Condovirus episode 10:
Reopening condoland

Rod: Good evening everybody. My name is Rod Escayola and I'm a condominium lawyer with Gowling WLG. Welcome to Condovirus Episode 10. Tonight's episode is, get ready for that, Re-opening Condo Land. We spoke already about the registration problem so for the last 10 weeks or so we've called upon key industry experts to answer your questions and help the industry navigate through this COVID crisis and week after week, guess what? They come back, the answer the call of duty and they show up and week after week generously sharing with all of us their knowledge, their expertise. So I'm going to do as I usually do. I'm going to go around the virtual table and I'll introduce them to you. A manager from Crossbridge, speaking on behalf of ACMO. Having lived on La Isla Bonita, the Madonna of condo management, good evening Katherine Gow.

Katherine: Good evening everybody. Nice to be here again.

Rod: I had different titles I could have picked from, Katherine, but I was afraid I'd disclose too much information about you. So now we also have a manager from Apollo Property Management, shooting faster than this shadow, the Sonny Bono of condo management in Ottawa, Sean Cornish. Hi, Sean.

Sean: Hey, Rod. I don't know why it makes me nervous when you start those things. Thank you.

Rod: Speaking on behalf of CAI Canada, she believes in life after love, the Cher of Lash Condo Law, good evening, Denise Lash.

Denise: Great to be here.

Rod: Thanks for coming here. Now onto our favourite condo twins. A condo lawyer with Gowling WLG, standing on the bridge over troubled waters, the Paul Simon of condo governance, Graeme MacPherson. Hi, Graeme.

Graeme: At least I'm not Garfunkel.

Rod: He's got a Garfunkel counterpart. Now homeward bound, David Plotkin. Hi, David.

David: Good evening. I was not consulted on these introductions.

Rod: From the National Life Safety Group, observing this space oddity we have David Bowie of safety and security. Hi, Jason Reid. Thanks for coming back.

Jason: Good evening. Thanks for having me.

Rod: And finally from Keller Engineering, within you've always got a friend, the James Taylor of engineering, Justin Tudor. Thanks for coming.

Justin: Hi.

Rod: Let's dive in folks. So that's who we have with us tonight. Week after week you send us hundreds of questions. We love those. Keep them coming. That's how we build the agenda. We try to sort of build around whatever's troubling you and we'll do our best again this week to answer your questions. The chat room is open. I can see it's already open. I can't wait to read to how people reacted to the introductions. I do my best folks. But I see that we amongst the chatters, in the peanut gallery, we have very knowledgeable people that will, as they do every week, share their knowledge and their expertise. I see Michael. I see Bob. I see lots of managers. I hope Murray is there. It's just like romper room and friends now. I'm pointing at people I see. So they'll jump in if you get out of hand and feel free to share your questions. Make sure that when you share your questions on the chat room you click on panelists and all participants otherwise we're the only ones that get to benefit from your question. As we do every week. I'm going to jump into my disclaimer now. This is a webinar for you that we put together but the legislation we refer to is Ontario legislation. So those of you listening from outside of Ontario have to adapt to your legislation. The information we're providing you tonight is accurate as of the day of this broadcast, which is May 20^th, 2020. The situation changes on a daily basis. If you watch this broadcast later on just keep that in mind. Also, it's important for you to keep in mind that the information that we share with you today is general in nature and it may not specifically answer your specific problem, your specific situation. It's important for you to seek advice, professional advice, and to seek advice that's tailored to the very specific situation that you're facing. Finally, I have to tell you that this session is recorded. We'll upload it later on Condo Advisor, condoadvisor.ca. It usually takes us about a week to upload it, because we have day jobs, and you can access this by clicking on webinar at the top right corner of the blog. Click on webinar and you'll get to see next week's webinar and you'll also get to see pass webinars. It's view on demand. And there we are. Now let's go on to the topics that we're going to be covering. So those are the people I've introduced already. These are the topics and let's keep going.

Every week we have a bit of a debate, just before we dive in, whether to return next week. At one point I assumed you'll all be COVID-ed out. So every week we're debating do we do another broadcast next week. Do we space them out to every 2 weeks? Do we go once a month? Do we pull the plug? We realize you're all busy and we don't take your time for granted. We're here for you and if at one point in time this doesn't sort of make sense anymore to you, well that's fine. We can all go back to our day jobs. So maybe we wanted to have a poll but maybe with a show of hand, and I'm sorry to do it this way, it's not going to be a secret ballot.

Graeme: I think the poll should work.

Rod: Okay. Graeme, do you want to work on the poll?

Graeme: I'm going to do it. We're going to do right now. Let's see.

Rod: Oh! Look at that. So the choices, my friends, are keep going on a weekly basis, every second week, once a month. Notice I didn't say never? We didn't give you the option to just get rid of us. That's the kind of people we are. In your face. That's what we are. Okay. So the polls are coming in. Obviously those that are absent don't get to vote but we'll just assume that they're COVID-ed out. Okay, so we'll keep the polls coming and eventually we'll see how it goes and we'll share it.

Graeme: I'm going to close the polls in, I think, 10 seconds.

Rod: Okay. Very Good. Let's dive in or do you want to share the results there, Graeme?

Graeme: There it is.

Rod: There it is. I guess so. We're going to be back here next week. It was a tight race. Next week we're probably going to be here. I got to tell you that we have an epic episode coming up. It's not going to be next week but I have an epic episode coming up but I've been sworn to secrecy and you don't want to miss that one. Hint hint to one of the panelists. Can you remove the results from the screen, Graeme?

Graeme: Yes.

Rod: Okay. Now, re-opening Ontario. We've said it before and that's the first topic. There it is. Closing down was easy part. Re-opening is going to be a lot more difficult. We can't just open the floodgates. We can't just go back to the old ways. Re-opening condo land is like parachute jumping. It's a fall. The question is can you control it? There's been lots of movement on that front this week. Emergency orders were extended. Some businesses are re-opening. Obviously not hairdressers and what does it all mean for condo land? Graeme, can you maybe update us on this? On what are the changes this week?

