Enforcing Condominium Rules: Mask Policies During Covid-19 Pandemic

By Ridhima Pathak

We are now in the midst of Ontario’s third lockdown and surprisingly, the topic of the requirement to wear a mask in public places remains highly discussed.

The Ontario Red Zone Regulation requires all individuals entering the indoor area of a business or organization to wear a mask that covers their mouth, nose, and chin.[1] The Burlington By-Law 62-2020 reiterates the same, but also includes condominiums and apartment buildings.[2]

The Red Zone Regulation states that the mask requirement is subject to exemptions, which include medical conditions or disabilities. Regulations under the Reopening Ontario Act provide that “it is not necessary for a person to present evidence to the person responsible for a business or place that they are entitled to any of these exemptions”.[3] The Burlington By-Law further sheds light on the mandatory mask policy for individuals entering a condominium building. The exemptions are an individual’s inability to breathe as well as negative impact to their emotional well-being or mental health. The By-Law reiterates that evidence of said exemptions are not required.

These requirements were recently highlighted in the case Halton Condominium Corp No. 77 v Mitrovic. In this case, a senior couple residing in a condominium unit refused to wear a mask as a result of medical conditions. Security footage revealed that the couple did not wear masks in the common areas, were walking on other floors, wore anti-mask signage, and were posting anti-masking posters within the building.

The Condominium’s mask policy is more restrictive than Ontario’s Regulation as the Condominium’s policy requires that the medical condition must be such that it inhibits the ability to wear a mask. This is because Condominiums have a high standard for ensuring that common elements are safe. By not wearing a mask, there is an increase in risk towards other residents.

The Condominium sought an order from the court requiring the couple to comply with the COVID-19 regulations put in place by the government and public health officials, and specifically that:

1. the couple’s behaviour constituted dangerous activity;
2. wearing a securely fixed mask is required; and
3. the couple was only permitted to be on their unit floor, elevator, main lobby, mail room, and parking garage levels of the building.

The issues at hand are as follows:

• Did the couple breach the Reopening Ontario Act mask requirements?
• Did the couple’s behaviour constitute dangerous activity as per s.117 of the Condominium Act?
• Did the couple breach the Halton Condominium Corporation’s mask policy?

The court ruled that while the couple may fall under the exemption and do not have to provide evidence of their medical conditions, they must still respect the boundaries of their residence.  The court ordered that the couple may be exempt from wearing a mask as they enter or exit the building only. Without a mask, the couple is not entitled to “wander other floors for exercise, visit other residents, conduct social activities, or post posters in support of their anti-mask beliefs”.[4] This constitutes dangerous activity and could have severe consequences to other residents.

Living in a Condominium is a shared community space, whether “you are an owner or a tenant, you do not enjoy unlimited freedom as you would in a privately owned property”.[5] The Condominium must balance the interests of all residents and is therefore justified in establishing more restrictive condominium rules.

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[1] Reopening Ontario Act, 2020 - Ontario Regulation 263/20, Schedule 1, Article 2(4).

[2] The City of Burlington By-Law 62-2020.

[3] Reopening Ontario Act, 2020 - Ontario Regulation 263/20, Schedule 1, Article 6.

[4] Halton Condominium Corp No. 77 v Mitrovic, 2021 ONSC 2071.

[5] Ibid.