Poulin's Sniffer Dogs for BED BUGS

I was introduced to the concept that dogs can be used to "sniff" out bed bugs; if this actually works this is really cool:

http://www.poulins.ca/our-services/bed-bug-services .

The Alberta Court of Queen's Bench has determined that the Alberta Human Rights Act applies to condominiums

I have written on the topic of the Alberta Human Rights Act, RSA 2000, c A-25.5 before at:

http://albertacondominiumreporter.blogspot.ca/2013/05/condominium-complexes-are-private.html

Based on the recent decision of the Court of Queen's Bench in Condominium Corporation No 052 0580 v Alberta (Human Rights Commission) (the "Goldsack case") the Alberta Court of Queen's Bench has determined that the Alberta Human Rights Commission has jurisdiction to hear human rights complaints. 

My original blog was partly in response to a blog by Jenifer Koshan of the University of Calgary.  Ms. Koshan has blogged in response to the Goldsack decision and I thank her for her collegiality.  I will not exhaustively respond to the further comments of Ms. Koshan.  However, I can comment that the reasoning in the University of British Columbia v. Berg case is worthy of further study.

The Berg case was the core basis upon which the Court of Queen's Bench made its determination in the Goldsack case. I contemplate going forward that the tests identified in Berg may have application to complaints made to the Human Rights Commission in Alberta.  In this respect, and without limitation, whether the alleged accommodation, service or facility subject of a complaint satisfies the relational test.  I quote from the Supreme Court of Canada decision in Berg in this regard:

"This reasoning is directly applicable to any selection process used by the School in this case.  Eligibility criteria, as long as they are non-discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries, its "public", thereby avoiding overuse and unnecessary depletion of scarce resources.  The benefits of such screening tools, however, should not come at the cost of excluding the protection of human rights legislation.

This is not to say that all of the activities of an accommodation, service or facility provider are necessarily subject to scrutiny under the Act just because some are.  But a quantitative approach still does not help to define what smaller segment of the entire population might suffice.  As long as the debate remains centred on the number of people who can use the service or facility, it will be very difficult to draw lines of inclusion and exclusion on a principled basis because of the varied nature of the services and facilities and service and facility providers which will fall to be considered.

Instead, in determining which activities of the School are covered by the Act, one must take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user by the particular service or facility.  Some services or facilities will create public relationships between the School's representatives and its students, while other services or facilities may establish only private relationships between the same individuals."

...

"The idea of defining a "client group" for a particular service or facility focuses the inquiry on the appropriate factors of the nature of the accommodation, service or facility and the relationship it establishes between the accommodation, service or facility provider and the accommodation, service or facility user, and avoids the anomalous results of a purely numerical approach to the definition of the public.  Under the relational approach, the "public" may turn out to contain a very large or very small number of people.

 For example, Canada or Quebec Pension Plan benefits are provided to millions of Canadians, yet not to the equally large number of Canadians who have not yet attained the qualifying age.  Can it be said that the provision of such benefits should not be free from discrimination because of the established eligibility criteria which ensure that such benefits reach only those who have paid into the fund and are intended to receive them?  Or consider a privately-owned centre which publicly advertises its services or facilities to treat a rare disease, from which only two or three people in Canada suffer.  Statistically speaking, 99.99 percent of the population cannot use this service or facility, since they do not suffer from the disease and are not part of its "public".  Yet could the legislature have intended that the institution could purport to serve the public, then extend its services or make its facilities available only to male applicants?"

The relational test may be applied in some circumstances to suggest that the accommodation, service or facility provided by a condominium corporation and subject of a complaint may not have a public.  The following words from the dissenting opinion from the Berg case express this sentiment and the concern with the decision of the majority in Berg:

"While I agree that human rights legislation should, where possible, be given a broad and purposive interpretation, that interpretation has to be realistic.  If s. 3 of the British Columbia Human Rights Act is given the reach sought in these appeals there would be, in effect, no services that would not fall within the scope of "services customarily available to the public"."

Notwithstanding this minority decision, the Berg decision has been referred to in almost 300 decisions.  As an example of the types of decisions which will have to be made a search of CanLii lead me to the 1996 Supreme Court of Canada decision in Gould v. Yukon Order of Pioneers.  The Court considered the Berg decision and concluded that the services provided by the Yukon Order of Pioneers were outside of the ambit of the subject Human Rights legislation. I think this may be a portent of the type of analysis which may have to be made by the Courts in Alberta  as a consequence of the Goldsack decision.  

