Over the last couple of weeks, Ontario has implemented increasingly stringent public health measures in an attempt to curb the spread of COVID-19:
- On April 3, the province was put under Shutdown;
- On April 8, it issued a “Stay at Home Order”; and,
- On April 16, Ontario adopted additional measures, including one authorizing police forces to question anyone who is not at home.
We’ve been asked whether the above requires condo dwellers to stay in their units.
The short answer is “no” but read on.
Stay at home order
The Stay at home order was adopted pursuant to the Emergency Management and Civil Protection Act. It basically requires every individual to remain at their residence unless leaving it is necessary for one of the listed purposes, which include:
- Work or school,
- Exercising, including walking or moving outdoors,
- Obtaining essential goods and services,
- Obtaining or providing health and safety support,
- Certain travels and travelling between residences,
- Attending religious services, wedding, funerals,
- Taking care of animals….
You cannot leave your residence unless it is for one of these specific purposes. Do note that most of the above permitted activities come with certain conditions/restrictions.
Police authority to question those not at home
On April 17, Ontario’s police forces were given the authority to question anyone who is not at their residence.
These new powers came under a fair bit of criticism and the regulation was amended within 24 hours. As of now, police can only question those outside of their home if a police officer:
- has reasons to suspect that an individual is participating in a prohibited gathering, and
- the officer believes it would be in the public interest to determine whether the individual is in compliance with the Stay at home order;
If questioned by the police, anyone not in their residence is required to provide their address and to explain the purpose for their not being at home.
Does the stay-at-home order apply to common elements?
The Stay at home order does not apply to common elements and does not prohibit condo dwellers from accessing both indoor and outdoor common areas of the condo where they reside (provided that such areas are open).
The same is true for the regulation authorizing police to question those outside of their residence: it does not apply to condo dwellers who are outside of their unit but in/on a common area of the condo complex where they reside.
Condos can regulate common elements
The fact that the Stay at home order does not apply to common elements does not give condo dwellers carte blanche to do whatever they want on the common elements (indoors or outdoors).
Condo corporations are still mandated to control, manage and administer common elements and they must still take reasonable steps to ensure the reasonable safety of those on the premises. This, in our view, permits condo corporations to regulate activities on common elements.
For instance condo corporations can close certain amenities (as you will see below they are, in fact, required by law to closed some of them).
Condos can also reasonably regulate the use of common elements. As an example, a condo corporation could put restrictions on how many people from different units can use the elevator at any given time. The condo could also prevent condo dwellers from congregating or using the hallways or lobbies for reasons other than egress and ingress. They could also prevent owners from using the hallways to “exercise”. The corporation could also implement COVID screening and/or tracing; regulating deliveries; restricting certain activities….
This ability to control and administer the common elements is not new. It has always existed under the Condo act.
So, while a blanket prohibition against the use of the common elements by the occupants (a “Stay in your unit” kind of order) is likely unreasonable and unenforceable, condos can regulate the use of common elements. This ability (and necessity) to control common elements is a delicate one. Best to consult with your condo lawyer before adopting rules or policies to this effect.
Other provincial restrictions
In addition to the corporation’s ability to control common elements, Ontarians and condos are still regulated by a series of other public health restrictions including those below.
Under the current Shutdown restrictions there can be no social gathering or organized public events, whether indoors or outdoors. This prohibition applies to common elements.
Closing of amenities
Similarly, presently, all indoor or outdoor sports, fitness or recreational amenity must be closed.
Closing of parks, playground
The province had initially ordered the closure of parks, park benches, playgrounds and outdoor play structure, it has since backtracked and is now allowing these to be opened.
Naturally, this is an ever changing and fluid situation. Be sure to check our COVID Tool (at the top of our blog) to see what restrictions apply to your specific region.