Rod: Well, good afternoon everybody. My name is Rod Escayola and I'm a condominium lawyer with Gowling WLG. Welcome to Condovirus Episode 9. Who would have guessed we would've been doing this for so long? This week's episode we're very optimistic and we've entitled it "Coming out of the Dark". Last week we saw the light at the end of the tunnel. Now we're coming out of the dark, timidly and carefully and cautiously, but we are coming out of the dark. As most of you know we've been hosting these webinars for 9 weeks now and week after week we call upon key industry experts to come in and answer your questions. Keep your questions coming and that's really how we build our agendas. So week after week I find these key industry experts, who very generously answer the call of duty, and they share their knowledge and their expertise and their experience in an attempt to give practical answers to your very practical questions. So what I'll do, I'll do like I've done every other week. I'll go around, I'll introduce our key speakers. Now a manager from Crossbridge, speaking here on behalf of ACMO, we have the super nanny of management. Good evening, Katherine Gow.
Katherine: Welcome everybody.
Rod: You're sounding not very loud. I'm not sure if you want to bring the microphone a bit closer.
Katherine: We'll see if that's a little better.
Rod: Perfect. From Lash Condo Law, and speaking on behalf of CAI Canada, we have Diana, Princess by day, the wonder woman of AGMs, good evening, Denise Lash.
Denise: Hello everyone.
Rod: Now Josh Milgrom is absent today, fighting crime, one town hall at a time and so we're back to our condo twins. We have a condo lawyer with Gowling WLG, our very own Grizzly Adam, good evening Graeme MacPherson.
Graeme: Hi everybody.
Rod: Another condo lawyer with Gowling WLG, having gotten recently acquainted with his newly acquired trimmer, a now cleanly shaven Jumanji, hello, David Plotkin.
David: Good evening everyone.
Rod: Oh, we didn't see you. Or did we?
Katherine: Yup, we did. I saw him.
Rod: Perfect. From the National Life Safety Group, our own Magnum P.I., Jason Reid. Good evening.
Jason: Good evening.
Rod: You're going to be doing all the heavy lifting today, Jason. Hope you're ready. Sandy Foulds is taking the week off so we've recruited an Ottawa voice. The voice of reason from Apollo Property Management, hello, Sean Cornish.
Sean: Hello, Rod and everyone. It's good to be here. I was anxiously awaiting your introduction to see what you'd say.
Rod: I'm always kind for the first visit. Wait until next week. Finally, jumping in to discuss pool issues in condos we have somebody from Ottawa Pool Works, good evening, Ryan Van Es.
Ryan: Good evening everyone. Happy to be here.
Rod: Okay. We'll probably have to turn your video off when your turn comes because you're a bit garbly.
Ryan: ...
Rod: Graeme, can you turn the video off, maybe? Now, as we have in the past weeks we have received hundreds of questions from all of you folks. And again, we're going to try to tackle as many of them as possible but we really want to focus, this week, on the topic of coming out of the dark. What's the next chapter that we're going to be facing? So we're going to focus on that. I see that the chat room has lit up already. A lot of people asking questions and answering questions. We're going to try our best to bring some questions into the presentation but I'm reassured, because I see all sorts of very good resources out there in the chat room. I see Michael, I see Bob, I see CCI people, I see all sorts of managers so that's great. Feel free to share information. That's what we're here for. For people to share information.
Now, these are the list of topics we're going to cover today and you've guessed it. Your favourite part, my disclaimer. As we do every week I have to put a bit of a disclaimer. For those of you watching this webinar please remember that whenever we refer to legislation we refer to Ontario legislation. That's where we're from. That's where we work out of. For those of you listening from elsewhere you'll need to adapt that to your jurisdiction. Keep in mind as well that the information we provide you today, to the best of our ability, is accurate as of the day of this broadcast, today, May 13, 2020. The situation changes on a daily basis. Denise and I, we spent the weekend working on a segment for this webinar and we flushed it all today, or was it yesterday, when the Province adopted a new piece of legislation. So whatever we say is valid today. If you're watching this as a re-broadcast later, you may have to adapt it a bit. Keep in mind, also, that the information we provide you today here is of a general nature. Right? It may not necessarily apply to your specific situation. It's important that you seek professional advice to answer questions and to address your very specific reality of whatever it is that you're living. Finally, please note that this session is recorded. We'll be uploading it as we have done with all the other past webinars. You can watch them on demand as often as you want. It's free and so we're recording it and then we upload on the Condo Advisor website. You can access it by clicking the webinar tab at the top right and then you can find whichever episode you want to watch or you can binge watch them. All of them. In succession. There it is. It's going to take us a few days to upload them. Just be patient with us. So that's for this.
Now, diving in. I think I'm getting proficient at this intro and disclaimers. I think we're shaving some time here. I'm going to turn to you, Graeme. There's been quite a few announcements since last week. Some announcements deal with re-opening. Some announcements deal with extending the period of emergency, and there's a brand new piece of legislation that was dropped on our lap yesterday, that affects the Condominium Act. So, let's start maybe, Graeme, with the extension of the period of emergency.
Graeme: Yes. So, the Provincial government has announced that the official emergency period has been extended until June 2nd, 2020. People in chat are ahead of the curve on this one and have beaten me to that punch in that announcement but there it is. Whether this will get extended again, or not, we can't know until the time comes. But that's the timeline we're dealing with for now. In terms of other opening or updates we've received from the Province, retail stores with street entrances are now allowed to provide curbside pick up and deliveries. Garden centers, nurseries, safety supply stores and those stores can open their doors now to the public, in the same sense that grocery stores can open their doors, in that everyone who's in there has to respect the social distancing rules. Provincial parks and conservation reserves are now open for limited day use access. In addition, more on par with the condominium theme, residential construction projects, where the project is a condominium, are now allowed by the Province. Where going to talk about that a little more later on in this presentation but what's important to keep in mind, I'll say now and as I'll probably repeat again, just because the Province has said that's okay doesn't mean that corporations must allow any and all renovations to happen in any way the renovator wants. We'll get into that a little bit later. Unfortunately the Ontario government seems to have been aware that we were presenting today and has promised that they will be providing more updates tomorrow. So I suppose you'll have to tune in next week to get my spiel on that. In other news, the Ontario Real Estate Association, commonly known as OREA, has clarified that in person condo showings are permitted but still not open houses. They're still urging their members to engage in virtual showings wherever possible. Lastly, as Rod said, yesterday we were gifted the COVID-19 Response and Reforms to Modernize Ontario Act 2020. This is had the effect of amending a few pieces of legislation including the Condominium Act and we'll get into how it's done that.
