An interesting decision was released March 19, 2021, involving two condo owners who refused to wear masks in their condo due to medical reasons. In Halton Condominium Corporation No. 77 v. Mitrovic, although the corporation was successful in obtaining a compliance order against the owners and a permanent injunction mandating those owners to wear a mask, the Court carved out an exception for “egress and ingress by the most direct route from their unit to the main entrance of the building due to a medical condition”.
These condo owners are now permitted to use the lobby, elevator, mailroom and parking garage without their masks, but they can no longer visit other floors or other areas of the condo, or take an indirect route to their unit, unless they wear a mask. The Court found that visiting or exercising on other floors without a mask would constitute a dangerous activity on the common elements, in breach of section 117 of the Act.
The Court agreed that the Board had the authority to make a mask policy to promote the health, safety and welfare of the owners and also emphasized that the board had the obligation to insist upon conduct by residents that does not place the other residents at undue risk.
The Court took judicial notice of the seriousness of the pandemic which has resulted in a significant number of deaths and serious illness, and that the virus affects people of all ages but is particularly dangerous to older people and those with pre-existing conditions. The judge did recognize that “the issues were complex and profound” and that it was “a difficult balancing act”, but ultimately did not grant the Corporation the full spectrum of orders it was seeking.
So where do condo corporations go from here? We previously blogged about the requirement for implementing mask policies and all condominium corporations should have one. Once the policies are in place, boards and management have an obligation to take steps to protect residents by carrying out enforcement, always keeping in mind that there may be exemptions for medical reasons.