condo business november 2010

November 2010 • Vol. 25 #7Canada’s Most Widely Read Condominium MagazinePM

#400

6305

6

Be prepared

Fire safety

Disaster planning

Condominium security

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Contentsdepartments

Marketing City slickers and urban dwellers

Maintenance A guide to community organized wildlife management

Legal Security considerations for boards

When mediation fails

Board policies or corporation rules

Management Risk recognition can prevent violence

Smart ideas

Focus: saFety

Prepare for a disaster By Ralph Dunham

Everyone has a role in fire safety By Amie Silverwood

Security options By Jonathan B. Silbert

Are unit owners prepared? By Amie Silverwood

Green takes on another meaning By Barbara Carss

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Happy holidays

editor's Letter

6 CONDOBUSINESS | www.condobusiness.ca

The November issue is the last CondoBusiness magazine printed this year and the first issue of 2011 won’t be in mailboxes until March. That’s a long time to go without industry updates or thought provoking articles since condominium management is a 24 hour a day job that doesn’t take Christmas breaks or New Year holidays.

Tech savvy property managers and board members, however, will still have access to new articles and news between issues. Newsletters are regularly sent to subscribers’ inboxes providing breaking industry news and regulation updates. Video reports are another part of regular mail sent out to subscribers. Industry experts weigh in on topics that matter most to them and to CondoBusiness readers in short but informative videos.

And between mail messages, readers are encouraged to visit the website regularly for news updates, new articles and features. CondoBusiness is also active on Facebook and Twitter with social updates pointing friends and fans to useful links and articles on the web.

I hope you’ll visit us regularly online. Have a happy holiday season.

Amie [email protected]

PublisherSteve McLinden

Editor-in-ChiefAmie Silverwood

Advertising SalesPaul Murphy, Sean Foley

Senior DesignerAnnette Carlucci

Production ManagerRachel Selbie

Contributing WritersRalph Dunham, Jonathan D. Silbert, Barbara Carss, Stephen Dupuis, Brad Gates, Stephen Morrison, Denise Lash, Michael Pascu

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safety

Disasters come in all shapes and sizes, and usually at the most inconvenient time. Preparing for every potential event can be costly, time-consuming, as well as potentially redundant. So how does an organization determine the optimum level of investment in disaster preparedness planning? Preparedness planning doesn’t contribute to the bottom line, but it will help add protection and value, especially for unit owners.

Prepare for a disaster

By Ralph Dunham

safety

November 2010 9

Return on investment is a commonly used method to evaluate potent ia l investments and estimates are often used to predict an investment return, but in many cases the actual return received will not be determined until the investment is closed. For example, the total f inancial return associated with investing in a rental unit cannot be determined until the unit is sold. This is also the case with disaster preparedness planning. The majority of the return associated with this preparedness investment is realized after the disaster has occurred and the planning has been invoked. Like life

insurance, most people hope that this return will always be zero due to a lack of triggering.

If there were no disasters then we wouldn’t require any preparedness planning. However, the reality is that d isasters do occur and therefo re there is a risk for which planning will be required. Risk is defined as the probability of an event occurring times the impact when it does. For example, if the probability of a major flood is one in a hundred years and the impact to the building, if it occurs, is one million dollars, then the risk is ten thousand dollars per year. The return on any

investment that cou ld complete ly prevent this potential impact would be positive (theoretically) provided it cost less than ten thousand per year. It is usually not possible to reduce the probability to zero and it is usually not advisable to reduce the impact to zero—much like a deductible on your car insurance.

An evolving method of assessing the return on any preparedness planning is to evaluate the risk-adjusted rate of return for the associated effort. This will ensure the level of investment is consistent with an individual building’s r i sk p ro f i l e o r an o rg an i z a t i o n ’s


objectives. It may be better to enhance evacuat ion procedures, i f you are located near a chemical plant, than to expend any effort on how to handle space debris fall ing on the roof. Of course, there are always some threats that cannot be mitigated through any planning efforts, and you don’t want the plan to be a document of unlikely events.

So how do you plan for disaster without accounting for all the potential causes of r isk? An approach that is

gaining favour, in many organizations, is to look at the consequences of an event instead of the cause. In other words, focus on the impact of an extended building evacuation instead of what caused the evacuation. Likewise, it may be more relevant to plan for any type of destructive event than to develop procedures for individual causes.

H i s to r i c a l l y, m a ny re a l e s t a te organizations have developed response procedures based on cause (e.g. fire,

toxic fumes, power failure, etc.) and these are very effective for immediate response to traditional events. There is no disputing, it is difficult to cover all the possible causes of a disaster without creating an overly-complicated plan with a lot of redundant material. Additionally, these plans often don’t address the longer term impacts of an extended crisis. This is the biggest d i f f e r e n c e b e t w e e n e m e r g e n c y response procedures and d isaster preparedness planning.

Suppor t ing a move f rom causa l to consequent i a l p l ann ing i s the recognition that any planning ef for t must allow for a great deal of flexibility or res i l iency. I t is of ten bet ter to develop process out l ines to guide management than to create detailed procedures with l imited f lex ib i l i t y. Current best pract ices recommend bui ld ing a capable and well - trained team that can direct the response and recovery ef for t with guidelines that reflect the organization’s values, while allowing for adaptation to the evolving event. By developing organizational resiliency and management capability, the effort on documenting procedures (which will need to be maintained) is greatly reduced.

One implicat ion of this approach is recognition that, during an event, many issues wi l l a r ise that need to be addressed on - the - f l y. Most preparedness plans contain repositories of va luab le informat ion and t ime -dep endent ac t i ons tha t a re p re -assigned to specific individuals, but there is often no acknowledgement in the plan that unforeseen issues will arise throughout the event that need to be handled quickly by properly skilled personnel. It may be better to pre -identify responsibility for issues (e.g. personnel safety, rumours, building integrity, security, etc.) and develop a process to ensure the issue is quickly assigned to the best person than to develop detailed procedures to be followed in a specific sequence. Building a capability to quickly identify the issue, assess its potential impact, and assign responsibility for resolution provides a great deal of flexibility and minimizes pre-event planning effort.

Developing this capability for resiliency

safety

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November 2010 11

in a d isaster requ i res educat ion , training and experience. Fortunately, many key ind iv idua ls have never had to experience a major disaster. Unfor tunately, they have not been trained in the unique aspects of how to respond to a critical event either. This skil l is not on the curricula of most management training programs and, in our very busy world, of ten doesn’t receive any a l locat ion of time throughout the year—but it is impor tant. There is only one thing worse than not having a preparedness plan and that is having a plan with untrained / inexper ienced personnel resp ons ib l e fo r imp lement a t i on . I f pr ior it izat ion of planning ef for ts is required, focus on developing a capability instead of documentation.

One method of address ing the requirement for education, training a n d e x p e r i e n c e i s t o c o n d u c t regu la r scenar io - based exerc ises or dr i l ls . These s imulated events al low indiv iduals to work together and become comfor table with the challenges associated with a critical event before i t occurs. They help identify any invalid assumptions and may point out capability exposures, espec ia l l y i f c r i t ica l par tners are included in the exercise. The objective of a preparedness exercise program should be to continuously improve the strength and ability of the organization to re s p o n d . T h e i nve s t m e nt i n personnel time is not large (two to four hour exercises are very effective), but will have significant payback and return on investment when required.