Rod: Okay. I'm going to say I'm going to add maybe that the re-opening of retail store with street entrances, that may affect condominium corporations that have mixed use or that have some commercial at the bottom. So don't be surprised if people are now re-opening their stores and there's people lining up outside. Also, are you going to expand on Bill 190?
Graeme: Yeah, yeah, I believe I've got some slides on that in the next.
Rod: Okay.
Graeme: Yeah. So, Bill 190, and maybe go back actually a slide so it makes more sense. So Bill 190 has essentially done two things. For those who were present for this webinar where I talked about the extensions to hold your AGMs, what Bill 190 has done is actually codified those into the Condominium Act and, for those of you who weren't there for that presentation, don't worry because we're going to go over those deadline extensions again. What it's also done is set a timeline during which condos can hold virtual AGMs without a bylaw permitting them to do so.
Rod: Right. So it did really two things. It addressed scheduling and it addressed the methods. How you can deal with meetings electronically. Okay, so do you want to help us out with the scheduling?
Graeme: Yes, sure. What I've done here is put together, hopefully, a helpful visual representation of how the scheduling is going to work for AGMs. Under Bill 190, which codified the order in council, if your AGM was supposed to take place anytime during the emergency period, as of now the emergency period ends on June 2nd, but that may very well be extended so we haven't put any dates in here. But if you're AGM was to be due during the emergency period it's now due 90 days after that emergency period ends.
Rod: Right. And by now do you mean you can take up to an additional 90 days to hold it?
Graeme: Yeah.
Rod: Right.
Graeme: That 90th day after the emergency ends is the last day that you can hold it on.
Rod: Right. Because both the order in council and this new piece of legislation, what they do is they allow, and I think Denise will talk about that, but they allow every corporation to pick one of two things. You can either hold your meeting now, electronically, or you can postpone. But if you're going to postpone it that's what you're talking about, Graeme. You're talking about if you're going to postpone it you got to fit within that 90 day period at the latest. Right?
Graeme: Yup.
Rod: Does that make sense? Okay. So, let's move on.
Graeme: So then, if your AGM falls within the 30 day period after the emergency ends, so let's say the emergency does end on June 2nd. Your AGM was supposed to be held on June 3rd or June 4th or all the way to June 20th. If you fall in that 30 day grace period you're given a new deadline of 120 days after the emergency ends.
Rod: Right. As you can see the little purple line goes all the way to the emergency. So 120 days is calculated from the end of the emergency, not from the end of that 30 day grace period. Right.
Graeme: Yes. Exactly.
Rod: Okay. Folks, if you're going to postpone your AGM you either have 90 days, following the end of the emergency, whenever that happens, or you have a 120 days following the end of the emergency. But you could hold them electronically at any give time and we'll talk about that. So, how does that affect, or does it affect in any way, all the notice periods, Graeme? Like the 35 days and the 15 days. How does that work?
Graeme: Well, I'm glad you asked. So the notice periods are still in effect and those notice periods are you need to send the preliminary notice of an AGM 35 days before it and you need to send the general notice 15 days before it. I'm sure you're all out there saying, "Well, gee I wish there was some handy tool I could use to do that." Well, never fear, because I am going to steal the screen from Rod for a minute and show you a handy dandy way to do it. Can everyone see my internet right now?
Denise: We can.
Graeme: Okay. Thank you. So, if you literally google AGM calculator, you'll come to the Condo Advisor website, hopefully, and click this.
Rod: That was a shameful plug.
Graeme: I'm not ashamed of anything, Rod. Then so it's very easy. All you do is click this date, select when your AGM was supposed to be. Let's say it's June 12th. This will show you when your preliminary notice must be given. When owner's window is to provide materials and when the formal general notice must be given.
Rod: Like magic.
Graeme: Just like it.
Rod: Okay. Let me see if I can figure out how to gain the screen again. That may be tricky. Okay wonderful. You should be back on the slides now. Okay. So that's for Bill 190 and, as you said, it's basically codified something that existed before. One of the questions I came on the chat, I've lost the chat now, but it was, let me just see here if I can find the chat again. To refresh my memory. If you hold the AGM within 90 days following the end of the emergency period, of it moved up now, are you able to do so without a bylaw? So, you got to keep in mind that I think Graeme spoke of really two things, or the Bill spoke of two things. One thing is the decision to postpone. That decision to postpone, you don't need a bylaw for that. The legislation now allows you to postpone 90 days or 120 days. The question about the bylaw will be more relevant when we talk about electronic meetings and electronic voting. We'll get back to that. To answer the question, you don't need a bylaw. So we spoke about this. Now, we're going to turn to our two condo managers. We're now talking about the easing of restriction and people are getting all excited. Graeme presented the plan on paper. We're slowly and cautiously easing on certain restrictions. Now we need to see how this plan applies in the trenches. I'm going to turn to both of you, the two manager, Sean and Katherine, and in a couple of words, each, so we don't run out of time here, where we at on this? So, I'm not sure which one was going to tackle but let's start with window cleaning. Has anything?
Katherine: I think I traditionally held the window cleaning but Sean you can also disagree with me if you don't agree. I would love to say that window cleaning is essential and it is still not. So unless or you are looking specific at a concern over falling cladding, falling glass, that type of things, it is cleaning and it's not strictly necessary for sanitation. What you might want to do, however, is look to ensure you do have your roof anchor inspection completed and whether or not you could observe physical distancing and scheduling for that. Because I think that is likely to be one of the projects we can do and sooner rather than later.
Rod: Okay. And I hate to use the L word again, but Joanne really wanted me to do it, so what about landscaping? Has the landscaping changed? Who's tackling this?
Sean: I can certainly touch on that a little bit, at least from our perspective. The landscape has changed rapidly in the last week or so, let's say 10 days. With most of the landscaping contracts beginning at the start of May, everything except for improvements, seems to be acceptable, within Ottawa. That's looking at the Provincial restrictions as well as the Ottawa Public Health recommendations. So what we're seeing is most landscaping companies are, with physical distancing and proper personal protective equipment, conducting the basic landscaping duties. We have not seen any allowances for new plantings or betterments or improvements. It's strictly the required maintenance.
