. I think if you're looking at work that needs to be done that it is more of a repair nature. Then we're back to 20. Which is, is it essential? And your example there, Rod, you said there was concerns there could be flooding, there could be leaks, that would fall under this maintenance and that would deal with repairs. You see it says maintenance and repairs.
Rod: Right.
Denise: So I don't think that a phased project would fall under the April 4th construction under number 30. But of course, you've got to get your own legal opinion to determine whether that is the case or not.
Rod: Right. Right. Okay, so maybe what I'll do then is I'll tackle the in suite renovations. This is another one that we often get quite often. Can owners be prevented from doing work in their units during this quarantine period? During this isolation period? Now, renovations in a unit, they can range from something that's significant, changing cabinetry, changing flooring, changing water appliances, gutting the place, it can go from that extreme to something far more superficial and esthetics driven. Painting a unit for instance. Now, what all of these have in common is that it increases traffic over the common elements. So you have contractors that have to come in and go and out, sometimes with bulky equipment, sometimes with materials, sometimes it requires that the superintendent be taken away from cleaning or other more essential duties to pad the elevator, and so your basically increasing traffic that may not be necessary or essential. So the question, of course I understand that the unit owner wants that to move forward, but the rest of the community may be questioning whether or not that makes sense at this point in time to put energies into increase the traffic there. What we were saying so far to our clients was this, we were saying, "Well, a corporation under section 17 of the Act, a corporation has a duty to control, manage and administer the common elements. To us what that meant was well, the corporation would entitled to minimize, or restrict, or control to some extent the use being made of common element. The kinds of people that will be able to go over common elements. The kind of equipment that will be allowed over common elements, in the context of this crisis. Whether you have a rule about constructions or renovations or not, we find that the Act already provides that authority. Now, that was the theory and this week we had a case, not ours, not our case, that shed some light on that. This is the story of someone who apparently, there's not a lot of facts that we can go on, but from what we read on the case, the owner wanted to paint the unit and had a couple of contractors coming in and painting the unit. Now when she was told that she couldn't go ahead with this work, well, the answer was, "They're my friends. In fact they're not contractors. I'm just having friends over." Right? So this went to court. There were two hearings within a day and it was on an urgent basis because obviously you need an answer right away. Things to keep in mind, the owner in question was self-represented. She did not have a lawyer. And another thing to keep in mind, is that eventually they agreed to postpone the question to the month of June, to allow this person to go get a lawyer. But what we get from this case is this, and I think it is very clear. Courts will hear these matters, even though the courts are shutdown to some extent, they have very reduced staff, very reduced in their operations, they will hear these kinds of questions where the issue is the safety and security and health of the condominium corporation. The judge was quite clear that the judge would rule on this, with or without the owner present, actually. The second thing that's interesting is that, although it's on consent, the court did rule that this kind of work was suspended at least until there was a fulsome argument on that basis. I think this reassures all of us that corporations have the authority to restrict, or prevent, or control the kind of work that will take place in units. Having said that, to me, any work that's required has to be allowed to proceed. l don't know, Denise, if you were going to sort of tackle, how would you measure whether work is required in a unit? What kind of factors do you consider?
Denise: I've had a couple of cases. I think if the unit owner has to move in and there's certain essential items that have to be completed like the kitchen and the washroom, I think those should go ahead. I have had situations where that I see that corporations aren't permitting it. I just don't think that's the right approach. I think if it's purely cosmetic, an owner can reside in there, then I understand that. But not if somebody has to reside in it and that's the only we can.
Rod: Right. Right, right. There's going to be a lot of discretion needing to be exercised and as David keeps repeating, every time we conclude these seminars, you've got to be reasonable. Right? So, approach this in a reasonable manner. Is this work essential? Is this work required? Can this work wait? If it can wait, and it's not required to occupy the unit, I'd probably wouldn't allow it to go on. Let me see here. I'm trying to get back to control the slides. There it is. David, back to you. What can you tell us about short term rentals? Has the Province finally killed the short term rentals and condos? Is that what happened?
