by: Graeme Macpherson -
Last week, Ontario reviewed and reduced its list of “essential services”. Doing so, it reviewed which business could remain open and which ones ought to be closed pursuant to the its Emergency Management and Civil Protection Act. This was done to further minimize the spread of the COVID-19 virus. Change to Management Amongst the many changes, the province has, at least indirectly, further focused the definition of condo management. Item #20 of the list of essential services now reads as follows:
Maintenance, repair and property management services strictly necessary to manage and maintain the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings.
While much of what condo managers and related staff do clearly constitutes an essential service, this modification raises the question of whether management not “strictly necessary to maintain the safety, security, sanitation and essential operations” of residential property continues to be covered by the definition of essential services. What about concierge services or valet parking service, for instance? What about moving forward with the scheduled RFS? Similarly, what kind of “repair” is meant to be captured by this new definition? In some cases, the answer is obvious; In others it isn’t. Considering the very hefty fines associated with breaches to these measures (up to $500,000 for directors and up to $10M for corporations), corporations ought to consult with their legal counsel before allowing “business” to proceed as usual. Changes to construction The province has also changed its definition of what construction work constitutes an essential service. It appears that the province does not want to allow new non-essential construction work by, for instance, allowing work where “above grade structural permits have been granted for condos” and by allowing renovations to residential properties if the work has started before April 4, 2020. Again, considering the very serious consequences to continued work, corporations should consult with their legal counsel on which work to allow to continue. Court stops in-suite renovation Regardless of what the province lists as an essential service, corporation have a duty and authority to control, manage and administer the common elements and assets of the corporation. Amid this unprecedented world pandemic (people keep forgetting the risks to life and safety associated with this), corporations can (in our view) regulate, restrict or suspend non-urgent or non-necessary work requiring the use of, or access to, common elements. Indeed, non-essential in-suite work increases traffic in and over common elements, sometimes with bulky material/equipment. In our view, it would be reasonable for corporations to consider minimizing all non-essential traffic and use of common elements. What does this mean and to what extent is a question better posed to your legal counsel. If there was a doubt before, courts are now confirming that matters raising covid-related issues are viewed as urgent and will be heard (despite courts being on skeleton staff). In YCC No 419 v Black, a condo corporation sought an urgent order to stop an owner from renovating her unit. In this case, it appears the work was related to painting the unit, which may appear to some as fairly non-disruptive and innocuous work. Still, the corporation was concerned with this kind of work taking place, especially since the majority of its residents were seniors. The corporation was seeking to stop painters from attending the unit. The Court found that this was indeed “a matter of great urgency”. In a follow up decision made later that day, the matter was postponed until June (in order to give the owner more time to find a lawyer). However, in the meantime, on consent of the owner, the court ordered that no one would visit the unit or perform any renovations until the matter could be heard by the court. This, in our view, gives some indication of how courts would handle disputes between owners wishing to continue non-essential work in their units and corporations wishing to control their common elements in order to protect their community.