Beyond removing Board Members at a Special Meeting; Establishing and applying a Board Code of Ethics

The Ontario Court of Appeal recently considered a situation where a Board of Directors of a Condominium Corporation removed a Director for breach of the Code of Ethics adopted by the Board of Directors; Gordon v. York Region Condominium Corporation No. 818, 2014 ONCA 549.

In the Gordon case the bylaws contemplated the removal as a consequence of three breaches of the Board approved of Code of Ethics.  The removal of the subject Board member was done in accordance with the Rules of Natural Justice.  Accordingly, the Ontario Court of  Appeal upheld the resolution of the Board to remove the subject Board member.  

This decision sheds light on a mechanism which allows condominium Boards to control their own decorum.  As was the case in Gordon, the subject Board member had become obstructionist and somewhat intransigent.  It is in exactly these circumstances that a Code of Ethics may, if supported by the  bylaws, create a more civil Board environment. Though not binding on our Alberta Courts the decision of the Ontario Court of Appeal in Gordon is highly persuasive and may well be adopted.  Alberta condominium corporations may wish to amend their bylaws to add breach of a Board adopted Code of  Ethics as an additional basis for removal of a recalcitrant Board member.

Morrison Hershfield; Presentation of Michael Ball to CCI-SAC on the Role of the Consultant in a Major Condominium Capital Project

Every once in a while the Canadian Condominium Institute - South Alberta Chapter will host a lunch speaker whose presentation is stellar.  This happened on March 23, 2011 when Michael Ball of Morrison Hershfield presented on the Role of the Consultant in Major Condominium Capital Projects.  Mr. Ball took those in attendance through the story of a very poorly built multi-unit condominium which had a total breakdown of the condominium's building envelope.  This multi-million dollar project exemplified the value in involving a consultant/engineer knowledgeable in the area in which the capital project is being done to avoid the ugliness and cost of capital expenditures being done improperly.  Without limitation, Mr. Ball indicated that an engineers as consultants could provide:

1. Investigative services with respect to leakage (roof/walls/below grade/windows), premature deterioration of cladding/roofing, structural capacity, warranty claims, and indoor air quality (mold);
2. Detailed design (technical specifications and drawings, best-practice design);
3. Construction services (tendering, contract administration, quality assessment and quality control)
4. Litigation support and expert witness services; and
5. Non biased third party facilitation between owners and contractors.

Without limitation, Mr. Ball noted that no project should proceed without detailed technical drawings being produced.  On its own insisting that a set of instructions - detailed technical drawings - be provided and followed creates accountability which otherwise may not exist.  Notwithstanding this plethora of support services which an engineer can provide, many condominium corporations make large capital expenditures without any assistance from an engineer/consultant.  Instead condominium corporations, to save money, sometimes rely entirely on the services of a self interested contractor and unfortunately sometimes to their detriment.


In the writer's opinion the most important distinctions between many contractors and engineers are the fact that engineers go through a rigorous education and engineers are professionals who are obliged by their professional organization, APEGGA, to act ethically.  Lawyers are similar bound to act ethically.  The Law Society of Alberta has endorsed a Code of Conduct which all lawyers must abide by in their relationships with their clients and with society at large.


Consultants without affiliation with an organization have no ethical obligation imposed upon them and may have insufficient education in the matters subject of the capital improvement.  It is imperative that condominium corporations ascertain this before proceeding with a capital project.  This is the heart of why I described contractors as potentially "self interested".  A less than knowledgeable contractor may recommend an intervention to a condominium corporation without a substantive basis for doing so simply because the contractor wants or needs the work or is ignorant.  Without an affiliation with a professional organization imposing an ethical obligation on the contractor a condominium corporation is relying entirely on the individual conscience of the contractor in respect of whether the intervention is necessary or if necessary if the contractor is sufficiently educated and skilled enough to conduct the capital improvement. 


The lesson demonstrated by Michael Ball to condominium corporations is to not be "penny wise and pound foolish" when it comes to dealing with contractors.  Obtaining the assistance of an engineer or similarly knowledgeable and skilled consultant will dramatically lessen the likelihood that condominium corporations will be taken advantage of by unscrupulous contractors.