Rod: Right. Okay. Very good. Is anyone of you dealing with volunteers that are suffering from extreme cabin fever and they want to go out and they want to participate, to planting flowers and all of that, so how do we tackle this? I'm not sure which one of the two of you would do that.
Katherine: I am of the viewpoint that whether it's done by somebody who's paid or somebody who is volunteering, the same restrictions, if you will, apply. One of the reasons why the restrictions are there is to prevent the co-mingling of households. So we are still under an emergency order that it is looking for us to stay home and stay safe. So, the only interesting thing that I think I've discovered during the last week or so, is the opportunity in insurance riders to cover volunteers or board members who have an illness or would make a claim against the corporation by virtue of their volunteer work. I think that's interesting. Probably most applies to, for instance, townhomes but I don't think that changes my opinion with respect to whether or not having a volunteer who does it is a loophole. Remember? I'm not in favour of loopholes.
Rod: Okay. Garage cleaning, Sean, are you the one tackling this?
Sean: Yeah, Katherine's point underlines all of this which is we shouldn't be looking for loopholes. We shouldn't be looking for ways to get around this. Having said that, there are legitimate reasons to want to proceed with garage cleaning. The main concern that we have with that is getting people out of their units, moving their cars and meeting each other in the elevators, hallways, etcetera. So that's the reason not to do it. But, on the flip side, we have had corporations where they've carefully orchestrated the clearing of vehicles, in stages for different parkade levels, etcetera. Timing, how people leave, and they've proceeded with it because they're concerned about the drainage systems in the garages, or the membranes, etcetera. So, there has been a push for it. There's certainly a large push by the contractors but our advice is always to shown caution, be conservative and not proceed unless you really need to.
Rod: Okay. Very good. How about work requiring access to units? I guess maybe let's break it down. So maybe, corporation work in units, and then we'll tackle after that, owners wishing to do work in their units.
Katherine: I remain of the opinion if and when it's an emergency, and I know that Jason's going to cover a little bit more specifically insuring that staff members or contracted people who need to go in case of an emergency, are observing all of the universal protections as well as wearing appropriate PPE, if they were to need to go in. We are not, however, scheduling work that would take us into suites. That includes, at this particular point in time, also for annual fire and life safety in suite inspections. That's been a fairly substantial thing. It doesn't mean that you're not going to do all of those testing requirements on the common elements in places where that can be safely done. When it comes to capital work, I do believe that under the emergency order, construction that was permitted before the 4th of April is permitted and permissible. My concern is always about the impact on people living in their suites. One, whether or not it can be done safely is first and foremost. But very soon afterwards we have to consider the impact on people who are still safe at home. Working from home, educating children from home, so some of those projects that are very noise, very smelly, very disruptive, it may be better to be looking to, and working with, your service provider in order to maybe even kick that into next year. But that's the analysis piece that in past episodes Justin Tudor had helped us with. I think that governance still remains.
Rod: Right. I think that's applicable whether we're talking about capital work outside or work within the building. What about, Sean, what about unit owners that wish to do some renovations? How do we tackle that? Have we changed our position?
Sean: No. We're still maintaining the same position. As Katherine alluded to, that April 4th timeline, work that had begun before April 4th, we are allowing to proceed or to complete. But in all cases what we're pushing for again is just get into a habitable state and not looking at, certainly not approving or allowing, new work to begin. Most of the work that would have been approved before April 4th has been completed by now, in any event, as far as those renovations go. Just one point Katherine had raised earlier about the roof anchor inspections, the requirement to inspect the anchors hasn't changed, so that is something that you want to be ready for when everything opens up. One of the issues that we run into in some properties, is those roof anchors that are on exclusive use common elements, that would require access to an owners unit. At this point, again, we're recommending not to inspect those. Because we're trying to avoid any unnecessary work or access to units.
Rod: Right, right, right, right.
Sean: That distinction between the rooftop anchors that are purely common element and we can easily get to and those that require access to owner's units.
Rod: Right. That's a very good point. So, some managers need to put their foot down to tell unit 306 that he or she won't be able to complete the work or what she wants to do is more than making it habitable. Sometimes when the COVID hits the fan then the lawyers need to come in and so, Graeme, how do we tackle that? How have we dealt with this?
Graeme: So, in cases where we've been involved in this, it comes to that issue of what's required to make a unit habitable and the other consideration is in order to bring that about, what steps can we take to ensure that everybody's safety is being upheld? In terms of habitability, the things we need to consider are probably are all the utilities connected? Heating, plumbing, electricity. Are the appliances in? Is there flooring? Questions like paint, for example on the walls, I mean we'd all prefer to live in a painted space that looks nice but does that make it habitable? I'm not convinced. So that's the case by case analysis that condominiums are going to have to do when considering these kind of renovation issues. Then the other analysis that they're going to have to engage in are how can we make this happen in a way that minimizes risks? Things to consider are how many trades are going to need to come in? Can we schedule it so that they only come in one at a time, one person at a time? Can we control the hours during which they're coming in and out the building? Is there a service elevator that we could delegate them to? And are we making sure that they're wearing the correct PPE?
Rod: HmMmm. HmMmm. One of the questions that came up on the chat room, somebody was under the impression that renovations in units were now allowed with the various changes done by the Province. Our reading of this is this, the general statement about construction hasn't changed. Renovations that were commenced before a specific date, I think it's April 4th.
Graeme: Yup.
Rod: You would be permitted to continue. Having said that, what is allowed at the Provincial level does not mean that it shall proceed at the corporate level. Condo corporations are the fourth level of government. You have Federal, Provincial, Municipal, condo land. Every level of government can be restrictive, not more permissive than the level above them. So the fact that the Province says you can do XYZ, doesn't mean that the corporation necessarily has to allow it. Also, with respect to the recent changes to the construction restrictions, I guess what, and I think this is what the viewer's referring to, the changes were this; below grade work could commence and above grade that was commenced before a certain period could also continue. But that brings us back to does this corporation feel that allowing it is in the best interest of the corporation? Is it safe to do? Is it desirable to be done? They control the common elements for the greater good of the community.
Graeme: At the end of the day I think the answer to that question is going to depend on a weighing of the factors that I discussed earlier.
