Legal

September 22, 2021 Published by Golden Horseshoe Chapter - By Patrick Greco

Upcoming Condo Act Changes

From the Fall 2021 issue of the Condo News Magazine of the Golden Horseshoe Chapter of the Canadian Condominium Institute

It has been a rough time for everyone over the past 18 months of the COVID-19 pandemic. Beyond the very real risk of illness and the mental health impacts caused by the waves of closures, COVID-19 has also brought with it tremendous administrative burdens on business, institutions and other organizations.

Condominium corporations are no exception. Boards and Managers have had to pore over confusing and at times seemingly contradictory legislation, guidelines and regulations to ensure not only that their communities were safe but also that they did not run afoul of the law and expose the condominium to penalty or liability. Making all of this more difficult than it needed to be was unclear messaging from various levels of government about whether different requirements even applied to condominiums. For some purposes, condominiums were treated like any other public organization while, for others, they were treated as private residences and exempt from certain restrictions.

With the roll-out and broad uptake of vaccinations, many condominium residents are looking forward to – and indeed expecting – re-opened amenities. But this too comes with more legal questions for Boards and Managers to wade through. Below are comments on some of the most frequently-asked questions coming from our condominium communities. 

Can we re-open our amenities?

Yes, subject to applicable provincial and other requirements and guidelines on things like masking, capacity, social distancing and cleaning, most condominium amenities can re-open.

Do we have to re-open our amenities?

Throughout the pandemic, even when certain amenities could legally be open, many Boards chose to keep them closed. As with many protective steps, this was done under section 117 of the Condominium Act, which requires that, “No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.” Most lawyers in the condominium industry agreed that this gave Boards discretion to enact policies and closures to deal with COVID-19, even where there was no explicit authority for them in the declaration, by-laws or rules.

However, most condominium residents understandably now expect that their buildings will follow the lead of public gyms and restaurants and re-open their fitness facilities, party rooms and other non-essential amenities. Many vaccinated residents, tired of being shut in for a year and a half, are willing to subject themselves to a carefully managed COVID-19 risk in order to regain a sense of normalcy in their lives.

A particularly at-risk condominium community may still try to maintain stricter conditions than society at large, but may face pushback for doing so. Every Board must carefully decide what is best for its residents.

Can a Corporation be found liable if a resident contracts COVID-19 in the amenities or elsewhere on the common elements?

A glint of legislative light amid the pandemic darkness can be found in Ontario’s Supporting Ontario’s Recovery and Municipal Elections Act, 2020, more commonly known as “Bill 218”, which has been in force since November 20, 2020. Section 2 of that statute provides:

2 (1) No cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if,

(a) at the relevant time, the person acted or made a good faith effort to act in accordance with,

(i) public health guidance relating to coronavirus (COVID-19) that applied to the person, and

(ii) any federal, provincial or municipal law relating to coronavirus (COVID19) that applied to the person; and

(b) the act or omission of the person does not constitute gross negligence.

So, as long as a condominium makes a “good faith effort” to follow all applicable COVID-19 laws and guidelines, it cannot be sued if a resident or other individual is infected with COVID-19 on the property. This should come as a huge relief to the vast majority of condominium communities who have been trying their best to follow the law.

There are a few notable exceptions. Bill 218 does not confer protection if a condominium’s conduct constitutes “gross negligence”. This is a legal term meaning “extreme negligence” or a significant departure from expected conduct. The other key exception for condominiums is that Bill 218 does not protect a condominium from claims from its employees or contract staff. In this regard, a condominium corporation can still protect itself from liability by following all applicable workplace health and safety guidelines. The Ontario government has published helpful resources for workplaces at: www.ontario.ca/page/covid-19-occupational-health-safety-act.

Should we make residents sign a waiver before using the amenities?

Many Boards would feel more comfortable if their residents were made to sign an explicit waiver of COVID-19 liability before they are permitted to use the amenities. However, it is important to realize that Bill 218 already does what any good waiver would do – protects the condominium against liability from a resident using a reasonably well-run amenity. If the condominium is carefully following COVID-19 guidelines, a waiver is not going to offer more protection. On the flip side, if a condominium is badly failing to follow COVID-19 guidelines, to the extent that it could be deemed “gross negligence”, then neither Bill 218 nor a waiver will save it from liability.

Another factor to be considered is what if a resident who is otherwise fully entitled to use the amenities refused to sign a waiver? In the writer’s view, the condominium’s position would likely not be upheld as reasonable in court.

An easier way to ensure that safety guidelines are understood by residents is to circulate them to all owners and residents electronically and post clearly legible copies of them at the entries to all amenities. A warning can be included that resident use the amenities at their own risk.

Can we prohibit unvaccinated residents from using the amenities?

As private settings, condominiums are not required to follow the same vaccine passport regulations that will apply to public gyms, restaurants and other locations. However, a condominium may wish to impose a similar requirement, either by way of a policy under section 117 of the Condominium Act or as a formal rule. It is not yet known whether a court would uphold such a requirement, however by analogy to the public equivalents of these facilities, there is a good argument that such a step is reasonable.

Another option is to permit unvaccinated individuals to use certain amenities only at specific, limited times. However, Boards must be careful that any vaccination requirements are reasonably linked to the usual use of the amenity. For example, residents may come into contact with others in the gym, whereas a party room that can only be rented out and used by one household will not really pose a risk to other residents, especially if it is properly cleaned after use.

Summary

The legal landscape on these issues is changing all the time. While the end of the pandemic feels like it is now on the distant horizon, the Boards and Managers of our condominium communities will likely be faced with difficult decisions for several more months and should consult with the condominium’s lawyers to obtain up-to-date advice and guidance.

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Patrick Greco is a partner in the Condominium Law Group at Shibley Righton LLP where he provides a full range of condominium solicitor and advocacy services and particularly enjoys attending and chairing difficult owners’ meetings. Patrick sits on CCI-Golden Horseshoe Conference Committee. He writes frequently on condominium issues and enjoys presenting to industry groups. In his free time, Patrick can be found in his garden or, in the winter, planning next year’s garden.

This article constitutes the author’s opinion and is not intended and should not be treated as legal advice.