Katherine: Yeah, certainly. So before we dive into this you're going to see a lot of slides with a lot information and I think what will be of most benefit when, should you have the desire, you go onto the Condo Advisor website and download the slide show. There's a lot of information there that I probably won't go over because a lot did happen. So I'm going to focus mainly on what is going to affect condos, more specifically. So right off the bat, the emergency orders, like the one on social gatherings, the one on essential businesses, the one's closing amenities outside. That has been extended to May 29^th, 2020, at least. It was previously set to expire yesterday. There's a link there where you can find all of those orders and when they're extended to. It's just important to keep in mind that extension of the orders is different from the emergency period. The emergency period ends for now on June 2^nd. It's because we're in an emergency period that the government can make the orders that it's making. One interesting thing is that all facilities that are providing indoor recreational programs, other than essential businesses are still closed. As we'll see this certainly means that pools are still closed, gymnasiums for the most part are still closed and we're going to get into that a little more detail in a bit.

Rod: I think that one we're skipping, Graeme?

Graeme: Pardon me? Don't worry. We're going to skip that next one. But social gatherings of over 5 are still prohibited. The next, if you want to learn about how parking lot church services work, it's right there. So now, any businesses that engage in retail or rental of items to the public, that have a public entrance on the street or sidewalk are open. If they use particular means like what we're seeing at grocery stores. There's been more specific services that have opened but on the next slide is where we're going to get into more where we're relevant to this topic. I'm going to start this off by prefacing at the start that even if an essential business is open it still must abide by the recommendations of public health officials. We need to keep this in mind when I talk about this is open and now you can go do this. It's always with that caveat that you need to, so opening a business, respect the recommendations of public health officials and follow those. Two main ones off the bat that really are going to come to the discussion on condos are the expansion of the definition of maintenance and something new we're seeing, called domestic services. So for maintenance, as you can see here the definition that we used to have was maintenance, repair and property management services that were strictly necessary to manage and maintain safety, security and sanitation and essential operation of condos. We can see now that those qualifiers have been removed. This, in our view, gives a lot more leeway to condominiums, and businesses that are providing services for maintenance, to continue with business as usual, quote/unquote, respecting the recommendations of public health officials. So no longer do you need to ask for this to be legal. Do we need to do this for the building to function? Do we need to do this for the strict necessity of maintaining security? This now is more of a discretionary issue. Similarly, domestic services that support the operation of households, and that includes housekeeping, cooking, indoor and outdoor cleaning and maintenance services, are now essential. Now, I see someone saying, "Window cleaning?" I'm going to go ahead and go out on a limb here and say that window cleaning is now under the Provincial government guidelines, probably acceptable. In terms of domestic services, it's important to remember that even if people are allowed to have their housecleaners come back and their gardeners and their private cooks, I'm not sure. Even if the Provincial government says that's okay that does not necessarily mean you're condominium has to allow anyone in, at anytime, in any circumstances no matter what. Ultimately, as we've said before on this webinar, the condominium is the controller and occupier of the common elements, so safeguards like requiring a mask, or gloves or PPE, may have to be put in place before you can allow these services in.

Rod: Change of slides now?

Graeme: Yup. Something else we're seeing is that a lot of outdoor sport facilities are opening and as you can see here there are some requirements that need to be adhered to in order to open one of these facilities. Similarly, certain indoor facilities like golf driving ranges or shooting ranges are opening, but what we're seeing here is that you need to stay 2 meters apart, you can't play team sports, you can't play sports that are likely to result in people coming within 2 meters of each other and the locker and change rooms have to remain closed, expect to the extent that they provide washrooms and first aid. I think this is relevant in that while gymnasiums and pools and such are not open yet, what we're seeing here is a hint as to what we can probably expect the guidelines to be when these things do open. Now, I said before that gymnasiums and fitness rooms were closed. That was technically not true. They are open but only to professional sports teams and only if the requirements that are listed here are followed. So again, no team sports and no pool sports. For those wondering if the pools can be opened they still can't. Not even professionals can use those yet. You need to physically distance with 2 meters apart. The only people who are permitted to use these facilities are professional athletes and the same requirements that I had said before with respect to the change rooms. I think, and I'm going out on a limb here, because we haven't seen what the regulations will look like yet, but I think what we can expect for when gyms open, especially in condos, that maybe the requirement will be that only owners and residents can use it. Or you have to stay 2 meters apart. Or that you have to abide by the condominium's guidelines. We're going to have to see how that shakes out. But as of now the status quo still is, as far as the Province is concerned, gyms should be closed, pools should be closed.

Rod: Right. I think that's something else to takeaway at this stage, at this point, Graeme, is gyms are still closed, pools are still closed. The kinds of amenities where you have a gathering of people, they're still actually closed, in Ontario. We'll go amenity by amenity. Anything else before I switch speakers, Graeme?

Graeme: No. I think those were the top hits and like I said, there's a lot of information there because a lot of stuff happened very recently, so check out the slideshow if you feel like it, and you'll be able to see in more detail.

Rod: Right. That was the point actually. Today we've decided to leave all the slides, even though we were sort of just skimming over the important one, and you'll be able to review these at your leisure. Okay. Very good and I see there's already all sorts of questions on the chat room. What about barbeques? What about this? What about that? Well, fear not, this is why we have brought Sonny Bono and Madonna, of management. I know we've done this exercise last week of going over the various amenities to see what you could open and what you shouldn't re-open. But the reality is that this is an ongoing exercise. You'll probably have to do this on a semi-regular basis. Now if you want a full analysis of what goes into that decision making process, have a look at last week's webinar and, in fact, Jason last week provided us with a tremendous set of slides where he went amenity by amenity, compared to what other people were doing and then looked at what are the concerns to keep in mind if you are going to re-open. So last week is where you get really the brains, the intellectual sort of analysis, but this week what we've done is we've launched a survey. Many of you have answered the survey. So what we're going to do in parallel, you're going to get to see what are survey respondents have said about the various amenities, and you'll also get to see what our two manager extraordinaires have to say. We're going to go through all of these here. Just so you get to see what the slides will look like, I'll explain them once, but after that we'll just show you the slides. For instance, when we've asked people is it time to open the fitness room? You will see that less than 10%25 of the respondents said yes. You'll see that 70%25 of the respondents said no. And you'll see that a bunch said that they didn't have any. So this pattern you'll see on every one of our slides. Keep in mind that about 60%25 of our respondents are directors and about 10%25 are owners. Do you see a pattern here? I think we're able to identify the owners having responded to that survey. I think you'll see that pattern throughout. Okay, very good. Let's turn to managers now.