Which brings us back to the issue of what is an appropr iate level of investment, and what return or payback on that investment is to be expected? There are no easy or correct answers to these questions. Each organization or condominium will have a different response. While we would all like to live in a risk-free world and not have to address disasters, we know that this is not possible. We also know that business managers have two major responsibilities—grow the value of the organization and protect the current assets. Preparing and planning for a potential critical event will contribute to both of these objectives. The value will

be determined primarily by the unit owners, insurers and lenders. The protection of assets will be achieved th rough m in im iz ing the imp ac t associated with an event. Particularly in the current financial environment, protecting current assets may be the higher priority. CB

Ralph Dunham is a retired Managing Director for Marsh Risk Consulting. Questions about this article should

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safety


feature

EvEryonE has a rolE infirE safEty

EvEryonE has a rolE in

feature

November 2010 13

Every time there’s a false alarm and the

fire fighters are called to a condominium

in the City of Toronto, the condominium

corporation is fined $350. And yet, false alarms make up a significant

number of the calls to which fire fighters respond every day: wasting

their valuable time and adding to condominium expenses.

firE safEty

By amie silveRwooD


feature

Some calls are made by malicious residents who find humour and excitement in pulling the alarm. Some calls are because of mechanical malfunctions or triggered by dirt and humidity. Some calls are even made by building staff who haven’t been trained to know the difference between a fire alarm and a maintenance call on the control panel. But every call is a waste of time and resources and steps should be taken to prevent false alarms and to inform everyone of their role in the case of a fire.

Fire safety is a serious issue and condominiums are required to update their f ire safety plans yearly and to provide each resident with a copy of the fire safety plan that has been approved for their building. Corporations that fail to comply with this requirement can face fines of one hundred thousand and/or a year for each board member and property managers can face fines of fifty thousand and/or a year according to Craig Cunningham, District Chief with Toronto Fire Services Fire Prevention and Public Education section.

“There’s a new ar ticle on the fire code now that says the owners are obligated to revise the fire safety plan and review it if need be once every year. If they don’t, that’s a violation of the fire code. And the penalty is high. And each member of the board of directors can be fined and charged.”

Cunningham has no sympathy for directors who aren’t up to date on

the fire safety requirements since it is their responsibility to care for the building and those who live in it. As far as he’s concerned, just as directors are aware of reserve fund requirements, so should they be aware of the fire code requirements since fire safety is much more important because it concerns people’s lives.

“Each individual has care control of the building,” he explains. “Board of directors, a lot of them might not know about it, but it’s there. It’s under the Fire Prevention Protection Act.”

The fire code requires all buildings to have an up to date fire safety plan and to train supervisory staff for their roles in a fire. Someone has to be at the door to meet the fire fighters and that person must make sure the lobby and stairwells are cleared of people so that the fire fighters are able to do their jobs.

“If under the fire safety code the concierge is made reference to as a supervising staff, then the owner has an obligation to train the concierge to a certain capacity under the fire safety plan.”

Training the concierge is a step that is often overlooked in condominiums where there is a high turnover rate for concierges or security guards. But it is the board’s responsibility to train those who are allocated roles in the fire safety plan. A well trained concierge can save the corporation a great deal of money by being able to identify and cancel false alarms.

“I t ’s a l l up to the board ,” says Cunningham, “what they want the concierges to do under the fire safety plan. If they want them to investigate an alarm, do they go by themselves? What if the alarm is an actual fire alarm? And because they go to the fire floor, they find that there’s smoke on that floor. So do they actually go by themselves? Not a good idea.

“As a mat ter of fac t , they can probably determine if there is a fire situation upon investigation as soon as they get to the floor or if people are calling about a fire. If it’s a post station, they’ve got to be trained what is an act ivat ion, what the zone is, where the floor is, they have to be very familiar with the fire alarm system and how it enunciates where the alarm is. They’ve got to determine what is a pull station. What does it look like when it is activated? So they’ll have to be trained to a general knowledge level on what constitutes as an activated alarm.”

H e c a u t i o n s b o a r d s w h o m a y consider g iv ing the conc ierge too

Be preparedFollow these steps to ensure everyone is prepared to act when the alarm sounds.Discuss the Fire Safety Plan with residents to make sure everyone has a copy of the Plan that is easy to locate and up to date. Train all staff members to know their roles. Make sure those in supervisory positions understand the importance of meeting fire fighters and keeping residents out of the lobby and stairwells.Discuss the dangers of investigating a fire alarm and how to verify an alarm safely.Schedule regular maintenance on the alarm system.If there is an equipment malfunction alarm, have it fixed immediately – the equipment may be compromised.

They’ll have to be trained to a general knowledge

level on what constitutes an activated alarm.”

“

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feature

much responsibility during an alarm. It would be disastrous for a concierge to cancel an alarm too quickly based on his investigation. There are many reasons for fire alarms and some will require investigation even if a concierge does not detect smoke.

“Perhaps a detection device has been accidentally broken or somehow activated because of mechanical, it got hit somehow or it was set off accidentally or it was because of humidity or whatever. There’s

a whole bunch of determinations and you have to be careful what authority you’re going to give them.”

These decisions would be explained during preliminary discussions while the board is preparing their Fire Safety Plan. A local fire prevention officer would be able to advise boards to prepare a plan that would suit their building and circumstances.

If the concierge is given the authority to investigate the cause of the alarm, he or

she must make accommodations so that there is a supervisory staff member at the front door to meet the fire fighters. With the variety of tall buildings fire fighters visit, and each building has its own unique fire plan, they need a liaison who knows the building, has the keys and can provide them with any information they need.

“All the fire fighters know about the fire safety plan is that they’re there for evacuations. They determine what people should do in a fire,” explains Cunningham. “Everyone is supposed to have a responsibility and everyone has something to do. There’s always going to be someone to meet them there, that’s one of the base things, to have someone there to tell them what’s going on. Because if you think about all the buildings in the City of Toronto, we’re not going to know all the buildings, there are just too many buildings. And buildings aren’t built the same. They’re all different, the lobbies are al l dif ferent; every thing can be different in them.”

Every resident of the building should have a copy of the Fire Safety Plan to consult when there’s an alarm. Their first step is to consult the plan and it will give them instructions to inform their decisions.

“They do have an option, it’s called stay or to go, and it’s up to the occupant, given all the information, they’ve got to make a decision. And usually in a high rise building there will be a voice communication system. And in there they’d be instructed as to what to do.”

The Safety Plan goes into effect as soon as an alarm is triggered so everyone must understand their roles and be prepared to act immediately.

“Supervisory staff have duties before we even arrive on what to do. But if you look at the fire safety plan, it tells them whether they should stay or go – what are the basic ground rules for deciding to stay or to go. Sometimes it is safer in the apartment, sometimes it isn’t. It depends where you are in relation to the fire. It depends on how well the building’s been built. It depends on whether all the holes have been filled and there’s smoke migration into the suites. So there’s a whole bunch of factors in play and being prepared is number one.” CB

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safety

The image o f a n o ld

night watchman, walking the hallways of a building with a flashlight in one hand and an oversized ring of keys in the other, is one that many people think of when they hear the term security. In days gone by, that image made many of us feel safe, knowing that someone was on the lookout while we were sleeping. By today’s standards, however, the old night watchman has worn as thin as the soles on his worn-out shoes.

Security options

By Jonathan D. silBeRt

November 2010 19

Modern security has developed in many ways, both manned and unmanned, to provide enhanced protection of people and property in the fast - paced wor ld of the 21st century. In the condominium environment, security is not only there to detect and deter intruders, but also to provide a wide range of

services for the residents and their guests.