David: Breaking news! It happened very recently in the past 24 hours, I believe. It hasn't killed short term rentals but it has very much limited short term rentals at least for the next 14 days and then it's a renewable order thereafter, as they've bee doing. So the exact wording, as you put up on the screen, is that every person who provides short term rentals in rental accommodations, now ensure that any rentals booked after April 4th are only provided to individuals who are in need of housing during the emergency period. As a lawyer I would have loved if this was expressed in a little more of a clear way. Who is in need of housing? I'm sure there'll be a number of discussions that certain people will bring up. The general consensus, at least of what I've heard, this is certainly supposed to apply those on the front lines who are dealing with medical health professionals. Doctors who are working away from where they are or they need to be away from their own family because of their being exposed on regular basis. This is definitely what we feel is meant to be targeted by this and, as Graeme had discussed earlier, the risk of an Airbnb owner, playing games now and trying to say, "Oh, this person's really in need." that Airbnb owner is risking a $100,000.00 fine. I don't think now is the time for Airbnb owners to be playing that game. It's very easy to send them this instruction, saying, "That if you do this at your own risk our view, as a corporation, our lawyers have advised us, is that short term rentals are not allowed except for this very strict exception. Do so at your own risk and be a possibility of a fine to you is $100,000.00."
Rod: Right. By fine you're not talking about the corporation fining them. We're talking about the Province fining them. I don't want everybody to get excited at home starting to find people. I'm going to add something else though. While short terms rentals for people requiring housing during the emergency, while that is allowed at the Provincial level, it doesn't mean that the corporation has to accommodate that. We've always taken the position that a corporation can be more restrictive than a higher level of government but not more permissive. So, the fact that the Federal's allowing cannabis, the fact that the City's allowing it X number of pets or dogs, doesn't prevent a corporation from being more restrictive. What the corporation can't do is be more permissive. Allowing something that a higher level has prohibited. The fact that this exception does exist doesn't mean that you have to necessarily accommodate it within your condo corporation. I'm going to switch topics entirely. We're going to now go onto the quarantine because we're getting a lot of questions about quarantine and the kinds of question we're getting is, "Well, so can a corporation impose quarantine? Can the corporation prevent visitors from attending the property? Can the corporation force the information from the owners to find out if an owner has been infected by the virus? If we get that information what can we do with it?" So basically what we're hearing from a lot of people, from a lot of directors, and from some manager is, basically can the corporation act as a public health authority and the police at the same time? Now you have to keep in mind before I dive in, there's a significant difference between how the Province is regulating businesses and closing maybe a storefront, or something to that effect, or a commercial plaza and how we deal with residential setting? It's a residential setting. We have people. They need to live. This is their home. In fact they're being forced back to their home. So we can't turn this into Nazi land. We have to sort of keep in mind that we need to balance competing interests here. Let's first maybe turn to Katherine, who'll speak on behalf of ACMO here. Katherine, what kind of precaution, I know you went on the internet, you tried to find how various cities are guiding corporations with how to deal with multi-residential set-up. What did you come up with?
Katherine: I'm most well versed in Toronto. It happens to be where I practice, personally of course, and I think Toronto might be a little bit different or unique. The Mayor of Toronto has special emergency authorities. I was able to find, I don't know if it forms part of the slide deck or not, but some very specific guidance to multi-residential with respect to what their expectations are for things like use of the elevator. For things like sanitation of common areas and elements on a regular basis and also certain precautions that folks would take. The reality of it, as well, is that this information changes on a daily, almost hourly, basis. Breaking news, the Easter Bunny and the Tooth Fairy, are both designated essential. Absolutely need to come into condo land. So I want to make sure that that's very clear. I and I say that not being joking. I say that being very serious because the other thing that I want to remind folks is that there are lots of people who live in our condominiums and some of them are little people. I'm concerned that the covenant of trust that we have, when residents are advising us of people in their homes or in their families who are positive, we have to hold that information with the trust that it was given to us. So it is essential so that we can protect people. I think we also have to make the positive assumption that people who are coming to the condominium, particularly through this holiday weekend, are doing so to not visit people but to perhaps offer care and offer supplies. Jason had some really great points which he's likely to expand upon as well. Posting that kind of information at the outside of the building, or somewhere where it can be seen before people enter, reminding them that there are restrictions in place, that we are all to be physically distancing but now is not the time to visit. It is the time to provide essential services only. I think it's very important. I'm also concerned about creating a situation where you have altercations with staff and enabling staff to take appropriate action and who will back them up. So that's important.