Let's start with maybe window washing and landscaping. I'm going to start with you, Katherine. What's your take on window washing and landscaping?

Katherine: Window washing is yes and landscaping is yes and those are sweeping statements. But the intention behind those is that they are easily physically distanced out from a safety and security measure. When you're talking about scheduling work in the condominium, whether that's in the common elements or in suites, the first and foremost start process has to do with safety, both of the residents and of the crew who are working. The caveat, the catch there is, one, to make sure that you're roof anchor inspection has been completed, and second, that if accessing the windows for cleaning requires entry through a suite, that is not something that currently is being scheduled but it might be something you discuss with either the homeowner or the board. What they might choose to do is clean as many windows as possible, 80 or 70%25 being better than nothing, but that's a conversation to have as well.

Rod: Okay. Wonderful. Sean, anything to add or do I give you the next one?

Sean: Well, just touching on a similar point raised last week about roof anchors, an integral part of window washing. Obviously, easy to inspect the common element roof anchors, less so those that aren't exclusive use common element. Tying into Katherine's comment about only doing certain jobs, that would be another reason why you may be doing that, if your roof anchors cannot be inspected in time for window washing to be done.

Rod: Sticking with you, Sean, what about the garage washing, pressure washing the garages?

Sean: So garage washing is a tougher one because the impact of not doing it can be significant in terms of damage to your membrane or to your drainage, your drainage system in garages, but at the same time the requirement for owners to move their vehicles, all converging on an elevator around the same time, jumping into their vehicles and trying to find parking when so many people are still working at home and are parking on the streets. It's not an easy one. I would say it's allowed, certainly, but is it practical or is it a good idea? It will depend very much on the individual building and the circumstances. In terms of multi-level parking, you can do one level at a time, minimizing the crowds and if you have easy access to neighbouring open parking lots, maybe a commercial building that's been shutdown allowing you to use the lots, that could be helpful as well.

Rod: Okay. Wonderful. Let me now go to the big one. The fitness room. I'll start with you, Katherine, maybe.

Katherine: It's really quite easy in Toronto because we're still under the multi-residential order which requires all of those types of amenities to be closed. Even if that were not the case, of course you're not opening any area that is going to have a congregation of more than 5 people. It's going to encourage more people than that. The other problem is going to be sanitation of that space between users. Fundamentally you're going to be thinking of who can sanitize that equipment? whether or not it needs to be validated by a third party? Which in last week's episode we agreed that it needed to be, and what other precautions will be required, if and when something like the fitness center is opened? They tend to be small spaces. The reality of it is, if and when they are permitted to be opened, they're likely to be restricted for use by one person or one family at a time. That's the reality of how much space is in that place. As Jason, I think, discussed in quite a bit of detail last week, the amount of droplets that are expected to be expelled because you're breathing heavily, is also expected to require distancing of greater than 6 feet.

Rod: Don't make me say it again. Don't make me say it again.

Katherine: You're dying to say it. Yes.

Rod: David, there was an article that came out recently about gyms and what's the post-COVID expected to look like. Can you give use a very quick rundown on this?

David: Yeah. That photo you put up is futuristic and, can everybody hear me?

Rod: Yeah.

David: Yeah, okay. The photo you put up there is pretty futuristic looking and scary but probably what it's actually going to be like. So there was an article interviewing some of the gym owners in Toronto, talking about what is it that they are planning for their gyms in the eventually of opening. The plans include, as you see, plexiglass in between equipment, spacing out equipment far apart from one another, limiting the number of participants in their local classes, keeping other classes online and having very, very constant and regular cleaning regiments. That's something that when owners are pressing you, "Okay. Let's open up these gyms. We can have people wipe down their own equipment, we could have people sign waivers." This is the type of thing that you've got to think of. The difference between a condo's gym and the fitness facilities that are run by private enterprise. They're able to have constant resources for cleaning and for keeping people distanced from each other. That's one of the big differences when you're getting pushback from owners about your facilities within your condos.

Rod: Right. We'll put a link to this article and we're not suggesting that this article necessarily reflects what's going to take place in condominiums. This is truly in the commercial setting. But it gives you an idea of some of the concerns that people have in mind. Some of the precautions listed there may appear over the top. If all you have is the exercise yoga ball in a closet you probably don't need to go to that extent but they were talking about touchless doors. They were talking about reworking some of the ventilation. There was all sorts of precautions. So we'll put the link. You can have a look at that. What about the next one? What about, back to my managers, what about interior party rooms and game rooms and maybe with you, Sean?

Sean: At this point it's pretty easy. We're taking a blanket approach to not ready to open anything. The reality is it's not just a question of re-opening. It's always going to be changing the behaviour and how the spaces are used. At this point we're not in a position that we can comply with requirements on the physical distancing, the crowds and the cleaning to be honest. Across the portfolio we've increased cleaning at all sites, just as an immediate change in March, but the reality is that's got to continue. If you're increasing the use in the public spaces, you're even increasing it more, and likely after every use, as Katherine pointed out. One family, one residential unit at a time, and a thorough cleaning afterwards. It comes down to a question of resources for the condo corporations.

Rod: Right. Absolutely, and again we see the results of the survey. I'm not going to repeat them but you see how as condo land sort of reacting at this stage and time. I see some comments in the chatroom. What about us? What about our library? What about our barbeque? At the end of the day this exercise is very much condo specific. It's going to vary on all sorts of factors. The demographics, the layout, the size, the density. Each of you have to do that exercise and ask yourselves these questions. I think I'm going to ask Jason to speak to that in a couple of minutes. Now going to the next one. What about the interior car wash, Katherine?

