A couple of weeks ago, the Superior Court of Justice released an important decision, HCC 77 v. Mitrovic, regarding mandatory masks in condos.   The court ordered two owners to wear a mask or face covering while on interior common elements but also granted an exception permitting them to travel on any interior common elements between their unit to the main entrance of the building or to their parking spot for the purpose of ingress and egress, by the most direct route without a mask. These owners had raised disability as the primary reason for an accommodation and exemption of Ontario’s, the municipality’s and the condo’s policies mandating masks or face coverings be worn in common areas of the condo but refused to provide information or documentation of a disability until the court hearing.

Under the Reopening Ontario Act, masks or face coverings are mandatory in all public indoor settings across Ontario, such as businesses, workplaces and condominium and apartment buildings. Like many other cities in Ontario, Toronto has passed a by-law requiring condo corporations to adopt a policy to ensure that persons permitted entry to or remaining within any enclosed common area are wearing a mask or face covering except if a person has an underlying medical condition which inhibits their ability to wear a mask (among other exceptions). Such individuals are not required to provide proof of any medical exemption.

So what information is required for an exemption from a mandatory mask policy?

A 2020 HRTO decision reiterated that the accommodation process is a shared responsibility and that there must be co-operative sharing of information since many medical conditions are invisible.

In this human rights case, an individual brought an application against the City of Toronto alleging that the City discriminated against him based on his creed and disability with respect to service and the City’s mask by-law. However, the applicant didn’t include the businesses that allegedly discriminated against him by applying the City’s by-law as parties to his application.  The case was dismissed.

Although the HRTO decision focused on the mandatory mask policy within a business context, these principles are applicable to condos:

  • To engage the duty to accommodate, an individual must identify that they have a disability-related need that requires accommodation. In the context of a mandatory mask policy, this means that, if questioned, an individual must identify to a business or condo that they have a medical condition or other reason requiring an accommodation that exempts them from the policy requirement to wear a mask while on the premises;
  • An individual seeking accommodation is not required to disclose a specific medical diagnosis, but may, in some cases, be required to provide information to verify their accommodation needs;
  • Once an individual identifies that they have a medical condition or otherwise require accommodation that exempts them from a mask policy, the individual ought to be permitted access;
  • However, a business or condo’s duty to accommodate is not infinite, but rather ends at the point of undue hardship. “Undue hardship” includes consideration of health and safety risks.

As demonstrated in HCC 77 v. Mitrovic, the court confirmed that the condo had the right and obligation to enforce its mandatory mask policy to prevent undue risk to other residents. The court ordered a permanent injunction prohibiting those owners from entering other floors of the building (except where their units are located) because this activity constituted a dangerous activity contrary to section 117 of the Condo Act and their right to access those non-public areas, mask-less, must be balanced against the safety of other residents of the condo.

When a resident requests accommodation from a condo’s mask policy, condos should consider the following:

  1. Condos must consider whether the accommodation request falls within a protected ground under the Human Rights Code. In this context, residents would likely request an accommodation due to a disability;
  2. Condos have a duty to accommodate an individual to the point of undue hardship if the accommodation falls within a protected ground;
  3. Condos should consult their lawyer because the specific circumstances of each scenario may impact the condo’s obligations;
  4. Condos should not request a specific medical diagnosis if a resident asserts they have a disability that requires accommodation;
  5. In some cases, the resident may be required to provide information to verify their need for accommodation;
  6. Condos must consider their duties to enforce governing documents and insist upon conduct that isn’t dangerous under the Condo Act, and the Occupational Health and Safety Act, to take reasonable precautions to protect the health and safety of workers interacting with unmasked individuals.

Interestingly, the HRTO found that “creed” within the meaning of the Human Rights Code was not engaged in this application and rejected the applicant’s objection to wearing a mask because the applicant believed that the efficacy of masks has not been sufficiently proven. The Tribunal reiterated that “creed” most often engages an applicant’s sincerely held religious beliefs or practices; mere political opinion does not engage creed.