by Michelle Kelly - https://ontcondolaw.com/ -
Unless you’ve been living under a rock for the last month, you know that COVID-19 is the latest coronavirus (i.e. SARS, MERS) causing concern around the world. Yesterday, the World Health Organization declared COVID-19 a pandemic due to the “alarming levels of spread and severity and by the alarming levels of inaction.” According to the Public Health Agency of Canada (PHAC) the symptoms include fever, cough, and difficulty breathing. Some people experience more serious symptoms and even death. As of the time of this post, the PHAC has said the risk to Canadians is low. PHAC has indicated that certain groups are at risk of more severe outcomes, including those who are over 65 years old, those with compromised immune systems, and those with underlying medical conditions.
I wasn’t going to post about this topic because it has been covered by so many other condo law blogs already, but I have received dozens of emails and calls about COVID-19 in the last few weeks from worried clients. I am not going to get into the various medical, political or legal issues surrounding COVID-19. I am not going to give medical advice. Instead, I’m going to answer some of the most common questions that I receive about the obligations of condominiums with respect to COVID-19 and other communicable diseases.
Various pieces of legislation require condominiums to ensure that the property is safe for different groups of people, including the Condominium Act, 1998, Occupier’s Liability Act, and the Occupational Health & Safety Act. There are unique legal issues depending upon the specific group. For instance, condominiums with employees may wish to seek out legal advice about their duties and rights with respect to employees.
The Condominium Act, 1998, also requires the condominium to manage the property and assets of the condominium. This duty does not generally extend to the inside of the units. The most notable exception is when the condition of or activities within the unit are likely to cause damage to the property or injury to persons, such as when an owner fails to maintain or repair their unit or is hoarding to the point of it posing an increased risk of fire or infestation from vermin. Outside of these rare exceptions (and assuming the owners comply with the declaration, by-laws and rules), the condominium does not have a duty (or right) to manage the inside of the units or the owners.
To summarize, while the condominium should be taking steps to minimize the spread of communicable diseases on the common elements, the condominium does not have a duty to manage the inside of the units or the owners absent exceptional circumstances. In my opinion, COVID-19 is unlikely to be one of those exceptional circumstances based upon the PHAC’s determination that it is a low risk to Canadians at this point in time and no quarantine orders have been made.
Other Legal Issues
I have received questions about quarantines. This is a complex legal issue and there are differing opinions about the likelihood of widespread quarantines like we have seen in other countries. In Canada border officials and other public health officials do have the authority to quarantine individuals infected with, or suspected to be infected with, COVID-19. Condominiums need to be aware that Public Health Officials can make orders requiring the closure of buildings, increased cleaning or sanitizing, and posting of notices. If a condominium receives an order or is contacted by a Public Health Official it is recommended that they seek legal advice as it is an offence to contravene an order and the fines are significant.
I have also received a few questions about the cost of some of the precautions being recommended, such as additional cleaning or sanitizing of the common elements. Most of the costs are proper operating costs of the condominium and would not require notice or approval of the owners, even if the service was not provided previously. Section 97(2)(b) of the Condominium Act, 1998, permits condominiums to make a change in services if, in the opinion of the board, it is necessary to ensure the safety or security of persons using the property. If the work is required due to an order from Public Health Officials it may also be covered by Section 97(2)(a) of the Act.
Similarly, some condominiums are considering reducing services provided to owners or temporarily restricting access to amenity areas, like gyms, pools, party rooms, libraries, and other social gathering areas. As indicated above, Section 97 of the Act would not require notice or approval of the owners if the change in services was done to ensure the safety or security of persons or due to an order of the Public Health Officials. Closing amenity areas might be a good way to reduce the risk of transmission, but many condominiums feel this is too drastic at this point in time. At a minimum, I recommend posting signage to remind the owners of the risks of using these public areas, explain any steps being taken by the condominium to reduce the risks, and notify them that the area may be closed at a later date so they can make alternative arrangements (i.e. booking another venue for an upcoming birthday party rather than being disappointed that they can’t hold the party because the party room is not being rented).
I have received some questions asking if condominiums should be postponing AGMs and other meetings given the recent recommendations about limiting social gatherings. This is a difficult question to answer. If the AGM is weeks or months away I would wait to see what happens with COVID-19 before cancelling the AGM or another important owners’ meeting. If the meeting is in the coming week or so the condominium could move the meeting to a later date so long as the AGM can still be held within the six month period required by the Act. If not, it might be wise to get legal advice to determine if COVID-19 or non-compliance with the Act is a higher risk to the condominium. Another option may be electronic voting if your condominium has passed a by-law to authorize it. The Act authorizes board meetings to be conducted via teleconference or other electronic means so this might be a good option for board meetings.
Lastly, I have received questions about postponing upcoming repair and maintenance projects scheduled to start in the coming weeks. This is also a tricky question as it depends so much on the situation. Does the work need to be done now, or can it be pushed off for a few months without penalties? Purely cosmetic work will be easier to postpone than repair work to prevent damage to the property. Does the work involve entering the units? If so, the risks are greater than if the work is to the common elements only. The risks can be reduced by limiting the number of people entering the units and having them wear gloves and taking other precautions. Speak with the contractor about the steps they are taking to limit the risks and communicate this information to the owners.
For some helpful tips about containing the virus and planning your next AGM, see one of the following condo law blogs:
Coronavirus in Condos by Condo Advisor
Considerations for Condo AGMs and the Impact of Coronavirus by Lash Condo Law
Coronavirus (COVID-19) and Condos: Meetings, Messaging, and Maintenance by Davidson Condo Law.
There is so much that is not known about COVID-19 and so much misinformation available online. Seek out reputable sources. Be smart. Remain calm and do not panic. Keep in mind that while you may not be concerned about it, your neighbour could have a compromised immune system that puts them at greater risk. Be considerate. Take steps to reduce the risks, but remember the condominium’s duty is to manage the common elements and assets, not the units. Be reasonable. This too will pass.