Condo Considerations for New Proof of Vaccine Mandates in Ontario

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On September 22, 2021, certain businesses and organizations in Ontario are required to ask patrons for proof of vaccinations and identification before allowing them to enter the premises. There are exemptions, such as those for children and certain medical conditions, but generally speaking all adults are expected to show proof of vaccination to access the listed premises. Some condominiums have the types of premises listed in the regulation, including indoor fitness areas and indoor meeting and event spaces. Does this mean condominiums must ask owners for proof of vaccination and identification?

It is not clear. Most lawyers seem to interpret this regulation as not applying to condominiums because of the use of the word “patron” and there being no clear language indicating an intention for it to apply in condominiums like there is with the regulations about masks and other requirements. Our friends at DHA went one step further and reached out to the Ministry of Health for clarification and were told the regulations requiring proof of vaccinations and identification do not likely apply to condominiums. You can read their full post here: https://dhacondolaw.ca/condo-law-news/ministry-update-what-the-proof-of-vaccination-requirement-means-for-condominiums/

What does this mean for condominiums?

It appears that condominiums are not required to ask their residents and others for proof of vaccination and identification to use indoor gyms, pools, and meeting spaces. (Note: the condominiums still must comply with other requirements about masks, distancing, contact tracing, and limits on the number of people using the area).

Some condominiums may choose to keep these areas closed for a variety of reasons, including concerns about the spread of the virus and associated liabilities and the costs or inconvenience of the additional regulatory requirements to open the facilities. Others may decide to open the facilities to all residents who wish to use them, following all regulatory requirements and sometimes having owners sign a release or waiver of liability.

Other condominiums may choose to pass rules creating vaccination policies for the residents to use certain amenities. Some may require proof of vaccination while others may offer alternatives, such as testing or proof of immunity through prior infection. These rules should be reasonable based upon the risks identified. For example, a vaccination policy for a small, indoor gym is more likely to be reasonable than a policy requiring owners using an outdoor greenspace to show proof of vaccination. The policy should not require owners to show proof of vaccination to access their own homes, so there should be exemptions for ingress and egress on the common elements even if those areas may be shared with others. Furthermore, the policy should consider medical exemptions and other accommodations that may be necessary according to the Human Rights Code to balance the person’s individual rights with those of others in the community. Lastly, the condominium will need to carefully consider privacy issues surrounding the collection and disclosure of any information received about vaccinations, exemptions, or identification.

This is a new and constantly developing area of law. If you have any questions or concerns, reach out to your lawyer for further advice and direction.

Spring Break Reading: The CAT Edition

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The Condominium Authority Tribunal (CAT) has been busy so far in 2021. As of April 13, 2021, the CAT has released 30 decisions. Many of the decisions still relate to record requests, but there have been a few about other issues that it now has jurisdiction to hear, like pets and parking. Some cases were about procedural matters, like the application of the CAT rules. Some cases were about the jurisdiction of the CAT when other courts or tribunals also have jurisdiction over the dispute.

2021 ONCAT 27 : the CAT heard two motions from a condominium requesting the CAT dismiss or merge four cases and rule that the conduct of the applicants was vexatious. The CAT did not dismiss the cases, but the CAT ordered the applicants to choose which of their cases would proceed. The CAT also found that one of the representatives had repeatedly violated the CAT’s rules. He was not qualified to be a representative because he was not a lawyer, paralegal, or condo manager, and the CAT was not convinced he was a “friend” of the corporate applicants. Despite a ruling by the CAT that he was not qualified, he continued to monitor email, reply for the applicants, and submit documents for them. The CAT ordered the applicants to change their representative and provide updated email addresses to the CAT that the “friend” could not access.

2021 ONCAT 25: The CAT merged three cases brought by an owner against his condominium to provide the most fair, focused, and efficient process for both parties. The three cases related to: 1) parking rules; 2) pet rules; and 3) a record request for pet rules.

2021 ONCAT24: An owner requested two contracts from the condominium, which the condominium refused to provide because of the owner’s history of making complaints about the manager. The CAT found that complaining about your manager is not a valid reason for a condominium to refuse a valid request for records. The CAT awarded the owner $200 in costs and a penalty of $2,000.

2021 ONCAT 21: An owner filed a case against their condominium and a neighbour regarding a basketball net placed by the neighbour on their driveway. The condominium claimed it was not a violation of the rules and the owner asked permission to place the net on the driveway. The CAT found the basketball net was not contrary to the declaration or rules, but awarded the applicant $200 for filing fees because it was a novel issue within a new area of jurisdiction for the CAT.

2021 ONCAT 20: The owner brought a motion to defer the CAT case because they had already filed an application with the Human Rights Tribunal of Ontario (HRTO). The condominium was aware of the HRTO case when it filed the CAT case. The condominium acknowledged that it had a duty to accommodate the owner because of her disability. The condominium sought to require the dog to wear a muzzle in common areas. The CAT found the dispute was about the application and exemption of the condominium’s rules. The CAT dismissed the motion as it had jurisdiction to hear the dispute.

2021 ONCAT 18: The owner filed a case against her condominium and a neighbouring condominium about parking. The two condominiums shared a visitor’s parking area, which the owner sought to use. The case was dismissed as the time for filing the case had expired. She failed to bring an application within 2 years after the dispute arose, namely when she was denied permission to use the visitor parking area. The CAT did not rule on whether a claim by the owner for accommodation due to a disability would also be out of time under other legislation.

