Condominium corporations across the province are grappling with the decision of whether to require proof of vaccination (POV) in their condominiums even though they are not required to do so by provincial regulation.

Earlier this fall, the property manager of Casa Condos, a 46-storey downtown Toronto condominium, advised its residents that effective at the time of the notice, POV would be required “for guests and residents who wish to use all amenities”. Unvaccinated residents would not be allowed to use the building’s outdoor facilities, such as the rooftop deck and pool, or indoor amenities like the gym and visitor suites.

After the response from some condo residents of the building, the email notice was retracted by the property manager.

However, Ontario Ministry of Health guidelines permit condo boards and property managers to opt into the certificate program which some condo boards, like those at the Casa Condos, opted to do so, notwithstanding that the condo amenities are not “public settings or facilities” subject to Ontario’s POV requirements. On October 28, a news release was issued by Strategic Group, a Calgary-based real estate company that owns multi-family residential communities in Alberta.

The news release announced that all employees, residents, and prospective residents (i.e. those who merely come to see the unit prior to renting it) must show POV prior to entering the property and moving in.

Current residents must show proof of vaccination to access indoor amenities, such a fitness centre or party room. Anyone unable to be vaccinated—for instance, children under 12— is exempt until able to receive a vaccine. The rule is applicable to all of Strategic Group’s estimated 1,500 residential units in residential communities in Alberta.

How other COVID-19 mandates have been received by courts

During the pandemic, there have been a few instances where the court has ruled in favour of condo boards seeking to enforce compliance with their COVID-related policies.

In Halton Condominium Corp No 77 v Mitrovic (2021 ONSC 2071), the condo corporation applied for an order enforcing its policy which required unit owners to wear masks while in common spaces, except for children and those with medical conditions or disabilities that prevented them from wearing a mask.

The Mitrovics, unit owners in the condo, claimed that they were exempt under the mask policy by way of medical condition and that they did not need to provide proof to the condo corporation. Balancing all unit owners’ right to safety with the Mitrovics’ medical conditions, the court held that the Mitrovics could circulate interior common elements without a mask while travelling the most direct route from their unit to the main entrance. However, they could not enter other floors without a mask.

In Toronto Standard Condominium Corporation 1704 v Fraser (2020 ONSC 5430), the court upheld a condo corp’s policy that in-unit repairs and renovations by contractors were prohibited during the pandemic. The court stated that the policy was valid and “well within the range of reasonable responses to a global pandemic”.

Masks and vaccines are two separate mandates which condo boards must make decisions on. Though the court’s treatment of mask mandates in condos is not indicative that POV requirements would be treated similarly, it is interesting to see how the introduction of these health measures in condo buildings has been received by the courts.

Ramifications of requiring POV in a residential setting

While none of us know how long POV will be required in Ontario in the settings mandated by the province, or whether those areas and exemptions will be amended over time, what we do know is that there are many factors for residential unit owners, condominium boards and property managers to consider regarding POV requirements, including the following:

1. What is the scope of the POV in terms of where on the property it will be required; for example, only for use of public or condominium amenities?
2. What is the purpose of the POV in terms of protecting the health and safety of on-site personnel, residents and guests?
3. How will existing residents (some of whom may qualify for an exemption) be treated?Their monthly common expense payments are used in part for the condominium public amenities.
4. How will the rule or policy be enforced and how will the costs of such enforcement be absorbed?
5. What is the liability to on-site employees where no POV is required and a case of COVID-19 arises which can be traced to a non-vaccinated person without a valid exemption?
6. How valuable is the ability to increase capacity of the condo’s indoor amenities by requiring POV?
7. What role does an insurer have in advising the condo board / owner / property manager?
8. How do privacy laws affect the release of health information?
9. What about the Supporting Ontario’s Recovery and Municipal Elections Act, 2020, S.O. 2020, c. 26, which is intended to afford protection from lawsuits to “thousands of Ontario workers, employers, volunteers, non-profits, and other organizations who make an honest effort to follow public health advice, follow public health guidance and law as Ontario responds to the COVID-19 pandemic” and who, by doing so, “risk significant liability in the event of transmission to third parties.”?
10. For how long would a proposed policy be in effect?
11. What amount of advance notice would be fair to residents?

Ontario’s POV requirements do not expressly require them in residential condominiums. While the provincial mandate does permit settings not contemplated in the order to implement POV requirements, there are risks associated with a condo corporation implementing such requirements right now.

Unit owners, employees and occupiers of residential condo buildings should balance overall health and safety with individual needs.

Darrell Gold has been in practice for over 30 years and is a partner at Robins Appleby LLP. He is responsible for the leasing component of the Real Estate Group and has extensive experience and expertise in commercial, retail, office and industrial leasing, lease enforcement and dispute resolution, acting on behalf of landlords, tenants and property managers.

Jordana Lyons is an articling student at Robins Appleby LLP in Toronto, Ontario. She graduated from the dual JD/HBA program at Western Law and the Ivey Business School in 2021.