Can Condo Owners and Vaccines Be Made Mandatory?
On September 22 2021, the Ontario government’s “Vaccine Passport” regime will come into force. This measure will require all individuals to show proof of full vaccination against COVID-19 in various settings, such as restaurants and bars, gyms, fitness and recreational facilities.
This mandatory measure comes on the heels of several similar announcements: For example the federal government has recently stated that the entirety of its workforce will require full immunization against COVID-19. All commercial airplane passengers will also be required to show proof of vaccination status, before being allowed to travel. And many Ontario universities have declared that students who attend campus in-person will have to show proof of immunization as well.
Clearly, as we emerge from the worst of the pandemic, mandatory vaccinations are becoming a well-established and accepted part of Canadian society. This dovetails well with the current statistics, which currently show that over 65 percent of the population has received both doses.
But when it comes to re-opening up a Condominium development’s non-essential amenities, where does this leave Condominiums Corporations and unit owners?
As reported recently by the CBC the Board of at least one Toronto condominium development has opted to impose a mandatory vaccination policy on its owners and guests, requiring proof of vaccination against COVID-19 as a condition for their use of recreational amenities such as the rooftop deck, pool and BBQ area, and party rooms and gym.
This has prompted rumblings and threats about court challenges to this particular condominium’s policy. This is perhaps not surprising, since the law around these initiatives – and whether they can be enforced – can be unclear.
Many Condo Corporations are looking for a straight answer.
Condo Amenities Can be Subject to Restrictions
In Ontario, the bottom line is this: A Condominium Corporation can certainly impose mandatory vaccination policies around the use of non-essential amenities, in the right circumstances.
Even before the pandemic, Condo Corporations have had statutory duty to “control, manage and administer” the common elements, and to protect the safety and health of unit owners and the visiting public. This extends to regulating and restricting the use of amenities where the health and safety of users and others might be jeopardized.
From a legal standpoint, a Condo Corporation’s authority is generally found in various sources such as the Condominium Act, 1998, the Occupational Health and Safety Act, and the Occupiers Liability Act. It may also stem from the rights and obligations set out in the Corporation’s own Declaration, By-laws, and Rules. In light of the COVID-19 pandemic specifically, a Corporation is also given additional rights aimed at protecting the owners and public, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.
Taken together, these various sources of authority leave all Condo Corporations with the clear right – and indeed, a duty – to take steps to protect unit owners and the visiting public. In the right circumstances, a mandatory vaccination policy is just one of a Corporation’s tools in a broader arsenal.
Human Rights and Privacy Concerns
With that said, every Condo Corporation is still required to accommodate the valid human rights and privacy concerns of unit owners – just as with any other imposed policy. This means that any mandatory vaccination policy aimed at reducing the spread of COVID-19 would have to carve out exceptions for those who have valid objections or issues arising from religious beliefs or medical concerns, or who have legitimate privacy concerns. These accommodations by the Corporation must be made to the point of “undue hardship”, only.
Enforcement of a Mandatory Vaccination Policy
Needless to say, a Condominium Corporation’s immunization policy around the use of non-essential amenities will also have to confirm with standards around reasonableness. As with the existing mandatory mask requirements in condominium lobbies and elevators, it will have to be demonstrably and logically connected to reducing the risk of COVID-19 transmission, and must involve a reasonable protective measure, aimed directly at preventing the spread of the virus.
In crafting a mandatory vaccination policy, a Corporation will have to examine closely those various elements that pertain to the health risk and available protective measures in the specific condominium facilities being covered. However, the policy should not be overbroad, or it will run the risk of being challenged and held unenforceable. Ideally, parts of the overall policy may be more or less strict, depending on the type of amenity – e.g. outdoor pool vs. indoor fitness area.
In order to get back to the post-pandemic “new normal”, it looks like mandatory vaccination will be the way of the world – or at least in Ontario. Condominium Corporations and owners should therefore get comfortable with the concept of mandatory vaccination policies, and should take the time to familiarize themselves with their parameters. More importantly, they must learn about their rights and obligations that arise on all parties in this unprecedented global scenario.