CONDOVIRUS EPISODE 6
Rod:Good evening everybody and I suggest we get started. My name is Rod Escayola and I'm a condo lawyer with Gowling WLG. Welcome to our webinar, episode 6. Today's episode is "The Beat Goes On". We've been at this for more than 6 weeks now but certainly this is our sixth episode. For those of you joining us for the first time, we've been holding these webinars weekly for about 6 weeks now and week after week, what we do is we do our best to try to provide you with real and practical answers to challenges we never knew existed a month and a half ago. Every week we receive tons of questions from all of you, and we appreciate those, and we look at those and it helps us put together our agenda. To get you the answers you need, what we do is, we call upon key industry experts to help us answer these questions. Week after week, we've been very lucky, because week after week all these experts have generously accepted to come back and to join us and to share their knowledge and expertise with us. What I'll do is I'll just go around the table and introduce our usual characters. There's new players this week so this may get a bit exciting. I'm going to go in alphabetical order. The first one you won't get to see but you'll hear him is Brian Antman, from Adams & Miles LLP. Brian is our, I'll call him our inhouse auditor, calls a spade a spade when he sees one and, like very auditor, very discreet because you don't get to see his face today. Hello, Brian. How are you?
Brian: Good, thank you. Sorry about the technical difficulties but we'll get through this okay.
Rod:Wonderful. Then we have Sandy Foulds, from Wilson Blanchard Management. Sandy is our manager extraordinaire. She's also involved with CCI. Correct me, Golden Horseshoe. Is that it, Sandy?
Sandy: Correct. Good afternoon everybody.
Rod:Wonderful. Good afternoon. The next one in line is Katherine Gow. She is a lifetime professional, I make it sound like it's a sentence. She's a professional manager with Crossbridge. She's speaking on behalf of ACMO this evening. Good evening, Katherine.
Katherine:Hi there everybody.
Rod:The next one in line is Denise Lash. She is the founder of Lash Condo Law. She's also speaking on behalf of the Community of Association Institute. Denise is the one who introduced me to condo law and I've never looked back. Hello, good evening, Denise.
Denise:Thanks, Rod. Good evening everyone.
Rod:In a couple of minutes we'll get Graeme MacPherson to join us. Right now he was double booked.
David: He's joined up.
Graeme:I actually already am.
Rod:Wonderful. So Graeme is our governance knight in the shining armor. Good evening, Graeme. I don't see you. Oh there you are.
Graeme:There I am. Hi everybody,.
Rod:Then David Plotkin also from Gowling WLG and he's our litigation musketeer, I guess. Hello, good evening, David.
David: Good evening everyone.
Rod:Then we have Jason Reid, from the National Life Safety Group. Jason is a man of few words. He's sort of our own inspector Clouseau, minus the panther. Hello, good evening, Jason.
Jason: Good evening, Rod. Good evening everyone.
Rod:We have a new player tonight. Tricia Size, from Gallagher Insurance. She's a new player on the table. I've been waiting for a long time to have a speaking event with Tricia. We had actually organized one way back when and then the global pandemic sort of took place and the world came to a screeching halt so we're lucky to have you tonight. Hello, good evening, Trish.
Tricia: Good evening everyone. Thanks, Rod.
Rod:And last, but not least, I hate when people say that, Justin Tudor, from Keller Engineering. One of my favourite speakers, I've said it before, I'll say it again and Justin has the word condo tattooed across his chest. He's very involved in the industry and he's also with CCI Eastern Ontario. Good evening, Justin.
Justin: Good evening, Rod. Thanks for having me.
Rod:I thought you were going to have a tie tonight.
Justin: I wore pink tigers on my shirt instead.
Rod:Okay. Great. This past week, as I said, we've received tons of questions from our viewers and naturally we won't be able to answer them all. We'll do our very best to hit the ones that sort of keep coming up. Do keep in mind that some of your questions have been answered in past webinars. We encourage you to log in on condoadvisor. There's a webinar tab. We've uploaded every single one of our past webinars. So you can stop asking me. It's out there. You can view them as often as you want. Let me just move on. The topics today are listed here. As we've had in the past, we have a chat channel so feel free to exchange amongst yourselves but don't lose site that the show is on your screen right now. We ask you to be patient when you ask a question on the chat channel because sometimes we know that the question will be answered later. So we're just ignoring you with a smile until we get to that question. Now most importantly, and this is the disclaimer, you'll recognize it. While we do our very best to provide you with accurate and useful information during our webinars we ask you to keep the following in mind. First, when we refer to legislation we refer to Ontario legislation. So if you're tuning in from elsewhere you'll have to adapt that to your needs. Second, if you're listening to this broadcast, after the fact, do keep in mind that the information we're providing you is accurate as of today. But these things change. The situation changes and so today is April 22nd. That's the day at which the information we told you was as accurate as possible. Now, we ask you to also keep in mind that whatever's been discussed today is not advice that's tailored to your needs. It's just general discussion on general topics, and we hope you find it useful, but it's really up to you to seek advice from professionals that is applicable to your very specific situation to ensure that it actually meets your needs. Finally, I have to say, I don't know why but the Law Society tells me that I have to say that this is being recorded. So there it is. It's recorded and later one we'll upload it. You'll be able to watch it at your leisure. Okay. We're done with all this administrative stuff. I was going to point where the exits are but I don't know what you're house looks like so I can't do that. We're going to jump in now and we're going to, oh my goodness. I can't believe we have to talk about that again. We have to talk about the list of essential services. This is a never ending debate. It's important to know what's within the list of essential services. I promise you this will be short.
It's important to talk about list because Ontario has shutdown every business that does not fall within the list of essential services. We had a first list on March 23rd. Everybody got excited. It was revamped on April 4th. Everybody got excited again. Now it's being changed, without really much fanfare, but it's been changed and tweaked. So while I promised myself that we would not be talking about landscaping today, the debate rages on. For those of you at home, I know you're getting information from different lawyers and this may be conflicting information. Don't get upset. That's the nature of lawyers. If you put five of us in a room you'll get twelve different opinions. That's how we work. Most importantly the situation is fluid. Or as we like to say the landscape is changing. Did you see that? Did you hear this? It changes also from city to city and what I'm going to ask Sandy to do is to give us an overview, within the Province, to answer once and for all this question, is landscaping an essential service? Sandy.
