New Elevator Bylaw an Interesting Use of Municipal Property Standards Powers

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If you live in a six storey or less building in Hamilton, your elevator isn’t a requirement of the Building Code and is classified as an ‘convenience feature’ for the purposes of the Code.

Buildings taller than six-storeys are required to have one fire-rated elevator operational at all times under the Fire Code of the Fire Protection and Prevention Act, and the Fire Department can issue orders when a building owner fails to comply with this Act.

This means the City cannot order an immediate repair of broken elevators in low-to-mid-rise buildings under six-storeys. (The same applies to second elevators in taller buildings)

Low-Rise Elevators Not a Vital Service under Provincial Law

The Hamilton Seniors’ Advisory Committee (HSAC) asked Council to add elevators to the Vital Services Bylaw, the same bylaw which requires building owners to provide heat, water and other essential services.

The City’s Vital Services Bylaw is enacted under Part XIII of the Residential Tenancies Act (RTA) and empowers the City to immediately restore vital services in residential buildings when a landlord fails to maintain them, adding the cost onto the property tax bill.

HSAC, and many members of City Council, would like to see similar action for broken elevators. A broken elevator is a serious problem for tenants, trapping them in their apartments, and delays paramedic responses.

“We had issues I brought up respectively around continence issues happening with people being stuck in the lobbies without access to restrooms,” Green told the planning committee when debating the new bylaw.

While the Council wishes to use the more powerful Vital Services Bylaw, they cannot because the RTA defines “vital service” as meaning “hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat”.

Elevators as a Property Standards Requirement

While Council cannot regulate elevators as a vital service, they can regulate it as a property standards matter.

Section 15 of the Building Code Act gives the City powers to prescribe ” standards for the maintenance and occupancy of property within the municipality” and require “property that does not conform with the standards to be repaired and maintained to conform with the standard”.

This week’s motion, once ratified by Council, will require that buildings of six or less storeys with an elevator must maintain it in good working condition. (Again, taller than six stories falls under the Fire Code)

The maintenance of elevators is required under Ontario Regulation 517/06 which supplements the RTA.  On the surface this seems like a redundancy, but there is a big difference with the new bylaw, it enables the municipality to act.

What if a landlord doesn’t want to repair their elevator?

Under property standards, the City can issue an “Order to Comply” against the landlord instructing them to make a repair. The owner will have a 19-day period to comply, or they can file an appeal of the City order.

Whereas, with , individual tenants must file a complain to the Landlord and Tenant Board (LTB) at their own expense. The recourse, once the Board process is complete, is the tenant may receive a partial refund of their rent in compensation. The LTB is unlikely to enact the repair itself.

Whereas, with the by, the action is taken by the city at no expense to residents and if an owner fails to comply, can the City step in and hire a contractor to repair the elevator, placing the cost of the repair onto the landlord’s property taxes.While both processes don’t repair the elevator immediately, it’s clear the municipal process is favourable for the tenants both in its lack of cost and its ability to enact the repair.

The Limited Power of the Municipal Government

Which brings us back to a theme that is becoming common this term of Council – municipalities are creations of the province and only able to exercise powers granted to them by the province.

The inclusion of elevators into the Property Standards By-law is an interesting maneuver by the Council, an extension of their limited power to make a clear statement to landlords the City will not tolerate non-operational elevators.

Council to Look at Second Elevators

Councillor Green stated he is interested at expanding the property standards requirement to include second elevators, where the new, soon to be current, bylaw only requires one be operational.

If Green moves forward with this initiative, it will cover the issue of taller buildings with non-functional elevators.

The Public Record will watch with interest as this file moves forward.

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