Today ’s techno logy p rov ides us with advanced access control systems, developed from the old fash ioned card readers , which creates a more effective means of monitoring and controlling activity not only through the front door,

safety

eliminating the use of paper and helping to keep the building green.

The inclusion of internet facil it ies now provides for remote monitoring of camera and recording equipment. At the same time, this allows an off-site security guard to issue permits and control visitor parking facilities.

N o m a t te r h o w a d v a n c e d t h e te c hno lo g y, t hough , t he re i s no replacement for a man or woman in a well -pressed uniform manning their post. The security guard puts a warm face on the other wise impersonal nature of building security. These are the people who the residents see daily, and become famil iar with, as they become an integral part of the building itself. CB

Jonathan D. Silbert, MBA is an Operations Manager with G4S Secure Solutions (Canada) Ltd. Contact him at (905) 566-1409, ext. 269.

but also to various internal parts of the building. This tells the security guard or property manager which resident has accessed the various faci l i t ies, and at what time, which in turn can help the proper ty manager assess which facilities need more attention or equipment, and when is the best time to schedule maintenance.

Modern digital camera equipment, c o m b ine d w i th d i g i t a l re c o rd in g technology, al lows for crystal c lear images of any location. These cameras are often equipped with panning and zoom-in features that allow a human operator to easily identify a person or vehicle. Many of the older camera systems would not be able to clearly identify a person unless they stared r ight into the lens, while the latest techno log y can p rov ide fo r c lea r ident i f i c a t ion w i thout the person even realizing they have been seen. Depending on the needs of our clients,

we can also deploy cameras with infra-red lenses, or motion sensors.

The computer age has also provided secur i t y guards wi th access to a constantly updated resident information database. While this may not seem exceptional in and of itself, the addition of the internet has turned this into a powerful tool not only for security guards, but for managers and residents as well. For example, a resident can now log onto their own home computer and reserve the building’s party room for an event, paying any necessary deposits on l ine. Th is reser vat ion wi l l then automatically show up for the property manager or administrator to provide the necessar y author izat ion. Once this is done, it can then automatically create and issue a purchase order, instructing the security firm to provide an extra guard to supervise the party. All of this can be done with electronic confirmations to all persons, thereby


safety

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Vol.24 #4

Canada’s Most Widely Read Condominium Magazine

BUYERS’ GUIDE20102010

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safety

Are unit owners prepared?The proper t y manager and the

board have done their part in developing plans in case of emergencies. They have their procedures set out in writing and know who will perform which roles. But in the case of an emergency, residents will need their own emergency plans and will need a kit that will provide them with everything they need to support themselves for 72 hours. Even if the condo corporation is prepared, are residents prepared?

By amie silveRwooD

In the event of an emergency, management will have their hands full. It is well worth the effort, while making preparat ions for the bui ld ing as a whole, to remind residents of their own responsibilities. The more residents are prepared, the less likely management’s precious time will be taken up worrying about whether Mr. and Mrs. Smith have sufficient drinking water.

Direct residents to the Public Safety Canada website www.GetPrepared.ca where they will find various publications to direct them through the steps of gathering an emergency kit. But don’t stop there – residents who are not aware of their responsibilities may never consult the website. Lay out some important steps, highlighting those that are most important in the individual condominium’s case.

Public Safety Canada recommends Canadians to take the following steps: know the reg iona l r isks , make an emergency plan and get an emergency kit. Save residents time by outlining what the management and board have identified as risks and by publishing t h e b u i l d i n g ’s e m e r g e n c y p l a n . Residents will need to make their own

safety

personalized, individual plans but the building’s plan should be known by all.

Residents and all members of staff should know the evacuation plan for the building and the proper response for various alarm sounds. Those living in high rises should identify the location of stairwell exits and keep all exits free of obstructions. It can be tempting, in small units where storage space is at a minimum, to place items in front of doorways that are used only in case of emergencies. Residents may need to be reminded that this is not safe practice.

Remind residents to avoid using elevators during a power outage or an earthquake since elevators will be required by emergency personnel . People with disabilities should notify their building manager/superintendent of any special needs or requirements, for example, should an evacuation occur.

Residents with special needs have their own responsibilities as well. They should make sure they have the building super intendent ’s name and phone number, the number of members who are on the building’s safety committee, the contact names and coordinates of floor monitors, the contact information of those who conduct evacuation drills and how of ten and when dr i l ls are scheduled.

Everyone should know the location of the fire extinguishers, the automated ex ternal def ibr i l lator units and the ox ygen t ank and the l oc a t ion of emergency evacuation devices.

Remind res idents that i t ’s the i r responsib i l i t y to ensure they have enough food, water, and medications to suppor t themselves if they were required to stay in their unit for 72 hours without power or water. And if they have an emergency kit, they must refresh it on a yearly basis by replacing al l the food, water and medication. Special considerations must also be made for children and pets.

It is unlikely that everyone would have taken these steps to be prepared in case of a disaster but reminding residents of their responsibilities is a simple process in the condominium’s emergency preparations that is well worth the effort. CB


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safety

Green takes on another meaningPictogram signs could soon point the way to the exit in many Canadian buildings. The 2010 National Building Code, scheduled for release this fall, calls

for the green “running man” image and directional arrows in place of the traditional red EXIT or SORTIE signs.

By BaRBaRa CaRss

Pictogram signs could soon point the way to the exit in many Canadian buildings. The 2010 National Building Code, scheduled for release this fall, calls for the green “running man” image and directional arrows in place of the traditional red EXIT or SORTIE signs.

The new format conforms to International Standards Organization (ISO) symbols now commonplace in the European Union and many other countries. National Code developers expect most Canadian provinces and territories will adopt the change, which

would mandate the pictogram sign in new construction and major renovations.

“The Provinces are already aware of everything we are doing in the development of the National Code and we haven’t been hearing objections,” observes Philip Rizcallah, Senior Technical Advisor with the Canadian Codes Centre at the National Research Council. “The Code is coming out in November and we believe within a few months after that many of Provinces are going to adopt it.”

November 2010 27

safety

T he 2010 C ode w i l l a l so a l l ow for photoluminescent exit signs – a technology that adherents promote for both safety and energy conservation reasons . Photo luminescent s igns absorb and store light at levels as low as f ive lux and, once charged, can provide illumination for several hours in the absence of light. They can function in combination with conventional or emergency lighting without having to be wired into a power system, and they require negligible maintenance because there are no bulbs to replace.

“From a safety perspective, it is a redundant, fail -safe system. If every other system fails, photoluminescent technology will continue to glow,” says Michele Farley, a fire safety consultant and Chair of the advisory committee for the development of the CAN/ULC-S572 standard for Photoluminescence and Self-Luminous Signs and Path Marking Sys tems re fe renced in the 2010 National Building Code.

Flexibility for fail-safe technology In the United States, jurisdictions like New York City mandate photoluminescent markings in stairwells and/or other passageways that building occupants might have to navigate in emergency situations, and Canadian Code developers predict that path marking systems will be addressed in the next cycle of the National Building Code to be released in 2015. In the interim, CAN/ULC-S572 ensures that any voluntary installations comply with appropriate safety standards.

“It’s important that designers be able to specify products that will meet performance requirements,” Farley explains. “It is opening the door for designers, architects and engineers to find ways to use the technology. Photoluminescent path marking will be a supplement that will be used by designers in ensuring fail-safe buildings.”

