Covid-19 Bulletin No.49: COVID-19 Restrictions: Ongoing Confusion & Inconsistency

Since our COVID-19 Bulletin No. 48, which was posted on January 5^th 2022, there has been an ongoing debate within the condominium industry as to whether the Step 2 Regulation: Ontario Regulation 263/20 (“O. Reg 263/20”) applies to condominiums.

On January 7^th 2022, the Ontario Minister of Health’s office confirmed that the recent reinstatement of Step 2 safety measures requiring the closure of gyms, swimming pools and other indoor recreational amenities does not apply to residential condominiums, as they are considered private residences. As such, the Minister of Health has advised that all facilities providing indoor sports and recreational fitness activities (i.e., gyms, swimming pools, etc.) can remain open. They also advised that condominiums should be seeking their own legal advice as to the requirements in O. Reg. 263/20.

Despite this recent statement, the condominium industry remains divided as to whether the Minister of Health is correct in its interpretation of the legislation. Further, we question whether the Minister of Health has the authority to make such an interpretation.

In the event that the legislation does not apply to condominiums, we confirm that condominium Boards have the discretion to decide whether to close their indoor recreational amenities. A Board can (and in many cases may find it safer) adopt measures that are more restrictive. Should a condominium decide not to close its amenities, it should adhere to the other limitations and restrictions imposed by O. Reg 263/20, continue to act cautiously, and ensure that all necessary COVID protocols are being followed to reduce transmission.

Should a condominium be interpreted as a “place”?

As outlined in our previous Bulletin, the rules for Step Two are set out under O. Reg 263/20, as amended. Schedule 2, Section 1 of O. Reg 263/20, states that: “… each person responsible for a business or place, or part of a business or place, that is required to be closed by Schedule 2 shall ensure that the business or place, or part of the business or place, is closed in accordance with that schedule.” There is no definition of a “place” in the Regulation, which has contributed to the confusion in the industry as to whether the legislation applies to condominiums, and specifically, whether condominiums are considered a “place.”

In the previous Regulation (O. Reg. 572/20), Schedule 3, Subsection 1(3) provided that a condominium building was an example of a “place”; however, this provision was only with respect to organized public events and social gatherings. The limited guidance provided under Schedule 3 of the previous O. Reg. 572/20 has since been amended.  The new O. Reg 263/20 does not provide any examples of what should be considered a “place”, even in the limited context of public events and social gatherings, and now leaves the definition of “place” open to interpretation. A broad and logical interpretation of the legislation would suggest that a residential condominium is a “place”; however, the same is still up for debate in the industry.

What about short-term rentals?

To further add to the confusion, Schedule 2, Section 5 of O. Reg 263/20, provides that businesses providing short-term rental accommodation must close any indoor pools, indoor fitness centres and other indoor recreational facilities. Many condominiums have short-term rentals operating from individual units; however, it is unclear whether this Section of the legislation applies to such rental units or the condominium building as a whole. Arguably, the legislation implies that in buildings where there are short-term rentals, all specified amenities must close. On the other hand, the condominium itself is not a business operating all units as short-term rentals. The Government’s failure to specify the buildings and places to which this Section applies has created confusion and inconsistency. 

While the Regulation provides that the restrictions under Section 5 are limited to businesses, we question why the Government would identify or carve out a lesser standard for some types of short-term accommodations, but not others, such as those operating within residential condominium buildings? This does not make sense when the intended purpose of the legislation is to implement restrictions to reduce the transmission of the virus.

At this time, it is unclear as to whether this Section applies to condominiums in circumstances where individual unit owners are renting out their units on a short-term basis.

What is a “recreational facility”?

Schedule 2, Section 19 of O. Reg 263/20 deals with indoor sports and recreational fitness activities. This section refers only to “facilities”, instead of a business or place. Again, there is no definition of a “facility” in the legislation, leaving the same open to interpretation. A “facility” has been defined by the Merriam-Webster Dictionary as “something that is built, installed, or established to serve a particular purpose.” We would argue that the recreational amenities in a condominium building, which were installed or established for a specific purpose – for example, a gym for the purpose of physical exercise or training and/or recreational fitness activity – fall under the definition of a “facility” under the legislation.

