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As the Province of Ontario continues to allow for “new” types of activities to resume, many condo Boards are considering what amenities can be reopened and, perhaps more importantly, what procedures and safeguards can be put in place to protect both their residents and the condo corporation itself.
All of Ontario has now entered Phase 3 of the Reopening Ontario (A Flexible Response to COVID-19) Act (the “Reopening Act”). This provides greater flexibility in terms of what amenities can be reopened but the need for precautions remains. The Province itself has issued statements reminding businesses and not-for-profits that the requirements of the Reopening Act are a minimum, and that facilities are free to adopt protocols that are more restrictive.
Safety concerns and a desire to protect a condo corporation against liability can, however, be balanced against residents’ desire to resume some forms of leisure and fitness activities that are offered by many condo corporations. Reopening outdoor amenities, such as tennis courts, that facilitate physical distancing and where ventilation is not a concern may be an easier choice for many condo corporations than reopening indoor amenity areas.
Provided that appropriate physical distancing and sanitization procedures can be implemented and followed, reopening certain indoor amenities, like a small game rooms or gyms, can now be considered. As mentioned above, however, just because an amenity may be allowed to open does not necessarily mean that it should.
Commercial operators of a gym, for example, have much better resources and around the clock staffing to ensure that physical distancing and sanitization protocols are being strictly followed. Most condo corporations simply do not have the resources to provide the same level of monitoring and constant cleaning. If a condo corporation plans to reopen an indoor amenity area, the following questions should be considered first:
- Is space available to provide adequate physical distance between users?
- Can proper sanitization products be made available at all times and can increased cleaning be performed by the staff?
- What is a safe capacity limit?
- Can tracing or sign in procedures be put in place?
- Is there proper ventilation?
If these questions, at a minimum, cannot be adequately addressed, that amenity space should not be reopened. Condo corporations should also consider how to implement new protocols for a reopened amenity space prior to the reopening.
Typically, condo corporations pass rules to address the use of amenities, but procedures or policies could be adopted by a Board to address the safety and security of residents. A condo corporation may be able to rely upon Section 117 of the Condominium Act, 1998 (the “Act”) to enforce interim policies. This Section of the Act provides that no person shall permit a condition or activity in the common elements if such condition or activity is likely to damage the property or cause injury to an individual.
There is some uncertainty with respect to the enforceability of interim policies, but in our view, there is a reasonable chance that a policy would be held to be enforceable if challenged, so long as the requirements relate to the protection of health in light of the COVID-19 pandemic.
Finally, many condo corporations are uncertain as to whether residents should have to sign a waiver acknowledging the risk of using the amenities before being provided with access. While it is better to have a waiver than not from a liability perspective, a waiver in itself is no guarantee that a condo corporation would be relieved of any or all liability. The enforceability of waivers could also be called into question as residents could argue that they (1) were forced to sign the waiver; and (2) did not obtain independent legal advice concerning the waiver that they signed.
In short, condo corporations should proceed cautiously in reopening amenities and fully consider health and liability concerns that may arise as a result of doing so.