Code and safety specialists suggest that, at least initially, most of the new pictogram signs are still likely to be hardwired and il luminated from within. The signs’ dimensions will be similar to traditional EXIT signs and should fit into comparably sized spaces.

However, photoluminescence can provide more flexibility in awkward configurations because signs can be flush with walls where they may be less likely to be knocked or damaged. The technology is also compatible with Braille and other types of tactile signs that can be mounted in more accessible locations.

“The EXIT sign is where? On top of the door. If you’re blind, that’s not really helpful,” says Rob Brooker, President and proprietor of Signaids, a company specializing in ISO standard pictograms and signs to promote accessibility.

He applauds the National Building Code’s adoption of the running man pictogram, which is in keeping with the Access for Ontarians with Disabilities Act and the United Nations convention on the rights of persons with disabilities. “Every province and territory has agreed to that so Canada, as a nation, is bound to implement it,” Brooker notes.

He advocates the full range of ISO safety related pictograms, which also apply a consistent colour code of green for safety and red for danger – arguing, for example, that it is much easier for anyone to see and grasp the image of a fire extinguisher than to read the letters in vertical order as they now appear on wall-mounted cabinets.

“The whole premise of the ISO signage or a pictogram is to enable people to quickly identify a sign,” Brooker says. “The whole basis is that safety signs all look the same. Therefore the continuity is there.”

Switchover factorsThe Canadian Commission on Building and Fire Codes’ rationale for the running man pictogram is largely to harmonize Canadian standards with international trends. However, there are spinoff benefits of greater inclusiveness for people with limited literacy in English or French and potential cost savings for building owners who previously had to source bilingual EXIT/SORTIE signs.

“We are hearing some concerns and one of the issues that has been raised from some of the jurisdictions is that this is going to confuse people,” Rizcallah acknowledges. “We expect people will adapt quickly. There is not much of a learning curve on this.”

The pictogram will create a few more details for building designers to think about, though, since they will have to specify the appropriate directional arrow for each sign – left, right, up, down. Manufacturers will likewise have to produce a wider array of products, and this will also necessitate more inventory administration.

“Our business deals with a lot of distr ibutors. They obviously would rather stock a universal model,” says Peter Shilling, Engineering Manager with the emergency lighting provider, Beghelli Canada, and a member of an industry advisory committee to the Code developers.

Many Canadian-based companies already supply the running man pictogram or other ISO standard signs if a customer requests,


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but those specially ordered images won’t necessarily comply with the new National Building Code. It mandates a standardized image in specific shades of green and white.

“In Europe, there are probably five or six different ISO running men, so they had to choose one, which is ISO 7010,” Shilling adds. “Our parent company is in Italy, and the signs in use there are slightly different than what is proposed here.”

Safety experts are also concerned that renovations could create some potentially problematic inconsistencies in signage. It may not be so confusing if an entire floor or multiple floors within an existing building are outfitted with running man signs while other entire floors retain the EXIT signs, but Rizcallah speculates that authorities with jurisdiction will prohibit mixing of the two sign formats when major renovations are conducted on the area of a single floor.

“Any building should try to strive for consistency,” Farley advises. “EXIT signs are in the background and we probably don’t think about them that much, but in an emergency situation you need them really, really urgently and that’s not the time you want to worry about clarity.”

Manufacturers foresee continued demand for the traditional EXIT signs so owners/managers of existing buildings shouldn’t have any imminent worries about finding replacements for individual fixtures. “The general consensus in the industry is that some Provinces won’t adopt it and some may be slow on the uptake. We also sell into the U.S. market, which will still use the EXIT sign,” Shilling says.

Alternatively, building owners/managers might opt to convert completely to the running man pictogram signs as part of a lighting retrofit. The Code also allows for the hybrid option of the running man pictogram and applicable directional arrow with the word EXIT below.

“It will be a process and it will be years probably before we start to see a significant change,” Farley says. “With most code changes, they are like snails and then they are like torpedoes.” CB

For more information, the standards referenced in the 2010 National Building Code are: CAN/ULC-S572, Photoluminescence and Self-Luminous Signs and Path Marking Systems and ISO 3864-1 Safety Colours and Safety Signs Part 1.

safety

November 2010 29

marketing

The building industry is well known for its constant evolution of products and services and that innovation is even coming through in the way the sector news is released, with the RealNet Canada Inc. third quarter market summary being presented first via a webinar, followed by the traditional media release.

That ’s how I found myself in the RealNet Canada Inc. boardroom with RealNet President George Carras, condo guru Barry Lyon and TREB economist Jason Mercer speaking into a microphone while the information was being webcast right across the country. You gotta love the Internet!

Truth be told, at 6,503 units sold, it wasn’t one of better third quarters on record, but it ’s nothing to sneeze at. For the month of September, we saw the continuance of the trend towards weaker sales of lowrise homes in the

City slickers and suburban dwellers

By stephen Dupuis

905 regions while the highrise housing market continued to chug along in both the 416 and 905. As a matter of fact, the quarter ended on a decidedly up-note with September highrise sales representing the third-best September results on record!

“A l though a t 3 ,76 7 un i t s , t he quarterly sales performance of highrise new homes was an average result for Q3 over the last eleven years, monthly results for September and the year to date results offers a different perspective. September sales of 1,658 units were the third highest September performance while year to date sales of 13,994 units were the second strongest year on record for the highrise market,” Carras said.

The exp lanat ion for the lowr ise malaise remains the same. As Carras points out, at 8 ,055 units, lowrise new home inventory levels are at near record lows – at the current average pace of sales, there’s but six months of supply on the market. Caught between the rock of rising prices and the hard place of l imited choice, buyers are shifting to the highrise market, which accounted for an above-average 61 per cent of new home sales in the GTA during September.

To some degree the 35 thousand condos currently under construction


marketing

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in the GTA are the result of a shortage of lowrise housing (or “empty shelf symdrone” as Carras puts it ), which make highrise units more appealing due to their attractive price relative to single-detached, semis and townhomes.

Before anyone hits the panic button on lowrise housing, however, let’s take a moment to dig a bit deeper into the stats and try to explain this increasing price gap. This all stems back to the

industry’s evolution concept as builders hire top -notch architects to design smaller suites with more livable space – my friends at BuzzBuzzHome recently showed me a floorplan of a pretty cool two-bedroom suite weighing in at only 480 square feet – or what I like to call “right-sizing.”

The r ight - s iz ing go ing on in the condo market has created a unique i l lusion whereby condo buyers are

ac tua l l y see ing average pr ice per square foot increasing slightly, to $493 per square foot, while at the same time the average unit price is decreasing. How so, you might ask? The answer is that where average unit size has hovered around 885 square feet this year, it dropped to 835 square feet with the September product releases. As a result, buyers looking to invest t h e i r s av i n g s i n a c o n d o m i n iu m purchase now have more options, with an increase in affordable units!

At a recent forum hosted by BILD, I was told that a 750-square-foot, two-bedroom and two-bathroom unit is now one of the best-selling designs among buyers in the downtown core. Mix that in with buyers from the 905 regions like Markham and Mississauga, and you can derive that units ranging between 400 and 800 square feet have the highest demands in the GTA.

For the record, the current highrise price index sits at $410,730, up 3.2 per cent from September 2009 but down 3.4 per cent from August of this year, based on the right-sizing trend by highrise builders. The lowrise price index is up 10.1 per cent year/year, and currently sits at $496,133.

