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The legalities of emergency management

Understanding the law to minimize the impact of a disaster
Thursday, December 13, 2012
By Andrea Lusk

Emergency management includes four interdependent risk-based functions, according to Public Safety Canada. These are: prevention, preparedness, response and recovery.

Condominium corporations have a statutory duty to control, manage and administer their common elements and the assets on behalf of unit owners. Condominium managers and boards should routinely consider prevention, preparedness, response and recovery, and how their buildings would fare in the event of a disaster.

Prevention
The best way to deal with an emergency is to minimize the risk of one occurring.

The condo board should ensure the condominium’s technical audit is current and comprehensive, and the building’s components and systems are maintained in accordance with all regulatory and insurance requirements.

A condominium property and its components should be in compliance with the fire code, the building code and other applicable legislation, regulations and bylaws. The Technical Standards and Safety Authority (TSSA) regulates elevating devices, and provides education and risk reduction information to interested parties. Similarly, a municipal fire inspector can speak to managers, boards and owners about fire safety.

Fire alarms, intercoms, smoke and carbon monoxide detectors, and other equipment should be present on the property and periodically tested. If a resident or employee has a disability, managers and boards should ensure that appropriate accommodation is made so the individual can be properly notified of any emergency or service disruption, and that a plan is developed in consultation with the person to deal with such situations.

A condominium corporation may consider installing video cameras and monitors, panic buttons, increased lighting in dark areas, door locks and security access cards to prevent assault and vandalism. “Decoy” security equipment is not recommended – if a person is injured or property damaged while that equipment is assumed to be operating, a corporation can face liability. It is also important that security staff is trained and knowledgeable to adequately respond to emergencies.

Preparedness
A procedures manual containing policies for fire safety, emergency, medical, containment, flood, evacuation and communication should be established by the board and reviewed on a yearly basis. While managers, board members and security personnel should be familiar with the procedures and have a copy at hand, the manual should also be available to all unit owners.

Contact information for the closest police and fire station, hospital and the corporation’s insurer should be listed. A resident list with contact information that notes any units where accommodation may be necessary should be inserted in the manual. This will assist in ensuring all owners are accounted for in case of an emergency.

The board, manager and any security personnel should have designated emergency response roles, and their contact information should also be available in the manual.

Individuals should know their jobs in advance so an emergency can be dealt with smoothly. Presumably, the property manager and security staff will always be on emergency call. However, designated back-up personnel should be available. Sets of the as-built structural plans, unit and common element plans, and master keys should be maintained on-site and off-site. They should be readily available to designated directors or individuals.

Emergency escape diagrams and notices should be posted on the property and fire extinguishers, hoses and sprinkler systems should be regularly tested. Fire drills can be conducted in cooperation with a corporation’s local fire department.

Boards and managers should be familiar with the corporation’s insurance policy and make sure valuation of the common elements and assets is up-to-date. A standard unit bylaw will also clarify whether an owner or the condominium is responsible for insuring certain components and improvements within a unit, and can also be used to extend circumstances by which a unit owner is responsible for cost, loss or damage caused by an act or omission. Unit owners should be aware of the limits of the condominium’s insurance and arrange their own policy for improvements, contents, public liability, deductible loss coverage and loss of use.

Response
In the event of a disaster, residents should leave the building immediately after an alarm is sounded and be well aware of the evacuation procedures. Doors and windows should be closed and valuables should be left behind. Residents should make sure all occupants of their unit leave. Infants and pets should be carried. Elevators should not be used.

A designated meeting spot close to the property but far enough away so as not to impede emergency personnel should be chosen and communicated to residents in advance. Management, the board and other designated personnel should choose a command post in advance and keep in contact to ensure each person is carrying out their designated role.

A designated individual should meet with police and/or fire officers to coordinate actions and priorities. These emergency responders should be advised of the location of the disaster, any other hazardous situations and residents that are unaccounted for. Access cards and keys may be provided at the instruction of an emergency responder. It is important to cooperate and not obstruct an official in the course of their duties.

Staff, residents and others should refrain from discussing the situation with media. A designated individual should address media inquiries. Unnecessary information should not be volunteered and, ideally, statements should be made by, or cleared with, the corporation’s lawyer.

The Ontario Condominium Act permits entry to a unit upon reasonable notice and most condominium declarations have provisions allowing emergency entry. Managers and board members accessing units in an emergency should try to be accompanied by a witness to record and confirm entry activities.

Except where a unit owner or resident is present to consent to entry, a police officer should not be allowed into a unit without a search warrant. On the other hand, firemen are permitted entry in an emergency without a warrant. Provide officials with whatever information is necessary to prevent injury, damage or liability but remember the disclosure exceptions in the Act. When the disclosure of excepted information is requested, seek legal advice (if possible) to ensure owner or corporation information is not disclosed.

Evidence should be recorded before it is lost or forgotten. However, nothing should be moved or touched without clearance from officials. Photographs or written records should be kept of unusual or important events and individuals, including written statements from key witnesses (with names and contact information) and a log of the corporation’s decisions and actions.

Take a roll call of residents and convene an immediate information meeting with residents and officials. If occupants are required to live off-site for a period of time, their temporary contact information should be obtained so they may be advised if anything is required of them. A follow-up residents’ meeting should be scheduled for a time when more information is available.

Recovery
If a worker is injured, call the Ministry of Labour. To preserve insurance claims, notice of the claim should be given to the insurer as soon as possible and proof of the claim must be filed before any limitation period expires. The corporation’s lawyer and insurance agent should review the insurance policy and corporation’s insurance trust agreement immediately to ensure compliance with certain conditions and exclusions.

Once the dust has settled, the board and management should meet to review the situation and determine a course of action. In the event of substantial damage to the property (where estimated cost of repair is equal to or exceeds 25 per cent of the replacement cost of all buildings and structures on the property), the board may take steps to terminate the condominium or must repair it if owners do not consent to termination.

Andrea Lusk is an associate lawyer at Gardiner Miller Arnold LLP, a condo-focused law firm in downtown Toronto. She can be reached at [email protected].

2 thoughts on “The legalities of emergency management

  1. I live in a 40 year old condo building that is starting to break down. We have always had an on call emergency person on site to take care of issues that crop up unexpectedly. Since new management has taken over, there is no one within half an hour to respond to any emergency. Our on site person is gone. As we have had three major water leaks in the past year due to old and worn out plumbing, I am terrified that the next leak will be catastrophic without immediate attention.

    Are they within their rights to not have someone on site for emergencies?
    What can I do to convince our new management that their decision is wrong?

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