Saturday, March 5, 2011

Hoarders, Disorderers and the Public Health Act (Alberta) and the Role of Alberta Health Services

I am always pleased when I acquire greater understanding of areas of the law which have impact on condominium corporations.   Over the last few months I have had the opportunity to review the Public Health Act  (Alberta) and learn how this act has been applied by Alberta Health Services.  The comments which follow are a summary of legislation and process followed by Alberta Health Services when dealing with a condominium unit which has not been well maintained and may have become dilapidated by a hoarder or disorderer.

The Nuisance and General Sanitation Regulation passed pursuant to the Public Health Act  states in section 2, among other things, that "no person shall create, commit or maintain a nuisance" and that a "person is deemed to have created, committed or maintained a nuisance" if:
  1. any premises that is in a condition;
  2. a sink, privy (I think this means bathroom), urinal, or drain in a condition; or
  3. any accumulation, a deposit of offensive matter, waste or manure wherever situated;
"that is or might become injurious or dangerous to the public health or that might hinder in any manner the prevention or suppression of disease".

Pursuant to section 60 of the Public Health Act, if Alberta Health Services is advised of a potential nuisance and "an executive officer believes on reasonable and probable grounds that a nuisance exists in or on a private place or that the private place or the owner of it is in contravention of (the Public Health Act) or the regulations, the executive officer may, with the consent of the owner or pursuant to an order", among other things, "enter in or on the private place at a reasonable hour and inspect it".

The Public Health Act reference to an "executive officer" translates into a senior employee so designated by Alberta Health Services.  If after conducting an inspection the executive officer forms the opinion that there is "reasonable and probable grounds to believe that a nuisance exists" then the "executive officer may issue a written order in accordance with this section".  An executive officer's order is very powerful and pursuant to section 62 can include, without limitation:
  1. requiring the vacating of the place or any part of it; 
  2. declaring the place or any part of it to be unfit for human habitation; 
  3. requiring the closure of the place or any part of it;
  4. requiring the doing of work specified in the order in, on or about the place; and
  5. requiring the removal from the place or the vicinity of the place of anything that the order states causes a nuisance.
These provisions in the order can be summarized as leading to a condemnation of the condominium unit and identifies the work that needs to be done by the owner to bring the condominium unit back into reasonable condition.  Further power in the order comes from the threat in section 63 of the Public Health Act.  This section provides that if the owner of the condominium unit subject of the executive officer's order fails to do the work "the executive officer or a person appointed by the executive officer may, together with any persons that are necessary, enter the public place or private place and carry out the order".   The Public Health Act also provides that the expenses incurred in doing the work, if not paid within 60 days after a demand for payment, may advise the municipality in which the condominium unit is located within and the expenses incurred shall be added to the tax roll as an additional tax against the condominium unit and "forms a lien on the land in favour of the municipality".  This means that the municipality would have a first charge against the condominium unit in priority to all other claims including the condominium corporation and any lenders.

Based on this legislation one would think that once Alberta Health Services inspects a hoarded or disordered condominium unit and issues an executive officer's order that condominium corporations could expect that if the owner does not comply with the executive officer's order that Alberta Health Services will then do the required work.  Curiously what I have recently been advised is that this is not the preferred route of Alberta Health Services.  Instead the preference of Alberta Health Services is that the subject condominium unit is secured pursuant to the executive officer's order and the owner is denied access to the subject condominium until the work ordered to be done has been done by the owner.  Notwithstanding this powerful remedy, Alberta Health Services has advised that it would rather not have to do the work.

This creates a situation where the remedy of the condominium corporation may, because of deficiencies in the condominium corporation's bylaws, be less powerful than that of Alberta Health Services.  This raises the question of whether the involvement of Alberta Health Services outweighs the potential detriment of the issuance of an executive officer's order.  In this regard it is important to understand that executive officer's orders which condemn properties are listed, amongst other orders, on Alberta Health Services website and are accessible to all persons.

A failure by Alberta Health Services to do the required work if the owner will not or does not creates a situation where responsibility for dealing with the dilapidated condominium unit shifts to the condominium corporation.  This in turn will lead to a review of the bylaws by the condominium corporation to determine the remedies available to the condominium corporation.  Ideally the bylaws provide that the condominium corporation may do the work subject of the executive officer's order (this is usually after a demand to the owner has been made) and that the amounts of money expended in doing the work shall be added to the condominium contributions payable by the owner of the dilapidated condominium unit.  Without this provision in the bylaws a condominium corporation may be left with its expenses becoming an unsecured debt without priority over other instruments registered against the title to the dilapidated condominium unit.