Condominium Policies During the Pandemic - by Kristi Sargeant - Kerr, LL.B., CCI - London and Area ’ s Secretary
During times, condominium corporations are being forced to address new and evolving health and safety issues in a multitude of different ways. However, due to the pace of the changes in legislation as well as the nature of the pandemic itself, Boards have been looking to policies more and more to assist in controlling, managing and these uncertain administering the common elements and to do all they reasonably can to protect their residents. This article explains the benefit of such policies and the Courts’ recent support of them so long as they are reasonable and applied fairly. Traditionally, Boards of Directors look to Section 58(1) of the Act , which permits the Board to make rules regarding the use of units, the common elements and the assets of the corporation to, a. promote the safety, security or welfare of the owners and of the property and the assets, if any, of the Corporation; or the unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the Corporation. b. prevent As per Section 58(2) of the Act , any such rules shall be reasonable and consistent with the Act , and a condominium’s declaration and by - laws. However, before any new or revised rules become enforceable, owners have to be given 30-days written notice of them. Owners also have the ability to requisition an owners’ meeting to consider and vote on the rule if they disagree with it. As such, if there is an urgent issue to be addressed related to the pandemic, a rule may not be the most appropriate
option for a Board in the short-term and they may want to consider a policy that will take effect immediately. A second benefit of policies during these times of constant change is that they can be easily revised according to any amendments in the applicable legislation or the pandemic itself. A Board need only make the necessary revisions to the policy and notify their residents in writing of the change. In the event of a dangerous situation occurring, such as a resident’s refusal to wear a mask on the common elements of a condominium and that resident not being medically exempt from wearing one, Boards can look to Section 117(1) of the Act . In this regard, Section 117(1) holds that no person shall permit a condition to exist or carry on an activity in a unit or on the common elements if the condition or the activity is likely to damage the property or cause injury to an individual. However, proceeding with an urgent court application due to dangerous conduct takes a significant amount of time and expense and if a policy is in place in the first place, this may assist in keeping owners informed and in warding off such conduct. In support of the benefits of a reasonable pandemic-related policy, we look to the recent case of Toronto Standard Condominium Corporation No. 1704 v. Fraser , 2020 ONSC 5430 (“ Fraser ”). In Fraser , the condominium corporation implemented a policy at the start of the pandemic to restrict repairs in the units during the pandemic. The policy stated that “contractors are not allowed to work in-suite unless it is considered an emergency or essential service”. The condominium corporation provided the following support for this policy:
Kristi Sargeant-Kerr, LL.B. specializes in all aspects of con- dominium and real estate law, including development, man- agement and litigation at Scott Petrie, LLP. She has been ap- pointed to the Advisory Com- mittee of the Condominium Management Regulatory Au- thority of Ontario (CMRAO) and is an active member of the CCI London and Area Chapter Board of Directors.
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