In a recent decision, Ontario’s Superior Court has upheld a condominium corporation’s COVID-19 policy.
In the case of TSCC 1704 v. Fraser, the condominium corporation implemented a policy to restrict repairs in the units during the current pandemic. The policy stated that “contractors are not allowed to work in-suite unless it is considered an emergency or essential service”. The condominium corporation gave the following reasons:
“With the COVID-19 Pandemic, there is concern for the safety and security of our residents to permit additional unnecessary people in the building as well as the reasonable expectation of residents for quiet enjoyment of their property with so many people being required to work from home these days.”
One of the units had suffered water damage during plumbing repairs. As a result, the occupants were not able to use the second bedroom or the ensuite bathroom. The owner wished to carry out the required repairs and this ultimately resulted in the Court dispute.
The Court upheld the policy and said that the repairs could not proceed (at this time). The Court said that the policy was “well within the range of reasonable responses to the global pandemic”.
I think it’s interesting to note that the policy was not passed as a Rule. Instead, it seems that the policy was implemented in support of the condominium corporation’s various obligations, including the duty to reasonably enforce Section 117 of the Condominium Act, which reads as follows:
“No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.”
In my view, this is an entirely proper basis for such a policy [see our recent article on this topic].
At the same time, the Court noted that Rules passed by a condominium corporation will be upheld by a court unless they are “clearly unreasonable or contrary to the legislative scheme” (as noted by the Court of Appeal in the case of York Condominium Corp. No. 382 v. Dvorchik). In the TSCC 1704 case, the Court applied similar reasoning to its consideration of the particular policy. The Court said:
“The context for the Policy is the unprecedented societal response to a virus which is contagious and fatal particularly to those in high-risk categories. 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.
I also find that the Corporation was reasonable in maintaining the Policy over the past four months. The pandemic response has included restrictions on many aspects of daily living in Toronto since mid-March of 2020. The pandemic is still capable of spreading in the community. It has been approximately four months since the Policy was implemented. This is not an unreasonable period given the context and the seriousness of the health risk that has led to the Board adopting the Policy. The Policy is not absolute and will give way to matters of emergency or health risks. A reasonable Policy may become unreasonable if it is in place longer than is necessary. However, in this case, the evidence does not support a finding that this stage has been reached yet.”
The Court also held that the condominium corporation had fairly and reasonably applied the policy in the circumstances of the particular case.
This is a supportive decision for the many condominium corporations that are struggling with the current pandemic, and who may have implemented, or may be considering, similar policies.
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