Both Toronto and Ottawa have adopted a by-law (or directive) imposing the use of face masks in indoor public spaces. This week’s questions are therefore: Do these apply to condos? And what should condos do?
We have a more recent post on this topic.
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What are the cities doing?
Both cities have decided to regulate the wearing of masks in enclosed public spaces:
- Toronto has done it by way of a municipal by-law
- Ottawa has done it by way of a Directive from Ottawa Public Health (but is expected to vote on a by-law on July 15).
Mandatory wearing of masks in public spaces
In both cases, the operators of an “Establishment” (to use Toronto’s language) or of an “Enclosed Public Space” (to use Ottawa’s language) must adopt a policy making mandatory the wearing of a face mask while in the public areas of enclosed public spaces.
There are some exceptions to this new mask wearing obligation, for instance for people whose age or medical condition make it difficult or unsafe to wear such a mask or in instances where one is consuming food/drinks or where one is actively engaging in an athletic or fitness activity (including water-based activity).
Adoption of policies
Not only must these operator adopt a policy making masks mandatory, the policy must be provided upon requests by those in authority to enforce the provisions of the Emergency Procedure and Civil Protection Act.
Posting of signs advising of the mask requirement
Both cities require the posting of a prominent and clearly visible sign advising those entering the premisses of the requirement to wear a mask. Ottawa (but not Toronto) requires the sign to be bilingual.
Ottawa (but not Toronto) also require the operators to provide alcohol-based hand rub at all entrances and exits for the use of all persons entering or exiting the establishment.
Consequences to breaches
Since Toronto‘s requirements are enshrined in a municipal by-law, someone in breach to the by-law is guilty of an offense and, on conviction, is liable to a fine under the Provincial Offences Act.
The Ottawa directive, on the other hand, expressly provides that the policy should be enacted and enforced in “good faith” and should be primarily used as a means to educate people on mask use in public spaces. It also provides that those not wearing a mask or having removed it should receiving a verbal reminder of the requirement to wear a mask as a result of the policy. This may change once Ottawa adopts a by-law. To us this means that, unless a condo policy/rule provides otherwise, it may be difficult to deny service to those refusing to wear a mask.
Does this apply to condos?
The short answer is that neither this by-law nor the directive apply to condos:
- Toronto’s press release clearly indicates that their by-law does not apply to condo;
- See also Ottawa’s FAQ.
Both indicate that it is up to condos to adopt similar policies.
Still, for the #CondoGeeks out there, below are some thoughts on how the drafting differs between the two cities.
Ottawa‘s Public Health directive applies to “Enclosed Public Spaces”, which are defined to include (but not to be limited to):
- Recreational facilities, community centres and other similar leisure facilities;
- Sports facilities and gyms;
- Common areas of hotels, motels, or short-term rental premises such as lobbies, elevators, meeting rooms, rest rooms, laundry rooms, gyms, and kitchen.
- [See the actual Public Health letter for the ‘complete’ list]
Toronto‘s by-law applies to a similar (but not identical) list of “Establishments”. The most relevant one being “common areas of hotels, motels and other short-term rentals, such as lobbies, elevators, meeting rooms or other common uses facilities”
Interestingly enough, Ottawa’s list may end up being interpreted as including far more public spaces than the Toronto one. Indeed, contrary to what Toronto did, the Ottawa definition of an Enclosed Public Spaces is not closed.
- Toronto‘s by-law defines “Establishments” as “meaning the following”. If the establishment is not listed, the by-law does not apply.
- Ottawa‘s definition opens with the words “include but not limited to”. This usually means that the list is not exhaustive. Still, in our view, the fact that condos and multi-residential dwellings are not expressly listed probably means that it does not necessarily apply to condos. We may know more once we see the language of Ottawa’s by-law.
Another interesting difference is that Ottawa’s specific reference to gyms may result in the directive applying to those. Then again, masks are not required while actively taking part in an athletic or fitness activity.
What should condos do?
Whether these expressly apply to condos or not, clearly, the spirit and intent of these ‘regulations’ strongly militates in favour of the adoption of policies or rules in condos requiring the use of masks. We say this keeping in mind that condos are the occupiers of common elements for the purpose of the Occupiers Liability Act. Should there be a flare up in a condo complex, a litigant would almost certainly ask the corporation what precautions it has taken to prevent it. One of the precautions may be to require masks while on indoor common elements.
While the ultimate decision will depend on the specific circumstances and demographics of each condo corporation, it would be difficult to justify not having adopted such a policy when both municipalities (and, Public Health in Ottawa’s case) are imposing mask wearing to the “common areas of hotels, motels and other short-term rentals, such as lobbies, elevators, meeting rooms or other common use facilities”. It may be difficult to argue that condos are different than those when it comes to the spread of a virus.
Rule or policies?
The adoption of a formal rule is the most certain way of ensuring that it has some teeth and that the corporation can enforce it. In our view, such a rule, provided it is drafted along the lines of the cities’ by-laws, is bound to be found reasonable and to be enforced by courts.
The down side of rules is that they require a 30-day circulation period before becoming effective.
Certainly, a policy would meet the requirement of both cities’ ‘regulations’ but these are more difficult to enforce. Having said that, corporations may be able to rely on section 117 of the Act (dealing with dangerous activities) to deal with more serious breaches to the policy.
At this stage, we see little to no downside to adopting (at least) a mask wearing policy and recommend that Corporations seriously consider it.
We can help you draft both a rule or the required policy to meet your needs or to meet Toronto/Ottawa’s new requirements.
Don’t you wish we still had our weekly webinars…. I kind of miss them.
Tell us how you feel about masks in condos by taking our short survey.
Updated July 30, 2020