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Water Today Title January 23, 2021

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2020/12/03
Condo water



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SAFE DRINKING WATER AND CONDO LIVING: AN INTERVIEW WITH ROBERT RODRIGUES, PARTNER, GOWLING WLG



WT staff

WT - Let's start with a general question. Can condo buyers ask a condo board about past issues around water quality, being under a boil water advisory, broken water mains, this sort of thing?

Rodrigues - I'm going to focus my answer in Ontario, where I practice, but many other jurisdictions in Canada have similar requirements. Usually what someone buying into a condo asks for is a status certificate. In the past, that used to be called a status of estoppel. And this type of certificate basically gives you information about the corporation, but mainly about the finances.

Recently in Ontario, the condominium act was revamped and now there's a lot more information that's being communicated to prospective owners when they ask for that status certificate. Basically, you get information about the financial health of the corporation, about the insurance, about lawsuits, but you would not have information that would be specific to a water issue or to past readings. That would not be part of it unless the board had opted to disclose an issue that may result in an increase in common expenses, what we call condo fees, and the day to day life. If the board or if the corporation knew that there was something that would require extensive repairs, let's say they'd have to change all the pipes or whatnot. And that was known to the corporation. They would disclose that in the standard certificate. But otherwise, I don't think that you'd have a specific line dealing with water quality necessarily.


WT - My next question, I'll just continue here. If I'm in a condo and the building goes under a boil water advisory or a water alert, does the board have to tell me?

Rodrigues - I don't believe that the board has an active obligation to do that. Most boards would probably do it or it certainly seems like it's a good idea. But the corporation's object is to manage and control and administer the common elements. Now, the common element is anything that's outside of your unit.

In a high rise, you could imagine common elements would be the lobby, the front door, the elevator, the rooftop terrace, the pool, the gym, the hallways. And so anything outside of your unit, that's what a condominium corporation in Ontario is mandated to do. It's to control, administer and manage that.

The water, certainly in many urban centres, comes from the municipality and the municipality brings it all the way to your door. And then it's connected to the corporation's pipes and it goes all the way to your faucets and to your showers and so on and so forth. So if the municipality where you live had a boil water advisory the corporation would find out about it the same way as every other owner would find out about it. That doesn't really fall squarely into the duties of the condo corp. Now, having said that, in most cases I'm on my own condo board. So in most cases I can say that if I became aware of a water boiling advisory, certainly I would expect my board or I would expect my corporation or I would expect my property manager to send out a notification. But really the notification as to whether there is a boiling water advisory and when it ends, that's really something that's under the jurisdiction, if I can call it that, of the municipality.


WT - This next question ties right into that. This morning, I talked to the city of Toronto water operations people and condo owners within the city of Toronto who have had bad tasting, murky water. According to the city, if the water tests are fine at the water main into the building, into the intake, this is something that the condo board should be dealing with. In another case, I talked to a plumber who told me that all issues inside a building in the city of Toronto at least, are the condo board's responsibility and issues inside a unit are the owners' responsibility themselves. So if they have bad water, which they've tested for inside a unit, that's even different, if I understand this right, than water inside the main building and then it even differs from how the city of Toronto sees the water coming in. So if I'm a condo unit owner and I have issues with my water test, and the city of Toronto says the water is fine up to the main intake of the building, what do I do now? These condo owners have fairly large issues around this.

Rodrigues - Let me take a step back and let me start with this. When all is fine and normal and dandy and everything is nice and it's a sunny day out, to my knowledge, Condo Corps in Ontario don't have an obligation to regularly test their water or report on it. I think there's an expectation that the municipality is treating the water and is bringing it to your building and your building is distributing it and everything is fine so that there isn't an active duty. In other words, unless there's something wrong. Unless the condo board is investigating something, there's no active obligation to test and to report on the quality of the water.