Rod: Let's deal with the question you threw at Jason. Jason, what kind of advice or guidance can you give us to help us keep peace, good order and good government in a condo corporation? Especially over the long weekend that's coming up.
Jason: I think with the upcoming festivities, or lack of festivities, that's going to happen in people's suites this weekend is going to be challenging. But I think what's very important for a condo corporation to implement is clear direction. For example, I would suggest posting something just at the front doors of the lobby that stated, explicitly echoed the public health and safety guidelines. For example, you are not permitted to enter this building unless if in the fact that you have travelled outside of the country in the last 14 days. I would make that statement right and bold in my letterhead. I would post that. Why? Because I would post that as a clear identification and a basic due diligence to protect my residents in my building. Because, you know what? You could have service contractors, service providers, visitors, not necessarily know that or interpret that as of yet. I'd also have that notice that says when you come into the building please respect social distancing. Because public health has made this a guideline we need to reinforce that at the entrances to our buildings. In fact, I even suggest you go a step further and post those on the elevator lobbies of every floor. I think it's important to be transparent and have the residents understand that when we talk about additional cleaning in a condominium, what does that mean? I would be hard pressed to see a condominium that is cleaning the elevator buttons on 27 floors more than twice a day. More than twice a day. So, what that means is, if you've got 30 residents on a floor, or 100 residents on a floor, that's an awful lot of travel. I think that when you have that honesty, that accountability and transparency, that clear direction, but it's also allowing the residents to make that informed decision and say, "Wow! You know what? An enhanced cleaning is good." My teams are increasing this. But there's limitations and I think it needs to be clear.
Rod: Right. It allows people to take these decision. Because otherwise if we all say is, "We've increased our protocol." Well, what does that mean exactly? Can I go and lick the elevator buttons or do I need to wear gloves when I touch them, kind of thing.
Katherine: Don't ever lick elevator buttons. No. All joking aside, my best advice to everybody is to assume that the last surface you touched was last touched by somebody who is COVID positive. I think that that is a reasonable assumption at this point in time. If you look at what all public health outlets are telling you, is they're concerned about community transmission. And that's not just about the condos we live in, that's about public transit, that's about why public areas for play are closed, that's why some trails are closed.
Rod: True. But let me just move along here, Katherine. I want to touch a topic that's to me very important. It's a question of visitors and I'm sort of building on something that Jason said, and Jason said put a sign at the door that says if you've travelled in the last 14 days you can't come in. Well, there may be exceptions to that. One of the obvious exception is if you live there and you're returning from travel, in fact, what you have to do is you have to go to your unit and you have to stay in your unit for 14 days. You won't be able to fly to your unit. You'll need to sort of get to your unit. But even beyond that, there's more than just the owner that live in the unit. The owner may have a girlfriend, or a boyfriend, or a spouse and the owner may have a parent and the owner may have kids. Now we're sort of venturing into the visitors question, I guess, Katherine, were you going to be tackling that? How do we deal with visitors and to what extent can we control that? Just so you know, then I'm going to ask the same question of Denise.
Katherine: So, to date, and those who know me better and I'm becoming more comfortable with you all, the 600 or so plus attendees so I was trying to treat you in the same way, I refer to it as a get out of jail free card. So far I haven't seen a get out of jail free card issued to a condominium corporation that says that people who do have homes don't still have some rights to have certain people come to see them. I'm always concerned, as David would put it, in being reasonable in that regard. I want to make sure that we are facilitating people who are coming to visit our residents, who are helping them to be cared for if they are ill, if they are elderly and to sanitize their own premises. I think that's important. I think we also have to assume that people are taking the appropriate precautions and try to protect against those who are not. The final thing is if you do have concern that somebody is behaving inappropriately, I believe the tap right now is either to one of the police lines, or the snitch lines, which is what they're being called in certain jurisdictions. In Toronto, I know that 311 is the convenient fast way of making a report. In trying to contact the non-emergency number for police, we have been referred back to public health and I'm unaware of any other enforcement, for lack of a better way of putting it, that stems forward from there. And if anybody does know of any I'd love to hear about it.
