By David Lu
I hope everyone had a restful summer. With the fall approaching, I know many of us are thinking more and more about the indoor activities that are to come. Over the past few months, we have seen more condominiums open their amenities to residents, subject to certain restrictions.
One point of discussion in the industry right now is whether condominiums can allow only fully vaccinated individuals to use the amenities. This issue has become more pertinent as Ontario has announced that it will be instituting a vaccine passport for certain situations. Things are still in flux, and the government has not released any regulations about the new requirements, so the situation can still change quickly. Nonetheless, here are my comments as of September 3.
Q. Can condominiums institute a mandatory vaccination requirement for amenity use?
A. For now, possibly yes.
Q. Would a mandatory vaccination policy be legally risky at this time?
A. Yes, although this evaluation could change depending on what the official regulations say.
Generally, condominium pools are classified as Class B Public Pools, so indoor pools may fall within the new requirements. Condominium gyms however, are more difficult to determine. As for any other amenities such as party rooms, I don’t think they would fall under this vaccine mandate, but we don’t know at this time. I wish I could provide more concrete comments, but until we receive the revised regulations from the provincial government, there’s not much we can do except speculate.
Condominiums have a duty to look after and manage the common elements. This is the basis on which many condominiums instituted their own COVID-19 protocols. However, implementing a mandatory vaccination policy is a trickier subject overall.
Firstly, there are privacy concerns. A recent local decision from Justice Philipps stated that the real privacy concern with respect to COVID vaccination is when people are asked why they aren’t vaccinated. Just asking for a person’s vaccination status–at least in the view of one judge–doesn’t appear to be a significant privacy infringement.
In a condominium context, the problem is that we must often ask why. This is because condominiums have a duty to accommodate for human rights considerations, up to the point of undue hardship. Such accommodations are typically at an elevated level since this is where people live. Furthermore, all condominium owners have the right to make reasonable use of the common elements, subject to the condominium’s governing documents. This may mean that condominium corporations must allow unvaccinated persons equal use of the common elements if there are other effective ways to maintain a reasonable level of safety.
Making accommodations isn’t always straightforward. If an individual is unvaccinated due to medical circumstances and wishes to use the gym, should they be granted gym use at only certain times? Could that still be a human rights breach since their access to the gym wouldn’t be the same as vaccinated individuals? These are complex questions that many of us are contemplating.
Condominiums are non-profit entities funded by the owners, and controlling potential liability is of paramount concern. Condominiums should take a cautious approach and wait for further guidance from the government before deciding on a vaccination mandate. If your community feels that a vaccination mandate is something that is desired, then I strongly urge that legal counsel be consulted as part of the policy-forming process.
David Lu is an Associate at Davidson Houle Allen LLP, a boutique Condominium Law firm serving Eastern Ontario.