Sandy: There's no straight answer for that. Each municipality is different. Landscapers are required to confirm with their municipality if they are considered essential service or not. They also need to confirm that they're fully insured under their company policies during this pandemic. They need to outline what precautions they're taking to ensure social distancing. All of this information they should provide to you before you allow them onsite, at your condos. As I already said, every municipality is different and what they deem essential is also somewhat different. But, for the most part, essential seems to be grass cutting, weed control and work that keeps the property safe. Absolutely not permitted right now is planting, putting mulch in, starting any new projects or improvements. We're also getting a few questions about gardening committees. Can residents start tending to gardens? Really, quite honestly, it's not essential to the safekeeping of your condo, at this time, to make sure your gardens are looking perfect.
Rod:Speaking of concentration, I see someone on the chat line saying I can't believe we're talking about landscaping. I hear you, brother. I can't believe we're doing it either. I'm with you.
Sandy: Nor can I.
Rod:Speaking about different municipality, about a week ago Ottawa actually had their bylaw office say, "Listen. We're not going to fine you if your grass is too long. Cutting grass is not an essential service." Yesterday, I think, Ottawa issued a news bulletin and this one basically says that as of May 1st, notice how this coincides with grass growing season, as of May 1st, just as Sandy said, lawn cutting, detaching, rolling, clearing yards, removing debris and so on and so forth, that will be an essential service. There it is. I think they've realized that in Canada grass grows only in the summer. And guess what? We may actually get a summer. Okay, that's for that. I think we're done. What about, we're not going to call it a snitch line, I just did it. Katherine, can you update us on that?
Katherine:They have expanded, of course, both their ability to enforce across every municipality as well as having launched some new and different contacts in different municipalities. Of course, I'm a little bit Toronto centric. It happens to be where I practice. Following up on, kind of the comments that Sandy has made, and frankly the perspective that Justin had stated a couple of weeks ago, I think that we are probably better positioned in speaking with our boards and working with our community to speak to what the risks that we have that we're trying to mitigate and the kind of logic we're using in assessing what work is essential and what work we're using as a deferred model. If we do that I think we'll get a greater understanding as to why somethings aren't happening as they would be scheduled. The weather starting to turn and folks, frankly, starting to suffer from cabin fever, this is when we do all of our spring cleaning types of tasks. We are going to be orienting those tasks to protect ourselves from any emergencies. Flood, back ups of kitchen stacks, those types of things but very clearly, all over the Province, people cannot say more strongly, please stay home. It's not quite business as usual. I think the more we talk that very seriously for a short period of time now, I'm very hopeful that we can have the emergency order lifted. Perhaps a little sooner. But if we don't take it seriously now we'll be living in halfway land for a lot longer.
Rod:Speaking of halfway land, Sandy, can you maybe update us on pools and whether or not pools is an essential service.
Sandy: Yup. Pools seem to be the same as landscaping. Municipalities are differing on their opinions. If your municipality allows it, by all means, get your pool ready for opening so that it is ready once the restrictions are lifted. Otherwise there'll be a backlog and you may not get it open in time.
Rod:Okay. Now, we're done with this. Let's move on. Let's tackle the question of insurance now. With all the uncertainty that's surrounding us now, and with the fact that we're dealing with an unprecedented situation, and we're sort of trying our best to make decisions as we go, the reality is that hindsight is going to be 20/20 again. We will undoubtedly be judged tomorrow for the decisions we took today. Right? That leads me to the next question. When the COVID hits the fan, will be insured. Right? This is where you come in, Tricia. I think Graeme, or David, will unmute you if you're muted. What kind of claims do you anticipate coming down the pipe?
Tricia: We're looking at, like you said before, it's going to be 20/20. We've never been through anything like this before. No one in the insurance industry can say. But I think we're looking at anything and everything. I think we're looking at possibly more false claims than we had seen in the past, related to maintenance, I have a list for you if you would like me to go through it. I think we're going to be looking at, let me just bring it up here, I've got lots of liability. You're looking at more slip, trips and falls. Maintenance not being done or false claims related to maintenance not being done. Very, very important and Jason's going to speak to what needs to be done in order to make sure that your i's are dotted and your t's are crossed. There's questions about postponement of work resulting in damage. To the owner's unit as a result of possibly not an essential service being available, whether it's stack cleaning, roof repairs, etcetera, and then damage to the common elements can result from those as well, if the amenities aren't being maintained, landscaping, again an argument about essential services. COVID-19 related, this is still unknown. We have no idea if someone is going to get sick as a result of an infection within the building. Condominiums are not hospitals so they're not held up to the same standards and the Condominium Act says that it uses reasonable, in your reasonable person, and the board acting in honest and good faith and as a reasonably prudent person would. Like I said, condo managers, directors, they're not professional cleaners. This isn't what we do. So, I don't know. We don't know what is coming down the pipe and what condos are going to be ultimately liable for in the end. But I can't discount that there will be claims related, absolutely. Financial claims, we're talking about landlord's not being able to rent their units. We're talking about short term rentals. Apologies for the dog. Short term rentals not being able to be filled and therefore a lack of rental income. Reduction in value of the properties. If this goes on for a long period of time and maintenance can't be completed on the buildings, we don't know how that's going to affect the condominium in general and resale values. The other one's, did you want me to keep going?
Rod:Sure.
