Covid-19 Bulletin No. 38 - What Is Permitted in The Grey Zone Of Ontario's Colour- Coded Framework?

Updated March 29, 2021

Ontario Regulation 82/20 (“O. Reg. 82/20”) under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, governs what is permitted in the Grey Zone of Ontario’s colour-coded framework, in particular, Schedules 6-9 apply here (Schedules 1-5 govern those areas within the stay-at-home order).

What businesses may open in the Grey Zone?

Schedule 7 of O. Reg. 82/20 provides a list of businesses that may operate. Those businesses that may relate to the condominium industry are as follows:

• Maintenance, repair and property management services that manage and maintain the safety, security, sanitation and operation of institutional, commercial, industrial and residential properties and buildings;
• Security services for residences, businesses and other properties;
• Domestic services that support the operations of households including housekeeping, cooking, indoor and outdoor cleaning and maintenance services;
• Laundromats can remain open (condos may want to consider implementing restrictions around how many occupants can use them, establish schedules and increase cleaning and disinfecting);
• Lawn care, snow clearing and landscaping services are permitted;
• Self-service or automated car washes;
• Construction activities or projects and related services that support construction activities or projects, including demolition services;
• Shopping malls, providing the businesses within the mall operate at 25% capacity (important for those condominiums that have malls within the Corporation); and
• Facilities for indoor/outdoor sports and recreational fitness activities may open, however, there are certain conditions that must be met.

Section 45 of O. Reg. 82/20 provides conditions for opening a facility for indoor or outdoor sports and recreational fitness activities. Such facilities may open where:

• The facility is operated by, or for the sole use of, persons who are athletes, coaches or officials training or competing to be a part of Team Canada at the next summer or winter Olympic Games or Paralympic Games or it is operated by a national sports team.
• The facility must open solely for the purpose of providing space for any of the following:

1. A day camp for children;
2. A provider of child care within the meaning of the Child Care and Early Years Act, 2014.
3. Mental health support services or addiction support services (no more than 10 people in attendance); and/or
4. The provision of social services.

• A facility may, but is not required to, open if a person with a disability has provided written instructions for physical therapy from a regulated health professional and they are unable to engage in this elsewhere. It is important for condominiums to remember that if it is approached by an owner with a disability, it can open its fitness amenities for said person, however, it is not required to do so by law and it can reject to do so should it feel unsafe.

Construction during lockdown

Schedule 7, Section 32 of O. Reg. 82/20, permits “maintenance, repair and property management services that manage and maintain the safety, security, sanitation and operation of institutional, commercial, industrial and residential properties and buildings” to continue. Further, Schedule 7, Section 40 of O. Reg. 82/20 permits “construction activities or projects and related services including demolition services” to continue.

• In reviewing the language of the legislation, it is easy to lump in unit renovations which are retrofitting projects. Not all unit renovations are essential construction services and repair and maintenance projects.  Where units must be repaired or maintained for emergency reasons the same will be essential. The operations of the Corporation, required to fulfil its statutory obligations, are what is essential. The Board has the power and obligation to determine what is essential for the corporation with respect to construction and similarly, maintenance and repair. Maintenance, repair and property management services that manage and maintain the safety, security, sanitation and operation of institutional, commercial, industrial and residential properties and buildings are essential.  With this said, does this mean every project is a go? No.  It is important to remember that all of the pandemic legislation has been implement to limit or eliminate the spread of the virus.  Thus, this standard cannot be disregarded but should be factored into board decisions on capital replacement, maintenance, repair and retrofit decisions.   Corporations are private entities.

Therefore, we recommend policies that are comprehensive in identifying and addressing risk, prioritization of projects (remember the less strangers on site, the better, especially in certain parts of Ontario), a periodic review of the policies and procedures and the Board to affirm the policies appropriateness or to allow for changes to address changes in circumstances of the Corporation. 

The recent Ontario Superior Court case of Toronto Standard Condominium Corporation No. 1704 v. Fraser, held that even in circumstances where the Province of Ontario has authorized the re-opening of certain services during the COVID-19 pandemic, this does not mean that a Corporation is required to re-open such services. Restrictions adopted by Corporations may be stricter than those placed by government bodies, so long as the policies are reasonable.

Corporations are obligated under Section 117 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) to ensure that no dangerous condition is permitted to exist on the premises, as well as in accordance with all Public Health Guidelines. The purpose of they Grey Zone is to reduce and control the spread of the virus; therefore, Boards need to prioritize projects and proceed with those which it deems essential first, and those which put the community at the least amount of risk. In this regard, in-suite renovations would increase the number of individuals attending the property and thus, increase interactions with employees, agents, guests, and residents which in turn, could increase the risk of transmission. 

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. Every condominium is different and unique!

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 article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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