COVID-19 & CONDOS: UPDATE #6

Stage 3 Re-Openings and Condominium Meetings

Condominium Act, 1998, S.O. 1998, c. 19.

Introduction

Although the Stage 3 re-opening plan allows for limited indoor gatherings, given the variety of statutory and common law concepts that pose a risk to condominiums, such gatherings are not advisable at this time. While in-person meetings are permitted, they are not required, and condominiums have other options available to avoid risk.

Stage 3 Re-Opening Plan

The Stage 3 re-opening plan came into force on July 13, 2020 under the Emergency Management and Civil Protection Act (“EMCPA”), namely, O. Reg. 364/20, with provisions taking effect at 12:01am on July 17, 2020.

Under the Stage 3 re-opening plan, the maximum number of individuals permitted to gather in an indoor space is 50, and 100 individuals in outdoor spaces. The Regulation indicates that this rule applies mainly to the following areas: meeting and event spaces, in-person teaching and instruction places, restaurants and bars, libraries, food courts, retail stores, sports facilities, cinemas, gaming establishments, organized public events and gatherings such as weddings, funerals, and religious ceremonies. Although open to interpretation, this list appears to include condominium gatherings. That being said, it appears from media reports that the Province of Ontario intended to allow businesses that rely on providing services to be allowed to restart their economic activities. Residential condominiums do not fall within that spectrum.

Condominiums

The Stage 3 plan does not repeal the state of emergency declared under section 7.0.1(3) of the EMCPA, which has been extended until July 24, 2020. The Government of Ontario has also extended the emergency orders made under the EMPCA until July 29, 2020. In addition, Stage 3 does not repeal the amendments to the Condominium Act, 1998, namely the temporary suspension of annual general meetings and the allowance for all meetings to be held electronically despite the absence of a by-law permitting such methods. While the Condominium Act, 1998 refers to a “suspension period” in which these amendments will apply, that term is not defined. However, despite the Stage 3 re-openings, condominiums are still permitted to either hold meetings electronically or postpone annual general meetings to within the applicable time extensions.

The Stage 3 re-opening plan also does not suspend section 117 of the Condominium Act, 1998 which requires condominiums to prohibit or prevent any dangerous activity from occurring on condominium property. This provision has already been interpreted by the courts to apply to COVID-19. Additionally, section 26 of the Condominium Act, 1998 provides that a condominium is also considered the occupier of a condominium’s common elements. Combined, these statutory provisions demand that a condominium ensure the safety of unit occupants. Further, the common law concept of negligence also applies to condominiums. Accordingly, if someone suffers harm, such as sickness or death arising from a condominium breaching their duty to ensure the safety of unit occupants, such individual could pursue damages from the condominium. Although the Government of Ontario is permitting gatherings under Stage 3, such permission is not a waiver of liability, if they are held. 

Bottom Line

The Stage 3 re-opening plan may apply to condominiums, in that gatherings of 50 people are now “permitted,” but they are not “required”. The state of emergency remains in place and the amendments to the Condominium Act, 1998 remain in force and effect. Further, nothing in the Stage 3 re-opening plan requires condominiums to hold meetings in-person. 

Given the risk to the health and safety of unit owners, compounded with the fact that under Stage 3 gatherings are only permissive and liability still exists, it is recommended that condominiums do not utilize in-person owners’ meetings. Rather, condominiums are permitted to utilize different routes by either suspending annual general meetings or holding any owners’ meetings entirely via electronic means. Neither of those routes attract the risk and liability associated with an in-person meeting.

Written by Fiona Burnett, Edited by Christopher Mendes and Robert Mullin

*This article does not constitute legal advice, always consult legal counsel