Katherine: Again, I think that might be an area that could be suitably or adequately physically distanced in order to be able to use it. Car washes, publicly, are something that are made available. The concern has to do with whether or not there's a need for sanitation of the equipment specifically. In some locations it says as small as literally a garden hose with a spigot on it. In other corporations it's more sophisticated than that. The concern has to do with whether or not it can be sanitized in between and whether or not specific precautions need to be implemented before somebody could make use of that. Finally, if you're not cleaning the underground garage or you're exacerbating that situation by having people wash their cars inside, those are all questions to be answered by the board in considering whether or not that can be opened.

Rod: Right, and we see that there's already more of an openness in condo land with respect to that. Back to you, Sean. Indoor pools and spas. Open or not?

Sean: Short answer, not. Again, a great section on that last week talking about some of the differences between pool and other facilities, other amenities. But at the same time, at this point, we're still at a no. Public pools have not been opened and we're using that as the kind of benchmark before we start moving ahead.

Rod: In fact, I would say you have to approach this in two steps. The first question will always be is it permissible in Ontario? Are we even allowed to do it? Right now, as Graeme presented, the answer is no. Ontario is prohibiting the re-opening of public pools, of public gyms and so on and so forth. So that answers that.

Graeme: That's indoor and outdoor.

Rod: That's right. So then whenever Dougie, blesses us with the opportunity to re-open some of these facilities, the second question comes up which is, is it safe? It is desirable for us to do it? Okay, to you now, Katherine, well I guess we dealt with the pools already. Move on. I want to ask that question in July when it's plus 42 billion degrees. See how people feel about their pools. Back to you, Katherine, what about opening exterior parks and patios and gazebos and rooftop terraces?

Katherine: It's a half and half from my perspective and understand as well that you've got some municipal regulations as well that you have to abide by. I speak specifically about Toronto because Toronto has already set out into the ... for the fact that that they are likely to be later to re-open than other locations in Ontario. So when it comes to things like exterior, rooftop barbeque areas, rooftop picnic tables, gazebos, as Sean aptly put it when we were preparing for this, anything with a structure, those aren't being opened. They are gathering locations which again is a no-no, and second of all, we still have the same concerns with respect to sanitation. Everybody having been safe at home for so long, they're going to want to use things, and very quickly. Right? So you have to be able to effect appropriate sanitation, and it may be that these types of exterior children's play equipment, barbeques, picnic tables, cannot be used again until, in the greater use of public space, we're comfortable in not having them cleaned or sanitized in between usages.

Rod: Right, and we see that those responding to the survey, there's more of an appetite when it's outdoors, for obvious reasons I think. What about children's play structure? You've covered that right now, Katherine. The vast majority of us out there don't have those.

Katherine: The bigger concern, I'll be blunt with the children's play structures, because they are not open publicly in the municipality, you're not just going to get children within your own community playing on them. You're going to have all of the friends of everybody close by you using it as well. Not only is that a risk from a COVID-19 perspective, I have concern about the general liability issue. I feel terribly that the kids can't just go out there and run about on the jungle gym. But that is what you'll also have to consider if you have one.

Rod: Right.

Graeme: Yeah. I was going to jump in and just quickly say that kids play structures that are meant to be used by people for more than one household, I believe, are still closed.

Katherine: Absolutely.

Rod: Right. Ontario has spoken folks. Sean, exterior sporting facilities. I'm thinking of tennis courts, basketball courts.

Graeme: Pickleball courts. That specifically was in the legislation that pickleball courts are now open.

Katherine: Can you remind me what pickleball is? Because I might be short on athletic ability.

Graeme: I Googled it. I mean I'm short on athletic abilities to so I Googled it and it looks one more thing I won't be very good at.

<laughter>

Rod: Sean, what do you think? Open or not?

Sean: For the exterior sporting facilities, basketball court, where you bring your own ball. I don't have an issue with that. I think that fits within the requirements as long as you're not playing contact. So if someone's just shooting hoops on their own, that's pretty easy to do. The difficulty is always going to be, as Katherine said, you open something up and it becomes a magnet for people to get drawn in. That's what we're still trying to avoid. Tennis courts, they have created guidance on opening tennis courts, or using tennis courts. Singles only. You can't share balls. You can't have locker facilities open unless they're attached to washrooms and it's only for those purposes. Following that guidance it can certainly be doable. But again, if you're the only tennis court open in the neighbourhood you suddenly become a magnet for other non-residents.

Rod: So good news everybody. Herbie answered the question on the chat line, a pickleball is apparently has to do with like a smaller tennis ball, I guess, it's like a tennis game of some sort. We'll try to see maybe if we can show a video next week of David and Graeme.

Katherine: Playing pickleball.

Rod: Yes.

Katherine: They're not from the same household. Is that a restriction or if they play it in Quebec it's okay?

Rod: Right. We'll have to go to Quebec for that. What about communal barbeques, Katherine?

Katherine: I am of the no opinion for the time being and that's because we settled upon needing to ensure that it was sanitized between usages. I would love to say that it were possible. Here's a baggie with wipes and use it at your own peril but I don't think that is the case. I don't think that is the governance. Were fortunate, for the time being in Ontario and in Toronto specifically, that those types of areas are to be closed and that will be one of the first things that folks want to re-open. I feel confident that they are to be closed.

Rod: Okay. For sure, at this point in time they are to be closed. Now, that's it. We've gone around all of your facilities. I realize that all of you people, in the Greater Toronto, you have all sorts of other facilities. You have windmills, you have Disneyland and you have all sorts of other things, the Wine Cellar and the cigar smoking lounge.

Katherine: It's a virtual golf area. That's all.

Rod: So oddly enough, by the way, one of the ranges that was being opened in Ontario is an outdoor shooting range. So if one of your condos in your portfolio, Katherine, has an indoor shooting range, don't get elected on that board. Okay. Moving on.

Katherine: I do not. No, thank you.

