In an effort to keep everyone updated on the ever-changing directions from the government, we have put together this short list of common questions and our answers and recommendations.
Please feel free to contact our office if you have any further or specific questions related to your community.
Q1: Can residents use our common element facilities?
A1: The short answer is no. On March 31, 2020, under the Emergency Management and Civil Protection Act, the provincial government ordered the closure of all shared outdoor amenities. Although this Order is applicable to outdoor amenities, we strongly recommend that corporations consider closing indoor amenities such as party rooms and libraries as well. The Board may wish to consider allowing facilities such as a gym to remain open to provide an outlet for residents but please be sure to limit occupancy to a maximum number to ensure that social distancing requirements can be maintained. The Corporation would also be required to ensure that adequate sanitizing materials are available at all times.
Q2: Can the Corporation advise owners if someone has COVID-19 in our building?
A2: If the Board is advised or finds out that a resident within the building has COVID-19, the Board must be sure that it does not release any information that would serve to identify the resident, which would be a breach of that person’s privacy. However, in our opinion, the Corporation is within its rights to notify owners as to the existence of a confirmed case of COVID-19 among the residents.
Whether the Corporation should notify residents to this effect must be determined by the Board, having regard to the potential benefits and drawbacks of circulating that information and the community’s particular circumstances.
In either case, the Board should identify steps to be taken to reduce the risk of infection in common areas and actively encourage residents to take those steps. The Board should also encourage every resident to exercise physical distancing and to follow the hand-washing and safety protocols established by public health authorities.
Q3: One of the residents is supposed to be self-isolating or quarantined, but he or she has been going out in common areas and not remained in the unit. What can the Corporation do?
A3: The Corporation’s first step should be reporting the resident to the public health authority for its regional municipality. Public health authorities can enlist the assistance of law enforcement to deal with the non-compliant residents. In Toronto and Peel Regions, as of April 1, 2020, every individual with COVID-19 and everyone who has had close contact with an infected individual is legally required to stay at home for 14 days.
Websites for public health authorities in the GTA (i.e., Toronto, Peel, Halton, York and Durham Regions), including contact information, are listed in the appendix to this newsletter.
If that approach is unsuccessful and public health authorities are not responsive, the Corporation should notify the resident, in writing, that the Corporation requires the resident to maintain self-isolation in accordance with section 117 of the Condominium Act, 1998. The matter should be referred to legal counsel if neither of those steps results in the resident self-isolating and remaining in the unit for the required period of time.
Q4: Can the Corporation lien for common expense arrears?
A4: The short answer is yes. The provincial government suspended various limitation periods, which arguably included the three-month period during which the Corporation must register a certificate of lien. There is significant debate within the condominium legal community around this topic. Given this uncertainty, our advice to corporations is to continue to register certificates of lien for defaults in payment, which will remove any uncertainty and secure the arrears, and to otherwise refrain from taking further collection steps, given the economic uncertainty that owners are facing. Once the arrears are secured, the Corporation can work with the owner to determine the best way to recover the arrears.
Q5: Should the Corporation hold its Annual General Meeting?
A5: No, all group meetings and gatherings should be suspended at this time. Please wait for guidance from the provincial government on when these restrictions will be lifted. Once that has happened, the Board can re-schedule the meeting. All directors should simply continue in their role until the meeting has been held.
It bears mentioning that the provincial government has temporarily extended the time to hold annual general meetings of business corporations and not-for-profit corporations (e.g., certain charities), pursuant to O.Reg. 107/20 under the Emergency Management and Civil Protection Act.
It remains to be seen whether this statutory extension will be applied to condominium corporations.
We recommend proceeding, in the meantime, as if this extension applies.
Q6: Can the Board hold electronic meetings?
A6: The Condominium Act, 1998 authorizes the Board to hold meetings “by teleconference or another form of communications system” that enables all directors to communicate concurrently “if all directors of the corporation consent to the means used for holding the meeting” (the Act, s. 35 (5); O. Reg. 48/01, s. 11.12 (3)).
Ideally, all directors should consent to the conduct of meetings by this method (i.e., video or conference call). Given the situation, however, we recommend the Board continue to hold meetings by electronic means even if a Board member objects. There is simply no other way to safely ‘meet’ at this time.
It bears mentioning that the provincial government has temporarily suspended the requirement to hold in-person meetings and has authorized electronic meetings, without unanimous consent, by the directors and shareholders of business corporations and directors of not-for-profit corporations (e.g., certain charities), pursuant to O.Reg. 107/20 under the Emergency Management and Civil Protection Act.
It remains to be seen whether this statutory authorization will apply to condominium corporations.
We recommend proceeding, in the meantime, as if it applies.
Q7: Can renovations continue within units?
A7: Yes, as long as the Corporation does not have reasonable grounds to preclude a particular project or contractor from going ahead.
In regards to specific projects, we are of the view that non-invasive, non-disruptive work (e.g., painting, minor plumbing and electrical work) may proceed, but major renovations (e.g., flooring replacement) would be unduly disruptive to neighbours, many of whom are currently working from home, and should be temporarily precluded on those grounds.
In regards to individual contractors, the Corporation should require every in-suite contractor to (a) register with the concierge or security staff in advance of attending the unit, (b) certify in writing that the contractor is symptom-free and has not travelled outside of Canada within the preceding 14 days, (c) travel straight to and from the unit in question and (b) agree to wash and/or sanitize his or her hands before entering the common elements from the unit or the outdoors.
The Corporation should also reserve the right to prohibit entry by a particular contractor based on the observations of concierge or security staff, even if the contractor claims to be symptom-free and not to have recently travelled.
Q8: What are the Corporation’s obligations towards its employees?
A8: The Corporation has an obligation to take steps to promote a safe workplace. In discharging this duty, the Board may consider the following:
- providing staff with their personal hand sanitizers and/or maintaining sanitizing stations in areas commonly used by building staff i.e. property management office;
- implementing more frequent and stringent cleaning services to disinfect all common areas, particular those areas that may be infection sites (e.g., garbage chutes);
- employees should be reminded to stay home if sick or if they are exhibiting COVID-19 symptoms (fever, cough, difficulty breathing); and
- being proactive: employees exhibiting signs of illness or COVID-19 symptoms should be sent home so as to maintain the health and safety of the workplace.
We encourage everyone to stay safe and informed by visiting any of the following websites for health- and pandemic-related information:
Public Health Agency of Canada:
https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html
Public Health Ontario:
https://www.ontario.ca/page/2019-novel-coronavirus
Centers for Disease Control and Prevention (USA):
https://www.cdc.gov/coronavirus/2019-ncov/index.html
World Health Organization (global):
https://www.who.int/emergencies/diseases/novel-coronavirus-2019
© Deacon, Spears, Fedson + Montizambert, 2020. All rights reserved.
