Part Two: Another “3 Ps” in Condos? Policies, Programs, and Plans

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Earlier this week we wrote about policies, programs, and plans in condominiums. This post is the second in the series where we briefly discuss some other required policies and some recommended ones.

REQUIRED POLICIES, PROGRAMS AND PLANS

Condominiums may be required to create policies in a variety of situations. The most common situation is where a condominium has an employee (or more broadly a “worker” in some cases).

Accessibility Policies

The Accessibility for Ontarians with Disabilities Act (“AODA”) is designed to make Ontario accessible for persons with disabilities by January 1, 2025. It aims to do so by developing, implementing, and enforcing accessibility standards.

The requirements for the accessibility standards differ based upon the number of employees of an organization and if the organization is a public or private organization.  “Small organizations” are organizations with at least 1 employee and less than 50 employees, which captures many condominiums in Ontario. These condominiums should have created an accessibility policy by January 1, 2015. As a small organization there is no obligation to put the policy in writing, although it is recommended. The policy must be explained to employees.  

Interestingly, the focus for the AODA is on “employees” not “workers” like with workplace violence and harassment policies. Under the AODA the term “employee” excludes independent contractors and volunteers. Accordingly, it is possible that some condominiums may have no employees. In this case, the condominium would not be obligated to create accessibility policies or comply with other requirements of the AODA. That said, these condominiums should still ensure their contractors and others comply with the AODA where required to do so.

COVID-19 Policies & Plans

Employers in Ontario have an obligation to protect employees from unsafe working conditions and hazards. As condominiums remain open throughout the lockdown, it is important for condominiums to create a COVID-19 workplace safety plan. A template COVID-19 workplace safety plan is available on the Ontario website here: https://www.ontario.ca/page/develop-your-covid-19-workplace-safety-plan

Some municipalities have additional policy requirements for condominiums, such as mask requirements in common elements and amenity areas.

RECOMMENDED POLICIES, PROGRAMS AND PLANS

Even where condominiums are not obligated to create a policy it may be desirable to do so as they can be useful at describing expectations for the community.  

Anti-Harassment and Anti-Discrimination Policies

The Human Rights Code (the “Code”) prohibits discrimination in five social areas. The Code protects against discrimination based on 17 grounds, including age, sex, family status, disability, and race.  

Anti-harassment and anti-discrimination policies are intended to make it clear that harassment and discrimination will not be tolerated. These policies set standards and expectations for behaviour within the condominium. The policies typically explain what types of behaviour are not permitted and set out the roles and responsibilities of various individuals. In recent years, many condominiums have passed these policies as rules to make them easier to enforce using the provisions of the Condominium Act, 1998. The Ontario Human Rights Commission has sample policies available on its website: http://www.ohrc.on.ca/en/policy-primer-guide-developing-human-rights-policies-and-procedures/5-anti-harassment-and-anti-discrimination-policies

Additions, Alterations, or Improvements Policies

Some condominiums have created policies to set out guidelines for owners looking to make additions, alterations, or improvements (“changes”) to the common elements under section 98 of the Condo Act. For example, the guidelines may explain the permitted types, materials, and colours of commonly requested changes, such as fences, screen doors, and landscaping features. These policies do not eliminate the need to comply with section 98 of the Condo Act, but they do make it easier for condominiums to ensure these requests are treated fairly and consistently for all owners.

The lists above and in our previous post are not exhaustive. It is also important to note that the samples or templates provided are not substitutes for legal advice. Condominiums should speak to their lawyers for advice prior to enacting these policies.

Another “3 Ps” in Condos? Policies, Programs, and Plans

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Most people are familiar with the declaration, by-laws, and rules of condominiums, but many are less familiar with policies in condominiums. This is not surprising as the only references to “policies” in the Condominium Act, 1998 (the “Condo Act”), are for insurance policies. In recent years, condominiums are more regularly creating policies to address a variety of topics. This post is the first of two which will describe some policies that condominiums may be required to create and others that may be recommended.

WHAT IS A POLICY?

Generally, a policy is a set of guidelines that support future decisions and define expectations. For condominiums, a policy may be created, amended, or repealed by resolution of the board of directors. It does not require approval of the owners. That said, the policy will only be enforceable if the board of directors had authority to make a decision on the subject-matter of the policy without approval of the owners. The policy must also be reasonable and consistent with the declaration, by-laws, and rules of the condominium.  

REQUIRED POLICIES, PROGRAMS AND PLANS

Condominiums may be required to create policies in a variety of situations. The most common situation is where a condominium has an employee (or more broadly a “worker” in some cases).

Reserve Fund Investments

The Condo Act requires condominiums to create an investment plan before investing any part of the condominium’s reserve fund accounts. The plan must be based on the anticipated cash requirements of the reserve fund as described in the most recent reserve fund study. It is wise to create the plan with the help of an investment professional.

Workplace Violence and Harassment Policies and Programs

Every employer in Ontario must prepare and review, at least annually, policies on workplace violence and harassment according to the Occupational Health and Safety Act (“OHSA”). The policies are required regardless of the size of the workplace or the number of workers, but there are additional requirements where there are six or more regular workers. The employer must also maintain a program to implement the workplace violence and harassment policies.

It is important to note that the definitions of “employer”, “worker”, and “workplace” are very broad. For example, “worker” includes both employees and contractors. A worker could include a cleaner, landscaper, superintendent, or property manager depending on the circumstances. As such, it is likely that most, if not all, condominiums in Ontario would be required to have these policies and programs in place.

A sample workplace violence policy and program has been produced as part of the Ontario Ministry of Labour’s Workplace Violence and Harassment: Understanding the Law guide which can be found here: https://files.ontario.ca/wpvh_guide_english.pdf It is important to keep in mind that the workplace violence and harassment policies and programs must be modified to reflect the risks of the workplace after the employer completes its risk assessment.

Make sure you check back for part 2 of this series for more required policies and some recommended ones.

How to Read the Condo Act

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I sometimes receive emails or calls from owners and directors who disagree with my opinion on an issue because they have read the Condominium Act, 1998, and misinterpreted part of it. Once I explain the relevant part of the Act or assist them in finding the relevant information they missed, we are usually able to agree on the issue. In the hopes of avoiding these sorts of disagreements in the future, I thought that I would provide some tips for reading and interpreting the Act. Continue reading

Amending the Condo Documents

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Lately our firm has been working on a lot of revisions to condominium documents: the declaration, description, by-laws and rules. Cannabis has been a very popular topic these past few months. Some condominiums are updating their condominium documents to reflect changes to the Condominium Act, 1998. Others are making changes to the number of directors or their qualifications.

Many clients complain that the process to change their documents is confusing. The main reason for the confusion is that each type of document has its own process to change it. The purpose of this post is to describe the basic process to change each of the documents.

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Errors in the Declaration or Description?

Despite being reviewed by a number of people during the development phase, sometimes a declaration or description is registered with an error or inconsistency in it. For instance, where two condominiums are mirror images of each other and the documents prepared from the first are used for the second. When the declaration for the second is registered they forget to switch the proportions to account for the reversed layout, which leads to the smallest units paying the largest share and the largest units paying the smallest. Unfortunately, the error is not discovered until after the second condominium is registered and the owners of the largest units (paying the smallest amount) will not consent to an amendment. What can be done? Continue reading