Rod: We will now talk legal. I'm going to turn to Denise, mainly. Denise, you and I have asked ourselves this question, is it ever going to happen that we're going to reach a point in time, actually not Denise. I'm going to go to Jason. But we've all asked ourselves that question. Are we ever going to have a webinar where we're going to say, "Hey folks. Open it all up. It is safe now. Sunny ways ahead." We sort of concluded that it's not going to be tomorrow or next week or maybe next month or maybe next year. As I said, at the end of the day, what may be safe for my corporation may not be safe for your corporation. But rather than, and I'm turning to you, Jason in a minute, rather than say no, no, no. I think there's probably a way to tackle this. To have a longer vision. Like a bit of a business plan when you have this discussion at the board level. How would you tackle that, Jason?

Jason: I use a business case sample almost. A business case can be a one page to two page document where I can outline the pros, the cons, what others are doing in the industry and then outline if we had to make these steps and take these considerations into re-opening, what would it look like? Do I need an engineer? Do I just need to hire some labourers and pull out two or three machines? Do I need to map it out? What would cleaning look like? How often would I need to clean it? It's not just the cleaning requirements but it's also the PPE or the personal protective equipment that's required for those ten additional cleaning sessions. If you're burning through personal protective equipment, 10, 20 times a day cleaning amenities, don't forget you're burning through personal protective equipment to complete and run the business, or the vital operations as well. So having a little bit of business case. So I envision a one page document that says if we had to open this, and we had to open it with these guidelines, here's a cost per day or a cost per year, here's an assortment of resources that would be required so that the C-suite, or the decision makers, can make that decision with an educated and informed kind of 2 page summary of what it would take to open.

Rod: Right. I know that we keep saying it's about the resources. Do you have the resources to clean that often? Do you have resources to put in place this, that and the other? We're always going back to the cost and that sort of makes sense. Practical sense. But at one point in time the question may be is this now the new cost of doing business? I mean, we're incurring costs right now. 2 months ago, 3 months ago, 6 months ago, when you had a gym, when you had somebody go in and tweak and maintain this equipment, there was a cost to that. There's a cost to everything that we're doing. It may be that at one point in time the question won't be is there additional cost? But the question may be so there is additional cost and so what do we do? At one point that's maybe the cost of doing business.

Jason: Yup. How do we move forward? Exactly.

Rod: Right. Right. Okay, legal enigma chapter now. This was fun, actually, yesterday when we were preparing this, Denise. One of the questions that came up was, and it's like sort of two-fold. One of the questions that came up is if we're going to have costs associated with getting our amenities ready, COVID ready, if we're going to have to put plexiglass, if we're going to have to play with the ventilation. Are these reserve fund expenses? What do you think, Denise?

Denise: Yeah, I think, Rod, you and I came to an agreement after debating this topic for about 15 minutes yesterday. I think at this point, I mean it may be that reserve fund studies will now take these kinds of expenses into account for future, but right now most reserve fund studies do not include this kind of item. I know Katherine mentioned yesterday there's usually a provision dealing with building code changes and it may fall into that category but this certainly isn't a building code issue. So really you have to look at your study. I doubt that it would be a reserve fund expense right now.

Rod: Right. Under the Act, the sections pertaining to what you can spend your reserve fund money on says, reserve fund shall be used solely for the purpose of major repair and replacement of comment elements. There may be sort of two schools of thought on that. Maybe the more orthodox one is well, if you're not repairing or replacing something that already exists, can that be paid out of the reserve fund? Maybe another sort of school of thought could be well, if it's capital in nature, if it's not operating, could we use that? The fact that we didn't have it before but now we need it does that not fall under the reserve fund?

Denise: I think that number one, I think I agree with your first point there and not number two. I think once you do the alteration and put in the your gyms all these side panels, then it will become reserve fund expense, next time around when you update your site.

Rod: So, you've heard it here first folks. No. It doesn't fall in there. But there's a second question though that to me is as interesting. If we're going to make these changes, are these changes to common elements? If they're changes to common elements do you need to consult with the owners? Do they need to vote? What's the threshold that's required? Let me start and, Denise, if I miss something or misspeak you can come and add to it. If what you're doing is maintaining and repairing what you already have, even with some changes to reflect the industry standards, that's not a change. That's maintenance and repairing. But if we're going to go in an do more work, and it's not really maintenance or repair, if we're adding, then you go to the next level of questions. The next level of questions would be is it required for the security and safety of individuals using it? That is one of the exceptions allowing corporations to go ahead with a change. But if it's required for the safety and security of persons, then technically you don't need to consult with the owners, and they don't get to vote on it. You can't put to a referendum, safety and security, that' basically the lesson here. Having said that, when I say that technically you don't need to consult, politically and neighbourly, you do want to tell people how you spend their money. But if you can fall within that category of safety and security you may not need, technically, it's not a change that requires a formal consultation. Now if you don't fall within that category, and if you're making a change that is not required for safety and security reasons, then the question will be a question of cost. If it's below 10%25 of your annual budgeted common expense then you just need to do it on notice. You advise the owners. We're going to do this change. It's going to cost this much. It's less than 10%25. You have 30 days if you want to call a meeting. If it's about 10%25 you actually then have the owners to the corporation as the onus of calling the meeting and you need to set your 2/3 of the owners to approve it. What we've done, and let me bring you because I thought it would be fun. I'm not sort of flying on instruments here. Let me see if I can find this. If I'm able to do this quickly. Do you see the webpage now? Graeme?

Denise: Yeah. I can see.

Katherine: Yup. We can see it.

Rod: Okay. So we have a little tool we put on our blog. If you look for the blog should the owner's vote on the change for common elements? We've put a decision tree here that you can use. Are you making a change? Or is this an addition? Perhaps. We're going to put plexiglass so it is a change. Okay so I click on this. Is it necessary for the security and safety of people? I would think, Denise, your answer to that would be, yes. It probably is for that.

Denise: I want to raise a point there.

Rod: Sure.

Denise: The board has to determine that and in order for the board to determine that I think they need to rely on professional opinion.