Rod: I think for all of you out there, you need to sort of Google your municipality, and various municipalities are tackling this a different way, just as Katherine was indicating. Hamilton, Ottawa have a snitch line, of course Ottawa would have a snitch line. Were you expecting anything else?
All: <laughter>
Rod: Some other cities don't have that. In some cities they refer you to public health. In other cities they refer you to the police and in other cities they refer you to the bylaw office, the municipal bylaw office. I said I would turn to Denise. So, Denise, what about visitors? We're hearing all sorts of horror stories out there.
Denise: Well, I want to talk today because, yeah, there's some concerning things. I think we discussed this yesterday when this came to my attention but, at the moment, and I'm saying at the moment because things could change tomorrow, there is no legal authority to prevent visitors from entering the common elements. Unless there's a known risk, visitors are entitled to come into condominium corporations. My position, and this is my position that I hope that many of us agree with this, is that the Condominium Act, there's section 17 and that is to control, manage and administer the common elements. It doesn't go as far as preventing visitors from entering onto the property. I think all the lawyers agree to that?
Rod: For sure. For sure.
Denise: Okay. Good. I know that there are some that have taken a different approach. I don't know, Rod, do you have that signage? Did you put it up?
Rod: Oh. I don't think I did. No. Oh, there it is.
Denise: This one is something that I understand a corporation has done and what it says is that, "Due to COVID-19 this building is closed and open to residents only." That's sort of worded a bit strangely. "Real estate agents and visitors will not be permitted." You know, we have to rely on the health officials and even the government at all levels haven't restricted people from coming in and out of homes. Until they do I don't see how a condominium corporation could go that far. The situation that I had where that was brought to my attention was a tenant who's boyfriend moved in with her about a week ago, then they posted this signage and they told her her boyfriend has to leave. Boyfriend was not a traveler and what they did was they deactivated her phone. So now she cannot leave her unit, or her boyfriend, because she won't be come in unless her boyfriend leaves. I don't agree with that approach.
Rod: That's go back to the corporation has the ability to control common elements but there has to be a reasonableness to it all. Where does one go from occupant, or resident, to visitor? That's a very slippery slope but you raised something, Denise, you talked about the sign indicating that realtors were not allowed in. Graeme, can you maybe cover that? I think we skipped over that. What about open houses? How does the Province deal with this.
Graeme: Yeah, so, as of April 4th when the changes to essential services came out, the government also clarified its position on open houses stating that everyone who is responsible for a business that provides real estate services must ensure that the business doesn't host, provide or support any open house events. So, similar to what I was saying before, I think the risk here is that it is for the real estate services, if there is a open house, who would be on the hook for it? But what we have to remember that what this means from the government is that open houses have been deemed to be no longer acceptable but that doesn't mean that we can prevent people from selling. That doesn't mean we can automatically prevent real estate agents from listing. It is restricted to open houses and just that.
Rod: Okay. So we're going to do something fun right now, dear people at home. I'm going to try to launch, see if it works. We're going to launch a poll because the next topic will deal with what do you with confirmed cases? I'm going to launch a poll and if you're on your computer, or your tablet, your iPad or whatnot, you may be able to answer that. If it doesn't work, well, try better next time I guess. So this is the poll. Do you have any positive COVID-19 cases in your condominium corporation? Graeme, do you see it on the screen because I pressed it. Is it there?
Graeme: It's not appearing for me. Did you launch it.
Rod: I did. Well, that's not going to work, eh? You don't see it?
Graeme: No.