Katherine: I agree and the other thing to is if we still have a number of people who are safe at home, even something like a garage project where you feel that you're not having people co-mingle, you will have addressed some of the issues of physical distancing in spaces like elevators and cleaning and all of the rest of it, you still have the mobilization challenge of where people are going to park their automobiles, for instance, if you were to be doing an underground garage project. So there, again as has been discussed previously, there's a hierarchy of considerations that needs to be undertaken.
Rod: Right, right, right. Okay, so we've got to move on. Paulette, you may want to make sure that when you chat on the chat room that you address your questions to everybody. Not just the panelists. That way other people will be able to jump in and help you and provide some guidance. David, we're running out of time so I'm turning to you, skipping over Sean, I'm turning to you, David and I'm going to ask you this question, how do we deal with returning contractors? Because now, slowly but surely, there coming out of a long hibernation, wanting to work, they're hungry, just like bears coming out of the woodwork, how do we deal with that?
David: For sure, and this is something that we're getting a lot of questions recently, especially with the slow easing of restrictions. But it makes sense. I mean contractors want to get back to work, and they want to be able to complete tasks so that they can get funds for their work, and also that they don't have a glutted of work that all has to be done once it all opens all at the same time. So one of things we're suggesting, and has been decently well received on both ends, is having a health screener for any incoming contractors that are coming in. It is pretty easy to do. You have management, or someone meets them at the front, you just have them fill out a screener. It's a quick questionnaire, follows the public health guidelines. Do you have a fever? Have you experienced any of the symptoms within 14 days? Have you had international travel? And if they're answering to any of these they're not being allowed onto the premises. That's just a liability issue for the corporation. In the same health questionnaire you could also have, what we've dubbed COVID-19 health protocol. Again, reminding the contractors that when they're on the premises of the corporation there are certain requirements they need to fulfill, either on the public health guidelines, physical distancing, not attending on site with more than five workers and then the management, or whoever the agent of the corporation, having them sign off on this is also showing them where the handwashing facilities are, where they can be getting PPE if it needs to be provided by them, or by the contractor, and this is generally well received. People are happy to do it because it's really just following the guidance of the health authorities. The bigger question is when the contractor is pushing hard to come, and the corporation doesn't really want them to, how do you push back or how do you then protect the corporation itself from liability? This can be done with an indemnity and a release agreement that you can ask your counsel to help you with. You're essentially saying to the contractor, if you want to come, the Province is allowing it. That's fine, but we don't want to be on the hook for the liability that may result from you being there even though you can be, as we've been saying, you don't have to be. So there are agreements that can be drafted where you're then shifting the burden of that liability on to the contractor. Often, from our experience so far, the contractor when faced with this legal agreement will back down and say okay, I know I'm allowed to do this but I'm not going to do this right now. I agree with you. Let's do this in the future. No problem.
Rod: Basically, the objective is if somebody really wants to be there, there's all sorts of risks that are associated sometimes with more contractors, more traffic, more people on site, etcetera, etcetera. The waivers and indemnity agreements are also very useful if you're in a gray zone where the contractor says, "I'm allowed to do it. The Province allows me to do it." And you're thinking, "I'm not too sure actually. So well if you really think you're allowed, let's sign an indemnity agreement and if somebody gets fined or somebody gets hurt, well then, you're going to wear it." Okay. So that's for that. Now, moving on to Jason. Jason, our main topic today is, let me just see here. Why do I have this slide here? I think we've dealt with this, Graeme, so let me just move it here. The main topic today is re-opening of amenities and Jason has done a tremendous job. He's put together very comprehensive set of slides and we're going to tackle this one amenity at the time and we're going to be asking ourselves these questions. Like, should we open it and if we're going to open it, what should we consider if we're going to decide to open it or not? And if we are thinking of opening it what precautions should we put in place? I'm going to turn the microphone to you, Jason. Now, there's a lot of words on this slide, folks. Hopefully your not viewing this on your phone but the slide deck will be uploaded on the Condo Advisor, and rather than cut some wording out I decided to leave it all in to allow you, later on, to review this and sort of be able to do the same exercise that Jason will do now. To you, Jason.
Jason: Thank you very much. Listen, the whole thought process behind this was what are the considerations now? What are we looking at to open now? And quite, simply we want to provide that amenity space for residents and we want to give them an opportunity to contribute to their mental and physical health. I think those same considerations apply to all the amenities, or most of them. Then it was pretty important to identify what's the standards in Ontario and Canada and maybe internationally. What are others doing? So we've listed some here. I don't want to go through them all but the general feel is that facilities that are opening up are not opening up their individual shared fitness rooms. Then we started taking a look, as a team, considerations for the plans to re-open. First of all, we want to make sure
Rod: I'm going to stop you, Jason. I want to go back to the first two columns for a second. This is part of the exercise, and Jason, you've raised it from the beginning, so you're looking at every amenities and you're wondering well, why would we open it? What's the driving force behind opening? Is it essential? Is it not essential, etcetera? But the second column to me is going to be, in many cases, your guide. What are other people doing? Is the YMCA opening their gym? If they're not why would you open yours? What are hotels doing? If they're not opening their facilities why would you open yours? Right? And this, Jason, this is almost a weekly sort of exercise. This is not a snapshot forever, right? I mean every week you should really ask yourself these questions.
Jason: Absolutely because in 7 days from now you may see small gyms or shared fitness facilities open. You can actually use this document on a 7 or 10 day basis to kind of gauge your balance so that when you do have, or meet the justification to open them, you can. That's why we've even put in the considerations to open. So as an example, I mean, these are not generic but they're pretty important so we need to make sure we're booking and scheduling these without having residents come down to the lobby, utilize a shared pen, and book these. So contactless booking or scheduling. We need to make sure we're maintaining 6 feet distance within all of the fitness area. That may mean removing equipment, reshaping them or putting them in a row where you can have plexiglass in between. But one of the most important items I found was, that because you're in a shared fitness area with aerobic equipment, you've already got an increase of respiratory rate. That means you're going to have an increase of whatever it is you expel when you breathe hard. Don't use the 6 feet there. For all equipment that is generating a higher respiratory rate, you'd have to go further than 6 feet. There are no clear data anywhere, whether it's the CDC or whether it's Canadian Public Health, on what those further distances are. But there are numerous pieces of documentation, including the Industrial Hygiene Association of America, that's come out and said it needs to be further than 6 feet.
Rod: Right. So depending on the exercise I guess some machines may you exercise moistly, I guess. That's the reference that we have.
<laughter>
Rod: I had to go there.
Katherine: You did.
Graeme: And I never exercised again.
