On October 2, 2020, the province of Ontario amended its general COVID response regulation and imposed face masks in all indoor areas of businesses and organizations.

Until then, face masks in condos were regulated by municipalities and by condo corporations but not by the province.  Indeed, many municipalities (including Toronto, Mississauga, Brampton, York, Burlington and Ottawa) required that face masks be worn while on interior common elements before the province adopted provincial mask requirement.  We’ve blogged on this already. This resulted in a confusing piecemeal approach of overlapping and conflicting mask regulations. In late summer 2021, many municipalities have allowed their mask by-laws to expire, falling back on the provincial set of rules.

Provincial masks regulation

Under current regulations, the person responsible for a business or organization (in our view this includes condo boards) must ensure that any person in the indoor area of the premises wears a mask or face covering in a manner that covers their mouth, nose and chin during the period when they are in said indoor areas.

This specifically applies to premises that are used as a dwelling unless the corporation is able to ensure that those in indoor common elements are able to maintain the required 2-metre physical distance. As a condo corporation is unlikely able to ensure that such distance is maintained, it is best for corporations to consider adopting a mask policy.

Usual Exceptions

Naturally, the regulation lists the usual exceptions we have gotten use to.  The following, amongst others, are not required to wear such a face mask:

• Children 2 or younger;
• People who’s medical condition inhibits their ability to wear such masks;
• Those unable to put on or remove their mask without the assistance of another person;
• Those who need to temporarily remove their mask while:
  • receiving a service requiring the removal of the mask;
  • engaging in an athletic or fitness activity;
  • consuming food or drinks;
  • or as necessary for the purposes of health and safety.
• Those being accommodated in accordance with the Accessibility for Ontarians with Disabilities Act or with the Human Rights Code.

As has been the case until now, those falling within one of these exception are not required to present evidence of it.

While courts have recognized the application of these exceptions and one’s current right not to necessarily provide evidence of the exemption being sought, courts have also limited the movement of those not wearing a mask to what is strictly necessary for the purpose of ingress and egress  by the most direct route.

The onus to enforce the above is on the person responsible for the business or organization.

Municipal by-laws

As indicated above, prior to Ontario having regulated masks in condos, many municipalities had adopted their own mask by-law.  Although these by-laws were generally temporary in nature and contained an expiration date many continue to apply. Some municipalities, like Burlington, have extended their mask mandate to the end of the year, and others may renew their by-laws to follow suit.

Below are the expected expiry date for some of these municipal by-laws:

• Ottawa:  Expired on: August 26^th, 2021

• Toronto:  Set to Expire on: October 2, 2021 (last renewed: June 9, 2021)

• Mississauga:   Set to Expire on: September 30, 2021 (last renewed: June 16, 2021)

• Brampton: Set to Expire on: October 1, 2021 (last renewed: June 16, 2021)

• York:  Set to Expire on: Unknown

• Burlington: Set to Expire on: December 31, 2021  (last renewed: January 19, 2021)

Keep in mind that even if your municipal by-law has expired, your condo continues to be regulated by the provincial mask requirements.

Condo Policies

Many condos have adopted their own mask policy (sometimes as part of their overall Safety Plan).  Remember that condo corporation are entrusted with the duty to control, manage and administer common elements and that, as the occupier of the common elements, they have a duty to take reasonable steps to ensure the reasonable safety of those on the premises.  They are also duty bound to prevent any condition or activity that is likely to cause injuries to an individuals.

Courts have confirmed that:

• Boards have 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;

• Board’s efforts to develop and promulgate a mask policy are reasonable and necessary in the circumstances;

• 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.

It is in this context that many condo corporation have adopted mask policy.  You may want to consult with your usual advisors to ensure your policy striked the proper balance between the needs of the collectivity and those of individuals and to ensure it complies with the applicable regulations and Human Rights legislation.

Sample mask poster

Many municipalities are suggesting mask poster samples that refer to their specific municipal by-law.  It’s a good idea to use these to ensure you comply with your local ordinances.

For condos who are not in a municipality with its own mask by-law, you may want to consider using this mask poster sample.

 

Updated: Sept. 6, 2021