To help slow the spread of COVID-19 in condominium and apartment buildings, since August 7, 2020, the City of Toronto’s By-Law 664-2020 (the “Mask By-law”) has made wearing a face covering or mask mandatory in all common areas of multi-unit residential buildings. However, this by-law is essentially unenforceable. As a result, a new motion passed by City Council on February 2, 2021, has asked City Staff to explore additional education and enforcement measures for mandatory masking.
Condominium corporations are required to implement this bylaw, but enforcement is complicated. Education, signage and encouraging compliance are the best tools available. When faced with complaints from residents about other residents or visitors ignoring the Mask By-law, there is little condominium corporations may do other than to attempt to enforce compliance under the Condominium Act, 1998. This puts condominium corporations in an uncertain position in the event owners/residents challenge the enforcement steps taken. Enforcement is further complicated in the event residents or visitors cite “medical reasons” for refusing to wear a mask. These uncertainties played out in a recent decision regarding mask enforcement in Halton Condominium Corporation No. 77 v. Mitrovic.
As a result, by January 2021, more than 2,000 complaints about non-compliance had been made to the City. However, bylaw officers cannot ticket people who are violating the Mask By-law as neither the Mask By-law, nor the Ontario regulations in place to prevent the spread of COVID-19, clearly create a power to fine people for violating the mask mandate in condominium or apartment common areas, which are on private property.
An “enforcement blitz” announced by the City in late January 2021 was really just an education campaign. The buildings that were the source of the most complaints were visited by bylaw officers, and the property managers or landlords were educated about their responsibility to post signage and ask residents, visitors and tradespeople to comply with the bylaw. While rule-breakers are not being fined, some condominium corporations have been charged with failing to post required signage about the bylaw.
More Specific Guidelines are Potentially on the Way
With new, more infectious variants of the virus that causes COVID-19 circulating in Toronto, it has become more urgent to reduce the risk of infection for condo and apartment residents who cannot avoid using these common areas. A better enforcement strategy is needed, and a motion passed by City Council in early February has started the ball rolling in that direction.
The motion, put forward by Councillor Josh Matlow, reads:
City Council request the General Manager, Municipal Licensing and Standards, in consultation with the Medical Officer of Health, to develop a strategy to ensure individuals adhere to mask-wearing policies in congregate settings in multi-residential buildings, potentially including new education and enforcement measures.
However, no details have yet emerged about what the new strategy might look like, and whether there will be penalties for residents who continue to ignore the Mask By-law. As with many of the COVID-19 restrictions that have been put in place by municipal and provincial authorities, it seems that few resources have been allocated to enforcement. Instead, governments are counting on education and peer pressure to persuade people to “do the right thing.”
What Boards and Managers can do Now
Boards and managers can start by ensuring that all staff members are following the Mask By-law, as well as anyone brought in to do work at the building. This includes HVAC maintenance, painters, plumbers, electricians and even auditors. If any outside contractors are working in common areas of the building, mask wearing should be enforced.
While many condo boards and property managers have likely developed and circulated face mask policies and associated educational signage for common areas, it is important that these are reviewed on a regular basis to ensure that they:
- provide clarity on key terminology used (for example, explicitly stating those areas that are considered “common areas”);
- clearly define who the policy pertains to (for example, residents, staff, contractors, visitors);
- provide detailed policies, procedures and exemptions;
- identify the current bylaw(s) and provide a brief summary of the requirements; and
- reflect updated or new bylaws.
Outside of common areas, there are more opportunities for enforcement when it comes to other COVID-19 measures, such as bans on indoor gatherings. The City can issue tickets and impose fines on people who plan and attend gatherings that exceed the limits in place under the provincial guidelines. Residents who host parties in their suite, or who have visitors from outside their household during “lockdown” restrictions, can be reported to the City using the 311 service. Bylaw officers or police can be sent to break up large gatherings and issue tickets to organizers and attendees.
Because the COVID-19 situation is constantly evolving, condominium boards and property managers must be vigilant in ensuring that they have appropriate guidance on updated bylaws, as well as the applicable implementation and/or enforcement requirements.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.