But if you think this means buyers are flocking to the City core to get in on the trendy downtown towers, think again! The 905 community builders have caught on and the normal 80/20 highrise market split between 416 and 905 was actually 71/29 in September, with highrise condo sales in York and Peel Regions (namely Markham and Mississauga) particularly strong.

While September sales in York Region are down to 239 units sold, Peel beat out its 2009 equivalent by more than double. Halton has also added itself to the mix with an impressive growth increase of 83 per cent.

Get used to this trend because with the 40 per cent intensif ication rule under the Greater Golden Horseshoe Growth Plan, it’s here to stay, which is not a bad thing. CB

Stephen Dupuis is p res ident and CEO of the Building Industry and Land Development Association (BILD). He can be reached at [email protected].

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November 2010 33October 2010 33

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management


November 2010 35

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maintenance

A property manager’s guide to community organized wildlife management

The first step in learning to live with wildlife is to understand that animals are instinctively driven to satisfy the four basics of life; territory, shelter, food and

water. Unfortunately, in pursuing these necessities they are interfering with our way of life by causing structural damage, health concerns, noises, odours and anxiety.

By BRian BuRton

A property manager’s guide to community organized wildlife management

To maintain a positive relationship with our urban wildlife we need to appropriately control their access to shelter and food opportunities within our communities. Even when animals already occupy a den site, they are constantly creating entry holes in other roofs as backup nesting areas. To reduce conflicts, a property and building inspection should be conducted to identify what wildlife attractions exist and what prevention measures should be implemented.

Is food easily accessible?When wildlife is drawn to continuously available food sources, there are noticeable repercussions to contend with. Increasing numbers of wildlife will migrate into the immediate area to live off the available food. Wanting to stay in close proximity to food they look to establish den sites nearby. With an increase in animal populations in the immediate area, more intrusions into buildings can be expected.

Occupants should be advised not to feed wildlife since it attracts raccoons, squirrels, skunks, birds, rats and mice. Of even greater concern are the documented cases

where the feeding of one species has attracted another species, such as coyotes. Not to be neglected, green bins, garbage cans and dumpsters containing food refuse must be locked shut or kept indoors until the morning of garbage pickup.

Will trees or vines allow animals to climb onto the roof?When surveying buildings and their immediate surroundings we need to think like an animal. Raccoons and squirrels will use their remarkable climbing capabilities

to scale trees or vines in an attempt to investigate a roof for potential entry points. To prevent these animals from gaining easy access to the roof, all tree limbs should be cut back three meters from the roof edge. While raccoons cannot jump, squirrels are acrobats and are able to leap a horizontal distance of approximately two meters. As to vines, they need to be trimmed to 1.5 meters below the overhang. Implementing this approach will eliminate the most common access. Occasionally, determined animals may use the more difficult route of climbing up outside walls and downspouts to get onto the roof.Checklist

• Make food waste inaccessible. • Refrain from feeding. • Cut back trees and vines that provide roof access.• Inspect roofs often and repair weather or animal related damage. • Consider wildlife-proofing measures for porches, decks, sheds, exhaust vents,

roof vents, plumbing mats and chimneys.• Hire a professional humane wildlife removal company to solve existing wildlife

intrusions and to implement wildlife-proofing measures. Contract experienced wildlife technicians to ensure the survival of the animals especially during the baby season.

maintenance

November 2010 37


maintenance

Can animals get underneath porches, decks and sheds? Skunks, incapable of climbing, dig under structures that sit directly on the ground. While raccoons prefer to live in attics from the fall to early summer, they may move to ground level structures when the attic spaces over heat.

To prevent wildlife from getting under a structure requires digging a trench around the entire perimeter, fastening galvanized screen in an “L” shape configuration and then back-filling the trench.

Are the stove and bathroom exhaust vents protected?Mostly birds and the occasional squirrel will use wall vents as ready-made nesting boxes. The existing plastic vent cover presents no obstacle whatsoever against animals seeking entry. Once inside the vent pipe starlings will construct large nests,

sometimes one metre in length, often blocking the air flow. With up to six fledglings defecating in this confined space, breeding insects and obnoxious odours are a most undesirable consequence. An easy solution to prevent these intrusions is to fasten galvanized screen on top of the plastic vent cover. The screen installation must, however, not interfere with the normal functioning of the vent flaps. Warning: Dryer vents should not be screened, as this would cause the accumulation of lint against the screen and inside the pipe, thus presenting a fire hazard.

how often are roof-tops inspected?In our Canadian climate roofs are exposed to a wide variety of weather conditions. Strong winds, freezing and hot temperatures, heavy rain and snow all take their toll. Furthermore, animals looking for den sites will break off shingles resulting in exposing roof boards to the elements. Conducting a minimum of two inspections per year will reveal areas where the roof repair is needed, thereby avoiding water damage and potential mould. Wildlife has the innate ability to locate and exploit areas where damage went undetected and water has caused the rotting of roof and fascia boards. In this context, eaves troughs need to be cleaned before winter sets in to assure unimpeded water flow away from the building. Twenty per cent of all wildlife entry holes are created where water from clogged eaves troughs has caused the fascia board and overhang to deteriorate.

Are roof vents, plumbing mats and chimneys animal-proof?These structural components were strictly developed from a functional p e r sp ec t i ve . Even to d ay, an im a l prevention is not a vital part of their design. Therefore, to make them animal-proof they need to be reinforced with galvanized screen covers. The pressing need to secure these components cannot be over emphasized since nearly sixty per cent of all animals identify them as an easy point of entry. CB

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Vol.24 #4Canada’s Most Widely Read Condominium Magazine

BUYERS’ GUIDE20102010

November 2010 41

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services or even the elimination of certain services.

The Condominium Act provides that the board of directors has the authority and the duty to govern the affairs of the Corporation. This authority extends to matters involving the safety and security of the residents. Although in certain instances the owners may be involved in decision making (depending on the nature of the change) the decision to change any of the services or common elements for the purpose of safety and security, rests with the board of directors.

Questions that are commonly posed by the board of directors considering changes to security are: What is adequate security for our condominium corporation? What level of security is needed to prevent theft, vandalism and ensure that residents live in a safe and secure community?

One of the contributing factors in altering the level of security services is the concern about fees and costs for additional security. The board of directors will have to determine whether the owners are prepared for increases in their monthly fees in order to have a more secure community.

Effective security ideally means that there are security measures in place to monitor the main entries to the building, the parking garage or lot, common areas such as the pool or exercise room and any storage locker areas. Of course no security system is perfect. How much security a condominium has, and how effective it is, will ultimately depend on how much the

In condominiums, if security is effective, its residents rarely notice it. But when there is a break-in, an assault or some act of vandalism, the board of directors, management and the owners begin to examine their overall safety and security measures.

Part of the problem is that condominium residents need to think about security at all times and not just when a serious incident occurs. How many of us carefully lock the door behind us when we enter or leave a building? Usually, sometimes, never or always?

Based upon each resident’s own experiences, some people may be more aware than others of the dangers that could happen. For some residents, security is a priority and may be based on a legitimate concern and in other cases it may appear to be paranoia. Whichever it is, security in condominiums is and continues to be an important issue to address.

W h e n a d eve l o p e r c re a te s a condominium community, it will establish from the outset the level of security offered to the residents. This information is contained in the initial condominium documentation. This could include a security system with video surveillance, security guards or even security patrol officers.

