Does the City of Toronto’s By-law Apply to Residential Condo Corporations?
The City’s mask bylaw does not apply to residential condominiums. Condos are not listed as any of the “Establishments” to which the bylaw applies. Although it is not explicit in the bylaw itself, the City’s news release specifically indicates that condo buildings are not covered. Since the City has not mandated the wearing of masks or other face coverings on the common elements of condos, it is not necessary for condo corporations to mandate mask-wearing on common elements.
However, the risks associated with many of the establishments included in the City bylaw (indoor recreational facilities in community centres, common areas of hotels such as lobbies, elevators, and other common use facilities, etc.) are substantially similar to the risks in the interior common elements of a condo.
Should Condo Corporations Mandate Mask Wearing on the Interior Common Elements?
Each corporation will need to decide what is best for their individual community. However, particularly in light of the City bylaw (and the breadth of locations where masks are indeed mandatory), we believe it is prudent for condo corporations to implement a requirement to wear masks in the interior common elements in order to protect the health, safety, and well-being of residents, guests, and others on the property.
Condo corporations are responsible to manage the common elements and to ensure that the property is reasonably safe. Condos also have obligations under the Occupational Health and Safety Act to employees and other workers to maintain a safe and healthy workplace and take all necessary precautions for the protection of the workers. In accordance with their authority and obligations under the Condominium Act and the Occupational Health and Safety Act, in our view, condo corporations have the power to mandate mask-wearing on the interior common elements.
Condo corporations can pass a COVID-19 Temporary Mask Policy, passed by way of a board resolution. The policy would outline its rationale (similar to that of the City bylaw), as well as other specific references pertaining to condo corporations (i.e. enforcement and section 117 of the Condominium Act).
The policy would be in place until further notice, utilizing guidance from the public health authorities and the City, consistent with the City mask bylaw. The exceptions for those not required to wear masks listed in the City mask bylaw would also be incorporated into the policy.
Many of our clients are now proceeding with this policy, especially those with vulnerable residents and high density buildings where physical distancing is a challenge.