Rod: Okay. Well, we'll see if it pops up but if it doesn't then just raise your hand. David, if you could just maybe count the hands that are raised of people at home to see who has a confirmed case. So, let's talk about confirmed cases and specifically, what do you tell owners when you do have a known case in your condo corporation? We hear all sorts of questions. People are asking us, "Can we tape shut their doors? Can we put a sign on the door? Do we need to tell the floor above and the floor below and so on and so forth? I would say this. This is what we've recommended so far. If there's a known case within the community, for sure we recommend that a letter be sent to the community, not identifying the individual in question, not identifying the unit, not even identifying the floor but just indicating that there is a known case, and these are the precautions that we've taken so far. We as a corporation. We also take a second step and we write a letter to the owner in question, and we sort of list what are the expectations and the demands, and we link it to the various sort of statutory authority or regulations, supporting our request and our ask of that person. That's what we do and that's pretty much where we feel we can stop. A lot of people have asked us, "On what basis must you maintain the information private and confidential?" Medical information is highly regulated and highly sensitive. There's all sorts of legislation that supports that. Personal Health Information Act, The Health Information Protection Act, The Privacy Act, and while these may not apply directly to condo corporations, there's a reason for that. Because condo corps are not in the business of gathering and holding and treating and saving medical information. But if all the other health providers are subjected to such stringent regulation, on what basis do we think that the condo corporation would be able to just go and say, "You know what? It's David in unit 306. And in fact this is where he caught it and these are the symptoms." You can't say that. You can't do that. Some people have asked me, "What about PIPEDA? What about this legislation?" PIPEDA has a section, section 7(3) which specifically provides that you can disclose personal information without the consent of the individual of whom the information is about, and you can disclose that in extreme case. For instance, of emergency or where there's a threat to someone's life, or health or security. So what we've heard was what about that? Can we rely on this? In our view PIPEDA actually does not apply to condominium corporation. In our view it doesn't for the following two reasons. One of them is that a condo corp is not in the course of providing a commercial activity. In fact, when you look at PIPEDA, it applies to private sector organizations that collect information in the course of a commercial activity. A commercial activity is meant to include a transaction that is of a commercial nature. We're not in that business. More importantly, section 55 of the Condo Act provides for a specific exception, owners are not entitled to access records or information pertaining to a specific unit or a specific owner. In our view you can't go around disclosing information, and in fact, it would probably add much to the equation. What is it to you if it's unit 306 as opposed to unit 509? Right? Everybody should be careful with how they interact with people but I do think that we have an obligation to at least disclose the fact that there's a known case. Simply for people to heighten their precautions and their level of carefulness. I don't know, Denise, if you want to add anything to that, or?
Denise: The main thing is that sometimes, I mean what we're asking is that particular resident wants to agree to have their name be revealed to other residents and that's really for the purposes of assisting them. For no other reason. And there are, in the State of Florida I was dealing with an attorney there, she said that that is common. The residents are saying, "Yes, I want my name to be disclosed." and they have lots of volunteers that are helping and assisting that resident with deliveries. That's a reason why they may want their name disclosed.
Rod: Right, and obviously consent would trump everything I've said now. Obviously if the owner consents to the information being provided, by all means, document that and you have a bit of a carte blanche. Very quickly, Katherine, you wanted to add something. But very quickly. We're running out of time.
Katherine: I promise very quickly. I see a lot in the chat of people affirming there've be no positive cases in their condominium corporation. I can't stress this enough. I don't have reason to believe that public health is getting in touch with condominium management firms. As a matter of fact, I don't understand and Graeme, I think can speak to legally, whether or not where somebody who gets that information and I don't want people to have a false sense of security because they haven't seen a notice that says we have a positive case in the building. I, again, go back to saying that you would be better served by assuming the last person who touched anything was COVID positive, today.
Rod: Okay. So unfortunately my poll, my survey didn't really work, and I apologize for that but you'll be reassured that the panelists are seeing it. Graeme is confirming that he doesn't have a confirmed case in his tower. That's the only person that was able to answer the question. Sorry about that. We'll work on this next time.
Graeme: At least everyone can sleep soundly knowing that I'm okay, for now.
