Legal tips for board members and managers -
Thursday, March 19, 2020
By Rebecca Melnyk
As the condo community deals with the uncertainties of the pandemic, there are legal obligations managers and boards must address. One important topic is owner and visitor disclosure, as discussed during the Coronavirus in Condos webinar last night, hosted by Rod Escayola, partner at Gowling WLG.
Denise Lash, founder and principal of Lash Condo Law, offered much advice to the condo community on this matter as it currently stands. She stressed how important it is that board members and managers not assume the role of health provider right now or take on more responsibilities and obligations that could impose different liabilities.
“We are all in uncharted waters at the moment; we don’t have all the answers, but for now, it’s important to rely on the professionals who give us guidance—that is public health officials and federal, provincial and municipal governments,” she said.
Resident and unit owner disclosure
Management and boards cannot force residents or owners to disclose their physical condition or if they traveled abroad. If the residents or owners reveal they have COVID-19, they can’t be barred from entering the building unless there is a government directive, Lash said. Corporations, the board and management do not have authority to do that.
“The corporation should be providing notifications to residents, stating if they’ve been tested and received a positive COVID-19 test, they should advise management purely on a confidential basis by phone or email,” she noted.
The only reason a corporation would do so is to help the resident with deliveries or another management-related task.
Also, avoid notifying the other residents in the building that another resident has been diagnosed with COVID-19, “unless you can reasonably confirm the diagnosis is true.” This information should come from the resident, co-occupant or public health who might notify the board.
“What you don’t want to do is start circulating information that is really a rumour from unofficial sources,” Lash advised. “If you are disclosing that information, you want to disclose it in a general way, without mentioning where the resident is located.”
This includes not revealing the floor level, the building or even the person’s name.
Lash noted that there may be a reason where you need to advise security if packages arrive and must be delivered to the door. But unless there are specific reasons why security needs to know, that information should be kept private and confidential. She also advised that it should be a resident’s decision to meet public health guidelines and self-isolate after traveling abroad.
“I would not recommend that a corporation requests those individuals advise management that they are self isolating,” she noted. “Management would then be responsible for keeping track of who is self-isolated or not. This is a public health issue where directives have to come from government.”
Directives could possibly change as the COVID-19 pandemic unfolds, prompting management to then change its rules.
Visitor disclosure
Corporations should not be screening visitors right now.
“It’s my position there is no authority to do that,” said Lash. “We are not in a shut-down situation now; there is no government directive on this, and visitors have no obligation to disclose that information.”
While managers must adhere to their own day-to-day functions, she did recommend adding signage at a front desk to guide residents on public health protocols and alert them to make sure their visitors are meeting the public health guidelines before entering onto the property.
Condo lawyers and property managers delved into other COVID-19 impacts on the condo community, including managing common elements, tips for governance and handling necessary meetings and AGMs. The whole webinar can be accessed on the Condo Adviser blog soon.