Laying down the laws
Highrise pools and party rooms aren’t subject to Ontario’s vax rules — which leaves the messy business of enforcement for their residents to condo boards themselves
Unlike the COVID-19 pandemic, Del Property Management’s proof-of-vaccination requirements for the Casa Condos building didn’t last very long. Within hours of informing residents on Sept. 2 that “proof of vaccination status is required for guests and residents who wish to use all amenities,” the emailed missive was retracted, according to staff at the 46-storey tower on Charles Street in downtown Toronto.
While Del declined to comment, Casa resident Natasha Barnes has a theory on the about-face: “I know some people in the building weren’t okay with what they saw as being forced to get vaccinated to use the amenities they pay for,” the thirtysomething radiologist says. “Personally I was fine with it, and I think most other people were too. But it only takes a few naysayers to derail everything.”
Ontario’s recently enacted COVID-19 vaccination certificate rules require people to prove they are fully vaccinated to access a wide range of venues. In condo buildings, however, many similar venues — communal amenities such as gyms, swimming pools, party rooms and yoga studios — are not subject to the new rules because they are not publicly accessible.
That is, unless condo boards and property managers opt into the certificate program as per Ontario Ministry of Health guidelines. After the rules were announced by the province on Sept. 1, some condo boards and property managers, like those at the Casa Condos, did exactly that.
Their speedy retraction, however, doesn’t surprise Nancy Houle, a founding partner at Davidson Houle Allen LLP who specializes in condo law. Applying mandatory vaccination policies to amenities is “risky” on several legal fronts, Houle says. For one thing, it could lead to a claim for breach of privacy because it could force disclosure of a resident’s vaccine status. For another, there are risks of claims for battery and breach of human rights, because the policy could force someone to risk unwanted bodily harm (in the form of vaccine side-effects), or deny them occupancy rights that could involve amenity use. “There are just so many grey areas right now,” House adds.
The situation became murkier still on Sept. 14, when the Ontario Ministry of Health published an FAQ document stating that “facilities/amenities in condo buildings that are not open or accessible to the public are likely not public settings or facilities that would be subject to proof of vaccination requirements. However, these organizations may implement their own rules respecting use of gyms or meeting or event spaces.”
Caveats like “could,” “likely” and “may” capture just how nebulous and complex the situation has become. “It’s definitely a hot topic among condo communities because it’s incredibly polarizing,” Houle says. “In some cases it pits an individual’s core beliefs against what may be in the best interests of a community in terms of safety and security. It’s a real balancing act.”
The lack of clear government guidance “leaves it to condo boards to try and figure out what is appropriate for their communities, to come up with something that fits within the required guidelines, and that gives owners the flexibility and freedom to live the way they want to live,” Houle says. “We often say that condos are the fourth level of government. When it isn’t dealt with by the first three levels, condo boards must figure it out.”
To that end, her firm is working with several boards to establish rules that require full vaccination for both residents and property management employees, and has drafted plans for others that include the option of setting specific times of day when certain amenities can be used by vaccinated and unvaccinated residents.
“A strong board with a good sense of what their community wants stands a better chance of having these types of rules accepted than a board that is out of touch,” Houle says. “That said, a small minority of residents can have a very strong voice.”
Most boards, she adds, are choosing to “wait and see what happens” while observing local and provincial guidelines such as those updated on July 21 by Toronto Public Health. As well as recommending the usual best practices — mask wearing, physical distancing, hand-sanitizing and ample signage — boards and property managers are being encouraged to implement schedules for amenity use, allow extra time between usage for cleaning and disinfecting of high-touch surfaces and equipment, and use the highest-possible efficiency filters in HVAC systems, to list just a few of the 40-plus recommendations.
The trouble with recommendations, House says, is that they can be interpreted and implemented inconsistently. At the three-phase King West Condominiums in Liberty Village, for instance, the party rooms, swimming pool and gym reopened on July 16 in accordance with Phase 3 of Ontario’s reopening plan. Reservations for the party rooms can be made for up to 25 residents — all of whom must wear masks — with guests from outside the buildings forbidden to enter.
Party room rules at the Minto Westside Condos at Front and Bathurst are similar to those at King West, but with one key difference: Residents are required to wear masks only in the hallways leading to the secondfloor social lounge, but not in the lounge itself.
King West Phase II resident Frank Agostino says he has been impressed with the extra cleaning, signage and hand sanitizer stations provided by ICC Property Management, but was surprised that the booking form he used to reserve the building’s guest suite did not at least ask him about the vaccine status of his recent outof-town guests.
“I would prefer that everybody in the building was double vaccinated, and that includes guests, but I don’t think there’s any reasonable way to enforce that,” Agostino says. “The manpower required to check everybody going into the pool, the gym, the games room, the party room — everybody’s monthly fees would go through the roof.”
While it’s hard to put a dollar figure on the cost of easing pandemic-related concerns, Strata.ca real estate broker Cliff Liu says condo residents remain very aware of the health issues involved: “I’m in and out of buildings all the time, and I see that the stairwells get a lot more traffic than the elevators. Residents seem respectful of each other’s space, even without a vaccine policy in place.”