Once the owner elected board is put into place, the new board may decide to make changes to the level of services initially provided by the developer. These changes may result in increased security, reduced

Security considerations for boards

S a f e t y a n d s e c u r i t y i s something that

most of us only think about when we hear about an incident and it is usually at that point that we may wonder about how secure we are in our own homes.

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residents are willing to pay through their monthly common expenses. The board of directors will often be called upon to make some difficult and unpopular choices as to what to secure and how.

Security cameras are effective for monitoring multiple places and large areas efficiently, 24 hours a day. The mere presence of security cameras is generally thought to act as a deterrent. It is important to appreciate, however, that unless the video feed from the security cameras is being monitored live by security personnel, an expensive proposition, the cameras can do little to deter and prevent criminal acts, such as assault, theft or vandalism, from occurring in the first place. Rather, in most cases, the feed from security cameras is recorded and is only reviewed after the fact in the event of any incidents. This may only be helpful in identifying the culprit and possibly preventing further incidents.

The use of security cameras may sometimes expose the condominium corporation to liability if not properly used and where it can be shown that the condominium corporat ion was negligent in its use of security systems which caused damage to a person or property. A condominium corporation would not be liable simply because, for example, a security staff member who is monitoring the security cameras fails to see an incident (unless they were negligent and this negligence results in a loss), or because a portion of the property is not monitored by camera, unless the condominium corporation knew or ought to have known that failure to monitor that portion of the property would likely result in a crime occurring and being undetected. If the board of directors is aware that certain portions of the property are not monitored and believes that there is a need to monitor those portions of the property,

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The board of directors will often be called upon to make some difficult and unpopular

choices as to what to secure and how.“”

November 2010 43

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it should take steps to do so. If the board of directors believes that a security staff member is negligent, the problem should be addressed.

In contrast, security guards offer the advantage of real time detection and prevention but are limited in the scope of their coverage. Typically a security guard walks a circuit of the property periodically, varying the route and timing of the rounds to avoid establishing an easily detectable pattern. It is difficult for a single security guard to create a significant security presence given the size of a typical condo property; a high-rise tower and with attached multi-level parking garage. If the security guard also monitors the front desk, the main entrance will be left unattended while the security guard makes the rounds. Multiple security guards improve the coverage but impact on the costs, which means higher common expenses. Other measures that can be taken are the use of fob’s or proximity cards. The movement of cardholders can also be tracked and cards that are lost or stolen can be easily deactivated.

At the heart of any decision being made by a board, is the continued safety and security of the community. The board will often ascertain what security concerns the residents have and will try to determine the best way to address those concerns.

There is no doubt that what is deemed adequate security for one condominium may be considered inadequate for the next. The key is to learn what the residents’ concerns are and determine what works best to satisfy and protect their needs within the community. CB

Denise Lash is a Condominium lawyer with Heenan Blaikie LLP. Denise can be reached at [email protected].

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WHEN MEDIATION FAILSUnder the Condominium Act, 1998, most disputes between condominium boards and unit owners, developers and property managers must be resolved through

mediation and, when necessary, arbitration. Fortunately, common experience demonstrates that, in many cases, these disputes are successfully dealt with through the mediation process. Unfortunately, some are not. When this occurs, the mandatory arbitration provisions of the legislation kick in, sometimes with surprising and serious consequences for the parties.

By stephen moRRison

November 2010 45

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especially the unsuccessful party, to understand the reasoning behind the decision and to be assured that all of the evidence and the arguments submitted on that party's behalf were understood and considered in reaching a final decision. Written reasons also afford the unsuccessful party an opportunity to appeal the decision on a point of law, a step that would be impossible without a formal detailed ruling. But properly crafted written reasons take time and increase the costs.

I have been involved in condominium cases as an arbitrator where the combined costs for the arbitrator’s services, the facilities, and the court reporter over a five-day period exceeded $50 thousand after allowing for additional time to prepare a written ruling. As this cost is typically borne

The mandatory mediation and arbitration provisions were instituted at a time when alternative dispute resolution was very much in vogue. It was presumed by many that these devices would bring about timely and cost-effective solutions to what were often minor disputes, thereby providing condominium boards with effective tools to fulfill their legal obligations concerning the enforcement of the corporation's rules and bylaws and its relationship with the declarant and property management. The prevailing view was that arbitration was, in general, faster and less expensive than litigation. This assumption requires reconsideration.

M e d i a t i on , b e ing a f a c i l i t a te d negotiation process, is, indeed, a very cost-effective method of resolving most disputes, especially when both parties are highly motivated to avoid the costs and uncertainty of having their dispute decided by a neutral third party. The same cannot be said about the mandatory arbitration that follows unsuccessful condominium mediation. Unfortunately, the legislation provides very little guidance concerning the procedural aspects of the arbitration, except to incorporate by reference the provisions of the Arbitration Act, 1991. While this latter piece of legislation provides a basic rulebook governing the conduct of arbitrations, it leaves a great deal to the discretion of the parties.

Arbitrations can be quicker and less expensive than litigation, when the lawyers on both sides of the dispute use the inherent flexibility of the process, in cooperation with their selected arbitrator, to make it so. Unfortunately, in my experience, this rarely occurs. Most of the arbitrations that I have conducted in the condominium world follow essentially the same procedural path that would occur if the matter were dealt with in the court system. Typically, the parties exchange pleadings that look very similar to what are produced in litigation, they exchange extensive documents, and they sometimes undertake examinations for discovery.

The biggest dif ference, however, between arbitration and litigation is that with arbitration the parties must pay the arbitrator and, in some cases, for the arbitration facility, including the services of a court reporter. By contrast, if a dispute is decided in the courts, the state bears the cost of providing the judge, the courtroom and the court reporter. When the dispute is simple and straightforward and the hearing can be conducted in a day or less, these additional arbitration costs may be relatively insignificant. When, however, extensive evidence is called and the case is conducted as if it were a trial, the hearing can go on for several days, or more.

In addition, the arbitrator is required to provide written reasons for the decision rendered. This allows the parties, and

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by the unsuccessful party in the arbitration, who must also absorb his own legal costs and most of the legal costs of the successful party, the total financial burden to the loser can easily approach or exceed $150 thousand. More surprising is the fact that the original dispute involved nothing more complicated than a complaint of ongoing excessive noise. I find it hard to believe that the Ontario legislature ever foresaw that its mechanisms intended to produce timely and cost-effective dispute resolution in the condominium sector would give rise to this kind of burden. I have often been acutely aware when deciding a case, that the impact of my costs award would be more devastating to the unsuccessful party then my decision on the issue itself.

For now, however, the law is the law. Until the industry successfully lobbies for a change, what can parties do to alleviate this problem? Although arbitration is mandatory, so that neither party can go to court without the consent of the other, there is nothing in the legislation to prevent the parties from agreeing to take their dispute to court rather than to an arbitrator. Where such agreement is not possible, the parties to condominium arbitration should encourage their legal counsel to make every effort to work with each other and with the arbitrator to streamline the process. With reasonable forethought and creativity on the part of the lawyers, this can usually be done without either party weakening its position. One simple example is for the parties to agree that the evidence of their respective witnesses will be tendered by way of a sworn affidavit, so that only the cross-examination will occur live at the hearing. This step alone can easily cut the hearing time nearly in half. Finally, the parties should consider whether they are prepared to dispense with detailed written reasons for judgment. In cases where no appeal is seriously contemplated, this can also dramatically reduce the costs.