Rod: Yes. No, I absolutely agree. I absolutely agree because it's going to depend. What is the change? Security and safety of individuals, there's a bit of a subjective element to it to some extent. Right? But anyway, if you keep following the prompts, let's say you concluded that it was not for the safety and security, you click on no. Then the next question is this change to prevent the minute damage to the common elements? No. Okay. Is it required to comply with, so you can obviously just keep following this and then eventually it's going to give you the answer of whether or not this is a change on notice or this is a change requiring a meeting or this is not a change. Anyway, if you want to have fun and putz around when you have nothing else to do, until you're allowed to go outside and have tea in public, you can play with that. Let me see if I can go back to the slideshow now and we'll continue. Did I miss anything, Denise, on this? Are we done with this?

Denise: Yup. No, I think that's good.

Rod: Okay. Now onto in suite renovations. We've spoken about this in the past. But we got a lot of questions about this. In part because Ontario has lifted the restrictions on construction and you have owners that have been chomping at the bit to try to get their in suite renovations done. David, can you maybe break down what are the kinds of restrictions and conditions that we recommend implementing when an owner wants to go ahead with that work.

David: For sure. What we've been doing is a four stage approach. The first thing we do is we prepare a letter to the owner. You set out the context for them. Remind them why the corporation is so concerned about in suite renovations. They're concerned about health and safety. They're concerned about liability. They're concerned about all of these additional outsiders in the common elements, in the elevators at the same time. Remind the owners the corporation has a legal authority to limit or stop in suite renovations. Again, when we said last week, just because you can doesn't mean you must. Insist on some strict conditions. Again, this is to limit traffic and maintain sanitation. You see some of them listed there. Things like only allowing one trade in a unit at a time. Making sure there's no more than 5 contractors on site. Insisting on PPE. Use of the in unit washrooms opposed to any common washrooms on the floor. Restricted and coordinated use of the elevators and limited working hours to ensure, mostly for noise and nuisance, and also to make sure that people aren't going up and down the elevators when they're entering busy times. The next stage is of this is insisting the owner signs a waiver and indemnity agreement. Now this is something you will get push back on because no one likes to waive their rights or cover liability for other people. But the point of this is always, from the corporations perspective, to protect their liability from claims, because again, they don't have to allow this. They're allowing you to do in suite renovations because you are asking for that privilege and they are saying, yes, you can do it with these conditions. So a waiver and indemnity agreement protects the corporation against claims commenced by other owners, any claims commenced by contractors or fines and fees that might be issued against the contractors that in some way might then turn upon the corporation. Next we suggest that you inform other owners of the work being done and the restrictions. So this makes sure all the other owners are aware of the steps that are being taken and that there won't be any questioning after the fact. Why didn't you do this? Why didn't you let us know about that? That also means letting the owner who is requesting the repair work know that there might be a delay of a week or two in between, when they're asking you to actually allow the work and when it actually takes place, to allow time for the other owners to be notified. Finally, we've been having all of the contractors who enter the premises of the corporation, fill out a daily health screener. There's a questionnaire, includes typical questions from public health. Do you currently have a fever? Have you been around anyone who has tested positive? Have you travelled internationally within the past 14 days? Which I don't think anyone has at this point. Then having them also sign off on whatever the COVID health protocol of the corporation is. So this is things like, again, the conditions that we talked about before. The restrictions, and also giving management or whatever, a representative of the corporation the opportunity to show the contractors here's where the washrooms are. Here's where the handwashing facilities are and having those contractors sign off and agree each time they enter the premises. All of this might sound like overkill but this is how you paper a file and I think of it, as a lawyer, as a litigator, when I see something happened I always want to see what did the corporation to protect themself? What did the owner request and who's being reasonable and who covered the basis? This is all things to discuss with your professionals but this is the steps we've been taking so far.

Rod: Right. One of the questions that came up on the chat channel was, what about if an owner is doing the work themselves? Obviously some of these don't apply to the owners but some do. Some of these concerns that David has identified do apply. One of them would be, for instance, lugging up and down material and equipment and tools and so on and so forth. That's unnecessary traffic. Right? I realize that it's traffic by an owner. But all of these things go into the mix and, again as David said and as Graeme said, the fact that the Province is allowing you to do something doesn't take away from the corporations duty and responsibilities and rights to control and manage the common elements. At the end of the day, everybody is all in favour of apple pie and freedom and this and that. It just takes one flare up in one condo corps and everybody's going to wonder what possessed us to re-open the barbeque? For instance. Right? Next topic. Denise, maybe you can, and this is a question that we get over and over and over again, what would go in a good electronic, I call it electronic bylaw. What should go in a bylaw that deals with electronic meetings and electronic votings?

Denise: Before we get into the details I've been getting a new, you too Rod, been getting a lot of inquiries about this bylaw. What we are recommending, because after the emergency period has ended and you can no longer do a virtual meeting, get the bylaw in place now. So anyone who's calling an AGM should be adding this to the agenda. Do this easy to pass bylaw. So let's get into what is in this bylaw. Rod and I and Josh worked on our form of bylaw and it took quite a few back and forths to determine what should be in it. There's two components. One is the meeting itself. If you look at the slide here you want to make sure that all of these items are in the bylaw. I think you mentioned last week, Rod, you saw a bylaw that had a paragraph and somebody was calling them virtual meeting electronic voting bylaw.

Rod: Right.

Denise: Come on. You know. If you don't have enough details in this bylaw then really anyone can do anything. It's really important. We have to preserve the integrity of the election and of meetings. You need to make sure that there's a process in place. So you need to know that you're registering only owners. If an owner's in arrears they shouldn't be voting at the meeting. How do you determine quorum? Quorum is not just those in attendance but those who have voted electronically and proxies. Your bylaw should deal with that. Where are you now?

Rod: I've changed slides. Are we done with this slide?

Denise: Real time participation. That is where owners should all be able to view the show of hands and questions. Keep it open. Not just exclusively chair. That needs to be in the bylaw.

Rod: Right.

