BYJAMES DAVIDSON -
Throughout Ontario (as well as many other areas of the world), the talk is now turning, more and more, to the idea of “re-opening”. What does re-opening mean for Ontario condominiums?
To me, “re-opening” simply means that certain activities that were previously prohibited by the province are again permitted.
In a given condominium, this means that those “re-opened activities” can now be permitted as long as the condominium’s Board of Directors decides to permit them (more on this below).
Effective May 19, 2020, the province has implemented Stage 1 of Phase 2 of the province’s Framework for Reopening. Again, the result is that certain activities that were previously prohibited by the province are now permitted. Here are some of the key “re-opened activities” from the perspective of condominium properties:
All repair and maintenance work is now permitted. [Prior to May 19, repair and maintenance work (including a unit renovation) was only permitted if such work was strictly necessary for the safety, security, sanitation or essential operation of the property.]
All other construction projects are also permitted. [Prior to May 19, many such projects must have started prior to April 4, 2020 to be permitted.]
Many outdoor recreational amenities can now open apart from swimming pools. Also, contact sports where physical distancing cannot be respected are not permitted. [So for example, tennis or badminton are permitted, and someone shooting basketball hoops alone is permitted; but a basketball game would not be permitted. Similarly, outdoor play structures should generally still be kept closed.]
Private households (residential owners) can employ workers on or about the premises in activities primarily concerned with the operation of the household such as:
Domestic services: housekeepers, cooks, maids, butlers, personal affairs management, nanny services, babysitters, other domestic personnel, etc.
Cleaning and maintenance service: house cleaning, indoor/outdoor painting, window cleaning, pool cleaning, and general repairs.
What has not yet re-opened?
Here’s a list of key items that are still closed (for purposes of condominiums):
Most indoor amenities should still be kept closed (particularly if they cannot be easily operated in compliance with the province’s physical distancing directives). Although the province has not issued any order relating to indoor amenities, public health officials have generally said that condominiums should consider keeping indoor amenities closed.
In-person gatherings of more than five people are still not permitted. Therefore, electronic and telephonic meetings are still the “only meeting options” for most condominiums.
Real estate open houses are still not permitted. Individual showings are permitted.
Short term rentals in rental accommodations booked after April 4, 2020 must only be provided to individuals who are in need of housing during the emergency period. [This doesn’t apply to hotels, motels or student residences.]
The mandate of the Board
Clearly any activities that are not permitted by the province cannot be permitted by a condominium Board. But if an activity is now permitted by the province, it doesn’t follow that the Board must permit it. The Board has overriding responsibility for the safety and security of the common elements. So, it’s up to the Board to decide, based on relevant factors, whether or not a given activity is to be permitted on the condominium property (even if the activity is no longer prohibited by the province).
In deciding whether or not to permit a particular activity, the Board can properly consider all aspects of the condominium property and the resulting safety and security risks for the residents of the condominium and for the society as a whole. The risks in question of course currently include the evolving risk surrounding possible transmission of COVID-19.
Such considerations might include the following:
The nature of the condominium (for instance, high-rise vs lo-rise or townhome) and the related ability of persons to comply with physical distancing directives while involved in the particular activity. [For instance, will the activity in question mean added traffic in a lobby or similar shared area of the property? How easy will it be to ensure compliance with physical distancing directives during the activity?]
Any special risks for residents of the community, including risks due to demographics, prior disabilities, mobility concerns or other such factors. [Are residents of the particular condominium in a high-risk category, in terms of COVID-19?]
Whether or not the activity in question will take place outdoors or indoors (because the risks associated with outdoor activities tend to be lower and more manageable).
Whether or not any safety and security risks can be managed through the use of personal protective equipment, extra sanitization or other measures; and the ease with which such measures can be implemented.
Again, it will be up to the Board, in each case, to give these factors reasoned consideration and to decide whether or not the activity in question is to be permitted, taking into account the safety and security considerations for the particular community. And if the activity is to be permitted, the Board may also impose conditions or restrictions that are designed to promote safety and security. Any such conditions or restrictions might even be included in a Rule of the condominium. Such conditions might include the following:
A requirement that persons involved in the activity must wear personal protective equipment such as a mask.
Restrictions on the number of persons to be involved in the activity and the time(s) when the activity will be permitted.
Restrictions designed to ensure that participants maintain a minimum distance from one another during the activity (in accordance with federal and provincial physical distancing directives).
A requirement that the condominium corporation be given certain notice prior to the commencement of the activity.
In conclusion, we are now on the road to re-opening (and we of course all hope that there won’t be too many forks in the road!). But condominium Boards (assisted by their Managers) will have a key role to play when it comes to re-opening of each condominium property. The orders from the province are only “one piece of the re-opening puzzle” for condominiums. In each case, the Board must then determine what sort of re-opening is considered safe and secure for the particular condominium.