 

Audits of Condominium Corporations

I am delighted to see other professionals making the time to share information which will assist boards of directors, property managers and owners in operating condominiums effectively.  In this regard, I share a link to an accountant's perspective on some of the accounting obligations of a board of directors with a focus on audits:

http://www.albertacas.ca/docs/member-advisory-2012/january-2014-audits-of-condominium-corporations-nbsp-.pdf?sfvrsn=0

Directors' Liability

This is a good article from a few years ago relating to condominium directors liability; this will be even more salient once the amendments to the Condominium Property Act (Alberta) are proclaimed.

https://issuu.com/lsgraphics/docs/cci-t-condovoice-spring2014/45?e=1206437/7747339

Owner Responsibility for Damages from Release of Water in Condominium Units

I recently found some time to blog.  This was also motivated by my being retained by a number of condominium corporations to deal with water issues.  The specific issue which compels me to write is what is commonly referred to as a chargeback.  A chargeback occurs when a condominium corporation incurs an expense as a consequence of an owner’s (or an owner’s tenant’s) breach of the condominium corporations bylaws or in some cases based on conduct of an owner which is not a breach of the bylaws (this is less common).  The condominium corporation is permitted pursuant to its bylaws to charge back the sum expended to the owner of a subject unit.

Based on the authority of the decision in Condo Plan 8210034 v King, 2012 ABQB 127 (“King”) as affirmed in Bank of Montreal v Bala, 2015 ABQB 166 the amounts expended by a condominium corporation may be collected as if they were a condominium contribution (that is in priority to other charges against the title to an owner’s unit) so long as the language in the bylaws supports this.  Many condominium corporation’s bylaws have bylaws to this effect.  It is important to recognize that this principal from King may be impacted by the amendments to the Condominium Property Act (Alberta) [the “CPA”] once they have been proclaimed.  More particularly the amendments state that any monetary sanction, any costs incurred as a result of damages caused by an act or omission of an owner, tenant or occupant, and any other amount specific in the regulations, shall not be permitted to be treated as a condominium contribution.

If this provision is proclaimed condominium corporations claim for expenses incurred as a consequence of a breach of the bylaws may be more difficult to recover.  The Conservative Provincial Government gave assent to the amendments in December of 2014 but the NDP Provincial Government has not as at the date of this blog proclaimed the amendments.  It will be essential for all condominium corporations to review their bylaws once the amendments have been proclaimed and take steps to amend their bylaws to fortify them in the face of the amendments and also to bring them into compliance with the amendments.

However, this blog is written from the perspective of the law in effect today; that is based on the application of the principles in the King decision.  One of the more common instances of chargeback arises when there has been a release of water from a condominium unit into either another unit or into the common property of the condominium corporation.  Once the incident occurs the condominium corporation must follow a detailed path prescribed by the CPA before being able to claim any expenses incurred against the owner of the subject unit.  Moreover, the condominium corporation must comply with all requirements imposed by its bylaws (including without limitation additional obligations to insure perils other than prescribed by the CPA Regulations) and the bylaws of the condominium corporation must have the requisite language to comply with the King decision (the bylaws must allow for the amounts expended by the condominium corporation to be treated as a contribution and then the amounts expended by the condominium corporation may be charged back to an owner).

The first step in this process is practical; the condominium corporation must gather its evidence.  It is unfortunate in many circumstances where there has been a release of water that neither the owner nor the contractor who attends at the subject unit takes pictures of the release of water or creates a detailed summary of the cause of the release of water.  It is behooves all condominium corporations, their property managers, and their contractors to take pictures when they first arrive at the subject unit and make the time to analyse and detail what caused the release of water.  Without this information it becomes a proverbial “crapshoot” whether a Court will conclude that the release of water was anything other than a “sudden and accidental escape” and/or that the responsibility for the damages caused by the release of water was the owner’s.

