View Article
January 26, 2023 - By Elia Associates

The Gap in the Fourth Level of Government

To build upon the article presented Antoni Casalinuovo of Elia Associates and Bill Thompson learning from a tragedy: what amendments can be made to the Condominium Act, 1998, to protect the community [link to article here],  I wanted to comment on the tragedy in Vaughan and some of the lessons we really need to take forward with us.

In my opinion, we really need to understand the difference between the obligations of the corporation and issues that fall outside of a condominium’s scope of authority.  There is a statutory obligation to enforce.  There is no obligation or even skillset requirement to be able to assess a person’s mental well being.

This is the rub. There is a downloading of the obligation to enforce compliance to the fourth level of government but there are no resources in place to provide for an early assessment of mental health issues which may be getting in the way of a quick resolution.  This gap causes the dispute to escalate.

Most of us in the condominium industry endorse the quick resolution of a dispute before it escalates to a conflict because it can be essential to restoring our relationships.  As a trained mediator, I appreciate that we need to have a view of all the possible consequences of letting a dispute become a conflict.  To support the belief of de-escalation, why would we not then provide the government ( the Board) with access to  a mechanism to allow for early analysis of behaviour that does not fit a typical response pattern. While 22 years of condominium law practice, as made our team appreciate that people will have different opinions on compliance, there was clearly a boundary that was crossed by Mr. Villi’s behaviour. The reports I have heard or read seem to indicate that this individual was not well and that the “system” somehow had let him down. This happens more often than not in condominiums where we see people, in particularly aging or unwell people, being abandoned in a condominium community in isolation. There is no one there for this person to help them, to guide them, no “trusted” voice.  Thus, a further gap to effective communication is created. What do you do?

We need to realize that laws are made for people and they must be flexible.   I think that the Public Guardian Office’s role needs to expand and be adapted to today’s society immediately. Right now, in order for the Public Guardian Office to be involved, they need an assessment by a designated capacity assessor and/or order to deal with either (physical or mental) well-being issues and/or property issues due to lack of capacity. We have come through a pandemic; we have all evolved to using Zoom. Accordingly, we can evolve our systems to meet people where they are today.

Years ago, we never talked about mental health; now, we talk and are aware about mental health. This shows a shift in societies knowledge and acceptance of the reality that well-being is not just limited to physiological components of the human body. Therefore, if the Public Guardian’s Office was to be transformed, why could we not a have a fast-tracking process to obtain an order for an assessment? This could be based on application supported by affidavit evidence that would have to come before a judge of the Ontario Courts for determination. I think it is important to know the boundaries of a condominium corporation’s board’s skill set and those of lawyers, who are not qualified health providers. However, both parties are able to provide evidence to support a capacity assessment.  

Therefore, if we could facilitate quicker intervention through a capacity assessment and/ or with an application to insist that a party be represented by a qualified advocate, perhaps people would be better off in managing the dispute before it escalates to a conflict.

Accordingly, let us put together a list of requests for our legislators to formulate into the rule of law to assess and manage in a timely way situations which could have dire consequences:

  1. Keep director’s personal information out of the records for the Corporation.  You do not need to know where they live.
  2. Keep property manager’s information private.
  3. Modify the process of having a person assessed.
  4. Change the role of the Public Guardian and shorten the timeline for their involvement. and
  5. Use condominium resources and tax payer’s resources wisely so that no more costs are downloaded to condominiums through an indirect taxation scheme by the implementation of systems that unduly burden the taxpayer twice.

Patricia Elia is a senior lawyer with Elia Associates and has practiced law for over 25 years in the areas of condominium law and corporate law, in large, medium and the boutique specialty law firm of Elia Associates. Patricia is intrigued by the interplay of economics, the law and critical thinking models in condominiums and she likes to understand people. As a trained mediator, she understands the value of early and creative dispute resolution opportunities. As an active industry participant, she believes that the sharing of knowledge has the potential to empower Boards of Directors.