Salt, Snow and Ice: A Roll of the Dice

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Today’s topic was suggested by one of our readers, John, who is often faced with questions and comments from owners about snow removal and salting. Some owners feel their condominium’s contractor puts down too much salt, which gets tracked into their homes and ruins the floors. On the other hand, some owners feel the contractor puts down too little, which creates a risk of a slip and fall. Like many issues in condominiums, the board and management are often stuck in the middle. What’s a condominium to do?

Why Remove Snow & Ice?

Apart from concern about neighbours being injured in a slip and fall, most declarations require the condominium to maintain the common elements, which includes an obligation to remove snow and ice from walkways, driveways, and parking areas. This is sometimes true even where the driveways or walkways form part of the exclusive use common elements or even part of the units.

In addition, the condominium is considered the occupier of the common elements for the purposes of the Occupier’s Liability Act. This means the condominium is responsible for ensuring that people entering upon the property and their personal property are reasonably safe while on the property. This duty extends to conditions on the property, such as snow and ice, as well as activities being carried out on the property. If the condominium fails to properly maintain the property in a reasonably safe condition it could be responsible for damages or injuries that a person incurs on the property.

It is important to briefly discuss a recent legislative amendment related to slip and fall incidents. On January 29, 2021, the Occupier’s Liability Act was amended to prohibit legal action for damages for personal injury caused by snow or ice unless written notice of the incident is provided within 60 days of the incident. The notice must contain information about the incident, including the date, time, and location. It must be personally served or sent via registered mail to the occupier or the contractor responsible for snow removal on the property. A judge may find that the failure to give notice within 60 days is not a bar to an action if there is a reasonable excuse (i.e. severe injuries resulting in hospitalization) or the person dies as a result of the incident.

When a condominium receives a notice it should ensure that it promptly shares a copy with the snow removal contractor and any other occupier of the property, such as other condominiums in a shared facilities situation and the management company. The condominium must notify their insurer. The condominium should also take steps immediately to preserve any evidence, such as surveillance footage of the incident, as this evidence may show the condominium took reasonable steps to prevent the incident.

How Can You Address Concerns About Salt and Ice?

If a condominium is receiving complaints about too much or too little salt the board or manager should talk to its snow removal contractor. The contractor might be able to explain why they put down the amount of salt they do or modify the amount they put down in certain areas of the property. For example, in some condominiums there are parts of the property that accumulate more ice than other parts for a variety of reasons, such as exposure to the elements, drainage patterns, or the location of eaves. The contractor may be able to reduce salt in other areas where the risk of slip and fall accidents is lower.

Sometimes condominiums ask the contractor to put down a reasonable amount of salt to prevent slip and falls while providing extra salt to those owners who want to put down more on their walkways or driveways. This can be a good way to address situations where a condominium is faced with some owners complaining about too little salt and others complaining about too much salt.

The condominium could also ask the contractor about alternatives to salt, such as sand or de-icing products. Some of these products may cost more, but they may also do less damage to landscaping or other items so they might be preferred by owners.

Sometimes owners remove the salt on their walkways or driveways or ask the condominium to stop placing salt on their walkways or driveways. Some owners even offer to sign legal documents releasing the condominium and contractor from any claims if they slip or fall as a result of the contractor not placing salt in the area. I would caution condominiums about signing these documents without first speaking to their lawyers and insurers as these documents may not act as a bar to legal action by the owner, which leaves the condominium exposed to potential claims.

I see the snow is falling again this morning, so this was a very timely topic. Thanks for the suggestion John!

Update on Previous Post – Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

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Last year we posted about a case where a condominium commenced an application to the Superior Court of Justice for an order amending its declaration. The condominium wanted amendments to its declaration because of a repair and maintenance issue with the fireplaces in the building. A group of owners with fireplaces filed their own application seeking to have the chimney flues deemed part of the common elements, which the condominium was responsible for maintaining and repairing. They also sought an order requiring the condominium to maintain and repair the chimney flues.

To summarize, the court ordered the declaration amended to make the fireplaces exclusive use common elements, but refused to amend the declaration to require the owners to maintain and repair the fireplaces. As a result, the condominium would be responsible for the repair of the fireplaces while the owners and condominium will continue to share the obligation for maintenance of the fireplaces. Our previous post is available here:https://ontcondolaw.com/2019/08/02/fight-fire-with-fire-seeking-court-orders-to-amend-the-declaration/ Continue reading

Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

brown beside fireplace near brown wicker basket

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A condominium corporation recently brought an application to the court for an order amending its declaration. The application was brought under section 109 of the Condominium Act, 1998, which allows the court to amend the declaration for a condominium where it is “necessary or desirable to correct an error or inconsistency that appears in the declaration….or that arises out of the carrying out of the intent and purpose of the declaration.” The case is most interesting because of the alleged errors or inconsistencies. The case is available on CanLii for those interested in reading it in its entirety.  Continue reading

Kitec – Don’t Forget the Deadline to Submit a Claim

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It seems like many years since the Ontario Superior Court of Justice entered an Order for Approval of Class Action Settlement back on November 29, 2011 and the Kitec Settlement Agreement (“Kitec Settlement”) for defective plumbing systems became effective way back on January 9, 2012.