Tricia: Okay. So we talked about financial. The other one is employment. There's worry here and there were questions about staff. All I need to say is that improper dismissal and mistreatment of staff, we don't do those anyway. So we're just going to keep doing what we're doing and we recommend consulting with your legal counsel in order to make sure that you're following through in case, in fact, you do need to have advice on how to let someone go temporarily or paid leave, etcetera. Then the biggest one, I think, that we've haven't really seen a whole lot of, will be human rights. I know human rights it is in the condos, however, I think everyone being home in their units so much more, and bound, and not there during the hours that they're there now, like regularly, we're going to see that people sheltering in place are going to be more frustrated with neighbours smoking marijuana, playing their tuba, doing the things that they normally do but having so many people all at the same time, I think we're going to see that property managers are going to struggle.
Rod:Right. At the end of the day, at law this is how it works basically, if anybody feels that they've incurred a loss, they've suffered damages, they will look for a way to recover. At law there's what's called the but-for test. If it wasn't for that, if it wasn't for this decision, if it wasn't for this action, if it wasn't for this submission, I would not have lost my employment, my leg, money, my rent and so on. That's what I think is the risk ahead for all of us condo corporations, is what is that we're doing today that may result in a loss later for someone, and of course the risk is did I in fact contribute to that loss? If I contributed to that loss, in a negligent way, or if I contributed to that loss having breached my obligations, then there may be liability. But if that loss is not truly attributable to me, or if I've done everything a reasonable person would have done, just as you said, Tricia, then you're in a better position. Now, what would be covered, Tricia, with respect to if there's a claim being advanced, are we insured for that? Is the corporation going to be defended? How does that work in a 15 second answer.
Tricia: Sure. Liability, the condominium's policy covers for defense. So regardless of whether or not it's a covered claim, there will be some defense, at least. We're talking about if there's a D&O claim or a liability claim, someone get's hurt or property damaged, then there is defense in place as long as you do have the appropriate coverage.
Rod:Right. Okay.
Tricia: And damages paid out to the claimant, if it is in fact, if the condo is in fact found to be liable.
Rod:Right, right, right. Now, the $1,000.00 question, Tricia, and you love that question. Will this affect our premiums?
Tricia: Oh, darn. Yeah. Yeah, I think that pretty much goes without saying. Any claim made where the insurer must provide us a defense that are going to be costs incurred and will result in an increase in premium at renewal. I just recommend people be smart and they do the best that they can on behalf of the corporation and I think just beef it up even more, if you possibly can.
Rod:Right. Whenever the COVID hits the fan then the insurer will want access to all sorts of documents. They'll want to make sure we did our job properly and so that brings me to you, Jason. I know this is a bit, your life motive here, but what precautions can we take to minimize risk down the road or to improve our village to defend ourselves? Any thoughts, Jason? David, is Jason still on? No. He's muted.
Justin: Is that better?
Rod:Yup.
Justin: You know what, property management building staff have a long history of documenting the cheques and balances, but I think one of the things I'd recommend right now is doing a little self-audit. You can really do that. You can turn around and say, "Okay, if I had a slip, trip and fall claim come in and Tricia just called me and said, 'We've got a claim in. It happened on this day.'" Go back to your teams and say, "Hey, okay. Are we inspecting that sidewalk everyday?" Number one. "Is there a log kept for that inspection?" Number two. "Have we trained that person on what to look for and what is abnormal and what is normal?" That's really key. That's on the slips, trips and falls. Even on the cleaning, we mentioned it last week, is in a work place you'd be required to give direction to an employee on how to clean and what to clean and what time. All I'm suggesting is have that documentation to answer those three questions. If you go back to your organization, and find that documentation rather quickly, you're in a very good place.
Rod: Okay.
Katherine:If I can make one comment before you go, Rod.
Rod:You've got 10 seconds, Katherine, because we're behind schedule.
Katherine:I promise. One thing is, if anybody mentions to you in passing that they slipped or fell but not to worry about it right now, please gather your documents together. Make yourself a magical file somewhere where you'll be reminded of it. Maybe nothing will come of it but I'm always concerned about getting together documents 23 months from now, when my memory is not fresh, and involve your broker. It doesn't mean you filed the claim but it does mean that they can do all of the leg work or research sooner and information is always better when it's immediate, as opposed to 23 months from now.
Rod:Wonderful. We're going to take that 10 seconds from your next segment, Katherine. So now I'm going to turn to David. David, what can directors do to protect themselves against future claims? What's the ultimate test we're going to face?
David: For sure. The standard of care for directors and officers is always under the Condo Act sections 37, 38, to act honestly in good faith, to exercise care, diligence, skill that a reasonably prudent person would exercise in the comparable circumstances. What we are suggesting, in all circumstances, act within the bounds of what you normally do, and right now, even more restrictive because of the essential services definition is limited to what types of acts and actions can be done and not done, and you really should be seeking advice of professionals when you are unsure exactly what your liability may or may not be, and then following that advice. There's a lot of corporations that will have in their bylaws indemnification provisions that will protect their directors and officers, if they act within their standard of care, and they're properly following the advice of professionals.
Rod:Okay. Wonderful. So basically act reasonably, in good faith, diligently comply with your obligations and seek advice. Because one of the best protections you have as a director is if you've sought advice and you've relied on advice of professionals, then you've met your standard of care. You don't have to be right, as long as you're able to blame the lawyer for having not been right, or the engineer. Right? You need to be able to rely on a professional to be able to say, "I've done what I had to do. I did my due diligence." Okay, now the engineering riddle, Justin, we're going to turn to you now. Take the hot seat now, Mr. Tudor. A question that managers regularly get, and I'm sorry, I'm going to say it is, is my HVAC system contributing to the problem in any way shape or form? What's the answer, Justin?