Even better, take full advantage of the mediation process to resolve disputes on a mutually acceptable basis and avoid the arbitration process altogether. CB

Stephen Morrison is a partner at the law firm of Cassels Brock & Blackwell LLP where he is a member of the Advocacy Group. He serves frequently as a neutral mediator and arbitrator in the resolution of condominium and other commercial disputes.

LegaL


LegaL

Board policies or corporation rulesThe Condominium Act, 1998 (the “Act”) provides that condominium corporations can pass “by-laws” and “rules” for specific purposes as set out in the

Act, but the Act does not mention “policies” anywhere. What are policies then? Are they legally enforceable, and if so, based on what principles?

By miChael pasCu

In the recent case of Durham Condominium Corporation No. 90 v. Moore, 2010 Ontario Superior Court of Justice (ONSC) 5301, the court was asked to confirm whether certain policies were legally enforceable and further, to comment on the distinction between rules and policies. Although the court ultimately failed to clarify the distinction between rules and policies, it did confirm that policies are legally enforceable, and further, that the board of directors of condominium corporations essentially have wide latitude in fashioning policies because the courts only intervene in situations where the boards had acted unreasonably or oppressively.

The board of directors of Durham Condominium Corporation No. 90 decided, by way of policy, to oblige unit owners to keep patios and decks to the same dimensions as those of the original patios

and decks, and accordingly, not permit any future proposed enlargements or extensions. The respondent unit owners (Carol Moore and Keith Wallace) requested the board’s permission to build a deck. According to the plans submitted by the respondents, the proposed size of the deck corresponded to the dimensions of the original decks in the corporation, and accordingly, the board approved their request. However, the constructed deck was larger than specified in the plans. The corporation ultimately brought an application for an order compelling them to remove the overbuilt portion of the deck.

The respondents took issue with the right of the board to enforce the policy. They argued that the policy, which was contained in a document entitled “Rules and Policies (2008)” was not passed as a rule and should have been passed as a rule in order to be enforceable.

In reviewing the corporation’s “Rules and Policies (2008)”, the court conceded that “there does not appear to be a rational distinction between matters addressed by the “rules” and matters addressed by the “policies”. The respondents argue that the policy regarding deck construction should have been enacted by the Board of Directors as a “rule” under Section 58 of the Condominium Act, which would have allowed them the opportunity to challenge the rule along with other unit holders or seek to have it modified. Now they have no remedy aside from hoping for a benign approach to approval by the Board, which they have been denied.”

The court concluded that the policy was legally enforceable but sidestepped the issue of whether the policy should have been a rule, by stating that “the question of whether something is to be a rule or policy is ultimately a political question to

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November 2010 49


LegaL

whether something is to be a rule or a policy is ultimately a political question, the court did not in fact consider “rules” and “policies” to be the same. This is because the court noted that boards have great latitude in making policies and stressed that the courts should not interfere unless the boards had acted unreasonably or oppressively.

The court even cited with approval Justice Flynn in the case of Halton Condominium Corporat ion No. 315 v. S id Gucc ia rd i (Unrepor ted , 15 April 2004), who said: “The Board of Directors of this condominium was elected by the unit owners to administer this condominium, in the best interests of and for the welfare for the whole corporation. It is not for the court to step into this fray.”

Such judicial deference with respect to policies underscores the court ’s understanding that policies are essentially written guidelines regarding how boards will exercise discretion with respect to those matters over which the boards have decision-making powers. By contrast, boards cannot be given the same deference with respect to making rules because in order for rules to be valid, the subject matter of the rules must fall under the specific purposes listed under Section 58 for which rules may be passed; there is no discretion whatsoever in boards to pass rules that do not strictly comply with Section 58 of the Act.

By noting that boards have great latitude in making policies, the court also confirmed that policies can indeed be power ful tools in the hands of boards. For example, with respect to policies passed to supplement a rule, whereas the rule is subject to the approval of, and can be repealed or amended by, the unit owners (by way of requisitioning an owner’s meeting for that

purpose), the policies are not subject to any direct input from the unit owners.

There are essentially only two ways in which a policy can be challenged by a disgruntled unit owner: (a) a legal challenge; and (b) the removal of the directors from the board in the hope that the new board may amend the policy. Both options however offer highly uncertain outcomes and therefore are not resorted to lightly by unit owners.

The legal challenge runs the risk that the court would not interfere unless the board is found to have exercised its discretion unreasonably or oppressively. The second option requires the disgruntled owner to convince the owners of a majority of the units in the corporation to vote in favour of removing the directors, and even if they are removed, there is no guarantee that the new board would amend the policy to the disgruntled unit owner’s liking.

Although the court failed to clearly articulate the reasons for its decision, it did confirm that policies are legally enforceable. As well , a l though its reasoning implied it, the court could have clarified that board policies are essentially written guidelines as to how a board would be exercising its discretion in making decisions on a specific matter, provided that the board is empowered to make those decisions pursuant to either a provision of the Act or a section of the corporation’s declaration, by-laws or rules. Finally, although the court also failed to draw a distinction between rules and policies, it was implicit in the court’s reasoning that a policy is not the same as, and cannot be a substitute for, a rule, but it may supplement a rule with a set of additional provisions. CB

Michael Pascu is a lawyer with Fine & Deo and can be reached at 905.760.1800 x 243.

be democratically determined under the Condominium Act. The legislation offers no guidance on the categories. The remedy for unit owners who oppose a policy or rule is to run for office and once elected, to enact rules and policies that reflect the views of the majority of unit holders.”

Unfortunately, although the court determined that policies are legally enforceable, it failed to clearly articulate the reasons for its decision. However, upon a review of the comments made by the court, it was clear that the case was fundamentally about whether the board had properly exercised its discretion, under Section 98 of the Act and Sub-section 2(b) of Article IV of the condominium corporation’s declaration, to deny the unit owners’ request to be permitted to enlarge their deck. Accordingly, although it was not specifically stated by the court, the implication was that in order to be enforceable, the board policies must have been related to a matter with respect to which the board had the power to exercise discretion (in this case, the power to decide whether unit owner alterations to the common elements would be permitted, and if so, under what conditions). The court could have used the opportunity to clarify that, unlike rules, board policies are essentially written guidelines as to how a board would be exercising its discretion in making decisions on a specific matter, and that the board must be empowered to make those decisions pursuant to either a provision of the Act or a section of the corporation’s declaration, by-laws or rules.

The court also could have clarified that although a policy can look l ike a rule, is not a rule and cannot be a subst i tuted for a ru le, but i t may however supplement a rule with a set of additional provisions. It is clear from the court’s reasoning that although the court rather dismissively concluded that

The remedy for unit owners who oppose a policy or rule is to run for office and once elected, to enact rules and policies that reflect the views of

the majority of unit holders.“

”

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management

“The legislation requires employers to conduct a workplace risk assessment,” explains Cathy Chandler, an Occupational Health and Safety Consultant and Paralegal with Gowling Lafleur Henderson LLP. “Employers have to put measures and procedures in place to address the risks they’ve identified in their assessments.”

Workplace harassment policies and programs are also mandated to ensure that formal procedures are in place for workers to report incidents, and for employers to investigate and deal with complaints. Although employers aren’t required to proactively assess workplace conditions that could expose workers to harassment, the Ontario Ministry of Labour’s guidance document advises that unchecked harassment may escalate to threats or acts of violence and/or a targeted employee may retaliate violently.