The importance of this evidentiary focus can be understood by looking at section 61(1)(i) of the CPA Regulations:

61(1)  For the purposes of section 47(1)(a), (b) and (c) of the Act, a corporation must place and maintain insurance against the following perils:

(i)    water damage caused by sewer back-up or the sudden and accidental escape of water or steam from within a plumbing, heating, sprinkler or air conditioning system or a domestic appliance that is located within an insured building;

This section obliges condominium corporations to insure against the sudden and accidental escape of water from within a plumbing system or a domestic appliance.  If a release of water occurs that is “sudden and accidental” then the damages caused by such a release must be subject of the insurance of the condominium corporation.  I must comment that it seems increasingly common that the response of an owner to communication by a property manager to an owner is from the owner’s insurance company.  It is not uncommon that the insurer dogmatically states that the responsibility for the damages caused by the release of water is not the owners because the damages should be covered by the insurance of the condominium corporation.  However, the determination of whether a release of water was “sudden and accidental” has not been well canvassed by Alberta Courts nor is it something that appears to be contemplated by Boards of Directors of condominium corporations or their contractors who attend at a unit to rectify situations where water has been released.  If the water which has been released was caused by a sudden and accidental escape it is clear that it is the responsibility of the condominium corporation to insure for this peril.  However the analysis is not this simple.  The amount of damages caused by the release of water may be less than the amount of deductible required to be paid under the insurance policy; in this case the bylaws may address whose obligation it is to pay the deductible.  An issue has recently arisen in a recent decision of the Provincial Court - Civil Division relating to what a reasonable deductible is.  As a consequence of the flooding that occurred in Calgary in 2013 it is not uncommon for corporations to have deductibles of $25,000 or more.  The Board of Directors should be able to justify the reasonableness of the deductible and this be reflected in a resolution of the Board of Directors.   Perhaps the release of water was not a sudden and accidental escape.  In either circumstance a review of the bylaws of the condominium corporation must be undertaken and, if the release was not “sudden and accidental”, the insurance policy should also be reviewed.

Notwithstanding a conclusion that the release was not a sudden and accidental escape of water, the insurance policy of the condominium corporation may provide insurance for the peril which occurred.  In this circumstance, even if the bylaws suggest that the peril is the responsibility of the subject owner, the condominium corporation may be obliged to treat the release of water as an insured peril.  Also, there are many different bylaws which relate to establishing liability for the damages caused by a release of water and who is liable for the payment of the deductible.  The bylaws may also address if the damages are less than the amount of the deductible who is liable for the damages caused by the release of water.  Many lawyers recommend that it is best if condominium corporations have clear-cut provisions in their bylaws which state that in all circumstances that the deductible is the responsibility of the owner whose unit the release of water occurred from or if the damages are less than the amount of the deductible that the owner is liable for the entirety of the damages regardless of fault. 

Continuing the analysis, the condominium corporation should review its bylaws to determine whether there is a positive obligation on an owner to maintain, repair, replace etc. the unit and, without limitation, the plumbing systems, plumbing fixtures and appliances within the unit.  Similarly the condominium corporation should review their bylaws to determine whether the responsibility to maintain plumbing fixtures within a unit is that of the corporation. The interplay between these two obligations is not always clear.  Once these obligations have been assessed a determination can be made on the basis of the evidence and analysis whether the conduct of the owner was sufficient to satisfy the obligations of the owner and a determination can be made if the owner is liable for the damages caused by the release of water based on the owner’s conduct.  Upon a determination that the owner is liable, the condominium corporation must comply with its bylaws in context of the King decision to collect the damages caused as part of the owner’s condominium contribution.

In conclusion, from discussions which I have had with insurance agents and property managers there is a growing concern relating to insurance claims based on the release of water.  From a political perspective it is just not reasonable for the owners and owner’s insurers to insist that all damages caused by a release of water of any kind be covered by the condominium corporation.  It is more reasonable that owners conduct reasonable due diligence with respect to their units.  This includes inspecting plumbing fixtures and appliances to make sure that they are in good working order.  To dump this responsibility on to the condominium corporation is not workable or reasonable.  Owners should be responsible for their errant behavior and their failure to conduct due diligence.  Moreover if more preventable water claims are made it could lead to a crisis in the condominium insurance industry.  It is not unimaginable that condominium corporations will be required to agree to larger deductibles and be required to pay insurance premiums which will continue to increase.

In light of the dilemma of water claims, the impending proclamation of the amendments to the CPA, among other reasons, condominium corporations should review and revise their bylaws.  The office of Bridgeland Law offers to review the bylaws of condominium corporations and Bridgeland Law has created a revised set of bylaws which contemplate the amendments  and are ideal for townhouse and multi-unit condominium complexes and offers these to Boards of Directors of condominium corporations.