by: Rod Escayola
There is no need to cause unnecessary panic over this but, there is no denying it, the Coronavirus has reached our shores and is spreading.
Our first comment will be one of cautious optimism. Indeed, the Public Health Agency of Canada (PHAC) continues to assess the public health risk as low for Canada. Still, unsurprisingly corporations, directors and managers are wondering what obligations (if any) they may have with respect to this spreading virus. We hope to answer this question in this blog post but, before we go on, go wash your hands – especially those of you reading on a tablet or smartphone.
Help us get an accurate picture of how the condo world is coping with insurance challenges by taking our survey. It may be best (but not entirely necessary) for you to have in hand your most recent insurance certificate if you want to be able to answer all questions.
The coronavirus
The coronavirus (also known as “COVID-19”) is a virus that can cause fever, cough, and respiratory problem including pneumonia. While fatality rate is low, this virus is quite contagious and, in severe cases, can be fatal, usually in individuals with pre-existing medical conditions.
The virus has now spread to more than 100 countries, with Canada having identified over 60 confirmed cases, as of March 8. Over 30 of these cases are in Ontario. Not to make light of this but, and this is a sure sign that the situation is concerning, some churches have removed the holy water from their stoups and Tim Horton is cancelling its Roll-Up The Rim contest.
Is the coronavirus a problem for condos?
The virus spreads from person to person much like the common cold. Naturally, such contagion is exacerbated by people living in close proximity like passengers on a cruise ship or…. people living in condos. Indeed, condos bring together hundreds of people from all walks of life, each exposed to their social and professional circles, many travelling around the globe prior to their return home – such as the returning snowbirds.
In condos, multiple residents share common areas, common facilities, elevator rides, fitness rooms, door handles, elevator buttons, etc. There is already a case linking (perhaps anecdotally) the virus to an Ontario condo corporation. While we have not seen this as a problem yet, we’re left to wonder whether the current situation may affect AGM attendance in the coming months – at least in bigger condo corporations or in major urban centres.
Legal obligations
So this leaves us with the ultimate question: What are condo corporations to do in the current circumstances?
In our view, condos’ obligations vis-a-vis the spread of this virus may be more societal than legal. Indeed, condos are not equipped to deal with this and they do not have, in our view, any “jurisdiction” over public health and communicable diseases. Let’s not forget that “the objects of the corporation are to manage the property and the assets … of the corporation on behalf of owners”.
Strictly speaking, on this topic, corporations have a duty to “control, manage and administer the common elements and the assets of the corporation”. Similarly, boards of directors have a duty to manage the affairs of the corporation. Stated otherwise, condos are there to manage brick, mortar and glass; not pandemics.
The fact corporations can make rules promoting “the safety, security or welfare of the owners” does not, in our view, authorize corporations to impose social distancing measures or sneezing etiquette.
What about section 117 of the Condo Act, which expressly prohibits anyone from carrying on an activity, in a unit or on common elements, which is likely to cause injury to an individual? Is that sufficient authority to quarantine someone to their unit? Hardly.
Owners are responsible to look after their own health and to take the precautions they view as required. Corporations should think twice before expanding the scope of their mandate or their authority to act. But, please, don’t stop reading here. There is more below.
Legal Risks
Still, despite the above strict reading of a condo’s duties and powers, it would be unwise (and potentially legally risky) not to take some basic precautions.
Risks associated with occupants
Remember that condos are deemed to be the occupiers of common elements for the purpose of determining liability under the Occupiers Liability Act. This Act provides that occupiers (condo corporations) must take reasonable steps to ensure the reasonable safety of those entering the premises.
While we found no legal precedent for this (thankfully), one could imagine potential liability if the virus was to spread within a condo complex. The inter-unit spread of this virus would, by its nature, have taken place on common elements. In the context of any ensuing legal proceeding the corporation may have to answer tough questions on the nature and scope of the precautions they took to ensure the reasonable safety of those attending its premises.
Some obvious precautions could include the installation of hand-sanitizers. To those wondering whether this truly falls within the corporation’s obligations (and I was one of those), I compare this precaution to the posting of a wet-floor sign or to the spreading of salt and sand in the driveway. These precautions aim to reduce the risk of injury while on the property.
Risks associated with employees
As many of you already know, under the Occupational Health and Safety Act, employers have very strict obligations pertaining to the health and safety of their employees. Amongst others obligations, employers must take all reasonable precautions to protect the health and safety of their employees and must provide the required information, instruction and supervision to meet this goal.
In the current circumstances, condo corporations who have employees may want to take additional precautions to ensure their employees continue to operate in a safe environment. What each corporation may be required to do to meet their duties under the OHSA will be dependent on the circumstances of their particular complex and on the risks of exposure associated with their complex. Stated otherwise, there is no one-size-fits-all.
Obligation to advise?
Another legal obligation may exist when dealing with known coronavirus cases within a condo corporation. Since the corporation is tasked with managing common elements, it would be prudent (and perhaps required) to advise owners, residents and employees of a known existing case. This would fall within the obligations stated above (of taking reasonable precautions to ensure the reasonable safety of the occupants and employees).
However, corporations should be very careful to preserve the privacy of those affected.
What precautions can be taken?
The expectation is not for corporations to eliminate any and all risk or to eradicate the virus. Still, there are some basic precautions which may go a long way:
Installing hand sanitizers in common areas, by the doors or by the elevators;
Posting signs reminding owners to be extra diligent when wiping fitness equipment;
Reminding owners not to use the fitness room, the pool or the amenities if feeling sick;
Encouraging occupants having travelled to high risk-zones to consider avoiding using the common amenities for 14 days;
Encouraging occupants/employees to self-quarantine if required;
Encouraging occupants/employees to report to the corporation should they have been infected by the virus. This could allow the corporation to take early measures;
In certain circumstances, it may be worth considering postponing some of your social events… and perhaps even the AGM depending on how things evolve. You may want to consult with your legal counsel before you do so.
Some of these precautions are basic and non-contentious. No one is opposed to apple pie. Others may seem a bit alarmist or interventionists. Do know that I have flip flopped on this issue, even as I write the above lines. Part of me (the cautious optimist) fears more public hysteria than the virus itself. Still, as they say, an ounce of prevention is worth a pound of cure.