The Silent Killer

Carbon monoxide is a silent killer – the poisonous gas cannot be detected by any of our senses. In recent years, there have been an increasing number of reported carbon monoxide poisoning incidences, many of which have resulted in serious injuries and/or death. The most recent reported incident occurred on March 16, 2014, when carbon monoxide claimed the lives of three family members who were found dead in their Brampton home.

Carbon monoxide detectors are considered one of the most efficient tools on the market for consumers to protect themselves against carbon monoxide poisoning; however, the installation of carbon monoxide detectors is not yet mandated by the Fire Protection and Prevention Act (the “FPPA”) or the Ontario Fire Code (the “Code”). Accordingly, the installation of carbon monoxide detectors has typically been mandated by municipalities in the past.

However, on November 27, 2013, the Ontario government passed the Hawkins-Gignac Act, which expanded the scope of the FPPA and Code to include carbon monoxide protection and prevention measures in addition to the existing fire protection and prevention measures contained in same. Although the amendments to the FPPA are known, the amendments to the Code have not yet been specified. However, it is presumed that the Code will be amended to include provisions regarding mandatory carbon monoxide protection and prevention measures similar to those currently contained in the Code pertaining to fire protection and prevention. Accordingly, it is believed that carbon monoxide detectors will be subject to the same Code requirements as smoke detectors, such that the installation of carbon monoxide detectors will be mandatory throughout the Province of Ontario upon the Code being amended.

The leading case in the Province of Ontario with respect to the obligations of condominium corporations under the Code is the 1999 case of R. v. York Condominium Corporation No. 60 (“YCC 60”). The Code provides that “owners” are responsible for carrying out the provisions of the Code, which includes ensuring the proper installation of smoke detectors in dwelling units. Thus, the central issue in YCC 60 was whether the term “owner”, as used in the Code, can be read to include condominium corporations as well as individual unit owners. The Court interpreted the term “owner”, as it is used in the Code, to include the owner of the dwelling unit at issue and the related condominium corporation due to the reality that fire does not respect the division of control within condominium law and because condominium corporations have a residual obligation under the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) to repair and maintain units, should owners fail to do so. Pursuant to this interpretation, condominium corporations have since been deemed to be “owners” under the Code and as such have an obligation to take steps to effect compliance with the provisions of the Code, including those provisions that pertain to individual dwelling units.

As it is presumed the Code will soon be amended to include carbon monoxide protection and prevention measures, which will likely be similar to the existing fire protection and prevention measures currently contained in the Code, the installation of carbon monoxide detectors will likely be mandatory throughout the Province of Ontario. Accordingly, once the Code is amended, condominium corporations throughout the Province of Ontario will likely have an obligation to take steps to ensure the proper installation and operation of carbon monoxide detectors in individual dwelling units.

However, as Sections 92 and 117 of the Act collectively provide that condominium corporations are obligated to take steps to ensure the safety of the property, including the individual dwelling units, condominium corporations arguably have an existing obligation to ensure that operational carbon monoxide detectors are installed in each dwelling unit. Therefore, prior to the anticipated amendment to the Code coming into effect, it is advised that condominium corporations take pro-active action in the interim by implementing rules that require owners to install and maintain carbon monoxide detectors in their units, as same would fall under their obligation to maintain their units pursuant to Section 92 of the Act. Accordingly, if an owner fails to ensure that an operational carbon monoxide detector is installed in their unit, the related condominium corporation would have an obligation to install an operational carbon monoxide detector in the unit pursuant to subsection 92(3) of the Act.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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