Are Masks or Face Coverings Mandatory in Condominium Corporations?

At this point, all public health regions have been given the “green light” to move into Stage 2 of reopening in Ontario. Since then, some municipalities are have taken, or are considering taking steps to make public spaces safer for all individuals by making the wearing of non-surgical masks mandatory in indoor public spaces.

By July 10^th 2020, wearing a mask or face covering will be required in indoor public spaces in a number of municipalities, including, but not limited to, Toronto, Ottawa, Eastern Ontario, Durham, Peel, and Kingston.

As an example, under the City of Toronto’s By-Law 541-2020, which was enacted and passed on June 30^th 2020, masks are required in any establishment open to the public. An establishment is defined under Section 6 of the By-Law, and means any of the following:

1. A premise or any portion thereof which are used as a place of business for the sale or offering for sale of goods or services, including a mall or similar structure containing multiple places of business;
2. Churches, mosques, synagogues, temples, or other places of worship;
3. Community centres, including indoor recreational facilities;
4. Libraries, art galleries, museums, aquariums, zoos, and other similar facilities;
5. Banquet halls, convention centres, arenas, stadiums, and other event spaces;
6. Premises utilized as an open house, presentation centre, or other facility for real estate purposes;
7. Common areas of hotels, motels, and other short-term rentals, such as lobbies, elevators, meeting rooms, or other common use facilities; and
8. Concert venues, theatres, cinemas, casinos, and other entertainment facilities.

The By-Law specifically states that the operator of an establishment that is open to the public must adopt a policy to ensure that no member of the public is permitted entry to, or to otherwise remain within, any enclosed space within the establishment unless they are wearing a mask or face covering, which covers their mouth, nose, and chin. There are some exemptions, such as where an individual has an underlying medical condition which inhibits their ability to wear a mask or face covering, or where the temporary removal of the mask or face covering is necessary for the purpose of receiving services or while actively engaging in athletic or fitness activity.

The City of Toronto’s By-Law is very similar to other municipal by-laws, and so, the BIG QUESTION IS – are masks mandatory in condominium corporations?

The short answer is NO.

The City of Toronto issued a Press Release on June 30^th 2020, which clarifies that the new By-Law does not apply to condominium corporations or any areas that are not enclosed, such as restaurant patios. However, this doesn’t mean that condominium corporations don’t present that same risks as hotels, businesses, and other establishments, and that masks or face coverings should not be worn in the indoor common element areas of a condominium.

Condominium corporations have an obligation under both the Condominium Act, 1998 and the Occupational Health and Safety Act, 1990 to ensure that the common elements are safe and that no dangerous condition is permitted to exist. Condominium corporations are also considered to be the occupier of the common elements for liability purposes.

If a condominium corporation fails to take reasonable precautions and/or fails to enforce or implement said precautions, the Corporation could be held liable under the Condominium Act or the Occupiers’ Liability Act, 1990 for failing to take reasonable steps to protect individuals from the foreseeable harm of contracting COVID-19 as a result of using the indoor common element areas.

Therefore, while masks or face coverings are not required in the indoor common element areas of condominium corporations, it would be prudent for a condominium corporation to consider whether it is in the best interests of the condominium corporation, from a risk management perspective, to make wearing of masks or face coverings mandatory in certain indoor common element areas.

For more information regarding masks and face coverings from the Ontario government, please click here.

If you have any questions, please do not hesitate to contact anyone on our team:

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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