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.

Condo boards and owners should be familiar with the concept of “common elements” and “units”. While there is no “one size fits all” approach to distinguishing the two, in simplified terms, anything that is not part of a “unit” is a “common element”. Diligent boards and owners should review the condo’s Declaration  for inclusions/ exclusions to and from the unit,  maintenance and repair obligations and Schedule “C” to determine unit boundaries; the condo’s registered plan drawings will lay that out in an illustrated form. Understanding these points is critically important.

In Landont Ltd. v. Frontenac Condominium Corp. No. 11, Landont Ltd. used their unit to operate a commercial parking lot. Landont and FCC 11 agreed that the concrete slab below the lot was a common element, but this case turned on whether a waterproofing membrane installed on the upper surface of the concrete slab was part of the common elements. The distinction fundamentally determined which party was responsible for maintaining and repairing the membrane.

Continue Reading Unit and common element boundaries: Not always as “concrete” as they seem

OOctober 1, 2019, the prompt payment and adjudication regime of the Construction Act (the “Act”) came into force to improve payment and cashflow to contractors on construction projectsThe changes apply to any contract between a contractor and property owner for the supply of services or materials for any alteration, addition or capital repair to the land (among other work)Any condo who is party to such a contract is subject to the “28-7-7-7” prompt payment clock and adjudication regime.   

The changes also amended traditional construction lien legislation, including the deadlines to preserve and perfect a lien and holdback releases  

This is Part I of our two-part series, where we explore how these changes impact construction contracts, specifically the CCDC 2 Stipulated Price Contract, and projects at condos now that we have had about 1.5 years (and a pandemic!) to reflect on it 

Continue Reading Construction Act impact on condo projects  

The Condo Authority Tribunal’s decision in Rahman v. PSCC 779 is the first of its kind under the Tribunal’s expanded jurisdiction.  The case provides a strong warning against condos seeking to unilaterally impose costs against unit owners.

The Tribunal held that it had authority to hear this matter – a dispute concerning parking and indemnification – pursuant to the Condo Act’s newly instituted Regulations.

In this case, the condo sought to prevent an owner from using the condo’s outdoor “handicap” (i.e., accessible) parking space.  The condo argued that this parking location was meant for visitor parking only.  The condo also argued that the owner’s “Accessible Parking Permit” from the province did not qualify him to use the “handicap” space.

The owner argued that he was entitled to park in the condo’s “handicap” parking space (which was distinct from visitor parking), as he suffered a disability impeding him from accessing his own parking units, as evidenced by his “Accessible Parking Permit”.  The owner also argued that the condo’s compliance enforcement amounted to harassment.

The Tribunal held that to conflate the “handicap” parking with the visitor parking would deny condo owners any accessible parking.  The owner was parking in a “handicap” parking space as opposed to a visitor parking space.  The “Accessible Parking Permit” demonstrated a disability-related need to use the “handicap” parking.  In assessing the owner’s disability, the Tribunal favoured the owner’s doctor’s letter over the condo’s photographs of the owner, which provided no context or medical opinion.  The owner was complying with the condo’s declaration when using the “handicap” parking.  The condo was not entitled to rely on the indemnification provisions in its declaration to recover its enforcement costs.  Based on Amlani v. YCC 473, it was improper for the condo to attempt to collect its legal costs and fees by way of lien and notice of sale (without a court order).

Therefore, the Tribunal found that the owner was entitled to use the “handicap” parking space and that the condo’s compliance enforcement costs were invalid.  The Tribunal ordered the condo to: 1) provide the owner an accounting of its indemnification costs (including for legal fees); 2) immediately cease its compliance enforcement efforts (including the continued lien registration and notice of sale); 3) reimburse the owner, as the successful party, his $200 filing costs; and 4) pay the owner $1,500 as recompense for the time, trouble and expense it caused him.

Lozano v. TSCC 1765 was one of our Top 10 cases for 2020 because it reaffirmed that a higher negligence threshold is not applicable for s.105 chargebacks. You can read a summary of the case in our newsletter, Condo Alert!, Winter 2020

 Lozano’s insurer (who paid the insurance deductible) appealed the 2020 decision, asking the Divisional Court to re-write s.105 of the Condo Act and adopt a “robust” negligence test for liability under that section. The court rejected this proposal and dismissed the appeal a few days ago. 

Continue Reading Never mind the ballcocks, here’s the shut-off valve 

Unit owners occasionally request records about past and current litigation.  This can happen in the context of a condo’s AGM, a debate with management or a seemingly benign records request.  When is it okay to provide such records?

The CAT recently clarified that when litigation is settled or fully concluded and the record is not solicitor-client/settlement privileged, a record may be examined and produced:  the fact that the record relates to litigation is not a reason to refuse access.

Continue Reading Condo litigation records may be produced after litigation ends

The 60-day limitation period on giving notice of snow/ice injury referred to in s. 6 of the Occupiers’ Liability Act has now come into force, as of January 29, 2021.

The notice of such an injury must include the date, time and location of the occurrence and it must be personally served or sent by registered mail to the applicable occupier and/or the independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period when the injury occurred.  An occupier who receives that notice must also serve the notice on any other relevant occupiers and the snow removal contractor.

Failure by an injured person to give that notice to at least one occupier on time will cause that injured person to lose rights to recover recompense in most cases.

See our January 19, 2021 post for further details.

We recently blogged about the mandatory registration for short-term rental operators in the City of Toronto. You can read it about it here 

You can now report short-term rental addresses that are operating without registration, not used as a principal residence, unsafe, causing a nuisance or for other non-emergencies, using 311’s online complaint form.

While short-term rentals are currently prohibited under the provincial declaration of emergency (except for short-term rentals provided to individuals who need housing), condos should be diligent in reporting any non-compliant rentals to the city as a first step in its enforcement This online form makes it easier and quicker than calling into 311 so there’s no excuse.  

The CAT’s decision in Abou El Naaj v. Peel Standard Condominium Corporation No. 935 reflects a problematic trend of condos failing or refusing to participate in Tribunal proceedings. We do not recommend ignoring a CAT application…  Just like real live cats, they don’t go away by simply ignoring them.

We understand why condos might not want to spend the time and money defending a CAT application: we often hear some version of “not wanting to pay to defend a frivolous application from a nuisance unit owner”. And while the fear of a penalty might otherwise compel condos to respond to a CAT Application, it’s important to point out that in Abou El Naaj v. PSCC 935, the Tribunal noted, “the Act does not provide for the assessment of a penalty for failure to participate in a Tribunal proceeding”.

I’ll be the first to say the CAT  needs  reform.  In most cases, owners are self-represented whereas condos  turn to their lawyers:  all of this comes with a price and it’s usually the condo footing the bill.  Despite the burden involved with a CAT application – or any legal proceeding for that matter – the inherent value of the process is that it can bring a resolution.  Ignoring or not participating in a proceeding from the outset closes the door on that possibility and it could lead to a worse result for the condo – in some cases, it may embolden difficult owners which only escalates tensions. Think twice before ignoring a CAT application.