Rod: That's right. You're good to go. Change of topic very quickly. What about meetings that can't wait? That's a topic, a question that we just keep getting over and over and over again. I'm going to mainly ask Denise to help us with this.
Denise: Yes.
Rod: How do we deal with that? Go ahead. Go ahead.
Denise: Did you want to say something, Rod? Go ahead.
Rod: I was just going to set the table because I was going to say this, is that we hear a lot of people who have discovered webinars and they're thinking that this is probably the solution to every problem that has ever existed. But holding these webinars, or these online meetings, there's a lot more to it than it. And there's all sorts of questions, some technical questions for sure. Are you able to figure out how to poll people? Clearly I'm not. So there's a question of technical savviness, I guess. There's also a source of legal questions raised, "Can we hold meetings by webinar, remotely? How do people vote?" And so on and so forth. There's all sorts of logistical issues. How do you control the discussion? How do we allow people to speak and to be heard? How do you know who's participating? How do you deal with registration? So there it is.
Denise: Yeah, well I know, Rod, because I have I've spoken to a client that's proceeding with one and I had to caution them as to how to structure it. Because right now our legislation does not permit online meetings. It does permit electronic voting. They're very different processes. One is having your meeting like this, like a webinar, and the other is voting electronically, which is a secure way of voting. It ensures that the vote is secret. You can't do that via chats, like you see here, where everybody can see it. So it's not permitted yet. It may be and hopefully it will be. Once it is permitted though, you're right. There's all kinds of rules that have to be developed. How do you set up scrutineers? How do you an online meeting with electronic voting? I think that the process is being started now. People are looking at how it will work. But right now, if you're going to do an online webinar, or a meeting, it is not an official meeting. So you could still do a proxy. You could still electronic voting and your online webinar would be more for information purposes. There are ways to structure a proxy or electronic vote now. But what we're recommending is let's just wait. Wait at least a couple of months unless you've lost the quorum of the board or there's a reason why you need to hold a meeting. Just hold off for now. There won't be any penalties. You've got good reason to delay your AGM.
Rod: Right. And so I think one of the questions, as you just said Denise, would be is the meeting really required and is it required now? If the board has lost quorum that's an important one. But I would say this, if you are going to hold a meeting, or a webinar, there's various ways of doing that. Can you do it by proxy? Can you do with a proxy and having in parallel this webinar? I would urge you to consider, if you're going to hold a meeting to stick to non-contentious meeting, it at all possible, and to stick maybe to a one item agenda or a two item agenda, certainly until people get more comfortable with how these work and whether corporations can proceed that way. Did you speak about bylaws, Denise, required for electronic voting? Did you touch upon that?
Denise: Yeah. So right now, under the Condominium Act, in order to do electronic voting, and it's talk about electronic voting that you need a bylaw. Although the condo authority now has information on the website which seems to indicate that their interpretation is that you could do a bylaw that will also online meetings. So, if you have a bylaw, those are the easy to pass bylaws so it only requires a majority at a meeting, so once you get a meeting, if you can get a meeting, eventually you will, it's probably best to pass these bylaws and then you can do both electronic voting and possibly online voting.
Rod: Okay. Somebody on the chat line is asking what about condo board meetings. Can these be held and how so? Do you want to touch upon that?
Denise: Yeah. So right now you can hold your board meetings by teleconference. In the Condominium Act says that all directors have to consent but that the position now, because of the health and safety concerns, that board meetings can take place by teleconference or webinars.
Rod: Right. So technically consent is required from everybody and I would say this. If a director was not to consent, I would wonder whether that director, unless there's a good reason I would wonder whether that director is meeting his or her obligations under the Act or acting diligently and honestly and in good faith. Right? Unless there is a good reason for not holding it. So we're sort of running out of time and we're at the end of the presentation. I think we've covered pretty much everything that we had on the agenda. As I said we had hundreds of questions and we can't answer them all and we've done our best to sort of gather together the ones that were like more common. But the good news is that we'll be back here next week, same time, same channel, same people, same characters and so we'll have more questions and more time to cover more topics. So for instance, what we had to skip this time around was what to do with the April arrears. You've got time. If somebody fell into arrears just this April 1st, we've got time so don't worry about it. I'd also like to focus on certain elements on security and safety and use maybe more of Jason's time next time around. But as we've got into the habit, what I'd like to do with a couple of seconds that we have left, is I'm going to go around the table and ask whether anybody has a topic or a point that they want to make before we let them go. It'll be chance also to thank you them for their participation. I'm going to start with you, Sandy Foulds, from Wilson Blanchard Management. Words of wisdom?
