Sunday, 29 May 2016

Exploiting A Tragedy

According to the Newsletter of August 2015 published by The JMC (not the real name of the committee), it all started with the discovery, by one of the superintendents, of a “Window Safety Guard” in one of the recycling rooms of the complex. Being a clear “National Security” issue, and a highly sensitive file stamped “Top Secret Eyes Only”, The JMC did not reveal the name of the superintendent who made the discovery after scanning a dozen garbage containers in the recycling room, and did not provide the number of the building where the discovery was made. And no one managed to answer the puzzle as to why successive superintendents failed to make such a discovery during the last decade when more than 50% of unit owners in the building had non-existent latches.

I am not sure if the Committee members who prepared the newsletter were so shocked by the horrific incident of July 18, 2015 that resulted in the tragic death of a four-year-old boy, that they failed to agree with The Management Office on the proper technical term to be used, and subsequent notices released by The Management Office, referred to the same component as Latches, thus creating in the minds of many unit owners the impression that the part at stake is an external device “that holds a door, gate, or window closed and that consists of a bar that falls into a holder when it is closed and that is lifted when it is open.”

The inspections and the subsequent retention of the services of a contractor to replace missing window latches/safety guards were based on the following justification:
”…the Corporation is taking reasonable steps to ensure the safety latches are in good working order.  After the death of a child who fell out of a window at another high-rise building, the Board feels this is an important safety and insurance issue.”(Email 11/1/2015)  
This crucial point was reiterated and reemphasized again by the Senior Property Manager, in an email dated 11/2/2015:”I am not a lawyer but I know the Corporation is expected to take reasonable steps to protect life safety.”  

How reasonable were the steps taken??? Were the decisions adopted based on the proper understanding of the circumstances that paved the way for the death of the child??? To answer the two previous questions let us review the big picture of the incident based on information collected from media reports and the official news release of The Toronto Police Service detailing why the unit owner/host/legal tenant was not the subject of any criminal charges. 

Facts-The four-year-old child Ramy Salih was a visitor of the “Rental Building” where the fall took place. He was playing with other kids in a bedroom where no adult was present at the time of the fall. The window was open to allow fresh air on a hot July day, and the metal mesh screen, used to prevent flies and mosquitoes from entering the unit was removed to accommodate an air conditioning unit that the child’s aunt was planning to install. According to other children who were playing with Ramy in the same room, Ramy climbed a bed placed parallel to the window, and that is how the rest of the tragedy unfolded. The fact that the window did not have a latch had no relevance to Ramy’s death; the window was wide open  without any obstruction prior to the incident to accommodate an air conditioning unit.

After the exposure to the management’s argument that the issue of latches is an important “Safety and Insurance” issue, I contacted several fellow unit owners who renewed their home insurance policies after the incident of July 2015, none were advised by their insurance companies to replace missing latches or repair damaged existing ones, or face increases due the high risk lawsuits that may possibly develop if a visiting child falls to his death from their unit.

Also, I subscribe to 3 newsletters published online by law firms that confine their practices to condo law only, and none issued warnings advising their clients to inspect, change, or upgrade window latches in condo units. And when The Board was challenged to provide the name of the lawyer who indicated to decision makers that they have a legal obligation to replace missing latches, the following reply was received on 4/1/2016 from the Management’s Office: “I do not support spending owners' money on obtaining a legal opinion when there is no opinion necessary.”
The next day (4/2/2016) I replied to the previous Management’s statement with the following email: “I totally endorse your resolution to avoid spending owner's money to obtain a legal opinion. You are a professional with considerable expertise and years of practical experience that will allow you to form your own legal opinion without any assistance from a lawyer.
But respectfully I would like to remind you that if you ask any lawyer about what is considered a "Common Element" in any dispute involving an owner and The Board, his/her first statement will be "I have to consult Schedule "C" of the declaration. If Schedule "C" does not declare an object of a dispute as "Common Element", then it is not a "Common Element"…” In our building’s DECLARATION the fixed elements of the window are within the jurisdiction of The Board, but the moving parts (sliding windows) are not included in the details.

Now let us review the key points of this tragedy from a statistical point of view. I have been living in the GTA for the last 36 years and Ramy Salih’s tragedy was a unique isolated incident due to a bad judgement call made by his parents (allowing him to play without any adult supervision in a room with a fully opened window). What are the chances that the GTA, with its population of 4.5 million inhabitants, will see a similar tragedy during the next 35 years? Chances are 1 in a million.

How many unit owners in our building will remove the safety latches and the mesh metal screen to accommodate an air conditioning unit? The answer is zero. We have a central air conditioning system in the building, and no unit owner, no matter how much his/her apartment is affected by the summer heat, has any reason to purchase an additional window unit.

How valid is The Board’s argument that “…the Corporation is expected to take reasonable steps to protect life safety.” In my next article I will explain how this legally valid expectation is selectively applied, especially when you see children exposed to second and third hand smoking in the playgrounds near the tennis court, from smokers who gather inside the gazebo and spew the poisons of their smoke in the immediate surroundings, and despite the fact that several times during the last five years submissions were made to install cameras, decision makers were so worried about the well being of the children in our complex that they categorically refused to install any cameras because it undermines “The sense of community” in the complex. 

For some strange reasons the cameras (more than 40) installed in all the common areas of the complex enhance “the sense of community”, only the one badly needed camera to safeguard the health of our children ruins this vaguely defined sense of community. Remember what happened last year. Our garbage room received a camera, because it was costing The Board some $3.000 a year to get rid of large objects left behind by irresponsible unit owners. So The Board invested approximately $4.000 in a camera and a magnetic reading card to go after unit owners who abuse the system, but installing a camera to go after smokers who ruin the health of our children is out of question.

In conclusion, thousands of dollars were spent on the latches/window safety guard project. Was the collective well being served efficiently? Did the money invested in the project provide the highest benefit to the highest number of unit owners, or simply made a rich contractor richer? You decide.

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