<laughter>
Rod: So, Jason, do I go to the next amenity?
Jason: Listen, I want to focus on one more because it applies to all of them but I won't hit it on the next amenity, but it's vitally important. Develop in the incident response procedure in the event a resident or employee test positive. That includes the documentation needed to respond. To communicate. To sanitize. To trace and to potentially notify, as best you can, where that contact has been made.
Rod: Right. And for very, very small gym rooms, like at my condo, we don't have somewhere else to put our machines and we can't really reorganize them. We only have one of each; bike, treadmill and whatever the other machine is. The elliptical. I guess maybe for these small gym facilities one of the option is, if you're going to re-open it, when you're going to re-open it, maybe you limit it to one person use. So that goes back to your suggestion to have some kind of booking or scheduling system. Whereas before, three of us could exercise at the same time or, maybe now for the near future, we won't. Maybe it's going to be one at a time. So let me move to the next amenity. Right.
Jason: So this one, saunas and hot tubs. So quite simply every ounce of evidence points to keep these things closed until further notice. Once you are considering to open these up you're probably going to remain limited to one guest or family at a time. You're looking at cleaning after each use. The same incident response procedure. But something that's very important here is, as with all amenities, when you're weighing the facts and the considerations to open and close, you have to consider the time amount that is involved with the cleaning process. For example, in a gym the cleaning may take 20 minutes and it may take longer because the material, or the cleaning agent you're using, may have specific directions to let this stuff dry for 5 minutes on the equipment. So now you're at 25 minutes. So you're doing that once an hour by scheduling a resident, one person to use it, you're going to have to find a cleaner just to stand outside that door and service that amenity, once every 60 minutes. That may be a consideration as well.
Rod: Right. Absolutely.
Jason: Next one.
Rod: Went to fitness. Hobby rooms, I guess.
Jason: So hobby rooms. I'm not going to go over the same ones apply here but you need to make sure you have new rules and procedures for how you're going to schedule it, how people can go in, how they can use the room and when they leave. Specifically, you know, a hand sanitized bottle mounted at the front entrance where if you're going to use this room you have to hand sanitize on the way in and hand sanitize on the way out. Shared equipment. You've got to remove all this. In fact you're hobby rooms, this is an important note, should never have shared tools for the simple reason is that it's a significant liability for the boards. But if you do, you want to limit those shared equipment because that just increases your cleaning capabilities and have everybody bring their own.
Rod: Right, right, right. Okay. Then guest suites.
Jason: Guest suites. What are others doing? So hotels are currently not open. Hotels in Quebec, I believe, are or are in the process of opening in Quebec. This one has some unique risks or considerations, if you will. A room rotation plan should be developed to allow the proper time for that air circulation within that suite to clear out. I don't know what that time is right now, but as an example, it might be every 3 days.
Rod: Right. Right, right, right. Okay.
Jason: There's no way for you, unless you're bringing in fogging machines and UV lights every night, you're probably better off to opening it up and meeting some of these requirements. But then you've got some additional tasks and cleanings. So the cleaners are now going into these amenities, once an hour, once a morning, whatever the schedule is, but they've got to don and doff, which means take on and take off, new gloves and new masks every time they do it. So do you have the PPE to give those cleaners, or does the cleaning company have that PPE to do that, because you could be running 30, 40 masks a day.
Rod: Right. Right, right.
Jason: In some condominiums. So there's additional costs. There's additional manpower. There's a lot of considerations to opening these.
Rod: Oh, wow, there's some fancy condos outside of Ottawa. There's a theatre room.
Jason: The same considerations apply to the majority of the amenities. But one of the ones that I really like about this one is there's a lot of touch points. Couches and pillows. How are you disinfecting those? It's not something you run a Lysol wipe over top. So you've got a lot of touch points that you can not necessarily remove and in order to clean a theatre room you could spend a good hour to 2 hours. How do you know? When you're going with the cleaning you want to make sure that you're documenting that cleaning as well.
Rod: Yeah. For sure. First World Problems for theatre rooms. Oh, this is great.
Jason: I don't go on too much here because we've got an expert here with us. But quite simply, this is what we found. The pools are closed. There is no evidence as per CDC that the COVID-19 is transmitted via water but there are also a significant amount of touch points. All I've done here is, go to the next slide for me, sir.
Rod: Sure.
Jason: Here's some resources that you can use that are accepted resources in Canada. It's through the Life Saving Society.
Rod: Okay. This is where I'm going to turn to Ryan and you won't see him. We've turned the image off but you'll hear him and that's what's important. Ryan Van Es from Ottawa Pool Works. I guess, Ryan, let's tackle this in two steps. We're going to talk about the physical opening of the pools but also about the opening of the pools to the public. Let's start with that. What is your industry preparing for? What's around the bend with respect to returning public to pools? To public pools.
Ryan: Currently right now we're kind of preparing for the opening of the recreational amenities on a limited basis. Primarily speaking in terms of bather loads. Much of what I'm going to say and touch on is going to be, more or less Jason has kind of already discussed, but the big thing is that, as we are kind of discussing, is not kind of assume that COVID is kind of transmittable through sanitized water. So what we're more less kind of preparing for, again what Jason was saying on managing shared spaces is, how are we going to be keeping the numbers down on people coming into the pool area, specifically change rooms. This is going to more or less change the operation because for Class B pools, that are unsupervised, the access to the change rooms, washrooms, a lot of these shared facilities need to now have attendants. So we need to now work out some sort of booking or scheduling for people to be going in there, but the problem that we are saying is it's not going to be the water itself, it's going to the equipment that surrounds it. Your ladders, your handrails, your life pull, your vacuuming equipment. Most areas of transmission will probably be in change rooms and washrooms. How that's going to work out is going to be up to, again, owners and managers to determine how we can adhere to social distancing should recreational amenities be lifted. But I think that that's going to be the primary problem for indoor Class B facilities to take a look at.
Rod: Okay. So, a couple of points there I want to bring to the forefront here, that you said and I want to emphasize them. So one of them, and both of you touched upon that, the studies maybe eventually will teach us more about how this virus reacts in water. But right now the Center for Disease Control and Prevention is quite clear that the issue is not the transmission through water because, as you said, the sanitized water, the chlorine and also the salt. Is the salt effective, Ryan?
