In a case released September 10, the Ontario Superior Court of Justice upheld a corporation’s COVID-19 related policy prohibiting most in-suite renovations and repairs.
The case provides some guidance for corporations who are struggling to navigate the challenges associated with COVID-19, and confirms that a corporation can indeed implement policies to restrict certain activities due to the risks associated with the pandemic.
A unit owner wanted to make repairs to their unit damaged by a flooding incident (pre-COVID-19). The residents were unable to use the second bedroom or ensuite bathroom, but had access to another bedroom and bathroom.
In May, the Corporation passed a policy prohibiting most in-suite renovations due to COVID-19, which had the effect of prohibiting these repairs. The unit owner refused to comply with the policy and proceeded with the repairs. The Corporation then commenced an application to halt the repairs.
The Court found the policy valid and enforceable, and cited, in part, section 117 of the Act (prohibition of conditions or activities likely to cause injury), as authority to pass this type of policy.
The Court also referred to section 58 (the authority to make rules) in its analysis and as authority for the policy – quite curiously, we add, since the policy was not passed by way of a rule.
Although the Court’s review and analysis of a condominium corporation’s authority to pass reasonable rules under section 58 is not, in our view, applicable to this policy, we do ultimately agree with the Court’s result that the policy was enforceable – but under section 117, not section 58.
The owner tried to argue that when the province moved into stage 1 on May 19, the policy was no longer reasonable and the Corporation ought to have reviewed its policy when restrictions in the province were relaxed.
The Court disagreed, and found that the policy was “well within the range of reasonable responses to the global pandemic”, and that the it was reasonable to maintain the policy thereafter. The court noted that the policy was not absolute (i.e. emergency repairs and essential services were permissible under the policy) and that the serious health risks of COVID-19 factored into the policy’s reasonableness.
The Court also noted the following:
Although the Province of Ontario has authorized re-opening of certain types of services during the spring and summer of 2020, this does not suggest that all places of living or working are obliged to follow these guidelines.
Keep these words in mind when considering reopening amenities and other policies to help protect the residents, service providers, and guests in your buildings.
