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Mandatory Face Masks in Condos? (Take II)

We’ve blogged on face masks in condos already (and I fear this may not be the last time we do) but we need to revisit the issue of masks in common elements for the following two reasons:

  • Ottawa adopted a Temporary Mandatory Mask By-law, on July 15, 2020;
  • Toronto‘s Mayor and Medical Officer now recommend that face masks be made mandatory in condo buildings (despite the municipal by-law not applying to condos).

Click here for an easy-to-follow chart with your new (post-covid) AGM deadlines and deadlines to send your preliminary notice.

Toronto

Earlier this summer, Toronto adopted a Face Mask municipal by-law, mandating “establishments” to adopt a policy imposing face masks while on “Enclosed public space”. At the time, Toronto expressly excluded condos from the application of its by-law, thereby requiring Torontonians to wear face masks in all interior public spaces…. except in condos.

Today,Toronto’s Mayor and Medical Officer recommends the wearing of face masks on all enclosed common areas in condos and apartment buildings, including in lobbies, laundry rooms, and elevators of residential buildings. They encourage condos to adopt the required policies to implement this. In support of this, they rightfully cite a “growing body of scientific evidence suggesting that the use of masks and face coverings is an inexpensive, acceptable and non-invasive measure to help control the spread of the virus”.

Some media even report that, if condos don’t regulate this themselves, the City may jump in and do so for them.

This is all great and dandy but why in goodness’ name was this not already provided for in Toronto’s original municipal by-law?  Seems to be a case of the proverbial puck being passed, with the city pushing onto condos their dirty work.

Any ways, if there was ever a doubt (was there?), condos can adopt (and increasingly should consider adopting) either a mask wearing policy or a rule.  The virus is no less contagious in a condo lobby than it is in a hotel lobby or in a shopping center. Not sure why anyone ever thought the virus reacted differently on those paying condo fees.

The scope and nature of your rule or policy will depend on your specific corporation. Read further below for some guidance.

Now, onto Ottawa’s by-law.

Ottawa’s By-law

In summary, Ottawa’s new by-law provides that “every person who enters or remains in an Enclosed Public Space shall wear a mask in a manner that covers their mouth, nose and chin”.

The by-law goes on to impose on Operators of Enclosed Public Spaces the obligation to :

  • provide a verbal reminder to those without a mask
  • post a bilingual sign at every entrance of the premises used by the public (see here a template)
  • ensure the availability of alcohol-based hand rub at all public entrances and exits of the premise

There are numerous exceptions for those who cannot safely or easily wear a mask or for those engaged in an activity which is incompatible with wearing a mask: such as eating or exercising.

Does this apply to condos?

The city of Ottawa missed a golden opportunity to clarify whether this by-law was meant to apply to condos.

The by-law defines “Enclosed Public Space” as:

the interior area of any building or structure to which the public is invited or permitted access, either expressly or by implication, regardless of whether a fee is charged for entry, in order to receive or to provide goods or services

The definition goes on to state that this includes but is not limited to the public areas of  a long list of public venues such as restaurants; retail establishments; places of worship; cultural, entertainment venues; sports facilities; hotels, motels or short-term rental premises; hospital and medical facilities….  (the full list can be consulted here).

Naturally, you will have picked up on the fact that condos and multi-residential dwellings are not expressly listed but don’t give up yet.  The by-law goes on to list locations excluded from the by-law’s application. Sadly, the list of exclusions is limited to schools, childcare centers, day camps, office of professional service providers such as lawyers and accountants and public transit properties (because they are specifically regulated otherwise).

You got it: condos don’t appear on the list where masks are mandatory and don’t appear on the list where they are not!  That omission has to have been deliberate. It seems that, just like Toronto, Ottawa wanted to let corporation deal with the hot potato.

Can Condos Make Masks Mandatory?

While it is unclear whether Ottawa’s by-law applies to condos, what is clear is that condo corporations have the ability to adopt rules or policies imposing face masks to those on common elements. Indeed, condo corporations have a duty to control, manage and administer the common elements. They also have the ability to pass rules to promote the safety, security or welfare of owners and of the property.

Should Condos Make Masks Mandatory?

In our view, it would be wise and prudent for condo corporations to adopt a mask-wearing policy.

Condo corporations are the occupiers of the common elements. They must, at law, take reasonable precautions to ensure the reasonable safety of those on their premises.

If asked in the context of a lawsuit, what will you answer were the precautions taken by your corporation to prevent community transmission?

There is an increasing consensus (except perhaps south of the border) that face masks help reduce the spread of COVID-19. For weeks now, health officials and countless Public Health Authorities have recommended that Canadians wear such masks. This is becoming increasingly important now that pandemic restrictions are  being loosened.

Considering the increasing number of Public Health Regions imposing masks on interior public spaces, it is difficult to justify not having a mask-wearing policy in condos.

There is little to no inconvenience to occupants having to wear a mask in (certain) common areas. This far outweighs the risks associated with not wearing masks in circumstances where there is close cohabitation between condo dwellers (sharing hallways, lobbies, elevators, etc).

Ultimately, however, the decision of whether to adopt such policy rests with the board of directors.

What are others doing?

Our recent survey on masks in condos shows interesting results.

Should masks be mandatory in condos?

  • 65% say “YES”
  • 25% say “NO”

Are mask mandatory at your condo?

  • 22% of condo corporations have made masks mandatory
  • 32% strongly recommend it
  • 42% have taken no position on it… yet.

Where masks are mandatory, how are owners reacting?

  • 37% positively
  • 29% are neutral
  • 10% negatively (seems like the usual 10%…)

Share your views on the topic by taking our survey.

What policy works for you?

Each condo corporation is distinct and has its own personality. The scope of the policy will vary from condo to condo, depending on its size, layout, geographical location, density and demographics.

We have developed policies and rules which range from recommending masks to imposing masks or partially imposing them (in the elevator, main lobbies or when interacting with staff or management).

We’re happy to discuss it with you.

 

Updated: July 24, 2020.