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July 26, 2022 - By Ashley Winberg

Operating a Pool Amidst a Lifeguard Shortage

 

Residing in a condominium that has a pool is a huge perk for residents in the summer months; however, this perk comes with significant risk for the condominium since under Sections 26 and 117 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), the condominium has an obligation to ensure that the operation of the pool does not result in an increased risk of personal injury since the condominium could be held liable for any damages and/or injuries sustained as a result of same.  Consequently, condominiums that were unable to secure lifeguards either on a part-time or full-time basis due to the shortage of lifeguards throughout the Province of Ontario, have been faced with a difficult conundrum – Can the condominium legally open its pool in absence of the presence of a lifeguard?  If so, should it?

            Pursuant to subsection 17(19)(a) of R.R.O. 1990, Regulation 565 (the "Public Pools Regulation"), which was created under the Health Protection and Promotion Act, if the water surface of a Class B pool at a condominium is 93 square meters or less, the pool does not need to be supervised by a lifeguard as long as the following notice is displayed within the pool enclosure, and the conditions stipulated in same are followed:

CAUTION

THIS POOL IS UNSUPERVISED. BATHERS UNDER TWELVE YEARS OF AGE ARE NOT ALLOWED WITHIN THE POOL ENCLOSURE UNLESS ACCOMPANIED BY A PARENT OR HIS OR HER AGENT WHO IS NOT LESS THAN SIXTEEN YEARS OF AGE.

 

            Pursuant to subsection 17(19)(b) of the Public Pools Regulation, if the water surface of a Class B pool at a condominium is more than 93 square meters, the pool does not need to be supervised by a lifeguard as long as the following notice is displayed within the pool enclosure, and the conditions stipulated in same are followed:

CAUTION

THIS POOL IS UNSUPERVISED. BATHERS UNDER TWELVE YEARS OF AGE ARE NOT ALLOWED WITHIN THE POOL ENCLOSURE UNLESS ACCOMPANIED BY A PARENT OR HIS OR HER AGENT WHO IS NOT LESS THAN SIXTEEN YEARS OF AGE. THE TOTAL NUMBER OF BATHERS ON THE DECK AND IN THE POOL SHALL NOT EXCEED TEN.

           

            In order to ensure that a condominium is able to operate its pool without same being supervised by a lifeguard, it is advised that precautions be implemented by the condominium to promote compliance with the conditions of the Public Pools Regulation to ensure that same are adhered to at all times. 

 

            A variety of different alternatives could be implemented by a condominium in order to promote and ensure compliance. For example, a condominium could create a rule requiring all owners, residents and guests comply with the conditions set out in the Public Pools Regulation (i.e., that no one under the age of 12 enter the pool enclosure unless accompanied by an individual who is 16 years of age or older for a Class B pool with a water surface of 93 square meters or less; or that no more than 10 people be within the pool enclosure at a single given time and that no one under the age of 12 enter the pool enclosure unless accompanied by an individual that is 16 years of age or older for a Class B pool with a water surface of more than 93 square meters). A condominium could also implement a reservation system and require that reservations be made in advance for use of the pool whenever a lifeguard is not on duty and/or hire someone or arrange for a volunteer to monitor the pool enclosure at all times that a lifeguard is not on duty for the purpose of ensuring compliance.

 

 

            If a condominium takes proactive action to promote and ensure compliance with the conditions of the Public Pools Regulation, it should be able to safely and legally operate its pool in absence of a lifeguard being present at all times. However, it is advised that condominiums reach out to their solicitors nonetheless to confirm the legal requirements that apply to their pools specifically and to inquire about the best mechanisms to implement to ensure the safe and legal operation of their pools in light of the unique makeup of each of their communities – as proactive measures that may work for one condominium community may not work for another.