Update on The Silent Killer

Although the installation of functioning carbon monoxide alarms have saved thousands of lives in Ontario, the installation of same only became mandatory under the Ontario Fire Code (“Code”) on October 15, 2014, when the most recent amendments to the Code came into effect.

The recent amendments to the Code include mandatory measures aimed at carbon monoxide protection and prevention, similar to those long incorporated into the Code pertaining to fire protection and prevention. The amendments provide that carbon monoxide alarms must be installed adjacent to all sleeping areas in residential dwelling units that have a fuel-burning appliance or fireplace. The amendments also introduce new requirements with respect to the installation of carbon monoxide alarms in common element areas, specifically providing that carbon monoxide alarms must be installed in all service rooms containing fuel-burning appliances, and adjacent to all sleeping areas in residential dwelling units that have a common wall or common floor/ceiling assembly with a service room containing such appliance. Furthermore, for condominium corporations with storage areas and/or parking garages, the amendments provide that carbon monoxide alarms must be installed adjacent to all sleeping areas in residential dwelling units that have a common wall or common floor/ceiling assembly with any storage area and/or parking garage.

Although the amendments to the Code came in effect on October 15, 2014, condominium corporations and owners of residential dwelling units at condominium corporations are not yet required to comply with same as the deadline for compliance is being introduced in two phases: the deadline for compliance for condominium corporations comprised of up to six residential dwelling units and the unit owners of same is April 15, 2015; and the deadline for compliance for condominium corporations comprised of more than six residential dwelling units and the unit owners of same is October 15, 2015.

Although the amendments to the Code primarily concern the installation of carbon monoxide alarms in residential dwelling units, the amendments will affect condominium corporations. In this regard, we draw your attention to the 1999 case of R v. York Condominium Corporation No. 60 (“ R v. YCC 60”), where the issue before the Court was whether the condominium corporation at issue could be deemed to be an “owner” of the residential dwelling for the purposes of the Code. The Court held that the code did not follow the definition established in the then Condominium Act, R.S.O. 1990 and concluded that the term “owner” includes condominium corporations even though the inside of residential dwelling units are not controlled by condominium corporations. The Court’s interpretation of the term “owner,” as used in the Code, was based upon the fact that fire does not respect the division of control within condominium law being that condominium corporations serve as the “owners” of the common elements and that the unit owners serve as the “owners” of the residential dwelling units. Accordingly, the Court felt that it was necessary to interpret the term “owner” as used in the Code to include both the owner of the residential dwelling unit at issue as well as the condominium corporation. Since the Court held that the unit owner and the condominium corporation were collectively the “owner” of the residential dwelling unit at issue, the Court held that both parties were both responsible for carrying out the provisions of the Code. Thus, this decision, in conjunction with the amendments to the Code, means that condominium corporations, as the “owners” of residential dwelling units, will share responsibility to ensure compliance with the provisions of the Code, which mandate the installation of carbon monoxide alarms in residential dwelling units [even if this means ensuring that each unit owner completes the required installation].

Although condominium corporations are not yet required to comply with the amendments to the Code, condominium corporations should take proactive steps in the interim by implementing rules requiring owners to install carbon monoxide alarms as the obligation to do so arguably fall under an owner’s obligation to maintain their unit pursuant to Section 92 of the Condominium Act (the “Act”). Should an owner then fail to install a carbon monoxide alarm as required by the rules or the amendments to the Code, the applicable condominium corporation would have an obligation to do so on the owner’s behalf since subsection 92(3) of the Act provides that condominium corporations are required to do any work necessary that an owner fails to do, especially if said failure poses a risk of property damage or personal injury.

Condominium Corporations are advised to keep unit specific records concerning specific steps taken in relation to each unit to effect compliance in this regard.

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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