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Rules on federal elections in condos during a pandemic

And they’re off to the races !!

The prime minister has asked the Governor General to dissolve parliament, setting the stage for Canada’s next general election. Blue, green, orange and red electoral signs (we’ve listed them alphabetically) will soon be popping everywhere and candidates will start canvassing. Naturally, things will be very different this time around in the current pandemic context.

Boards and property managers will soon receive requests from candidates and their representatives wanting to access the property for canvassing purposes. They may also receive requests from owners wanting to put up electoral signs; and from others wanting these same signs to be taken down.

So, what are the rules applicable to canvassing and to electoral signs during a federal election?

Candidates’ access to condo property

In Ontario, section 118 of the Condo Act is clear about electoral canvassing. This section provides that a condo corporation cannot restrict reasonable access to the property by candidates for election to the House of Commons, the Legislative Assembly or an office in a municipal government or school board if access is necessary for the purpose of canvassing or distributing election material.

The Canada Elections Act goes further. It provides that no one in control of a multi-residential building may prevent a candidate or their representatives from canvassing between 9:00 a.m. and 9:00 p.m.

There is an exception however.  Section 81(2) of the Canada Elections Act provides that the candidates’ right to access the condo buildings does not apply to:

multiple residence buildings whose residents’ physical or emotional well-being may be harmed as a result of permitting canvassing or campaigning referred to in that subsection.

So, while you likely cannot have a blanket prohibition preventing electoral canvassing, both the Condo Act and the Canada Elections Act provide a framework authorizing condo corporation to implement reasonable conditions surrounding canvassing.  These conditions could include:

  • Requiring canvassers to wear a mask while in the building;
  • Reducing the number of canvassers at any given time. Perhaps now is not the time to have 3 canvassers from each party in the building at the same time;
  • Requiring canvassers to abide by any protocols you have in place (for instance limiting the number of riders in the elevators);
  • Requiring canvassers to complete a COVID screening questionnaire before entering the building.  We have blogged already on how to implement COVID screening at your condo entrances. Using a QR Code (to be used with a smartphone) can greatly facilitate the collection of COVID screening information.

It is important, now more than ever, to ensure your condo corporation sends a clear signal of what is expected from those showing up at your entrances.  Consider posting clear signs expressly addressed to the federal candidates/canvassers.

You could also consider proactively sending a clear note to each candidates in your riding, explaining what is expected of them at your condo.

Electoral signs

What about electoral signs? Can a condo corporation prevent owners from placing signs in their windows or on their balcony?

The Condominium Act is silent on this but the Canada Elections Act isn’t.  Section 322 of this Act provides that:

No condo corporation (or agents acting for it) may prohibit the owner of a condo unit from displaying election advertising posters on the premises of his or her unit.

Owners can therefore show their colour by placing electoral signs, but this right is limited to posting such signs on the premises of their unit. This may prevent owners from putting up signs on what would otherwise constitute common elements (including exclusive-use ones such as yards and balconies). But read on: there are hefty fines applicable to corporations preventing proper electoral posters.

The Canada Elections Act also specifically provides that condominium corporations may set reasonable conditions relating to the size or type of election advertising posters that may be displayed on the premises and may prohibit the display of election advertising posters in common areas of the building.

We get two clues from this provision:

  • any restriction must be reasonable; and,
  • The corporation can prohibit electoral signs on “common areas” of the building. Note that it does not refer to “common elements” but to “common areas“. This may counter the language of section 322, which  restricted the advertising to one’s unit. It also may restrict a condo’s ability to prevent signs on someone’s exclusive-use front yard.

In circumstances where there is a debate on whether owners can post signs on their exclusive-use front yard or balconies, it probably is preferable to adopt restrictions as to size and type of signs, rather than ban them out entirely.  Stated otherwise, regulate the sign and consider requiring that the type of acceptable sign not damage property or not pose a risk to others (you don’t want electoral signs to fly off a 25 story balcony!).

As with everything else: any restriction must be reasonable.

Penalty and fines

Anyone who willfully contravenes section 322 (the one permitting election advertising posters) can be liable to a fine of up to $2,000 or to imprisonment for a term of not more than three months – or both. It probably is best to err on the side of caution.

Different rules for municipal or provincial elections

It is interesting to note that the rules applicable to a federal election are different from those applicable to provincial or municipal elections. In the case of provincial or municipal elections, corporations must consult provincial legislation, municipal by-laws and the corporation’s governing documents. We will leave this for another post.