In what is likely the first court case dealing with the requirement to wear masks in public spaces, the Superior Court of Justice issued a partial but permanent injunction requiring 2 condo owners to wear a mask while on interior common elements. The court carved out an exception for the limited purpose of entering and exiting the unit by the most direct route.
This decision is certain to have an impact on condos (and businesses) across the province.
Two condo owners were refusing to wear a face mask while on interior common elements of their condo corporation, located in Halton. Halton has been under Red Zone restrictions since November 16 (with the exception of the 2 months during which it was captured by the provincial shutdown between Christmas and February).
Security footage showed these owners not wearing a mask (or in some cases wearing it around their neck or below their nose). One of them was “exercising” and walking on different floors (where her unit is not located), without a mask on. She was also seen wearing an anti-masking sign around her neck and posting anti-masking posters within the building.
In December and January, the Corporation received multiple reports from owners who were concerned with the fact that some occupants were not wearing a mask. Some of them even stated that they were afraid to leave their units to avoid being faced with individuals not wearing a mask.
The corporation attempted over numerous weeks to get these two owners to wear a mask but to no avail.
These two owners claimed they were exempt from the requirement to wear a mask based on a medical condition, but refused to provide any information on or proof of same. For weeks, one of them refused to provide any evidence/information supporting her claimed medical condition, insisting that she would only show it if she was taken to court, at which point she would gladly show a judge.
The evidence filed in court shows that one of the two condo owners described her medical condition as follows:
- On February 4, she wrote to the city “I truly cannot wear a mask and not even the visor. Within minutes of putting it on, I start feeling lightheaded and dizzy and when I try to keep it on, I just about passed out”;
- On February 18 she wrote to the Corporation “I am willing to wear a mask if the … corp. is willing to assume responsibility for any consequences in case of my adverse reaction that might endanger my well being”;
- In her March 4 affidavit, she swore that she was unable to wear a mask “without significant and potentially life-threatening detriment to her health”;
On the first hearing day, she produced for the first time a medical note which, in its entirety, read “Mrs. Mitrovic is unable to wear a mask or face shield due to health problems. She will vaccinate for Covid as soon as she can”.
For his part, the other owner did not claim any medical exemption up to and including the first hearing date but did file an affidavit, for the second hearing date, indicating that he had a medical condition such that he experienced severe difficulty breathing when his nose was covered and that he felt he was going to pass out if he was to wear it for more than a couple of minutes. He did not specify the medical condition, indicate a diagnosis from a medical practitioner or elaborate on what other options might be available to him.
The judge took judicial notice that the current global pandemic has resulted in a significant number of deaths and serious illnesses through Canada and Ontario. He took particular judicial notice of Halton’s current Red Zone situation. He also accepted that the virus affects people of all ages and is particularly dangerous to older people and those with certain medical preconditions.
Both the Re-opening Ontario Act and Burlington’s municipal by-law mandate the wearing of proper face masks while on interior common elements. They both require the condo to ensure that owners wear a mask but they both provide for exceptions such as individuals with a medical condition that inhibit their ability to wear a mask. The municipality’s bylaw goes much further, carving an exception for any person with an underlying medical condition where wearing a mask or face covering would inhibit the person’s ability to breath in any way, or where the person may experience a negative impact to their emotional well-being or mental health.
The provincial regulation provides that “it is not necessary for a person to present evidence to the person responsible for a business or place that they are entitled to an exception”. The municipal by-law goes further and states that the condo building “shall not require any person…. to provide proof of any of these exemptions”.
The Corporation also adopted a Mask Policy requiring all residents to wear a mask covering the nose, mouth, and chin without gapping while in any enclosed common space such as the lobby, hallways, stairs, garage and elevators. The policy included exceptions for persons with an underlying medical condition which inhibits their ability to wear a mask or for people who reasonably need to be accommodated in accordance with the Ontario Human Right Code.
The policy was circulate and explain to all owners. Owners were advised of how to apply for a medical exemption.
Powers and duties of the corporation
The court confirmed that:
- The board had the authority to make and issue the Mask Policy;
- The enactment of health-related policies during the COVID-19 pandemic is an appropriate exercise of the Corporation’s authority;
- The efforts of the this board to develop and promulgate a mask policy were not only reasonable but necessary in the circumstances;
- Condo boards have the right, and indeed the obligation, to insist upon conduct by residents that does not place the other residents at undue risk;
- Owner must conduct themselves in accordance with the rules of the community with due respect and consideration for their neighbours. This is particularly acute in the context of the current pandemic where not wearing a mask may potentially have serious or deadly consequences for one’s neighbours.
The court acknowledged that the issues were “complex and profound” and that it required a “difficult balancing act”.
Relying on his interpretation that neither the province nor the municipality required the exemption seekers to substantiate or prove the fact they were covered by an exemption, the judge declined to make a finding as to the credibility of the medical condition being advanced by these 2 owners and appears to have accepted it at face value.
Balancing all of the above, the court made an order limiting where these owners could go if they continued to refuse to wear a mask. The court declared that exercising or visiting any other floor in the building (other than where their unit is located) without a mask constitutes a dangerous activity in breach of section 117 of the Condo Act.
As such, he issued a compliance order and a permanent injunction prohibiting them from doing so.
However, the judge carved out an exception permitting these owners to transit through limited common elements, without a mask, but only for the purpose of egress and ingress by the most direct route.
What does that mean going forward?
Much of the decision appears to have turned on the specific language of the Burlington by-law, which is far more liberal than the by-laws we have seen in other municipalities. Keep in mind also that many other municipalities do not have such a by-law (or have allowed their by-laws to expire). Condos in those communities fall back on the language of the provincial regulation or that of their own policy.
For the time being, subject to an appeal if any, it appears that those seeking an exemption may not have to provide adequate (or any?) evidence or justification of the accommodation they seek. It also appears that those wishing not to wear a mask do not have to balance their medical limitations with the risks imposed on others. Stated otherwise, it appears that any and all medical condition, no matter how minor it may be, risk always trumping the life and health of others.
For the time being and for obvious reasons, I will leave to others to comment on this decision but I will say this.
I am very concerned with the message this decision is sending to Ontarians. By not fully enforcing the mask policy, condo corporations and businesses are being placed in an impossible position where they are, at law, required to mandate their owners to wear a mask and where they must take reasonable steps to ensure the reasonable safety of those on their premises. Yet, it appears they are not provided with the tools do so so. It will be extremely challenging for any business or condo corporation to enforce the provincially mandated mask requirement if anyone can seek the widest exemption without having to provide adequate evidence of a medical condition.
This timid decision is further more troubling as Ontario enters into a third wave and Halton is inching towards another lockdown.
You can read the decision here.