Justin: 40% of the people on the chat are going to hate my answer. That's just the way it's going to go. I'm not a doctor but I'm going to put on my Dr. Jason hat and say I've read a bunch, the same way everybody's read a bunch and we've gotten direction from the bodies, all the readings of this say COVID-19, the risk of it spreading through the ventilation system in a standard condominium, the risk is very, very low. That's because COVID-19 appears to be spreading, it isn't airborne, it's spreaded by speaking moistly. We'll see governing bodies like ASHRAE, or technical bodies like ASHRAE, are providing some guidance about how to best optimize your HVAC systems, your ventilation systems to decrease the chance of airborne spread of the disease, but it's more speaking on a general basis. That's mostly guided towards commercial buildings where more of the heat and cooling is subject to massive amounts of airflow through the building. But what when we're talking about multi-unit residential buildings, people are doing the same things wrong with their ventilation systems that they've been doing wrong for years and years and years and years and years. There's a make-up air unit on the roof, or on the ground floor, that pumps fresh air into the hallways and that provides fresh air to the units through openings around the door. This unit costs money to run. It's an operations cost. So boards and some managers, their infinite wisdom have been deciding to turn off these units at night. Or install variable frequency drives, or modulating drives, that turn the threshold, and the performance of these machines, under what is required to provide fresh air to the units. If you're doing that, you're violating the building code. The building code requires that you provide fresh air continuously to the units. Full stop. That's a requirement. Getting that through. It doesn't come at no ... It's good if the system can handle it but it's safer money honey, there's no problems. The good news though is people are going to be concerned about ventilations causing problems. Even if you tell them that it's not necessarily airborne, and you have to put on a doctor hat and no one's a doctor, we have buildings that are fully occupied right now. People are living in them. People are in their units all the time. You know what's nice when you're in your unit all the time? Fresh air. Turn the units on. Get them operating within their tolerance levels, so that they're not doing anything that they shouldn't be doing, but pump fresh air into the units as much as you can. Variable frequency drives on there. Look at how they were installed. Determine the parameters they can operate with it. You'll get more fresh air to the units. People will be happier. There'll be less odours and if you get asked if you modify the ventilation system, yes, we can. We're doing everything we can to ensure full pressure into all the units. It will have costs. It will wear parts slightly differently but, in the interim, it checks two boxes pretty easily.
Rod:Wonderful. Thank you so much. One more question before I let you go, Justin. This one's close and dear to your heart. It has to do, again, with the essential service definition. What's the rule of thumb test, I guess, when we're trying to determine what kind of work we can do and what kind of work should be postponed? How do you tackle this?
Justin: If you're underway right now, the essential work list has been put out there, it's set to expire tomorrow. Nobody was talking about that. On the news today it says it's set to expire tomorrow. Although the emergency order has been extended, the essential work list is set to expire tomorrow. We expect a little late night changing of a date on it, if I'm right. What we'll see though is, if you're in section 30 Permitted Business, if you've got a residential construction project that started April 4th it's permitted to proceed, by the government. Everything else is falling within this section 20 that you read earlier, Rod, where it's talking about strictly necessary to maintain the safety and security and sanitation and the essential operation of the condo. Which is a very wide loophole or really opening ... But that doesn't mean you should through the baby out with the bath water. Think about projects as you are planning them and approaching them and if you're underway with them, or if you're about to start them when all of these measures get laxed, think about it from four different approaches. Think about safety. Can the work be done safely while people are having to converse with building staff? Or do they have to go into units? If that can't be done consider other options. Have an agreement. Talk about it. How's it going to impact residents? Are people going to hear concrete chipping noises? Are people's ventilation systems going to be temporarily turned off while fan coils are placed? If those can be resolved then still ... If this can be contractually completed, is it actually a contract that can move forward, given the circumstances? Then, finally, if the cost adjustments required to move this project in the time of COVID can be managed then going through those steps will give you an appropriate basis of whether you can start your project. Safety, impact, contractual requirements and cost.
Rod:I sort of think I heard you say that when that list expires you should rush and put the scaffolding up very quickly before they change it. Did you say something like that?
Justin: I've got barrels in my van. I'm going right after this.
Rod:Nice. Thank you so much, Justin. As usual, very, very clear. Now we're going to switch topics again. I know for the folks at home we're going quickly because we're trying to cover as much as possible. I'm going to turn now to you, Brian. You're the next contestant as we now try to unfold the financial mystery. We brushed upon this a couple of webinars ago about the subsidies that may be available to condo corps. Maybe, if you could, shed further light on that and clarify that. Which ones are available to us as condo corps and which ones aren't?
Brian: Sure. Basically the subsidies that are available are coming from the Federal government and they're all really based on whether the corporations paying wages. If the corporation has contractors that are providing services these programs don't apply to them. The most talked about program is what's called the Canada Emergency Wage Subsidy. That's the one that they're talking about where a qualified employer would receive up to a 75% subsidy of their wages. The problem with that program is I don't think it applies to condos. It applies to businesses where they can show a 15% decline in revenue in March, 30% in April and May compared to January and February of the beginning of this year. From what I've seen so far in the industry there hasn't been a 15% decline in condos revenues so I would suggest that program wouldn't be available to condos. There is, however, what's called a 10% wage subsidy. That's available, again, if you have employees. There is 10% wage subsidy. There's a maximum of $1,375.00 per employee and the corporation, the maximum benefit the corporation could receive is $25,000.00. The third program that's being offered is what's called the Canada Emergency Business Account. Again, you have to have wages that were paid. The government is providing qualified businesses up to a $40,000.00 loan. That is for businesses that have payroll somewhere between $50,000.00 and a million dollars in 2019. The loan is repayable over a couple of years and there's even a 25% forgiveness option up to $10,000.00, if there's early payments. That's at the Federal level. At the Provincial and municipal level there is a number of programs. I've got six of them here that I've just noted. First of all, Ontario Hydro has frozen hydro rates at the non-peak rate of 10.1 cents per kilowatt hour, for 45 days. So that should result in some savings to condos. There is a 90 day deferral of property tax payments that is available. So if there's some property taxes you're paying you should look into that. The exemption for EHT has been increased to a million dollars. Again, that is something that's related to if you're paying wages. There is a 5 month interest in penalty deferral on EHT, also. Workers Comp, WSIB, is allowing a 6 month deferral of payments under that program. Lastly, there has been a relaxation under the emergency order with respect to noise bylaws. They are allowing 24/7 deliveries. So where you're in a condo that has a commercial component on the ground floor, you may see some deliveries that you're not used to, after hours and property managers may see some complaints because of this that they're going to have to deal with and just try and calm people down.