Ryan: Yeah, the salt especially gives off a chlorine residual so more or less is ... What Public Health in Ottawa was telling us is that as long as the chlorine residual of at least one part per million is present in the water that it does not pose as much of a risk as it would in change rooms, washrooms and on equipment, ladders and handrails, as well.
Rod: Right. So the issue is that. The issue maybe not so much the water but is the equipment and you've listed quite a few. I mean, how often are we going to get to clean the buoys and the ladder and the handrail and the noodles and the aqua fitness equipment? That is going to be an issue and also the proximity. You spoke of bather load. What's that?
Ryan: Correct. When it comes down to Class A and Class B pools, the difference being Class A is public and the Class B is more or less private. What we're more or less looking at is that even for some of the bigger pools, like city pools, YMCA's, even though that they are massive pools and they have lifeguards present, we're not anticipating that these pools are going to allow 30, 40, 50 people from what it was like pre-pandemic. We're assuming the same measures will be kind of put in place in terms of bather load. The key thing that we're looking for in the pool industry is the lifting of measures on restaurants, in particular, because we feel that our industry is very similar to that where they're more or less going to, how do I describe it? They're more or less going to say, "Well, okay, if we're going to open up restaurants then we need to have tables within a certain length of each other, or a certain distance of each other. We can only have a certain amount of people in the dining area. We're expecting the same to be had for swimming pools where the next thing we know we can't have 30, 40, 50 people in the pool anymore. We might need to go down to something, kind of what Jason was referring to in terms of attendants or booking schedules or something like that, to control the amount of people that are not only accessing the pool area but primarily the change rooms as well. Because the change rooms you're likely going to have a higher chance of transmission in one of those areas as opposed to the pool area. That's still up for debate, but ultimately it's going to come down to the access to the shared accommodation, being the change rooms and washrooms and the pool area in particular.
Rod: Yeah. Okay.
Ryan: That's kind of what we're anticipating on our end, anyway.
Rod: Okay. Now the second sort of element I'd like you to touch upon, and we're running out of time a bit, but is the opening, the physical opening of the pools. I'm thinking mainly of exterior pools. Some corporations may be tempted to think well if we're not going to use it this summer do we need to open it? Do we need to treat the water? Can we just empty it? What are the considerations that go into that with respect to the physical opening and maintenance of the pool?
Ryan: Good question. The big difference is the physical opening of the pool and the physical opening to users. So we're not discussing the physical opening to the users we're just talking about the physical opening of the pools. There's two big concerns that we need to look at. I know a lot of people right now are thinking to themselves, "Okay. Well, I don't have to open the pool. I can save a little bit of money. I don't have to buy chemicals." But the problem is that with ... water present and without proper pool maintenance, including circulation and treatment of water, various pathogens can grow, such as cytomonias, cryptosporidium and E. coli among others, that create a breeding ground for mosquitoes, pests that may carry diseases such as West Nile and pose a secondary risk to communities. So, for a lot of these outdoor Class B pools, a lot of them are out by people's back yards. There out by people's balconies. If you're leaving that water over the course of the summer time and it gets to 30, 40 degrees, you're going to risk all those diseases and dead animals potentially coming into the pool. So now you've kind of created a secondary health hazard. What we're trying to do, and which leads to my second point is, is what we're trying to do is tell people that, "Listen. We think that the best measure to do would be to drain your pool, to clean your pool, to prepare for a physical opening of the pool as if this is not going on." I know that I just say that haphazardly, but we're telling people, "You know what? The pool itself is a structure and the pool is designed to have water in it." A lot of these in ground pools that are not suspended have high water tables around them. With a high water table around the empty pool shell it essentially puts stress on the structure and could create significant damage on the pool itself. So, what we're telling people to do is to, you know, let's just play it as if nothing is happening right now. Let's clean it. Let's fill it. Let's balance it with chemicals. But also at the same time I know that people have concerns about spending a lot of money on chemicals, and they'll be swimming in the pool, but we're telling people to operate minimally. Keep the sanitizer to a minimum. Keep the sanitizer to, sanitizer meaning chlorine or salt, sorry, to a one part per million. We're saying keep the heat off for now. You don't need to take on that cost at the moment. You don't need to balance all the other specialty chemicals that come along with it. So, keep a clean and clear pool. Keep sanitizer in there and hey, you know what? If measures get lifted at some point or another for recreational use then that's also going to allow for a quick turnaround.
Rod: Perfect. Wonderful. Very good practical tips on both the questions pertaining to re-opening to bather and re-opening the actual physical pool. Ryan, I can't thank you enough for that. At the last minute you jumped in. Thank you so much. You can stick around if you want or if you have places to go you can just sign off. But I wanted to thank you for this. That's Ryan Van Es from Ottawa Pool Works. Thanks so much.
Ryan: Thanks for having me. Take care.
Rod: No problem. For the viewers at home, if you want to read every reason why you should not go back into a public pool, you can go and check the Center for Disease Control and Prevention. There's a section about COVID that's not that scary. Go and check the section about other concerns. It will really drive home why you want to maintain your pools properly. Jason, we're going to have to skip over the workplace safety because we're running out of time. But that just means that you're hired for next week. We're going to push that to next week and I apologize for that. You've put a lot of work. l wanted to put a lot of time on the amenities and we did just that. So thank you for that and we'll save your second segment for next week. Now, Katherine and Graeme, very briefly. Virtual board meetings. How do we deal with this? And Katherine, maybe focus on, it's not the same. Having a real life meeting and having a virtual board meeting. You've got to prepare for them differently. Give us the managers perspective and the directors perspective in less than 72 seconds.
Katherine: Well, you know I can't do that. I've been around long enough for that. A lot of it boils down to preparation. So the thing that managers have always done, or long done, is prepared a meeting package in advance. One of the great things about holding these meetings virtually is that we can literally be on the same page these days. After having circulated that package in advance there are opportunities now in a virtual meeting setting to share your screen with the attendees at the meeting so that they can see and look at the same part of the package as you are. When you're approving the agenda. When you're approving the minutes. When you're looking at proposals that you might be contemplating or that new virtual meeting bylaw that you're going to add into the AGM package that you're scheduling during this emergency time. The other thing to consider is if you have an opportunity like this, while the speakers can be visible, it's easy to actually see a hand raise, or to use a hand raise tool that's on the screen here, to acknowledge folks that want to speak. For somebody like Ryan, who's video was off or who's participating by phone, it also requires a little bit of extra discipline. So that means if people are participating by phone, the chair might poll them or ask them, specifically, that gives them an opportunity to speak when they are welcome to do so. It also will give you an indicator as to whether or not somebody has dropped off the call. I think as we've been practicing, and using these virtual tools, we've had the experience of checking in with folks to make sure that they're still on the line and you haven't lost quorum. Finally, facilitating it so that it is easily accomplished. In other words don't feel obligated to meet if you don't have decisions to be made. I would maintain a regular schedule as opposed to kind of pushing a monthly meeting. These Zoom chats, it's actually out in the media, they're a little bit more tiring because the physical ability to read body language and things like that is easy. It is not delayed. Because virtual meetings are delayed it can be a little more tiring. Also follow up afterwards in the same way you would if you were in person. So your little list of to dos, just so that everybody's on the same page, in terms of who's doing what and what the responsibilities are going forward.
