By Bob AaronContributing Columnist
Living in a condominium community requires a balancing of the interests of those who live there. But when it comes to residents who refuse to wear masks during a pandemic, the courts have to decide whose rights will prevail. Vily Mitrovic and Zoran Zupanc live in a unit in the Admirals Walk condominium complex on Lakeshore Rd., in Burlington. Both Mitrovic and Zupanc refused to wear masks while in the common elements of the condominium, citing unspecified medical conditions. In order to reach their unit, they have to walk through the common areas, including the hallways, elevator and lobby. Ontario government regulations exempt some people from wearing masks, including those with medical conditions. Following a local bylaw, the condominium adopted a policy to ensure masks are worn in enclosed interior spaces, but exempted those with medical conditions. Eventually, the condominium corporation brought the couple to court, arguing that their behaviour constituted a “dangerous activity” under the Condominium Act. It sought an order requiring them to comply with the law, the city bylaw, and the building’s rules. The parties appeared in Superior Court in March. The owners argued that they experience distress if required to wear a mask. Justice Michael Gibson noted that the condo board has the obligation to insist upon conduct by residents that does not place other residents at undue risk. Residents, he wrote, do not enjoy unlimited freedom to do as they please. Echoing a 2002 ruling, he added that they “must conduct themselves in accordance with the rules of the community and with due respect for their neighbours and fellow residents.” In his decision, the judge wrote that he did not have to rule on the truth of the owners’ health claims and their activities to promote their ideological beliefs about vaccinations and the wearing of masks, “however selfish, misguided or misplaced these may be.” Justice Gibson acknowledged that not wearing a mask may have potentially serious or deadly consequences for one’s neighbours. Despite this sensible analysis of the law, the judge attempted to balance the competing rights of the parties in the case. He ruled that Mitrovic and Zupanc could not exercise or visit floors of the building other than their own and that being on other floors without a mask would constitute a dangerous activity. The judge made no comments about them being in the elevators, the lobby or the parking garage without masks. A better application of the law is found in the case of Carleton Condominium Corporation No. 32 v. Yakolev and Yakoleva. Last month, Justice Robyn Ryan Bell ruled that three owners had contravened the Condominium Act in a number of ways, including being in the building’s common elements without a face covering, contrary to Ottawa’s mask bylaw and the building’s COVID-19 protocol. The judge ordered that they “cease and desist” from that behaviour, presumably in every public space in the building — a much stronger ruling than in the Mitrovic case. COVID-19 is deadly. For the greater good, residents of condominiums should wear masks in all public areas.