In the Condo News report of March 14, 2013, the following was stated: “Window replacement policy will follow that of the Condo Act, which means owners will replace their windows at their own cost”.

The board has clearly misinterpreted the provisions of the Condominium Act in this regard which read as follows:

C-26.1 CONDOMINIUM PROPERTY, 1993 (2) With respect to condominium plans registered before the coming into force of this section, the common boundary of one unit described in a condominium plan with another unit or with common property is an imaginary line drawn equidistant between the two lateral surfaces of the floor, wall or ceiling, as the case may be, unless the condominium plan stipulates otherwise. 1993, c.C-26.1, s.8..

The condominium plan does in fact stipulate otherwise: Unit Boundaries and Areas For Levels 1-13

(B) Horizontally

” From the Unit Side of exterior concrete masonry walls, block surfaces or INSIDE EDGES of the glass windows of walls separating a unit from the adjacent balcony common area, to the unit side of concrete masonry walls, block surfaces, or center lines of walls (where indicated)”.

In other words, place your hand against the window. Whatever is beyond your hand is common property and the responsibility of the Corporation.

On the registered plan of the building, these front window walls are clearly illustrated. Window walls are very common in high rise buildings. Over many years in this building, the Corporation has always respected the bylaws and the Condominium Plan whereby windows have been replaced by the Corporation as a common area expense.

The minutes of the August 30, 2005 board meeting clearly outline expenditures from the Common Expense Fund including one commercial and five residential front windows. The cause of damage to the commercial window was vandalism whereas the damage to residential windows was deemed to be stress related.

Shortly after this board meeting, the Annual General Meeting was held on September 26, 2005. In the Chairman’s remarks, the following is stated:

“The building’s front windows are repaired by the condominium corporation”.

At the board meeting of July 15, 2008, the following was stated under general business: “There was discussion on caulking the balcony windows. Board feels that any capable contractor should be able to perform this job. Board requested that Colliers call Lydale, Regal and Wells construction companies to obtain quotes. Ten floors need caulking.”

Further building committee reports specifically reiterating the need for management to attend to the repair and preventive maintenance of the front windows and above facing, were presented over the following year. Unfortunately, no repair or maintenance has taken place since.

In the “Building Management and Operations” report of May 15, 2009, the following statement is made:

“The following are some current matters requiring the immediate action of management: A quote should be obtained for repair to facing above the front windows and related work in a number of units”. Again, nothing has ever been done. This deferred maintenance will prove to be very costly.

In May of 2012, unit owners were provided with an updated handbook. The following statement is included in this handbook:

“Common areas including the lobby, hallways,exterior walls, doors and WINDOWS, hallway doors, balcony floors and walls, laundry rooms, elevators and stairwells, indoor parking garage and the building structure, are owned by the Condominium Corporation and are the responsibility the board”.

As is the case with this building, many window wall systems still rely on a prime seal (caulking and tape) to keep out the weather and minimize deflection. The problem is sealants crack and deteriorate over time, causing moisture problems and the potential failure of the window unit.

Finally, the following excerpt from a recognized Canadian legal publication, clearly endorses and supports this common practice in other provincial jurisdictions as well.

By: Gerry Hyman Condo Law Columnist, Published on Fri Apr 22 2011

Q: My highrise condo has a large double glass window. The interior pane cracked and a contractor advised that the crack was not due to misuse but to building stress. Our declaration states that the maintenance and repair of windows is the obligation of the corporation. The board maintains that the broken window is my responsibility because the crack is in the interior rather that the exterior pane. Is the board correct?

A: The two panes are part of the window and in virtually every highrise building windows are a common element and repairs are the obligation of the corporation. The fact that the crack is in the interior pane is not relevant.

In conclusion, the board must recognize the Corporation’s responsibility and obligation to provide regular maintenance on these front window walls. This maintenance has been deferred far too long and must be addressed immediately. Any required maintenance, repair or replacement is clearly the responsibility of the Corporation.

In a report to unit owners in April of 2009, a recommendation was presented to unit owners for the installation of a new hot water heating system versus new steam boilers. It was stated that the installation would result in annual operating cost savings of $35,800. With these substantial savings, it was projected that a recovery of the investment or “payback” would take 7.35 years.

Unfortunately, the board adopted this recommendation, and proceeded without an appropriate resolution of unit owners. This installation did in fact proceed without any respect or recognition of the proposal previously approved by unit owners which did in fact receive the necessary support as is required by the bylaws.

As we now know, this “alternative proposal” did in fact NOT result in promised annual savings of $35,800. In fact an ANNUAL INCREASE of approximately $17,000 in energy costs has been incurred in each of the last two calender years, 2011, and 2012.

There will obviously be no opportunity for the promised “payback” or recovery of this investment. In fact, Spadina Towers has incurred an accumulated increase in energy costs since the installation of the new hot water heating system of approximately $50,000 .

It should be of interest to residents that in April of 2012, this unfortunate decision was challenged in a court of law. The court wrongfully accepted this misleading position of the board of directors, that the corporation saved $42,000 in total net energy costs in the first year following installation of the new hot water heating system. Even with a submission of all monthly energy cost receipts supporting the ACTUAL and most dramatic cost INCREASES, the court proceeded without review of this factual evidence and accepted  the purported savings endorsed by Mr. Goldstein. In fact, the court dismissed the case with a judgement accepting this false and misleading information provided by the Spadina Condominium Corporation and its board of directors.

It is hoped that residents will recognize this injustice and support a request for a detailed analysis of energy costs from the board including receipts substantiating this declared saving of $42,000. Hopefully, some of our astute, responsible and principled residents are prepared to support this request.

Had this project proceeded as originally approved, not only would residents have two thirds of their cash contribution still in their bank account, but they would of course be realizing substantial savings in operating costs. There would certainly have been no need for such a large cash contribution, a depleted reserve fund, and an increase in condominium fees.

There are very obvious lessons to be learned from this most unfortunate fiasco. The board must only be permitted to proceed with such projects after demonstrating that they have sufficient knowledge and understanding of the matter and of course, must obtain the required support of unit owners as is stated in the bylaws of the Corporation.

Further, the board must be held accountable for the serious impact of the unneccessary cost burden placed upon unit owners. An audited financial report is an obvious starting point.