The new rules apply in every provincially regulated workplace in Ontario. Required policies must be in writing and posted in a conspicuous location in all workplaces with six or more employees.

Risk recognition can prevent violence

Ontario employers are now expected to be aware of the risks of violence that their staff may

encounter from both within and outside their organizations. Recent amendments to the Occupational Health & Safety Act that came into force in June 2010 spell out new responsibilities to evaluate hazards and inform workers about their potential vulnerability, some which call for subjective judgement of whether certain individuals pose a threat to others.

By BaRBaRa CaRss

Workplace violence means:• The exercise of physical force by a person against a worker in a workplace that

causes or could cause physical injury to the worker• An attempt to exercise physical force against a worker in a workplace that could

cause physical injury to the worker• A statement or behaviour that is reasonable for a worker to interpret as a threat

to exercise physical force against the worker in a workplace that could cause physical injury to the worker.

Workplace harassment means:• Engaging in a course of vexatious comment or conduct against a worker in a

workplace that is known or ought reasonably to be known to be unwelcome.

Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls.

Definitions in the Occupational Health and Safety Act

November 2010 53


management

on severa l d i f ferent jobs i tes. The legislation allows for one overarching assessment of r isks related to job functions, but also requires site-specific assessment of possible unique risks in each job location. In this, contractors and building owners/managers could l ikely share information that would have been gleaned in the site-specific assessments that building management produced for its own staff.

Imperatives, options and interpretationM o s t e l e m e n t s o f w o r k p l a c e v io lence prevent ion programs are left to employers’ discretion, but one requirement is mandated: workers must have the ability to summon immediate assistance if they are in a situation where violence has occurred or could occur. Chand le r u rges emp loyers to think through the logistics of this requ i rement and then imp lement suitable, reliable technology.

“M any emp loye rs haven’ t p a id enough attention to this aspect of the

secur i t y ser v ices and mechanisms with in the bu i ld ing and /or on the surrounding grounds; other building occupants; or the ambience of the neighbouring vicinity, such as activity on the street, types of businesses in the area, police presence etc.

Employers are expected to take the findings of the assessment and tailor appropriate workplace violence prevention programs. Building owners and managers should also be aware of contract workers in their buildings. If an incident occurs, either or both the contractor and building owner/manager could be held accountable.

“If cleaners or other contractors are coming into your workplace every day and there are hazards they are exposed to, you need to tell them,” Chandler says . “A s pa r t of due d i l i gence, employer companies should also ask for evidence that contractors have complied with the legislation.”

W o r k p l a c e a s s e s s m e nt s c o u l d be par t icular ly chal lenging because contractors generally have staff working

AssessmentsWorkp lace assessments must be updated as circumstances within the workplace change, and findings must be shared with employees, either via the organization’s joint health and safety commit tee or upon an employee’s request in organizations that do not have committees. Assessments must consider risks that employees might be exposed to due to their job functions, and risks that might relate to specific conditions of the workplace.

Workers in sectors with greater interaction with potential ly volati le or unstable people – such as health care, social services, retail, hospitality, t ranspor tat ion and po l ice /secur i t y – are categorized as generally more at r isk. Employees who deal with the public, handle cash or valuables, work non-conventional hours, have a mobile workplace (i.e. from a vehicle) or are isolated on a work site may also be more exposed to risk.

Site-specific threats might arise from the layout, design, lighting levels and

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management

The legislation clarifies that workers must be made aware of potential risk from people with a history of violence, b u t e m p l oye r s a n d su p e r v i s o r s /managers must also be mindful of privacy concerns.

The Ministry of Labour’s guidance document advises that the information should only be revealed when workers can be expected to encounter the violent person in the course of their work and a risk of physical injury is possible. Employers and supervisors are further cautioned not to disclose more information

legislation,” she maintains. “It’s not enough to just have phone access because that can often be difficult for a threatened person to reach. Employees who work outside or travel for work purposes may not have ready access to a phone. In these circumstances, employers may wish to implement measures such as a panic button, a mobile alarm that workers can wear, radios and/or mobile telephones.”

Workers must be prov ided with information and instruction on the contents of their company’s workplace

violence and harassment prevention programs. “Depending on the risks identified, training may include recognition of escalating behaviour, de-escalation techniques and conflict resolution,” Chandler suggests. “Employers may also wish to develop lockdown procedures that can be integrated with emergency response and evacuation plans.”

T h e n e w l e g i s l a t i o n r e q u i r e s employers and supervisors to make judgment calls concerning information about particular individuals who could pose a threat to others in the workplace.

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Workers must be made aware of potential risk from people with a history of violence, but

employers and supervisors/managers must also be mindful of privacy concerns.

“”


management

Awareness triggers actionOntario’s legislation is unique among Canadian provinces in requiring employers to take note of the potential for domestic violence to intrude into the workplace. “Again, there is no requirement to source out the information, but if an employer is aware or ought reasonably to be aware then he or she has to take every precaution reasonable in the circumstance for the protection of workers,” Chandler notes.

The requirement may have particular repercussions for owners and managers in the res ident ia l sector. “Of ten superintendents or property managers are informed by residents that there are domestic violence issues in the building. The presence of a violent person potentially threatens anyone who comes into the building, including staff and contractors, so, once the building management

This could be a person on staff or a patient, inmate or customer with whom staf f regular ly interacts. However, employers and super v isors a ren’ t expected to foresee all scenarios in which a person becomes violent and inflicts personal injury upon a worker.

“ T h e r e i s n o r e q u i r e m e n t t o proactively source out the information,” Chandler says. “And there is no legal definition of ‘history of violence’.”

than is “reasonably necessary” to protect employees from injury.

“An employee doesn’t need to be aware of a person’s condition – schizophrenia, for example – but the employer must establish a program as to how an employee would respond to a threat from a person who is possibly violent,” says Brett Reddock, President of REDD KNIGHTS GROUP, a firm specializing in security and risk management consulting.

JermarkHRISE_Condo_Apr09.pdf 5/1/09 4:17:41 PM

November 2010 57

are also required to share the findings of their assessments with health and safety committees. If the health and safety committee is effective, it is going to make sure the policies and programs are sustained.” CB

For more information, see the Ontario Ministry of Labour website at www.labour.gov.on.ca /eng l ish /hs / top ics /workplaceviolence.php.

Safety and security experts emphasize that few employers are willfully neglectful of employee safety, but other priorities may bump concerns about violence and harassment off their agendas. The new rules compel attention.

“It requires the employer to make a concerted effor t to understand the potential risks and do something about them. By doing that, it makes people safer,” Reddock reflects. “Employers

management

has knowledge of that, it has to have a program,” Reddock says.

Prevalent interpretat ions of the Occupational Health & Safety Act suggest that employees have a corresponding responsibility to inform their employers and/or supervisors if they reasonably believe that co-workers are endangered or harassed. “Workers have a legal duty to report hazards, and violence and harassment are considered workplace hazards.” Chandler affirms.

Thus far, there is no evidence that the Ministry of Labour is actively inspecting for compliance with the new legislation, but it seems likely that inspectors will look for evidence of compliance if/when they are on site to conduct other inspections, such as those occurring through the Ministry’s well -publicized safety blitzes in the construction and trades sectors. The penalty for non-compliance is up to $25 thousand or 12 months imprisonment or both per offence for individuals (i.e. supervisors) and up to $500 thousand per offence for corporations.

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