Sandy: Sure. Yup. Everyone just needs to stay home, unless your an essential service, limit your visits to the store for supplies, continue to practice social distancing and stay healthy.
Rod: Right. Thank you and you see that I'm sort of skipping the various slides. The slides will be upon the condoadvisor blog. You'll be able to download them but they're basically the points that we've covered already today. That's why you're not seeing them. Next person on my list, Katherine Gow, speaking on behalf of ACMO. Words of wisdom?
Katherine: One of my favourite resources has recently been Rick Mercer's on Not Looking For Loopholes. So if you have the opportunity perhaps see that, perhaps share that, particularly if you have friends who seem to be looking for loopholes. As always, keep calm, wash your hands, sanitize your cellphone and Chag Sameach to anybody who will be celebrating tomorrow evening.
Rod: Right, right, right. And on the topic of people looking for loopholes. They ran out of words, they ran out of ways of telling us to stay home. Nova Scotia became very creative, telling people to stay the blazes home. And so that's sort of the message out there. Denise Lash, for CAI and from Lash Condo Law. Parting words?
Denise: This is all new to all of us and I think that what we need to do is use our best judgment. There's no clear right answer but we've got to act reasonably and use a common sense approach and, really, don't take on the role of a health provider.
Rod: Stay in your lane, Denise, right?
Denise: I wasn't going to say it again but exactly.
All: <laughter>
Katherine: Just sign off now.
Rod: Graeme MacPherson, Gowling WLG.
Graeme: Yeah. Thank you to everybody who came in today and I guess my two cents would be I know how difficult it is this and we're all still adjusting to it but we are all in this together, alone here. Just remember that we're all going through the same thing and as long as we all stay strong and count on one another like we have been we'll get this resolved as quickly as it can be.
Rod: Wonderful. David Plotkin, Gowling WLG. Words of wisdom?
David: On the same point as Graeme, a happy and healthy Passover to everyone celebrating and Easter thereafter. I know it will be difficult for a lot of us celebrating this with our families via Zoom or other electronic means. But as all of our community leaders are suggesting, and our health providers are definitely directing, we thank you all for participating electronic means and helping to flatten the curve by not having these large family gatherings as all of us our used to having.
Rod: Thank you, David. Jason Reid, from The National Life Safety Group. Parting words?
Jason: I wish everybody a wonderful holiday weekend and holiday this week. I can't stress enough. Document what you've done this week. That's critical. If you've enhanced cleaning this week, and your wiping down those elevator buttons on all 27 floors of our high rise, document the dates and times you're doing this. You will need to review this documentation 6 to 12 months down the road. Make it easy for yourself.
Rod: Thank you so very much, David. So, everybody before I sign off, again a reminder we will meet next week, same time. So Tuesday, because it's the holy week for many of us. So we're trying to find a day where it's going to be the least disruptive so we went for Tuesday, April 14th at 5:00pm. You'll need to register again. You can register for our webinars by clicking the webinar tab on condoadvisor. You'll get to see next weeks topics. You'll get to see the registration form because you need to register. That way you get an email telling you how to log in and we also invite you to provide us with questions if you have any questions or topics you'd like us to cover. Under this tab, the webinar tab, if you scroll down you'll get to see past webinars. Slowly but surely we're uploading the recordings, we're uploading the PowerPoint presentations, and so on and so forth. There it is. It's 6:15 almost and we thank you very much for having taken the time to join us to discuss these important topics. You're truly leaders in your communities and people are relying on you to help them navigate through these difficult moments. Wishing everybody a good holy week, a good Passover, Happy Easter for those celebrating it and happy weekend for everybody. Thank you very much. Have a great evening.