Four Important Facts to Know about Having a Live-in Superintendent at Your Condominium

Many condominiums have a superintendent who resides, as part of their employment contract, in a suite owned by the condominium (or which is part of the common elements, controlled by the corporation). As the employer, the condominium corporation should be aware of some key issues that shape this role and will affect the decision making process in the hiring and termination of a live-in superintendent.

1. Your condominium corporation is an employer and the superintendent is an employee

You may or may not have a written employment contract. Ideally you should have a written contract to clearly define the employment terms. Even without a written contract, there is still an employment relationship that triggers many legal responsibilities that come with being an employer. In Ontario, the employment relationship with your superintendent is governed by the Employment Standards Act (“ESA”) and the common law. The relationship is also defined by the terms of the employment contract. Key legal requirements to be aware of as an employer include termination obligations, hours of work, and vacation time and pay.

2. Human rights and workplace safety

An employee has human rights protection from discrimination under the Human Rights Code in Ontario. An employer also has mandatory obligations to prevent workplace violence and harassment under health and safety legislation. These protections exist at the employee’s workplace, which in the case of a live-in superintendent, is the condominium property. Anyone with whom a superintendent has to interact at the condominium should be aware of the condominium corporation’s policies against workplace discrimination, harassment and violence. If the board of directors or management receives notice from an employee about experiencing discrimination, harassment or violence, immediate action will be required.

3. An improper termination can lead to wrongful dismissal/human rights claims

If your condominium corporation is considering terminating its employment relationship with a superintendent, the board of directors should obtain professional advice on the proper methods for doing so, including best practices for conducting a termination meeting, the law regarding termination pay and notice requirements, and how to best protect the condominium corporation from a wrongful dismissal or human rights claim by the terminated employee.

4. What if the former superintendent will not vacate the suite?

If you are ending your employment relationship with a live in superintendent, and intend to hire a new live in superintendent, be aware that if the outgoing superintendent does not vacate the suite as required under the Residential Tenancies Act, it might take weeks to obtain an eviction order at the Landlord and Tenant Board, and then enforce that order. Be cautious about promising a date for living accommodations under a new contract for an incoming superintendent unless you are confident that the former superintendent will have moved out by the date specified at the time of dismissal.

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New WSIB Issues for Condos

Under the Workplace Safety and Insurance Act (the “WSI Act”), condominium corporations can now be liable for a construction company’s unpaid WSIB premiums.

Amendments to the WSI Act have made it compulsory for almost all construction workers to have WSIB coverage, including independent operators, sole proprietors, and most executive officers and partners in construction firms. There are certain exemptions, but in most cases those exemptions won’t apply to workers hired by a condominium corporation.

Before hiring someone to perform construction work, a condominium corporation will have to obtain a clearance certificate from the WSIB confirming that the worker is registered and is in good standing with the WSIB. There is no fee to obtain the clearance certificate.

It should be noted that the condominium corporation will only be responsible for obtaining clearance certificates for contractors and subcontractors it hires directly. If the contractor then retains any subcontractor(s), the contractor is responsible in relation to the subcontractor(s).

The clearance certificate can be obtained by either the condominium corporation or the contractor – but the condominium corporation must obtain a copy. The condominium corporation can also include a term in the contract requiring the contractor to obtain and supply a current WSIB clearance certificate prior to commencing work.

Note as well that each clearance certificate is time-limited (up to 90 days). An updated certificate must be obtained when a given certificate expires (even during a particular project).

Condominium corporations that fail to obtain clearance certificates before hiring construction firms or independent workers expose themselves to liability. Under the WSI Act, the WSIB can hold the condominium corporation liable for a contractor’s unpaid premiums to the WSIB (if no certificate has been obtained).

In rare cases, there may also be offence sanctions for not obtaining a clearance certificate which could result in penalties of up to $100,000 if convicted.

Condominium corporations also risk civil liability and could be held liable for a worker’s injuries if a worker is injured while performing construction work and the contractor does not have WSIB coverage.

In addition, in certain circumstances, the condominium corporation may still be sued if, even after obtaining a clearance certificate, a worker is injured on condominium property and the injury was clearly caused by the condominium’s negligence. The injured worker may elect to sue the condominium corporation rather than claim WSIB benefits.

In order to avoid risk of civil liability, condominium corporations should apply to the WSIB for coverage. If the application is accepted, the condominium corporation will be registered with the WSIB and will begin payment of premiums to the WSIB. Injured workers will not be able to commence an action against condominium corporations that are registered with the WSIB.

The WSIB will not be enforcing the new requirements until December 31, 2013, but that date is fast approaching…

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