Now, what does often happen is that, based on a complaint or an observation from a unit owner, the corporation will look into it. And so usually when the board look into it, it's because it's been triggered by someone detecting an odd smell, an odd color or discoloration in the water or a bad taste. And that could be for multiple reasons. One of the reasons could be that one of the pumps in the building or one of the risers in the building, for whatever reason, had to be shut down or was shut down. And when you restart all that equipment, well, it moved some sediments and the water may, for a short period of time, be looking different or smelling different. It could also be that the building next door had to disconnect something or they're building something or they shut the water off because they needed to repair something. The corporation would have to look into that

But going back to what a condo owner should do. If you're in your unit and there's a bad taste in the water or it looks murky or that it's filthy or there's an issue with it, you report that to the management, - most of the corporations are managed professionally - and they will look into that. And once they've eliminated the obvious reasons, at one point they need to drill down. I mean, if in fact there's an issue, well, you will go out and you'll get the water tested. But there could be plenty of issues between the city connection and my faucet. One of these issues, maybe the pipes need to be redone, maybe the pipes were made of lead at some point in time, whatever the case may be. Management will look into it and hopefully they'll resolve it. Obviously, if the problem is from the city line to the faucet, that's the corporation's responsibility. If the problem is beyond the city line, that's the city's responsibility. And if the problem is between this unit's connection to the main stack and to the end to the main pipes, well, then that's an owner's responsibility. So we really need to see where the problem is and do the test accordingly and do the repairs accordingly if any repairs are required.


WT - These particular sources I talked to said that they were having issues with E. coli when they tested the water. So from your perspective, they should be taking this up with the condo board. This is what they tell me they've done. And they say there's no action from the condo board. They seem to say just call the city of Toronto water authorities and get it dealt with. So in this case, then, you think that the condo owner themselves, should take up some sort of action with the condo board itself, given that the city of Toronto says that the water to the building is fine.

Rodrigues - Right. And so Condo Corp's are operated by a board of elected directors, usually owners, in the condo corp, and usually this board of directors, retains a property managers to help them manage a corporation, especially big corporations. So an owner who has an issue, whether the issue is a source of noise coming from the neighbour or from equipment, whether the issue is a problem with the water, it's smelly, it doesn't taste right or look right. If these problems are from outside your unit, you report them to the corporation through the board of directors or through management. And then there's an expectation, of course, that management will look into it. Now, sometimes maybe they're not acting as diligently as you'd want them to be. Maybe they're focusing their priorities elsewhere. Maybe you don't really have a very proactive board or a very knowledgeable manager. I don't know. But it's really up to the unit owner to keep pushing the issue until they get a resolution.

If I was an owner and I had an issue with the water, I'd get the water tested properly and have test results in hand. I'd send that to the board and say, listen, I really don't care what the municipality says about the water. The reality is that at this stage, these are the readings taken from the water I get from my tap and then you keep pushing it.

Now, ultimately, there are really two recourses that are always available to owners. The first one is what I call the democratic recourse, get elected on the board. Present yourself, get elected on the board, then you have a seat at the table and then you're able to move these and other issues forward. So that's the democratic door. The other recourse, of course, is judiciary. So if at the end of the day you're able to demonstrate that there's a problem that truly falls within the responsibility of the condo corporation and they're not acting on it, well, you could go to court. One of the remedies that's available to an owner that goes to court is oppression remedy. And basically an oppression remedy is when you're able to demonstrate that the corporation is not taking your issue seriously. They're ignoring your legitimate expectation. And that's true for any problem, whether the problem is the noise from the neighbour, whether a problem is the fact that, you know, you have an electricity problem, you have a water problem, and the gym is not being repaired, the pools are not being open.

Of course, drinking water is a significantly more important problem. I mean, it's a basic need and a basic right. So I don't want to minimize that when I'm comparing this to the fact that the gym is closed. But regardless of what the problem is, you always have these avenues you can push politically or you can try to get it resolved through the courts.

Another recourse that exists for owners, is to requisition a meeting. So if it turns out that you're able to demonstrate that your water has an issue, I would talk to my neighbours and I would suspect that my neighbours would be as upset as I am over the quality of the water. If 15 percent of the owners get together and sign a requisition, they can force a meeting of owners. And that's got to be held within a specific period of time. In such a case, you can see that there's a remedy which is sort of political. You get the owners to requisition a meeting and then ask the hard questions. Why is it that we have these readings? Is the problem within my unit? Is the problem within the building is a problem within the city?


WT - Bob Ross, a real estate lawyer in Toronto, has represented people around Piping called Kitec, (this was used in a lot of condo construction between 1995 and 2005). Apparently this Kitec piping is almost guaranteed to start leaking within a year or two of installation. Is this the same thing as the water questions I brought up earlier in the interview? If I ask a condo board and I'm buying a condo, can I say, look, is Kitec used in this building? Does the building condo board have to tell me that that's the kind of pipes that are being used in my condo?

