COVID-19 Bulletin No. 31: Should Visitors Be Restricted?

Updated on December 1^st 2020

Whether visitors should be permitted in condominiums in Ontario depends on two variables:

1. Where you are in Ontario; and
2. Subject to where you are, what type of visitor you are to the condominium.

The Condominium Act, 1998 and the Occupiers’ Liability Act, 1990

Pursuant to Section 117 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), condominium corporations have an obligation to prevent dangerous conditions and activities from occurring on their common elements and in the units, and pursuant to Section 26 of the Act, condominium corporations are the occupiers of their common elements, for liability purposes. The Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”), provides that each condominium corporation has an obligation to take reasonable steps to protect persons on their common elements from foreseeable harm. If the Corporation fails to take reasonable precautions and/or fails to enforce and implement said precautions, the Corporation could be held liable under Section 26 of the Act and the OLA 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 elements. However, should a condominium corporation act in good faith and follow public health guidelines, Section 2(1) of the Supporting Ontario's Recovery Act, 2020, S.O. 2020, c. 26, Sched. 1 (the “SORA”) provides protection against liability in that a Corporation cannot be held liable for an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if,

(a)  at the relevant time, the person acted or made a good faith effort to act in accordance with,

(i)  public health guidance relating to coronavirus (COVID-19) that applied to the person, and

(ii)  any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and

(b)  the act or omission of the person does not constitute gross negligence.

For greater clarity, Section 1(2) of SORA provides that a “person” includes reference to any individual, corporation or other entity.

Creating a safe work environment for Condominium employees

With respect to maintaining a safe and healthy workplace for your workers, as of September 26th 2020, employers are required to conduct daily health screenings on their employees. Accordingly, it is recommended that condominium corporations coordinate information exchanges with employers on a daily basis and/or screen all workers that enter the premises.  The screening should include a temperature check, self-screening protocol and completion of a COVID-19 questionnaire. It is important to remember that the obligation to protect people in the condominium context flows both ways from suppliers to owners and owners to suppliers. This means that if work is done in-suite, the Corporation must also check with the unit owner to ensure that there is not risk of transmission.

Essential/Non-Essential Visitors

As it is reasonably foreseeable that someone could contract COVID-19 while using the corporation’s common elements, the corporation must take reasonable steps to prevent said foreseeable risk. The ingress and egress of any individuals increases the potential for spread of COVID-19 amongst the community. In our opinion, condominium corporations should be pro-active in managing this risk. Reducing the number of visitors who attend at the corporation will help the corporation reduce the potential for transmission of the virus. Thus, we also recommend that everyone in a Stage 1 area continue with active screening of essential visitors. All types of visitors.

In Stage 1 areas, visitor access should be limited to essential types of visitors such as personal health care workers, essential construction, etc. There are no social gatherings permitted. Condominiums in the Toronto Health Public region need to move back to previous thresholds. Public Health Guidelines are encouraging all individuals to stay home as much as possible and only leave their home or unit for essential trips, such as for food or medical purposes. More specifically, Toronto’s current Public Health Measures prohibit family or friends who are not members of an individual’s household from entering their home for a social visit. However, essential support workers and emergency repair persons are permitted entry.

We understand that it is impractical to ban all visitors to the corporation; however, the condominium corporation should consider whether a ban of non-essential visitors is essential.  The Corporation has the right to make policies that govern the community and COVID 19 policies have been upheld by the court, where enforced.  Accordingly, the corporation may wish to develop a Visitor Protocol, which would require that all visitors identify themselves as essential or non-essential and identify their purpose for their visit and must also be screened (as mentioned above) before being permitted entry to the premises.

The purpose of the Lockdown in Stage 1 areas is to limit contact between individuals to reduce and eliminate, where possible, the spread of COVID-19. The more people that visit a condominium, the higher the risk of transmission. Accordingly, in our opinion, visits to the corporation should be limited and only for essential purposes.

Visitor Parking

We do not see the need for visitor parking to be suspended at this time as essential visitors will be entering the premises and should be permitted to use the parking facilities. However, all visitors must be required to check-in at the front desk or with security, where possible, and following the visitor protocol prior to being admitted entry to the rest of the premises.

In this regard, please refer to our previous COVID-19 Bulletins on proper protocols and procedures to be implemented and followed by condominium corporations.

Please also ensure that you speak with your legal counsel if you do not already have COVID-19 protocols and policies in place to help manage the risk of transmission of the virus within your condominium community and require assistance with respect to drafting and/or implementing the same.

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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