Rod:Right. Okay. Well, thank you for that. I'm going to turn to Denise. We'll get back to you, Brian, in a minute. I'm going to turn to Denise here. We've been hearing about methods to sort of deal with a financial shortfall. We've heard about short term loans and so on and so forth. Can you maybe shed some light as to how that's feasible? Is it feasible? Go ahead.
Denise:Yeah. There are lines of credits that are available for condominium corporations that may require it. We haven't seen many condos that are as of yet but it is available. They may not require specific borrowing bylaws. A lot of corporations think that they need a borrowing bylaw to get a line of credit. What you need to check to see is whether your general operating bylaw applies and whether the lender that's offering the credit line requires a specific borrowing bylaw. If there's no borrowing bylaw that's required, and if there's also no restrictions in the general operating bylaw for corporations, you can borrow money as long as you put the expenditures in your budget. There's no restrictions in a general operating bylaw whether you have a borrowing bylaw or not. So there's another option. Bylaw and no bylaw, there's no restrictions in your general operating bylaw, and you put it in your budget. In my experience most general operating bylaws will place restrictions on borrowing. What we commonly see is that corporations can borrow up to 1/12 of the their budget without having to go to the owners without a bylaw. It's something that you really need to check your particular bylaws to see if you're eligible for it.
Rod:Right. So three places for you to check. First, do you have a bylaw and what does it provide? Does it restrict? Does it provide for it? And so on. So look at the bylaw. Look at your budget. Is that expense in the budget? And you may need to amend that budget. And the third place to look is the lender. Will the lender require you to have a specific bylaw? Will they be happy with a bylaw that you have in place? Those are the three sort of places to look at. Thanks for that, Denise. Thank you very much. Next topic, quickly, Katherine. What can you tell us about, because we're talking about finances here, are people updating their PIC's? Are people updating their status certificate? What can you tell us about this?
Katherine:Absolutely. One of the concerns that I have, and right now there's an awful lot that is unknown, but one of the things that I do know is that there are some additional costs because of essential work repaid or some additional costs for additional sanitation. You might want to take a look, very closely, in both your PIC and your status certificate, about outlining a concern that there may be additional costs to the budget on account of COVID-19. As Justin had mentioned earlier, if you also increase the air flow to your make-up fresh air unit, that might also add some costs. Right now it's still cool enough to require some heating of that air. If this goes on through the long summer months it might require some cooling as well. Also, don't forget, notwithstanding the fact that you would usually send out your PIC, for instance, with your annual general meeting package, the timeline for that has not changed. Even though you're deferring your annual general meeting you do need to send your PIC on schedule. That might mean some extra mailing costs. Could there be savings? Absolutely. As Justin had mentioned, as Sandy had mentioned, we're re-evaluating, literally on a daily basis because they keep changing the essential worker list and what is necessary and what we can do, there might be some projects that just plain do not happen this year. But it's difficult to tell whether all of those increased costs, and all of that delayed work, is going to end up with a balance or with a negative or a positive. It is necessary for us to make people aware, who might be purchasing condominiums or refinancing, that we could have some extra costs.
Rod:Okay. Thanks so much. Now back to you, Brian, of Adams & Miles. Last quick question, how are people dealing with their audits? I mean, AGM's are being postponed, for the most part, at the time anyway, and so how do you deal with the audit? Are you doing them? Are you doing them virtually? What's being done?
Brian: Sure. I can speak to that. I can really only speak about what we're doing at our firm. Our office is open for business. We are all operating remotely. We currently only have two admin staff in the office, who are receiving any paperwork that's coming in, so that it's deal with properly. We have invested quite heavily in technology over the last 5 to 8 years. Typically, even before COVID-19, our staff were working remotely where they'd go out to a property management company's office and conduct the audit, really remotely. The only change is that instead of going to a property manager's office they're sitting at home like I am right now. As far as getting the audits done, we have a great relationship with the property management companies that we deal with. We've not had to delay one single audit. We're working together with their accountants. Some of them have had to work remotely, just like all of us, and they don't have immediate access to all of their records. We've been able to get information, either electronically, or by courier and we really have not had to delay any of the audits of any of our clients. So that's been a good thing. As far as AGM's, like you said, currently the emergency order is prohibiting groups of 5 or more from meeting. Majority of our AGM's have been postponed. For those that are still taking place we've given our clients an option because we will not be meeting them face to face. The options are either receiving a brief letter outlining what's happened during the audit. Alternatively, we can attend either by phone or video. As of right now, we have participated in one video AGM, last week. We were able to present the financial statements to the owners and answer any of their questions during that presentation. We're fully in favour of this new technology. Either through Zoom, despite the fact my camera's not working today, I think it will take a long time before people become comfortable getting gathered in large groups again and this is just one way to ensure that corporations can still conduct their business. The last thing I just want to mention is that there is a concern with the video technology. As an auditor, we're appointed by the owners, not the board. We have to ensure that there's a mechanism to ensure that there's full transparency with respect to voting, for everything. For the board, for the auditor. In normal circumstances it's done by voting at the AGM, by a show of hands, and with the new technology I'm not so sure that there is transparency related to voting. That's something that's just going to have to be looked into.
