We mentioned in our previous blog that public health authorities in Ottawa had not yet issued an order requiring face masks to be worn on condominium properties, and we provided some thoughts for condominiums wishing to put in place such a policy.
The situation has evolved with Ottawa Public Health (“OPH”) issuing a Directive that makes wearing face masks mandatory in enclosed public spaces. The Directive from OPH requires the operator of an Enclosed Public Space to prevent anyone from remaining in the public areas of the enclosed public space unless the person is wearing a mask in a manner that covers their nose, mouth and chin. Under the Directive, Enclosed Public Space is defined broadly as “indoor public spaces of business or organizations, accessed by the public”. The non-exhaustive list of enclosed public spaces includes the following:
- Restaurants, cafeterias, cafes, banquet halls
- Retail establishments and shopping malls
- Churches, mosques, synagogues, temples, and other places of worship
- Libraries, museums, art galleries, recreational facilities, bingo halls, community centres and halls, cinemas, theatres, concert venues, special event venues, convention centers, or other similar entertainment, cultural, or leisure facilities;
- Sports facilities, sports clubs, gyms, yoga studios, dance studios, and stadiums;
- Common areas of hotels, motels, or short-term rental premises such as lobbies, elevators, meeting rooms, rest rooms, laundry rooms, gyms, and kitchens;
- Private transportation for hire, including taxis, limousines and rideshare services;
- Common areas of premises under the control of a regulated health professional (such as waiting rooms);
- Common areas of hospitals and independent health facilities such as lobbies, food courts and retail establishments; and
- Spas, hair salons, barbers, nail salons, and other personal service settings that are subject to health and safety protocols provided by the Province of Ontario during the provincial emergency;
In our view, the Directive does NOT apply to condominium properties (which of course are private). More on this below.
Schools, childcare centres and providers, and day camps are not considered enclosed public spaces for the purposes of the Directive. The Directive also exempts the following categories of people from the requirement of wearing a mask:
- Children under two years of age, or children under five years of age who refuse to wear a mask and cannot be persuaded to do so by their caregiver;
- Individuals with medical conditions that make them unable to safely wear a mask, including people with breathing or cognitive difficulties;
- Individuals who are unable to put on or remove the mask without assistance, including individuals accommodated under the Accessibility for Ontarians with Disabilities Act and the Human Rights Code; and
- A person who is employed or is an agent of the operator of the enclosed public space and who is either in an area of the premises that is not designated for public access, or is within or behind a physical barrier (such as Plexiglass).
The Directive permits masks to be temporarily removed where it is necessary to do so for consuming food, receiving services, participating actively in an athletic or fitness activity, and for emergency or medical purposes.
What does the Directive mean for condominiums?
In our view, the Directive does NOT apply to condominium properties (which of course are private properties). As mentioned in our previous blog, we believe condominium Boards can decide whether or not to require that masks be worn anywhere on the common elements. And our recommendation is that condominium Boards consider implementing a requirement that masks be worn on some parts of the condominium’s common elements. See our previous blog respecting the various factors to be considered if you intend to institute a requirement that persons wear masks while on some portions of your common elements (whether in certain indoor or outdoor areas, or both).
Further, condominiums should determine how the requirement to wear masks (if adopted) will be enforced. While some condominiums may consider passing a Rule or adopting a policy to help with enforcement, others may choose to implement practical alternatives (such a refusing entry to the premises in the event of non-compliance).
Ultimately, the decision to adopt a policy requiring face masks to be worn on the common elements is one that should be taken by each Board individually while considering the nature of the condominium property, the nature of the occupants and any other relevant factors. However, in light of this new public health Directive, we’re inclined to feel that Boards of Ottawa condominiums should at least give consideration to making face masks mandatory on some portions of their common elements. BUT AGAIN: In our view, this is a matter to be decided by each Board, taking into account all of the unique circumstances of the particular condominium.
Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!