Rodrigues - The challenge here is this, you're really buying a unit from an individual, but the unit happens to be within a greater structure, which is the condo. Normally when you buy a bungalow, you know, you get the information directly from the vendor and you can ask all these questions. And how was the house insulated and what kind of piping do you have? And do you have old the electricity wiring? Do you have a copper or lead in your pipes? And you can ask all these questions and you can also send someone to inspect the house.

The problem is that when you buy a condo, while you can certainly send an inspector to have a look at the unit and they may be able to give you some indications with respect to the units. But that inspector is not going to have access to the common structure. They're not going to have access to the cladding into the piping, into the electricity. It's a bit of buyer beware situation when you buy real estate. And so if if you're concerned about Kitec, that is definitely a question that I would pose to the vendor that I would pose to the real estate agent. And you could probably get an inspector to come and try to reassure you.

But to go back to your question. If a potential purchaser, was to approach a board and have all sorts of questions with respect to, in this case, Kitec plumbing, I would likely refer the question back to the vendor. As you can imagine, if you have 500 units in the building, the corporation and its board, doesn't get involved in all of these transactions. Now, having said that, if you go back to the status certificate, if a corporation knows that it has Kitec and Kitec plumbing is known to be a problem, most corporations would be aware of the issue and have a budget to repair it.

They have to budget to either maintain them or coat them with some kind of a film or repair them or change them or whatnot. And so these corporations have to budget for that. And that would appear in the status certificate or in the reserve fund study. And you'd be able to get information about the reserve fund study. The reserve fund study is a projection. It's a budget for the next 30 years. How much is it going to cost for the corporation to repair windows, cladding, roofing, whatever it is, Plumbing would be one of them. In other words, you would be able to get information as long as the information is related to an eventual financial issue. And that's what is important, If there's a financial price tag associated with a problem that the corporation has, that corporation has to disclose that in the status certificate.


WT - So if there's Kitec, then the condo corporation would say, yes, there's Kitec in the walls and the replacement is coming in two years and that's built into this reserve budget. Right?

Rodrigues - Right. The reserve fund plan would have budget items for the next 30 to 40 years. And you'd have an item for concrete and one for plumbing, one for electricity and one for elevators. And so you'd be able to see that next year, or in 15 years from now, there's a hundred thousand dollars that's set aside for plumbing. And then you can look into that and you can ask questions, all these questions that you want to ask are really usually questions and answers that take place between the vendor and the purchaser through their real estate agent, or maybe their lawyers are involved. But to the extent that the condo corporation has an obligation to disclose something, it's limited to what is in the status certificate. And the status certificate would include budget questions, would include the reserve fund study questions, and that is truly what a purchaser would have to analyze. Okay, so what is the price tag associated to this condo down the line? Because obviously you don't want to buy a condo now at Price X. Budget that you're going to have to pay a mortgage and condo fees, only to find out six months down the line that there's a special assessment coming down the pike requiring every owner to give fifteen thousand bucks or whatever it's going to be. And so the purpose of the status certificate, is to provide this financial information. And so as long as the issue that's of concern to the purchaser is one that comes with a price tag, you'll be able to get information pertaining to that.


WT - That's a great answer, and I'll just move right on here. There's a building in Toronto that's 80 stories tall. It's in College Park. It's called the Aura. A water pump had failed in this 80-story building. Residents had no water for several days. The people who I talked to yesterday were saying that because of the incredible hassle, they had to get water in, waiting for hours for elevators to get up in this 80-story building. They want to know if there is some sort of way they can get compensated for not only the water, but their time, the hassle, the whole 80-story idea of a building with no drinking water. And it is sort of self-evident. And I wanted to get your opinion on kind of what they could do, if anything.

Rodrigues - Well, I can't answer questions specific to this building in that specific situation. But I'm going to say this, thing's happened, right? An electrical vault may blow up or catch fire or have a meltdown or some form of booster pumps can fail. There may be plumbing issues. The elevator may go down at one point in time.

So when you move into a building, there's some things that are a bit outside of everybody's control, but it sort of comes with living in a high rise building. Now, of course, the expectation is that the corporation will address these expeditiously, as expeditiously as possible. It's not going to be perfect. But you're expecting a certain level of service. You're expecting, since the job or the duty of the corporation is to manage to control and administer common elements, one of them is to manage control and administer the piping that brings the water to you and so on and so forth. So as frustrating as it may be for certain individuals, because they went without an elevator, they went without water, ultimately, they may be able to see if there's a recourse. I'm not sure how successful they would be in the sense that provided that the corporation and its directors have acted honestly and diligently and in good faith, they're not insurers. They can't guarantee a faultless lifestyle where everything's always going to be perfect. They can't guarantee that. And all they have to do is do their very best. They have to act honestly, diligently in good faith.