Rod:Okay. Thank you so very much. I need to take a step back and we need to go back to one of the topics. I see on the chat line it's not being exhausted. It has to do with, you guessed it, essential services. The question we see on the chat line is what about the windows? Can we clean the windows? What about garage pressure washing? What about this? What about that? So I'm going to bring you back to our slide and I think we'll mail a copy to all of you. No, I'm just kidding. I'm not going to mail a copy. But so you always have to go back to that. You need to ask yourself, is whatever work that my heart desires right now, is it strictly necessary to manage and maintain safety, security, sanitation and essential operations of the building. The more you fall within that category the safer you are in proceeding with the work. Right? But as you've seen with landscaping, there's tons of opinions out there and so the safe thing to do would be this. You can call, there's a Provincial number, you got to be patient, pack a lunch, you can call that number and you can ask them and they'll give you as vague of an answer as we have provided so far, until now. But you can do that. That's a step you could take. You could consult with your advisors and ask them, "So what about this. Is that an essential part of the operations? Is that for sanitation?" I mean, is window cleaning an element of sanitation? I would tend to disagree. I would tend to be of the view that window washing is not strictly necessary for safety, security, sanitation, essential operations. But other people may have a different view. I will tell you this. At the end of the day, maybe my recommendation would be this, you turn to the contractor and you enter into an agreement with them by way of which they will indemnify the corporation, if in fact it turns out they're not essential and something flows from that. That may be the best protection you can put in place. If they want to come in clean, and they're telling you that they're an essential service, and they want to do it, great. Sign here and ensure that we're protected should it turn out to be that we were all wrong about whether or not it's an essential service. That's all we're going to say about that, for now, because now we're onto the next topic which is management puzzle. I think Graeme is going to tackle this and in a minute I'm going to go to the two managers extraordinaire. But before we do that, a follow up from last webinar where we had Christian Cadieux, who was talking about what happens if somebody dies of COVID-19 in their unit and what do we do with this? One of the questions was who's going to clean the unit? Graeme, guide us through this labyrinth.
Graeme:In such an event, or in any circumstance where there's an infection in a unit and we need to figure out who's responsible to deal with this, we would start, at least on our end, the lawyer's end, we would start where we always do in these cases where we have to figure out who's responsible for a repair or maintenance. The first place to look is in the Condominium Act. In section 89 of the Act we are told that the corporation is responsible for repairing units and common elements after damage and in section 90 we're told that the corporation is also responsible for maintaining common elements and each owner has to maintain their own unit. The story doesn't end there though because at section 91 of the Condominium Act we're told that the declaration can alter any obligation to maintain or repair after damage. What this essentially means is that after you've checked the Act, the first place that you're going to look that's going to give you the answer is in your corporations declaration. Which will set out who's responsible for maintaining and repairing units. In most cases I tend to find that declarations put this onus on owners. Again, that's most not all, and that's most based on my experience. By no means a reflection of the actual true nature of the situation. But in any event, in the event that your declaration does say this is an owner responsibility to repair, in most cases, again, the declaration will also say that if there is something that an owner is responsible to repair and maintain and they fail to do it within a reasonable time, the corporation can, on giving that owner notice, come in and do it themselves and charge them back. This, I think though, raises the question, Rod, in the scenario you just outlined, does the corporation have to go in and do any sort of cleaning and charge anyone back in this event? You know, again, I'm not a doctor but I'm going to borrow Justin's hat that he was wearing just a minute ago and put it on and say that, what we know about this disease right now is that if it's on a surface or something like that, the virus tends to survive for up to a couple of days. If someone were to pass away in the unit that's probably, again without me being a doctor so this is certainly not legal advice of medical advice, farthest thing from it but, the risk is probably low so I invite anyone else's comments on is this something that the corporation should be taking on? Or is this something that an owner must do and if they don't the corporation should jump in?
Katherine:I think, If I can comment on this and it kind of rolls into what's the crisis of the week, and it harkens back to kind of what I think is my best advice to condominiums right now and what David says at the end of every single broadcast, I'm going to steal your thunder, right? I know, about being reasonable. I think what we have to look back on and think back on are a couple of factors. One, I don't believe that I get good data. Okay? So public health is responsible for making certain kinds of notifications, and in particular, if somebody is COVID positive. Property managers, as you said, whether it was last week or week one, Graeme, I'm sorry I can't remember, property managers are not on that list. That is, in my personal opinion, by design. The people who are responsible for giving notifications, and explaining to people what they need to do on account of that, is public health. What condominium managers don't do and never have done is sanitation of a unit in between, for instance, a purchase and sale or, as people keep asking about, home showings. Right? Home showings are very definitely not something that is recommended but do still, from time to time, take place. Because it's an essential service. We're trying to put on our most reasonable hat and do the thing that seems the most appropriate in the circumstances. I believe that things like cleaning and sanitation of a unit, regardless of the reason why it is necessary, is a homeowner's responsibility and obligation. I don't know that I think right now there's a reason for the condominium corporation to take another or different action. I think Sandy will agree with me. In condo land we don't talk about it a lot. We protect the privacy of the homeowners really strictly. We deal with death often. We sometimes deal with death in circumstances that are really difficult inside the suite. And by that I mean biohazardous. So we do know how to deal with that and deal with it effectively. I think we'll govern ourselves in not a dissimilar way now.
Rod:I think the summary is this, if it doesn't affect the common elements it's really not our job to intervene. If we are going to intervene, then as you said Graeme, we have to provide notice and provide the owner with the ability to first remediate. Because at the end of the day if the corporation intervenes, provided that they have the indemnification provision, they will be able to charge back the unit. You really have to give the owner the opportunity to take the first kick at the can because as you said, Graeme, the maintenance of the unit is really owner responsibility.
Graeme:I was just going to jump in and say that when the declaration does say that if an owner doesn't repair something that they're supposed within a certain time the corporation can come in. I think the idea there is more to stop things like ongoing flood that's coming from the unit, or something like that, that's going to actively cause damage.