Denise: Okay. This deals with the votes. So there's two components I said. One is the meeting itself and the other's the electronic voting. How should that work? Again, the way, Rod, you and I think it should work, is that voting starts before the meeting. The notice goes up and that's when the electronic vote starts. Similar to gathering proxies ahead of time. That's when your voting starts. That's right in the bylaw. The voting period, when should that close? That should be in your bylaw and that is usually after the nominations from the floor, whatever the end of the road is for us determined by the chair. Again, that should be in your bylaw. All owners are entitled to vote electronically, not just those that are logging into the meeting, but all owners. So even if you're not at the meeting you could vote electronically, at any time, from the notice period all the way to the close of the meeting. Again, there has to be a system in place and this is through the electronic voting process that you can validate and authenticate the owner, or if there's a proxy holder that's voting, you can authenticate the proxy. And, what's really important and this is why you can't do a vote on Zoom without having separate electronic voting done, is it has to be by secret ballot. So you can't have people seeing who everybody votes for. It has to be confidential and that you do through the electronic voting platform. I think that's it. Rod?

Rod: I think that's it. I think that's it. There's a few more slides I think because we sort of broken it down more but those will be accessible on the website.

Denise: A lot of people are asking if they can have details. So we'll be able to share those.

Rod: We will put it up on the Condo Advisor site. Again, when you look at past AGMs you get to see the recording. You get to see whatever resources were shared. Sometimes we put a link to articles or to websites but we also certainly upload the PowerPoint presentation. Sort of pushing people forward because I did not want to run out of time for our engineer stumper segment. Engineering stumper segment. Because 2 weeks ago I am unceremoniously cut off our good friend, Justin, and I had to speak to his lawyers to get him back here. So, Justin, I think the topic that's the most interesting to me has to do with can reserve fund study inspection proceed now?

Justin: Well, like the A side question, I want to thank you for giving me a question that's going to upset half the people my answer will do.

Rod: I try my best.

Justin: Obviously, Class 3 is the reserve fund. It does not require a site inspection. They can go ahead. just make sure you have your meeting remotely and they'll figure it out. Class 1's, on new buildings where largely we assume everything is acceptable and we're basing a lot off the drawings, you can do a lot of the work based off drawings and your reserve fund planner should be able to. The ones we're talking about now are the Class 2's, the standard walk around, the 6 year checkup, or sometimes they're the only type of reserve funds that everybody does. Because we think they can safely be done now and they can certainly be done more safely and more with better social distancing than maintenance projects. It comes back to what the law says. The changes this week allowed construction sites to be essential and it permitted all maintenance and repairs as required. Engineering itself is not considered essential yet as it was before April 4^th. Although I consider the RFS an integral step into a maintenance plan, and the inspection is required for there, I'm leaning towards the opinion that these RFS inspections are not yet permitted but I'm really hoping one of the two orders here will tell me I'm wrong.

Rod: Okay, so the conclusion is cautious on the engineering side which is we probably, when it comes to those visits, these on site visits, it may or may not actually be permitted. Denise, a reaction to that?

Denise: I think, Rod, you and I agreed on this yesterday. I don't know if you changed your mind. But I think that if it can be performed safely, the Condominium Act says you have to do these reserve fund studies every 3 years, that you should proceed. That is in the nature of a repair. It is for the purpose of planning your repairs and that is permitted.

Rod: Right. I tend to agree with you in the sense that I think the reserve fund study inspection is a very, very preliminary step towards maintenance and repairs and it certainly, in my view, form an integral part of the essential operations of the building. I would tend to think that that, coupled with the fact that all construction restrictions have been lifted, I would tend to think that it's probably permitted. Having said that, you need to be consistent with your owners and, if on the one hand you tell your owners that they can't congregate by the garbage chute and they can't have tea on the rooftop terrace, and at the same time you have Justin, and his army of engineers, roaming around and measuring stuff and touching and poking, it's very difficult I think to justify one set of restrictions if you're not sort of consistent. Certainly if you are going to allow these kinds of visits, as Graeme said at the beginning, you really have to keep all the other sort of measures that are expected and imposed by the Province. Social distancing, screening of contractors and the washing of hands and the whole thing. Right? I think, Justin, we would probably say that it's permitted and we're still stuck with the question, is now the time to do it though? But that's where we're at.

Denise: Sorry, Rod, can I just jump in? I just want to mention if you're not going to do the reserve fund study and if it's required, you're in your 3 year period, you've got to put it on your status certificate.

Rod: Right. Absolutely. Very good point. Is it different for performance audits, Justin?

Justin: It's a little bit different. Obviously performance audits are required to be done within the first year after declaration. There's already a little bit of conflicting information but currently Ontario law requires the performance audit to be submitted 1 year after declaration but the Act requires it to be submitted at the end of the 11^th month. Typically what we'll do is we'll send over a blank performance at the end of that 11^th month as a placeholder if the report isn't finished. Under the times of COVID, Tarion has suspended all deadlines while the state of emergency is declared, but the Act hasn't changed. So what does that mean? Who knows? It's taken them 19 years not to define adequate so when they tell us that you'll get a reasonable extension thereafter, I'm not exactly sure what that will mean when it washes out. But that being said, if you have a performance audit, still submit a blanket one at the 11^th month period to comply with the Act, but then listen to what Tarion says when they provide you a reasonable extension when all this is over.

Rod: Okay. Well, I have good and bad news for you, Justin. Bad news is your next two topics have been cut because we're running out of time. Good news, you're hired for next week. Thanks so much. I need to keep moving because I don't want people to be upset if I don't allow Jason to touch a bit upon his segment. So, Jason, one of the questions that we keep hearing is what about PPE, personal protective equipment? How is that we are imposing it on staff but we're not imposing it on residents? Is that like two weights here or what? Oh, I think you're muted. Let me just unmute you.

Jason: Is that better?

Rod: That's wonderful. Thanks.