We question why the Regulation, based on the definition of “facilities”, would not apply to condominium facilities?

Further, Schedule 2, Section 20 addresses recreational amenities, providing that “indoor recreational amenities are to be closed”. Similar to Section 19, this Section of the Regulation does not limit its scope to a business or “place”, but instead uses the word “amenities”. Again, we question why this would not apply to condominium amenities.

Moving Ahead

The Government has been consistently inconsistent in its drafting of legislation which is meant to provide guidance as to what COVID-19 restrictions are in effect and to which businesses and places they apply.

Ultimately, Ontario entered into a modified Step Two of its Reopening Plan in response to the spread of the Omicron variant and the strain that is being placed on Ontario doctors, nurses and hospitals as admissions soar. In our view, the purpose of the legislation is to reduce transmission of the virus in places where people will be congregating. The government’s focus has always been on higher-risk indoor public settings where face coverings cannot always be worn. With this logic, there is no difference between a commercial gym and a gym in a condominium.

There should be consistency across all communities, including both public and private facilities. Like fire or other elements that are beyond human control, the virus does not respect physical boundaries and does not care whether a place is public or private. We implore the government to take this into consideration and to provide more clarity in its drafting.

Despite the statement issued by the Ministry of Health, we are of the opinion that O. Reg 263/20 should apply to condominiums and that it is not clear from the legislation that “places” do not include “condominiums”. We need to be practical and our common-sense dictates that the objective of the legislation is that we should avoid, and take steps to reduce, the spread of the virus.

Are the 20 condominium owners in their gym at the same time, unmasked, immune from spreading the virus because they are condo residents? The logic fails us. While we agree that condominiums should be able to impose higher thresholds, they should not be allowed to fall below the best interests of society as a whole. This type of interpretation will cause strain on hospital resources and health care workers, as well as the economy.

Further, how does this logic work in condominiums with commercial units? Practically, it does not. COVID-19 does not care if it is a residential space or commercial space. If social gatherings are limited wherever they occur – private homes or public spaces – do these parameters no longer apply to a condominium corporation and the same are free to do whatever they want?  There should not be a lower standard for condominium communities to follow than for public spaces where the intention for reduced transmission of the virus is the same. At a minimum, all condominiums should follow the restrictions for “places” and “facilities” provided by the Government with regard to limiting the spread of COVID-19.

Finally, Section 117 puts the onus on condominium corporations not to permit a dangerous condition to exist. Thus, condominiums should be very careful and thoughtful about not falling below the standard set for the public, otherwise a condominium owner could consider the same oppressive during a pandemic.

But wait, what about Municipal positions such as the City of Toronto?

As highlighted by our colleagues at Shibley Righton, in response to the Ministry of Health’s statement, the City of Toronto updated it’s COVID-19 Guidance for Commercial and Residential Buildings, advising that O. Reg 263/20 does not apply to condominiums that are not public settings and are intended for private use. However, the City added that it strongly recommends that all condominiums close non-essential common areas, including, but not limited to, gyms, pools and other high-traffic areas. This advisory suggests that the City agrees with our opinion that the Regulation should apply to condominiums and that it is in the best interests of the community to hold condominiums to the same standard as what is expected of public gyms and recreational fitness centres.

The updated COVID-19 Guidance from the City does not change our opinion above that the Regulation applies to condominiums because of the legislative analysis and, in fact, further supports the argument that there should not be a lower standard for those facilities that are public and those that are private if reducing transmission of the virus is the goal. Further, there remains the inconsistency in interpretation.  Our solution:  Make provincial requirements a minimum requirement for condominiums. Problem solved.

Please refer to our previous COVID-19 Bulletins, which contain information on recommended protocols and procedures to be implemented in condominiums.

Please ensure that you speak with legal counsel if your condominium does not already have COVID-19 protocols and policies in place to help manage the risks associated with COVID-19.  If you have any questions, please do not hesitate to contact anyone on our team:

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.