Rod:Right. Right, right, right. Okay. Change of topic. We're switching gears. We're now going to go onto AGM teaser. We're going to try to do this within about 5 minutes. The starting point will be this. Let me set the table here to this discussion. Presently a lot of condo corps are postponing AGM's. Some of them are thinking, or they're doing them virtually, there's a lot of questions in condo land. Must I hold my AGM? And if I hold it must do it electronically and how does that work? And if I don't hold it what's going to happen? For instance, one of the question we saw on the chat today is what about the director's term? If Ben's director's term was set to expire this month, in April, and we don't hold the AGM what happens? Does his term expire? The answer is no. Subject to if your operating bylaw was to state something otherwise, presently under the Act, somebody continues with their term until the AGM. But there's a lot of confusion. Every Province has tackled it their own way. BC has issued, about a week ago, an order in council, basically saying that for the duration of this crisis you can hold your AGM's remotely, virtually. Even if you don't have a bylaw. Alberta came and tackled it differently. They said basically you don't have to hold your AGM's. Don't worry about it. You can sit tight at night. You don't have to hold any of these meetings. Nova Scotia came in with a hybrid. They basically said you don't need to hold these meetings but if you're going to hold these meetings you can do them electronically. Simplest thing is that both BC and Nova Scotia have said but if you're going to hold these meetings electronically it needs to be fair. It needs to make sense. Owners need to be able to participate in the meeting. That brings me to you, Denise. What would be the pitfalls, what are the risks, what would be the best practices to ensure the integrity and the transparency of this exercise, the AGM exercise?
Denise:Okay. I'm going to through this and you may want to take notes. Because it keeps coming up, over and over, and I keep getting this same questions even though I may not have mentioned it but it keeps coming back. First, I want to make it clear that owner's meetings, at the moment, and you said it Rod, cannot take place virtually unless the corporation has a bylaw. These electronic voting bylaws that many corporations put into place, November 2017, those are bylaws for electronic voting. Nothing to do with online meetings or virtual meetings. That's the first point I want to make. If a corporation, though, does do a bylaw and they may have passed one in the last few weeks, to allow, and may have done it through proxies, to allow virtual meetings, or if we get an emergency order, which we may, maybe next week, to do virtual meetings, I want to make two things clear. There's two processes. You need a separate platform, very much like today, like Zoom, a lot of Zoom meetings are taking place or go to meeting, to conduct the meeting either online or people can call in. That's the separate platform. Then the other platform you need, which is totally different is the electronic voting platform. How does it work? I see Rod, you've raised these issues, you've got a virtual meeting, you can see the speakers, people can call in and they will sign in, but you need to make sure and this is one of the important items, you need to make sure it's a secure registration process. Just like you go to an AGM, you want to make sure that people who are registering are entitled to be at the meeting. Are you going to let people go on virtually if they're in arrears in common expenses or not? This is a question. We don't know. I think Brian raised this issue. Motions from the floor. Electronic voting is separate. You can do motions from the floor through virtual meeting and you see that there's a show of hands feature in Zoom and some of these other platforms, and I know Rod, you raised this before, what you want to make sure is that everybody sees the show of hands. Everybody sees the questions. That it shouldn't be just for the chair to review. Because the whole idea here is transparency. You want owners, just like if they were at a meeting, to see who raises their hands. Not for the chair to just be the only one that has access to it. That's the motion. So what would you do when in a motion? You would approve the minutes and you would appoint the auditor. Although Brian has issues with this but I think if you allow everybody to see the hands then this may be okay. The voting process, which I mentioned before is separate. That would handle the elections and, for example, if you're voting on a bylaw. It's done by secret ballot. That's why we don't do it through a virtual meeting platform. It may happen, in the next year or so we may have a secure platform, but right now you don't. So the electronic voting provider handles the voting process. The voting process starts, or can start, at the time you send your notice. 15 days before your virtual meeting you send out notice of the virtual meeting and electronic voting starts. It starts with 2 weeks straight through to the meeting. The meeting will have, perhaps, nominations for the board, people who have voted from the time the notice went out all the way to when you get to the meeting, and discuss nominations, can change their vote. That's something that's important too. You want to make sure the electronic vote, and this is all changed recently, the electronic vote gives owners the ability to vote early on, to change their vote up to the close or just to vote for quorum only. So changing votes and getting owners to vote way ahead of the meeting, not just at the meeting. The other point I want to raise is that all owners should have the right to vote. What I've seen, recently, is virtual platforms where you only get the owners that log on, the right to vote. Electronic voting should start early on and should remain open. There shouldn't be a 15 minute window for owners to vote. It's not like a real meeting where you have paper ballots. Owners should be able to vote. You want greater participation. Some of the issues, and I know Rod we've discussed this, are proxies. How do you deal with a proxy? Do you give somebody, with your proxy, the right to vote for you electronically or do you give them your password and your login information so they can vote electronically and you don't need a proxy? The last point I want to make is quorum. So we know that quorum is 25%. With this virtual meeting, what you're going to be looking at is the electronic votes that were cast right up to registration, you're going to look at those people that are present, by virtually, that haven't voted electronically and then if you do get proxies then you have to count those as well.
Rod:Wonderful. Wonderful. Thank you so very much for that. What I takeaway from this is the starting point, unless the Province adopts an order suspending AGM's, your starting point is you need to have a bylaw. Your bylaw needs to address all of these points that Denise raised now. The point of these meetings is to allow for full participation, transparency, integrity, reliability. That's the objective, right? We don't have to mimic, necessarily, the old fashioned meetings but we certainly don't want to lose the protection that came with the old fashioned meetings. Wonderful. I took notes, Denise. I think you won't need to cover it next week. I think.
Denise:I hope there's no questions in chat on this one.
Rod:We'll see. I'll let you check the chat. Now I'll turn to our last speaker, Jason, from National Life Safety Group. You're up now, Jason. You're top four safety and security tips for the week. Do we have Jason on the line?