Where there’s smoke there’s…a cannabis allergy

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While condominiums are rushing to get updated smoking rules in place before the upcoming cannabis legalization, a recent article published by the CBC suggests another potential issue to worry about in the rule enactment and subsequent enforcement stages.

The CBC article, “Woman’s deadly cannabis allergy highlights complexity of condo living”, published on September 20th sheds light on the fact that condominiums should be aware of potential competing human rights claims. The article addresses an instance where a person, named Adele, suffering from a life-threatening allergy to cannabis and cannabis smoke resides in the same condominium that has active registered  medical cannabis users. The article raises the question of how to handle competing and directly contradictory health concerns.

The answer of what to do in this instance where there are competing health concerns (and thusly potential human rights issues) within a condominium is unclear.

On one hand, a blanket rule prohibiting cannabis consumption within a unit may give rise to a human rights violation as it would prevent registered medical cannabis users from such use. On the other hand, allowing even just registered medical cannabis users to smoke cannabis within their unit would impose the potential of smoke finding its way out of the unit. Smoke seeping out of a unit may create another human rights violation if the smoke is able to come into contact with a person such as Adele who has a life-threatening allergy to it.

In the article, Adele states that already in her condominium cannabis smoke is leaking into hallways and into the ventilation system to the point that Adele never uses her balcony, puts towels against her door, uses two air purifiers, and tries to avoid all common areas except the laundry room.

It is ultimately up to the condominium board to find a way to accommodate both sides of this issue without violating the legitimate concerns and requirements for both sides. The board in Adele’s case is exploring options including banning smoking on Adele’s floor, making structural changes to units, and exploring whether medical marijuana users can use other means instead of smoking, such as oils or edibles.

Even if not currently faced with a similar situation, consideration of the possibility and careful rule drafting are important. Although there is no firm answer to the matter, condominium boards should ensure that rules are in place to allow control over cannabis consumption. Even if the condominium is to allow smoking, rules should allow the board to restrict smoking if it is causing a nuisance or is posing a health risk to other unit owners. While outright restricting cannabis consumption for registered medical users is likely not a good idea, condominiums may be able to restrict smoking and allow cannabis consumption through other means (such as edibles).

Restricting medical cannabis use to non-smoking means still may not be appropriate if a medical user is able to show that they are required to smoke or vaporize to achieve their doctor-prescribed treatment. This, however, may be case specific, and a restriction to consumption through non-smoking means unless medically necessary is seemingly one of the best options to take as a starting point.

Condominium corporations, moving  forward, must be mindful that any condominium could face the same conflicting concerns that the board in Adele’s situation is trying to resolve. It is better to take precautionary actions in this case than to wait and take reactionary measures once an issue arises.

This post was written by Justin Black. Justin is an articling student at Robson Carpenter LLP working with both the condominium management group and the condominium and subdivision development group.

Disability & Dogs: Has the Pendulum Swung Back?

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A few years ago there was a lot of talk of a Superior Court case involving a woman and her dog. There was a 25 lb weight restriction. Her dog was well over 25 lbs. The woman initially claimed she needed the dog for her work with autistic children, but later claimed she needed the dog because of her own disability. She obtained a doctor’s note that indicated she required the dog for “emotional needs”. The condominium asked for permission to talk to the woman’s physician, but she refused so the condominium rejected her request for accommodation and initiated an application for an order requiring her to remove the dog from the property. The judge found there was insufficient evidence of a disability or any medical reason for the dog to reside in the unit. The judge also stated that the condominium fulfilled its obligation and that it could not be blamed for her refusal to cooperate in the process. The judge ordered the dog removed and awarded costs of $47,000 to the condominium.

The case was hailed by some as the solution to the generic one-sentence doctor’s notes  (i.e. ones from a walk-in clinic or other physician who has spent only a few minutes with the person; ones that do not describe the disability or how the dog is required to accommodate the disability). Others were more cautious about the applicability of the case to other situations. You can read a previous post about the case here: https://ontcondolaw.com/2015/06/24/dog-restrictions-and-disabilities/

Does a recent Human Rights Tribunal decision indicate that the pendulum is swinging away from the case?

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My Favourite Condo Lessons of 2016

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As 2017 approaches I find myself reflecting on the most important news, cases, and other events from this past year. Here are my favourite condo lessons for 2016:

10. Property Managers may be liable for errors in status certificates. The responsibility for the status certificate is normally set out in the management agreement so make sure that you are familiar with any limitations of liability and any obligations on the board to disclose information relevant to the status certificate. You can read the most recent case here and the costs award here.

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Mental Health in Condos

January 28th, 2016 was Bell Let’s Talk Day. It is a multi-year initiative to raise awareness, acceptance and action for mental health issues. This year alone it raised over $6 million. In honour of Bell Let’s Talk Day I thought that I would write about mental health issues in condominiums.

Mental health in condominiums is an issue that is likely to increase in  frequency as living in condominiums becomes the norm. The aging population will also make it an important issue as certain mental health issues (i.e. alzheimer’s and dementia) are more common as we age.  The symptoms may include memory loss, confusion, hallucinations, delusions, depression, anxiety, or aggression.  Continue reading

Scheduling owners’ meetings: Did you check the date?

An interesting case is before the Human Rights Tribunal right now. Three owners have filed a claim against their condominium and property manager alleging discrimination because of creed, which is contrary to the Human Rights Code. The owners are Muslim and contend that they were discriminated against because an owners’ meeting was held on an important religious holiday for Muslims.

Regardless of the outcome of this particular case, it does raise an interesting issue with respect to the scheduling of owners’ meetings: How are dates selected for owners’ meetings? How should they be selected? Continue reading