CONDO COVID Q & A
We are still receiving dozens of questions about COVID each week, ranging from how to host meetings to how to reduce potential liabilities. It looks like COVID is here to stay for a while, so we thought that we would provide some answers to the most common questions from our condominium clients.
Q: Are masks mandatory in condominiums?
A: Not in all parts of Ontario. Some municipalities have implemented mask by-laws that require masks in some parts of condominiums, most often the interior common areas like the elevators, hallways, and amenity areas. Some of the by-laws require condominiums to create policies regarding masks and post specific signage on the entrances. Masks are required (at least in part) in most jurisdictions in Ontario, including but not limited to: Toronto, Ottawa, Peel (Mississauga, Brampton, and Caledon), Hamilton, Waterloo Region, Halton Region (Burlington, Oakville, Milton, and Halton Hills), and Windsor. Condominiums can also create new rules or policies requiring masks even if the local municipality does not require it. A rule is generally seen as more enforceable, but a recent case suggests that the courts may enforce policies in light of the unique situation we find ourselves in.
Meetings & Gatherings
Q: Can / should we hold our meeting in person?
A: Likely not. The Ontario government has restricted gatherings to 10 people inside and 25 people outside. Most lawyers appear to be of the opinion that these restrictions apply to condominium meetings. Even if the condominium is small enough to comply with the guidelines, the potential risks of holding a meeting in person make virtual meetings preferable for the foreseeable future, especially in areas where the daily numbers of reported infections are on the rise, like Toronto, Peel and Ottawa.
Q: Can we hold our AGM virtually without a by-law?
A: The temporary amendments to the Act that were made this past summer permit condominiums to hold meetings using electronic or telephonic means even if a by-law has not been passed by the condominium. These amendments are currently set to expire November 21, 2020. There is some speculation that the period could be extended, but there are no guarantees that will happen. The best option is to hold a virtual meeting before November 21, 2020 to pass a by-law permitting the condominium to hold virtual meetings. This way the condominium will be able to hold virtual meetings virtually even if the temporary amendments are not extended. If this is not possible, it may still be better to hold virtual meetings without a by-law than hold meetings in person during the peak of the second wave. Condominiums should get legal advice about possible options for holding meetings during the pandemic, especially since most condominium meeting hosts are booked into 2021.
Q: Can we hold our board meetings via teleconference without a by-law?
A: Yes. The amendments to the Act in 2017 removed the by-law requirement. All condominiums can use teleconference for their board meetings without a by-law so long as the directors consent. (Note: the consent requirement was temporarily removed this past summer, but it is expected to revert back at the same time as the other temporary amendments).
Q: Can / should we keep the amenities open? Can / should we keep the amenities closed?
A: This is a tougher one to answer. It depends so much on the amenity area, the residents, the options for limiting exposure, etc. At a minimum, condominiums will need to comply with any restrictions in place at the time, such as limits on gatherings and mask requirements. Condominiums should also consider the value of the amenity and potential risks. Some amenities provide residents an opportunity to exercise, which is good for overall health and wellness. Other amenities provide an opportunity to learn or relieve stress, like a library. While amenities pose additional risks, many risks can be reduced by limiting the number of users at a time and increasing sanitization. Is there anything wrong in keeping amenities closed during the pandemic? No. It really depends on the condominium.
Q: Can the condominium prohibit owners from completing work in their units?
A: Yes, condominiums can create policies or rules restricting renovation work in the units. There are now multiple cases confirming the right of the condominium to restrict work in the units right now. This doesn't mean that all work should be prohibited, but it is reasonable for condominiums to have restrictions in place. For example, some condominiums have prohibited non-essential work, but will permit essential work like plumbing repairs. Other condominiums have guidelines for the contractors carrying out the work to minimize the risks to the other residents.