I suppose 7 years is a long time depending on how you look at things, especially as discussions about Kitec have also seemingly faded into the background at industry events in recent years as new hot button topics  such as amendments to the Condominium Act, 1998, cannabis legalization, and electronic vehicles have all arisen.

We last wrote about Kitec in March of 2017 reminding condominiums the first step should be to contact their engineer to determine if the condominium has a Kitec plumbing system, then filing a claim and/or consulting the Condominium’s lawyer. You can read the post here: https://ontcondolaw.com/2017/03/07/kitec-piping-claims/

So here again is a friendly reminder for condominiums in Ontario that the deadline to submit a claim form to be eligible to be included in the Kitec Settlement is fast approaching: January 9, 2020.

You can find the claim form, information regarding the case/settlement, and FAQs here:  http://www.kitecsettlement.com/index.cfm

Finally, just a few key reminders about completing the claim form and providing supporting documentation to file a claim:

  1. Complete the whole form – if sections/questions are inapplicable remember to note “N/A”
  2. Make sure to provide copies of invoices and cancelled cheques for plumbing services . My understanding is banks can be quite slow to provide old archived cheques to the condominium so make sure to get on this request quickly.
  3. If possible – provide a sample of a failed Kitec fitting and an engineering report to support the condominium’s claim; and
  4. Finally, if the condominium has suffered numerous plumbing failures over the years it may be best to complete one comprehensive claim. Already made a claim but the condominium has suffered further plumbing failures? Submit a new claim. Organizational Tip: Use a spreadsheet to track the cancelled cheques and plumbing invoices to be submitted with the claim.

Elevators Let You Down?

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A recent case offers some insight into the standard expected of condominiums and others when it comes to injuries related to malfunctioning elevators in condos.

The Facts

The claim was brought by a unit owner and her mother against the condominium, manager, security/concierge, and elevator servicing company.  The plaintiffs alleged that the mother was visiting her daughter when she fell while exiting one of the elevators due to mislevelling of the elevator. The mother apparently sustained a broken left wrist and dislocation of her right shoulder. She sought damages of $2 million. The daughter claimed $200,000 for loss of care, companionship and guidance due to her mother’s fall.

The defendants all brought summary judgment motions asserting that there was no genuine issues for trial. Continue reading

Construction Lien Changes

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As you may have heard, the first round of amendments to the Construction Lien Act are scheduled to come into force on July 1, 2018. The purpose of this post is to provide a brief overview of some of the key changes as they may relate to condominium projects.

For starters, the Construction Lien Act will be known as the Construction Act. The amendments will not apply to all situations, including contracts entered into before July 1, 2018 (even if subcontracts were entered into after July 1, 2018) or the procurement process was commenced before July 1, 2018. There are other exceptions.  Continue reading

Unreasonable Owners + Reasonable Board = Costs for Condo

A recent decision of the Superior Court of Justice illustrates how the conduct of the parties can sway a judge when it comes to the issue of costs. The case is York Condominium Corporation No. 922 v. Frank Lu et al (2016). The facts are straightforward. The owner refused to permit the condominium’s contractors to enter the unit to investigate it after a flood in the unit, which was caused by the owner’s tenants. The condominium made repeated attempts to gain access to the unit and offered to meet with the owner to discuss the issue, but the owner refused. The condominium engaged a lawyer, who wrote several letters, but the owner still refused to grant the condominium access to the unit.

The condominium started a court application under sections 92, 117, and 134 of the Condominium Act, 1998. The condominium asked the court for an order requiring the owner to allow it to access the unit to investigate the damage, and if necessary, repair the damage to the common elements.

The condominium was successful in its application and sought $15,416.00 in costs from the owner. Continue reading

Condo successful against owner with bed bugs and hoarding issues

An Ottawa condominium brought an application against an owner because of the owner’s failure to maintain and repair his unit, which was infested with bed bugs and full of an excessive amount of debris. There were various inspections and communications between 2013 and 2015. The condominium attempted to work with the owner, but the owner refused to take steps to clean the unit and prepare it for treatment for bed bugs. Continue reading

The Condominium’s Duty Regarding Hoarding (Part 2)

I know what you are thinking: “Now that I know what hoarding is and why I should care about it, how do I fix it?” Well, like I said in my last post, there is no one size fits all solution. In some cases, it will be relatively easy to deal with the hoarding. In other cases, it will require court intervention. It really is a case-by-case determination.

The first step whenever an owner breaches the Act or any of the condominium’s documents is usually a letter from the board or property manager. The reason? You want to give the owner an opportunity to comply before taking further steps and incurring any costs. For hoarding, the letter should describe the specific concerns (i.e. during a recent inspection we noticed a large amount of combustible material stored on your stove), provide a date for entry to the unit (for a further inspection), and outline the consequences if the owner does not take steps to alleviate the problem (i.e. involvement of the condominium’s lawyer and a chargeback of the costs, if possible).  Continue reading