March, 25 2021 Published by Huronia Chapter - By Patricia Elia
Condos, Covid, and Compliance
From the CCI Huronia Spring 2021 Condo Buzz Newsletter
Toronto Standard Condominium Corporation No. 1704 recently brought an application to prevent Ms. Fraser from continuing repairs, contrary to its policy. Ms. Fraser's unit was flooded during plumbing repairs in early 2020 and she requested permission to repair the damage to the floors of the unit. The request seemed logical…. except for two things: a pandemic and the Condominium Corporation’s COVID-19 policy and protocols.
The Condominium Corporation refused permission due to missing documentation at the outset. In May 2020, the Condominium Corporation had implemented a policy to restrict repairs to units in response to COVID-19. A notice was sent to all unit owners which said “currently, contractors are not allowed to work in-suite unless it is considered emergency or essential services”. Between May and July 2020, Ms. Fraser made further applications to repair the floors, but all were declined under the policy. “What about my floor?” pondered Ms. Fraser, “I did not start the flood that caused the damage!”
The Court in analyzing the evidence found that the Condominium Corporation's policy was valid and was enforceable. The actions of the Condominium Corporation were not found to be unfair, unreasonable or prejudicial towards Ms. Fraser. Ms. Fraser's repair was not an emergency or essential service and was not necessary in the circumstances. The Court also found that the Condominium Corporation had been consistently enforcing its policy.
The Court found that although a reasonable policy can become unreasonable if it is in place longer than necessary, it was not the case for this circumstance because of the continuing prevalence of the pandemic. The Court also confirmed two important principles:
1. The timing principle: a Condominium Corporation is not required to amend its policies at the same time that the government bodies lift their emergency orders; and
2. The restrictiveness principle: Restrictions adopted by a Condominium Corporation may be stricter than those in place by government bodies so long as those policies are reasonable.
Both of these concepts are important in the context of ensuring that Condominium Corporations effect reasonable policies.
Condominium Corporations are private residences. They are governed by the Condominium Act. Declarations, bylaws and rules. Within those parameters, the Condominium Corporation has the ability to make decisions in the operations of the Condominium Corporation that ensure that the environment itself is safe. Section 117 speaks to the Condominium Corporation being positively obliged to ensure that no dangerous condition exists that could cause harm to property or to persons. The pandemic is a real measurable pandemic.
This means the Condominium Corporation has a positive duty as we have seen across the Province, to keep facilities clean, minimize or eliminate transmission by managing amenities in a way to as reduce spread or eliminate spread of the virus and to manage people that come into the premises. Everybody including construction workers, renovation or flooring experts all present a risk when they enter into the Condominium Corporation. Nobody exactly can tell you where the flooring expert has been in the last 12-14 days. This is why the use of policies that identify and address risk are the strong foundation for compliance being upheld.
So what do the foundations look like? Temperature check and a questionnaire that is done concurrent to the time that somebody is going to attend on the site. The assessment of competing risks: a floor, which is not essential versus, the less people in the building, the better it is for the community, is also a must.
The people who belong in the Condominium Corporation are, of course, the condominium residents. After that, everyone else should be prioritized based on need and function in the overall scheme of the operations of the Condominium Corporation. One owner’s floor cannot trump over projects that must be done to ensure the integrity of the building or lands.
If you have 15 projects and not all of them are equally important and you can only do five because of timing and cash, you will pick five out of the 15 that need to get done. This is when you are looking at resources generally. COVID-19 adds another layer to this thinking which is, how much time do you have, how much money do you have and which is going to present the least risk to the community and which is essential. If you have workers that have to do construction work on the buildings, which is a must because assets are failing. That means you are going to have and manage construction workers on site who increase the risk of transmission and hence the number of people that can expose your community to the risk. So accordingly, you are going to eliminate those nonessential construction workers or renovators or people because they are essential.
In Ms. Fraser's case, replacement of the floor was not essential. If water had been flooding into her unit, yes that would have been essential, but that was not the case here.
Condominium Corporations need to have good COVID-19 policies in place that makes sense for the community backed up by sound critical thinking and risk management strategies. This means resource investment into additional cleaning protocols, if there is going to be a degree of openness or permitted behaviours that further transmission. Remember Condominium Corporations are occupiers for liability as well. Boards of directors should also be passing resolutions that are detailed enough to outline the critical thinking of the Board and should be looking at these policies on a regular basis to make sure that they still have application and that they are reasonable in the circumstances to manage the risk of virus transmission and Boards should have very clear policies about in suite renovations.
Finally, enforcement is key, having a policy and not implementing it, is in my opinion, a recipe for failure. Policies must be enforced consistently. Legal budgets must address these costs of doing business. Thus, keep the policy simple and enforce it consistently and revise it as necessary. We appreciate it has been a long road for many and that we are not out of this yet. Until we have immunization across the Province, this will be the circumstance under which condominiums must be making well informed and intelligent decisions for their communities as a whole, not for the interest of just one person. Do what is best for your community, stay safe!
Condominium Lawyer - Elia Associates
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