Jason: Thank you. Number one of the four is stay focused on the back to basics. Historically, we've taken a look at all our audits over the last 12 months, and the top three kind of gaps that are found is missing documentation. As an example, the number one identified deficiency was fire pumps in every single condominium. Fire pumps in the buildings have to be run every 7 days. But that's a example of one of the top real concerns that we want to make sure we've got documentation on the fire side. On security, there are currently 91,000 security guard licences issued in the Province of Ontario through the ministry, solicitor general. They've issued a 90 day moratorium on licences. What that means is all of your security guards will be licenced at your building, so any licences that are expiring between the times of March 16th and June 16th, they're automatically renewed until that time. I expect an update coming closer to that. But there's another example of due diligence. If you've got a building where you've got four brand new security guards, because your security guards are out with illness or sickness, you want to make sure that you've got licenced security guards. Another tip is cyber. Both INSET and RCMP have launched an awareness campaign on the increase of cyber attacks. We've seen over the last 18 months municipalities, never mind buildings and hotels, being locked out of some of their service systems. One of the recommendations that is general across the board, Canada, is verify with some of your systems that you could access online and update those passwords. Strengthen those passwords. It eliminates that audit component. The other thing is a lot of these service providers, where you have your building automation system, that controls your HVAC, your lightings, it's got to tend to the everything. If you get locked out of that I can actually lock your doors. I can turn off the lights. I can prevent you from doing that until you pay me 3 or 4 bitcoin which works out to be quite a bit of money. There's nobody to report those to. It's not like you're getting support or a response from the police department. Ask those service providers if you could implement 2 factor authentication before you access that. Those are free, typical services that those service providers provide. The fourth one, and final one, is contractor pre-screening. This is huge. Right now, most property management organizations have a solid certification program. But the problem we're going to find, over the next 3 to 4 months, is that the certifications of the contractors coming onsite to do the work that's required may be expired, and there's no way to get recertified. There's no way to get that retraining because those training programs are just not active right now. That's all I've got.
Rod:Wonderful. Thank you so very much. That brings us to the near conclusion of our webinar. What we do usually is we just go around the table one last time. It's my way of thanking them for being present but it's also their way, in 10 seconds or less, to share some knowledge or parting words with us. I'm going to start with you, Brian Antman, from Adams & Miles. Any words of wisdom before we left you go?
Brian: No. I think I've covered everything. I just want to let everybody know that my camera was working properly this morning. This did not happen because I had a bad haircut this week so we'll see what we can do next time.
Rod:I'll take your word for it. Thank you so much, Brian. Sandy Foulds, from Wilson Blanchard Management. Any parting words?
Sandy: Sure. We will get through this and work will hopefully get back to the new normal soon. But that will only happen if we flatten the curve and stay home. Only allow what is truly essential to be done at your condo corps at this time and keep communicating with your residents and stress public health messages. If you have any doubts or questions always reach out to your solicitor.
Rod:Thank you so much, Sandy. Katherine Gow, on behalf of ACMO, any words of wisdom?
Katherine:I couldn't agree with Sandy more and, as always, keep calm, wash your hands, sanitize your cell phone.
Rod:The cell phone. That's a good one.
Katherine:It is. I know.
Rod:Yes. Denise Lash of Lash Condo Law and also on behalf of CAI (Canada). Any last piece of advice for the week?
Denise:It's the meeting thing. Just be careful on holding these virtual meetings. Please delay it if you can and there will be more information and more guidance on this so just wait a little bit longer.
Rod:Okay. There's a promise. Good stuff. Graeme MacPherson, of Gowling WLG. Parting words?
Graeme:Yeah. I guess I would just say we've been in this for a long time, and I think everyone's starting to feel the fatigue from it, but we all need to keep staying strong like we have been, otherwise like Katherine said, we'll end up in halfway land forever. In a moment of doubt just remind yourself that we're all in this together. We're all growing crazy hair, myself, you guys and then Brian.
Rod:Okay. Well, speaking of crazy hair, David Plotkin. Any parting words?
David: Yeah, aside from the always my parting statement of being reasonable, which Katherine reminded everyone of, I would also just ask everyone to do your best to just try and keep up to date. Everything is moving so quickly and we're doing our best and your managers are doing their best to keep you up to date with the constant movement that's coming out of the legislature. Just keep apprised and thank you very much for continually viewing our webinars on a weekly basis because we're doing our best to try and keep you up to date.
Rod:Wonderful. Thank you, David. Jason Reid, from the National Life Safety Group. Last piece of advice for the week?
Jason: I want to thank every property manager out there because my grandmother lives in a high rise condo. She lives on the 22nd floor. I am blown away by the commitment and the volunteerism and the initiatives that are born out of all of this work. Thank you.
Rod:Look at that. Whoever said that managers never get thanked? There it is. It's on record. We got it. Wonderful. Tricia Size, of Gallagher Insurance. What about you? Maybe some parting words for us?
Tricia: I just wanted to say that the risk is always around. It's always with us. We just don't know what the increased risks are. So, if there are any questions that your corporation has, reach out to your broker. That's what your broker relationship is for. Keep safe and take care.
Rod:Thank you so very much, Tricia. Justin Tudor. Any parting words?
Justin: The world remains on fire.
Rod:That's great. That's great. That's fantastic. But we have ways of controlling that and managing that.
David: Not as on fire as your shirt, Justin.
Many: <laughter>
Rod:Okay. So folks, that's it for us. Our next webinar is going to be Wednesday, April 29th, at 5:00pm unless you all write to me and you say that you don't like these anymore and you don't want to attend. But so far we're getting good answers, a good response from all of you and it really means a lot to us, to be able to answer some of your questions. Send us your questions. Send us resources. Some people have sent us resources. Crossbridge sent us a fantastic screening questionnaire that we're happy to share. It's on the website now. We're there to help. We're there to help exchange information. Now our webinar, you need to register to attend our webinar, and you'll see the registration button. It's on condoadvisor at the webinar tab at the top and when you click on that you'll see the information. We usually get our agenda by Friday, but if you register ahead of time, you can put in your questions ahead of time and that's going to help us put together the agenda. Don't forget to register for next webinar which is, again, on Wednesday, April 29th, at 5:00pm. That's it for us. Thank you so very much for tuning in. Thank you for paying attention. Thank you for seeking information. Be safe, be good, be happy, be healthy and wash your hands and your phones, apparently. Thank you so much everybody. Have a great evening. Thanks everybody on the panel. Wonderful. Thank you.