Rod: Wonderful. David, you were right. I put too much stuff on the agenda again. I'm the kind of guy that just can't get it out. At the Mexican buffet I have one of everything. Okay, well, before Denise falls asleep, we're going to talk about the AGMs. About whether to postpone them, not postpone them. I think the landscape has changed on that, Denise, maybe help us out with this.
Denise: Yeah. I'll try to be quick. I mean I've been crossing things off my notes because we're running out of time. So to hold the AGM or not. Remember, the April 24th order in council provided that all AGMs could be postponed if the last day to hold the AGM fell within the emergency period, or was in that 30 day period following the end of the emergency period. Because the emergency period continues to be extended, as we know, and we're recently to June the 2nd, and now that Bill 190 has permitted condominium corporations to hold AGMs virtually, and use electronic voting, for a period 120 days after the emergency ends. And I hope everyone's following me now. Corporations that have postponed their AGMs may want to start picking a date now. To hold your meetings, virtually and through electronic voting, within the next 3 or 4 months. So that was a change in position from last week but that is what we are recommending now. The other thing I just wanted to mention. I wanted to answer one question that came on the chat because I think it's important. The questions is, "Do directors have to hold virtual owner's meetings during the emergency?" We know that the answer is no because AGMs can be postponed but that's just AGMs. There are still requisition meetings or the loss of a quorum of the board or turnover meetings. So remember that those meetings have to be held and that 120 day extension, where you could hold virtual meetings and electronic voting, that only applies to AGMs. It doesn't apply to a requisition meeting or other owner's meetings that occur after the emergency period ends. That's it.
Rod: Right. Wonderful. Okay. So, you can either postpone your AGM or you can hold it electronically. If you postpone it there's the timeframes that you spoke about, Denise. Any considerations? Like what goes into the equation when you decide to postpone or hold it, Denise? What would you recommend to your clients? I take it there's not a one size fits all.
Denise: There's various reasons for you holding your AGM but just remember that 120 day period because that will depend when the emergency ends. So if it does end June 2nd you will have that 120 days to hold your AGM, virtually and electronic voting, unless you have a bylaw. So if you wait and hold your AGM later you may not necessarily be able to do virtual meetings. But Rod, you're going to talk about that in terms of getting the bylaws passed now.
Rod: Right. Our view is that the bylaw is still very much required. It's not mandatory. So for this period of exception, which is up to 120 days following the end of the emergency period, you could hold your virtual AGMs and your virtual owner's meetings, without the requirement of a bylaw. So that's good news and they needed to put that in place to allow people to go forward with these meeting because otherwise, I mean everything was being delayed, it was like a domino effect. But now is the time to consider adopting a bylaw because we're all tasting this new way of doing business. This new virtual way and people will want to continue to be able to do these meetings this way. First, because even we do say people can all meet and we can all be friends again, the reality is that it may not be advisable or desirable for people to be stacked up in a room. A lot of your owners may not want to do that. The virtual AGM, and the virtual meeting and the electronic voting gives such facilities and such options for the owners. For busy owners, for travelling owners and so now is the time to consider adopting a bylaw, in my view. But most importantly these bylaws provide a framework that allows people to have valid and transparent and robust AGMs. Right now, under the order in council and under the new Bill 190, there's no sort of indication, no clue, no guidance as to how to hold these meetings. That's very troubling for me because people are going to start having AGMs on Skype, or on FaceTime, or on Facebook, or whatever it is, TikTok is the next way. You'll have 45 seconds to have your AGMs. To me, you need to have a set of bylaws that will ensure to the owners that you will have a transparent process, that there'll be full participation from the owners, that they will get to see everything in real time. Often people are asking, "What goes in the bylaw?" I've seen a couple of bylaws now, couple of models, and some of them fit on a matchbox. There's two paragraphs. Yes, you can have virtual AGMs. Yes you can vote electronically. That to me, very respectfully, is missing the target because you're not putting in place the safeguards and checks and balances that are required to make sure that you have true owner participation. True owner authentication. True voting authentication. You want to know who's voting. You want to know who's attending. You want to have a transparent meeting where everybody sees everybody or sees every question that's being asked. If you don't see the questions that are being sent my way I can just merrily avoid them and ignore them and you will never know that that took place. Right? It's too easy for me to sort of give directions to the meeting, to take it somewhere where the ownership doesn't want it to go. To me, the bylaw needs to put in place all these safeguards that will ensure that you have a robust system. Your democratic system. The integrity behind it. The transparency behind it. There's accountability behind it. You want your bylaw to say these things need to become records of the corporation. Because, again, otherwise if you do it on Instagram, or whatever the app was where kids would send pictures and the picture would disappear right after, you don't want to have an AGM like that. You want the AGM to leave a trace. To me, I think my message is you should really consider adopting these bylaws. You should have a bylaw that meets your requirement and now's the time to do it because you can do it remotely. You can do it electronically.
Denise: Rod. First of all it's a good point that you raised there. There was a reason that you and I worked on this file with Josh and it took us a week, with managers chiming in, so it's really important that you get a good ... of bylaw. Just to give some people context our bylaw is two pages. Two legal sized pages. So you know. Shorter than that you've got a problem.
Rod: When we worked on that, Denise, we actually had manager's input and we had input from the various service providers. There's the CondoVoters. There's others. There's GetQuorum. There's others. We actually spoke to all of these providers to make sure that the bylaw would meet, sort of match where technology is now at this point, it would be flexible also to move forward. There's more to it than meets the eye.