Jason: Sorry, my apologies. Listen, I've got a 50/50 shot here. Some of the condominiums I'm speaking with are doing all staff are wearing masks and they're exchanging gloves between tasks and they're wearing masks throughout the building. They've done that for two reasons. One of them is because social distancing cannot always be completed because residents don't always respect it and service providers don't always respect that. So it's something they've done for the staff of employees, but they've also done it to provide motivation and empowerment to the community to say, "We're doing this. We're taking this very seriously." It's not done so much to protect the employees but it's done for a perspective from the community that everybody's doing their share. Can you come out and ask your residents to wear them within the building? I'm not aware of any reason but I am aware that the Public Health Canada has now recommended everybody wearing masks.

Rod: Right, right. Again, I guess it goes from what we said from the very first webinar in March, believe it or not, people have to stay in their lanes and the fact that the Province is recommending it for all residents, for all Ontarians to wear a mask, oddly enough that wasn't the recommendation at first, but the fact that they're recommending it now doesn't really mean that we, as a corporation, have the ability to impose it on people. Things may change. Who knows? That's sort of where I'm standing at this point. So certainly you have obligations towards your staff and you should provide them with that equipment, as you just said, Jason, but I'm not sure that I'd want to be in the business of providing masks to my owners and residents. Denise, any reaction to that?

Denise: Agreed. Completely.

Rod: Stay in your lane. You heard it hear first. Okay, wonderful. That's it. Graeme, do you want to launch the last poll about topics. We were debating whether or not we should venture into a non-COVID related topic. I don't know if you can launch that. It's going to be the last poll before we go.

Graeme: It should be up.

Rod: Okay. So the question to you is are next episode, do we, I guess there's a word missing here, do you want us to do a non-COVID episode?

Graeme: Yes, wants it or not.

Rod: Non-COVID episode, you click on yes. COVID episode, you get out of this room, and no preference, fine you can stay. It's really up, it doesn't matter to me. So wow it's pretty divided. So, this brings us to the end of our scheduled seminar and I'm going to do as I usually do. I'm going to go around the table, see if anybody has anything to say before we let them go, and I'm going to start with you, Sean Cornish from Apollo Property Management. Thank you so much for being here with us tonight. Anything to add?

Sean: No, just reiterating just because you can doesn't mean you should. Sometimes I feel like we're a bunch of teenage kids standing on the cliff of a quarry full of water seeing who's going to jump in first. You don't need to be the first one to make the move. There's no rush. Take your time and do it properly.

Rod: Absolutely. Katherine Gow, from Crossbridge, speaking on behalf of ACMO, anything to add? You're on a timer, Katherine.

Katherine: My advice remains the same. Keep calm, wash your hands, sanitize your cell phone. Do start speaking publicly with your communities if you haven't already about the considerations that need to be in place before you can open up condo land. It will help buy you some time. Even when the Province allows, it or your own municipality allows it, the condominium corporation might still have to do some heavy lifting in between.

Rod: Right. Absolutely. Thank you so very much. Denise, from Lash Condo Law and also speaking on behalf of the Community Association Institute (Canada), anything to add to this, Denise?

Denise: Well, just more in line with the whole meeting. Try to schedule your AGM. You've got a 120 day period. We don't know when that's going to end but now is the time to do it.

Rod: Right. Absolutely. That's important to keep this in mind that people still have that choice. Either to postpone it for that period following the end of the emergency period, whenever that it is, or to hold it, virtually. That's still an option and I think, anyway, maybe next week we'll talk some more about that. Graeme MacPherson, of Gowling WLG. Do you want to share the results of the poll?

Graeme: Yes. Here they are. Can everybody see that?

Rod: Yeah. So what does that mean exactly?

Graeme: It means 38%25 of people want us to do a non-COVID episode. 26%25 of people don't and 36%25 of people have no preference. So it's pretty even split with the no preference people. I'm not sure what to make of that set. But maybe is the answer is we cover some non-COVID related topic. I don't know. You're the director.

Rod: Will do like every other good director. We'll do whatever we want. Okay, fantastic. Just teasing. That's not true. Okay, David Plotkin, from Gowling WLG. What's your advice this week?

David: For sure. A lot has changed but condo corps are still condo corps and they're responsible for what they're responsible for. You can't just shift the burden onto your owners. There's a lot of chat going on. Have owner's sign waivers and let them use all the amenities at their own risk and that doesn't work. The liability always remains on the condo corp to ensure that they are maintaining the safety and security and maintain the common elements. You can't shift the burden onto owners.

Rod: Okay. Wonderful. Thank you so much. Jason Reid, of the National Life Safety Group. Thanks again for sharing your expertise with us. Any words of wisdom before we part?

Jason: Yeah, really briefly, I think it's an opportunity to also be grounded and go back to basics. Some property managers haven't been to the building for a couple of weeks. Staff and turn-over can change and be high at this time. So I think it's a great opportunity just do a quick health check and make sure your basics are covered and we're getting back to those basics.

Rod: Okay, wonderful. Justin Tudor. I think your mom is actually watching the webinar because I hear a lot of people in the chatroom asking for more Justin.

Justin: That sounds right. That sounds right. As the world is on fire and rain, I guess.

Graeme: Nice.

Rod: That's it. Well done. Thank you again, Justin. See you next week. So folks that's it for us. Next week we'll hold the webinar on Wednesday, May 27^th at 5:00pm. You will need to register again. You know the drill. Hopefully the drill will work this time. You can access the webinar tab on the condoadvisor.ca by clicking webinar. There's going to be a registration form. You should fill that in and press register. If for whatever reason it does not bring you immediately to a screen saying, "Congratulations! You've registered." If it doesn't do that, that means that we're probably still struggling technically, on our end. But fear not because this, is a little secret, if you go at the bottom of the Condo Advisor website, on the day of the webinar we always put the login information. So at the very bottom you'll see it says webinar login. So, for whatever reason, if all fails you just go to the bottom, you click login and you will get the information to login. So there now you know. Thank you so very much. That's it for us. Episode 10, Opening Condo Land, comes to a close. It was great having you with us. We don't take your time for granted. I mean, there's all sorts of better things to do and we really appreciate your input. We appreciate getting questions from you. We appreciate the chat that we see online. That's why we do it. We do it exactly for that. So thank you very much. See you next week. Same channel, same people, maybe same topic. Who knows? Thank you so much. Take care everybody.