By Chris Jaglowitz - All levels of government now threaten fines and criminal sanction for w
illful disobedience of the new societal requirement that at-risk persons self-isolate and that everyone practice social distancing. Unfortunately, some condo residents refuse to comply and this jeopardizes their neighbours. Condo corporations in Ontario cannot levy fines or penalties, but they have tools to deter scofflaws and recover additional costs that arise from irresponsible actions.
In the face of repeated recommendations and now increasingly strong warnings to self-isolate and practice social distancing, some residents who have returned from foreign travel are not complying and others fail to practice social distancing. Efforts by condo corporations to protect residents by drastically increasing cleaning of common elements are eroded and further additional cleaning costs arise from the selfish and intentional acts of residents who refuse to obey.
Individuals who should be self-isolating and practice social distancing but choose to traverse common elements, ride elevators, touch buttons, open doors and congregate in common areas or near staff are potentially spreading germs. In addition to needlessly risking the health of condo staff and other residents, this conduct is akin to vandalism, as it causes a form of damage that involves a cost to remedy.
Most condo declarations contain broad indemnification clauses or bylaws that extend the circumstances in which the corporation may recover the cost of damage caused by owners or residents. Further, soon-to-be-proclaimed changes to s.117 of the Condo Act and regulations prohibit creating or continuing dangerous activities or infestation of bacteria, among other things. The time has likely come to exercise these powers to help remind residents to be mindful of their obligations and considerate of their neighbours. As we see from the public officials’ escalating and repeated warnings on television, convincing some people of the correct thing to do is ineffective unless combined with a strong financial deterrent.
While condo corporations do not serve a law enforcement function, they can and should take action to protect the common elements and to recoup unnecessary costs arising from the inconsiderate acts of specific residents or visitors.
The first and most important step is for condo corporations to recognize the limited extent of their powers and information. Accosting persons or public shaming is not appropriate or productive and condo managers and boards have limited and imperfect information as to an owners’ risk status. That said, condo managers sometimes have detailed information that residents have returned after extended time away or may one day learn of orders given by public health authorities to specific individuals. In those cases, identifying scofflaws may be easier. And in the case of other individuals who do not practice social distancing, the conduct is easily observed and is often recorded by surveillance.
With credible information at hand and on observing non-compliant residents contaminating common elements or jeopardizing staff safety, a condo corporation may give individuals a targeted warning that additional cleaning maybe required as a result of the decision to traverse the common elements or interact with staff unnecessarily.
Broad warnings to all residents can be made but should be done carefully. All communications should be worded in a thoughtful yet clear way and to hit the correct tone. It’s good to recognize and thank responsible residents for being considerate and protecting their neighbours.
Targeted warnings are likely superior. Individuals known by management to have recently returned from outside Canada but are observed defying the requirement to self-isolate should be cautioned at an early opportunity. Managers typically know which residents have returned from trips outside Canada.
Aside from residents freshly returned from abroad, residents who fail to practice social distancing may also be warned that they are potentially liable for the cost of additional cleaning necessitated by their actions.
The quality of the information is essential, and the tone of any notices or warnings must be sensitive but firm. Further, these efforts must be just one aspect of a larger plan to assist and accommodate all residents. For instance, some condo corporations proactively communicate to returning snowbirds and vacationers about special cleaning protocols in effect and request cooperation. Those corporations may offer to arrange safe escort across common elements, deliver luggage to the suite and to facilitate delivery of supplies and groceries, so returnees may self-isolate quickly and minimize impact on common elements and surrounding units.
Ideally, the warnings serve as an effective deterrent. If not, then chargebacks of additional costs are possible under the condo declaration, by-laws or the Condo Act or a combination. It’s essential that any costs proposed to be charged back are reasonable and can be credibly calculated, documented and linked to the conduct of specific residents. Document any chargebacks carefully and get legal advice before proceeding. And in cases where the offending resident is a tenant, the owner should be notified that a chargeback is possible if the tenant does not comport themselves appropriately.
This approach is admittedly an imperfect option for condo corporations to use. It is, however, one of several tools available to help contain the spread of COVID-19 in desperate times. As always, the best weapon is clear, consistent and constant communication.