Denise: I wanted to just raise another point because many corporations are going forward with their AGMs and I think when you go forward with your AGM you should put this bylaw on the agenda. So make sure you add that. If you're not going to do a bylaw meeting and do an AGM just put the bylaw on your agenda.
Rod: Absolutely. What's the majority required for this kind of bylaw, Denise?
Denise: As long as you have 25% quorum at the meeting it's a majority vote of those present or, if you have proxy, or by electronic vote.
Rod: Right. So a simple majority which is the majority of those participating to the meeting. Now some people have asked us, and we're sort of running out of time, I think we're going to need a meeting, a webinar, just on AGMs, Denise and folks, because I think this is the signal I'm getting. But the last thing I was going to say about these AGMs is there's various permutation and options. Some people will turn it all to a service provider like CondoVoter, for instance. Other people, what they'll do is, they'll turn the voting element to the service provider but they'll chair and host their own AGM. Right? If you know what you're doing and if you do it properly there's all sorts of platforms out there. There's Zoom, which is what we're using today, but there's GoToWebinar, there's all sorts. Right? So some people may decide to delegate the electronic voting to a third party provider, simply because they have the technology and they do it well and they authenticate the votes, that's a good way of doing it. Other corporations will delegate or push out both to these providers. You host the meeting and you deal with the voting. Depending on the size of your condo corporation you may be able to hold it yourself, as I said, and find a platform that works for you. So there's all sorts of permutations here. In 30 seconds or less, super Dave, a question that keeps coming up and I keep postponing it, what happens if I postpone my AGM and my director, his or her term expires or should have expired by now, what happens? Do they just evaporate these directors? What happens to them?
David: It's funny. I actually put the answer in the chat already because I figured we were going to jump over it. But, again, answer. A director's term continues until they are replaced at a subsequent meeting.
Rod: So they will continue until they're replaced at a subsequent meeting which is another reason why you may, or may not, want to call your AGM now. There's no reason to sort of delay any longer. Okay. Now, we've covered that. Very good. We've hit the end folks. We're at the end of the presentation. It was fast and furious. Once again I've put too much stuff on my plate but I'd like to thank everybody, all of our speakers, who took the time to come and share their knowledge with us. I'm going to do as I usually do. I'm going to go around the table and I'm going to thank you and I'm going to ask you if you have any parting words. Super nanny, Katherine Gow.
Katherine: Slow and steady wins the race. So I know that everybody's really eager to get back out onto the common elements and into their amenity spaces. It's going to be longer rather than shorter. Right? So, I would start having that conversation with home owners so that their expectations are set appropriately. Condominiums are not going to open at the same time as say the Good Life Fitness down the street. And in being reductionistic the considerations that Jason and, I'm sorry. I've forgotten the pool fellow's name.
Rod: Ryan.
Katherine: Put in front of us, Ryan, are going to be our guidance and we're going to need to evaluate those before we can open them. We don't want to have to go backwards. So we're going to be slower rather than faster.
Rod: You're using your time for next week, Katherine. I'm going to keep track of that.
Katherine: I am I know.
Rod: From Lash Condo Law, Denise Lash, thank you so very much. Any parting words, Denise?
Denise: On the amenity issue I was going to say owner's waivers and signage is not good enough. Don't open those amenities and don't rely on owners signing waiver.
Rod: Right. Right. We ran out of time to talk about the liability associated with rushing through opening these, because the liability rests on the condominium corporation's shoulder, at the end of the day. If something happens, if there's a flare up, they're going to turn to the condo corporation because they condo corporation is responsible as the occupier of the amenities. Turning to Grizzly Adam, condo lawyer from Gowling WLG, Graeme MacPherson. Thanks so much. Any parting words, buddy?
Graeme: Yeah. For my parting words I'm just going to thank everybody who's in attendance today and thank you all for your questions. We understand that there's a lot of questions and as the situation keeps evolving it just leads to more questions. We do try to get to all of them in these presentations and we do appreciate when you send. Please continue to do so and we will continue to address them in upcoming presentations.
Rod: Wonderful. David Plotkin, condo lawyer with Gowling WLG. Parting words.
David: Just because you can doesn't mean you have to. The question is always should you. That's what we are trying to get across in this presentation. Ask the question should you be opening X amenity? What are the liabilities for it? And if you're unsure discuss it with your professional.
Rod: Wonderful. Thank you so very much. Jason Reid, from the National Life Safety Group, can't thank you enough for these charts. For all the work you've put into that. We'll upload it, obviously on the Condo Advisor website, but big, big, big Bravo Zulu to you. Thanks so much. Parting words, Jason?
Jason: Yeah, listen, thank you again. I love this stuff as you know. Listen, I'm big on documentation. Those charts really allow you to weight that documentation, and when the documentation kind of swings the other way, you're good to open. But right now they're all looking like this.
Rod: Right. Okay. Sean Cornish, first sign tonight with us. Hopefully you'll join again next week. I didn't tell you that but you were signing up for the series, buddy. Any parting words, Sean?
Sean: Yeah, Rod, since you invited me I've been thinking, "I have to think of some good words for the end of this presentation because you'll always be asking." But you put me last and everyone took my good points. Effectively, I think Katherine summed it up really well for me, as well as David. Slow and steady. There's no rush. There shouldn't be a rush. It's going to be tough for managers to say no to board members or to owners but we need to do it. Katherine, I think in our earlier conversation you mentioned the standard of care for board members. That's a critical thing to keep in mind. At the end of the day it's a responsibility to all the owners, to the corporation, to limit the liability and the harm to the owners.
Rod: Okay. Thank you very much, Sean. So folks at home that's it for us today. Episode 9 ends on a positive note with all these good pieces of advice. Next week, Wednesday, May 20th, at 5:00pm we're going to have another one of those until you tell us to stop. Until we run out of topics which I don't think is about to happen. You'll need to register again. You know how to register. You need to go to the Condo Advisor website, the webinar tab at the top, click on that and we'll put the agenda there. We'll also put a link to our future webinars but the registration format is where it's found. At the same time do send questions because I spend the weekend trying to put together an agenda based on the questions that we've gotten so far. I'd like to thank you for tuning in, week after week, many of you are the same. I'd like to thank the peanut gallery in the chat room. I'd like to thank them for answering the questions. I see John's there. I see all sorts that I recognize. Good advice from all these people and thank you so much for chiming in. That's it for us, folks. Thank you very much. Have a great week. See you next week. Same channel, same time, with the same characters. Take care. Be safe. Thanks.