They have to exercise the care and the diligence of any other reasonable person in similar circumstances. That is truly the test. If the corporation is able to demonstrate that they took steps to deal with this and they acted honestly, diligently in good faith, there's probably not going to be much of a recourse for the disruption and for the pain and suffering and for the stress and the waste of time.

I'm not suggesting that they have no recourse, but you have to consider that if you go to court seeking damages, you need to demonstrate that someone is at fault. Someone needs to have been negligent. And the absence of negligence doesn't mean a perfect sunny day every day. It just means that when, you know, when it hits the fan, people are reacting honestly, diligently, in good faith, rapidly, depending on the circumstances.

If you think back to the major blackout in Ontario, some 15 years ago already, you can imagine that every condo corp was looking for a generator, every condo corp, was trying to find a way to operate their elevators. In that kind of situation, a court is going to give it more leeway because everybody is running around trying to figure things out. Right? So, again, I'm not I don't want to dissuade people from exploring and asserting their rights, but at the end of the day, I do know that condo living is not perfect. But you do expect that people will act, as I said, diligently, in good faith, honestly, they'll exercise the care and diligence that any other director would exercise in similar circumstances.


WT - Next question, according to Gary Wheeler from the Minister of Environment Ontario, there are 458 non-municipal year-around drinking water systems and some of them supply condos.

In one situation, the Canadian Press had to file a Freedom of Information request, and when the information came back on the system, what they were told in the report was that they couldn't find the name of the person who was supposed to fill out the water report, that they had no record of the date of the test and the results of the test either. And it turns out that there was lead found in the water. I was wondering if you might touch on what exactly this would mean a non-municipal year-round drinking system that supplies a condo. And why would the Canadian Press have to apply for freedom of information, to get water results.

Rodrigues - Again, I'm going to do my best to answer that, but I won't be able to speak to any specific case. Let me also start by saying I'm not very versed on non-municipal year-round drinking systems.

I'm not suggesting that they don't exist for condos, but I would expect it to be fairly rare. Also, I don't have a lot of exposure to condos that are not in an urban centre. I would expect though that there would be testing and reporting obligations. And so who would do these tests? A condo corporation is obligated to take reasonable steps to ensure the reasonable safety of those on the premises. So whether you need to clear the snow to minimize the risk of people slipping and falling, or whether your smoke detectors and CO detectors are in functioning order or the water that is not coming from the city is actually properly tested and is properly reported on. I would expect the corporation to be responsible for that and to be on the hook if in fact it turns out that some they're not doing the tests or not reporting properly or somehow not meeting their obligations under regulation that that I'm certain would exist at the provincial level.

So if there was such an issue, I would even expect that if there was a finding of liability or if there was a fine associated with that. I mean, water is a basic, basic, basic need. And so I'm sure there are stringent regulations that apply to water when it doesn't come from the municipality. And so, again, I would expect the corporation to be on the hook for that. Now, you did refer to the Freedom of Information Act, and I'm not too sure how that would apply here, because access to information is really something that applies when you're attempting to seek information from a government level. Access freedom of information is usually - and I'm not an expert in that field, so don't don't quote me on that - but it's not really applicable between two private entities. And so if the Canadian Press was seeking information, it was probably information that was held either at the municipal level or the provincial level.

Now back to the condo owners. You're an owner and you want information. You want to get, for instance, these tests, if they exist and you want to get these results, there's a regime under the Condominium Act that provides access to information the records. It's a fairly quick process. You file your records request and within 30 days you get a clear answer as to where things are going. And it in the instance where a condo corp is dragging its feet or not releasing the records that you're entitled to, there's the tribunal that can address that, and it's called the Condominium Authority Tribunal. And that is one of the main things that they do. They get an order. Usually it's the owner who complains and says, I've asked for these records, and that's the answer I got. And then you have a mediation and then you have a hearing. And eventually that tribunal will say it is a record or it's not a record and you ought to give it or you don't have to give it. And that's how it ultimately gets resolved. But owners do have a right to access records of the corporation. And if one of these records is water related or test related, you're entitled to it.



































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