From mandatory masks to mandatory lockdowns, few people could have pictured just how far-reaching the implications of the COVID-19 pandemic would be. Most recently, Ontario universities, federal transportation providers and the Canadian government have announced the enforcement of mandatory vaccination, requiring proof of vaccination—or ‘vaccine passports,’ as this practice has colloquially been termed—for students, passengers and employees. While most individuals have given thought to the idea of vaccine passports when accessing public spaces, what are the implications of vaccine passports in one’s home if they live in a condominium complex with shared amenities or communal spaces?
The conversation on mandatory vaccines in condos, while complex, ultimately possesses two dimensions. On the one side are the duties of the condominium corporation in its capacity as a property manager and employer. On the other side are the rights of condominium habitants and employees.
Arguments for mandatory vaccination policies in condominium buildings are anchored in the duty of the condominium corporation to ensure a reasonable level of safety to those who access the premises under the Occupier’s Liability Act. Section 17 of the Condominium Act also requires the condominium corporation to “control, manage, and administer” shared or communal spaces on the premises. These duties, coupled with the condominium corporation’s power to create and adopt rules regarding safety, welfare, and security, create a robust argument for a vaccine mandate.
However, mandating vaccinations could expose condominium corporations to other duties and liabilities as well. In particular, a mandatory vaccination policy could expose condominium corporations to human rights claims where non-vaccinated habitants are denied occupancy, or where non-vaccinated individuals are denied employment. Further, the condominium corporation could expose itself to claims of breach of privacy, where a habitant or worker is forced to disclose whether they have been vaccinated. There is also the exceptional possibility that a habitant or worker could suffer from serious side effects from the vaccine, which could expose the condominium corporation, once again, to a human rights claim, or to a further risk of a claim for battery given that the policy was at the root of causing an unwanted bodily harm or injury.
In addition to the condominium corporation’s liability, the enforceability of a vaccination policy – especially for residents—may be difficult. Ensuring non-vaccinated residents do not access shared amenities could pose as a logistical nightmare for condominium boards around the province. There may also be a reluctance from residents to comply; COVID-19 restrictions and policies are difficult enough to enforce on individuals, especially in their own homes.
Ontario has now also implemented a framework to make COVID-19 vaccination policies mandatory for high-risk settings including post-secondary institutions, licensed retirement homes, women’s shelters, congregate group homes for adults with developmental disabilities, and licensed children’s residential settings. Currently, many condominium corporations have adopted policies that encourage vaccination for employees. Similarly, most condominium corporations have refrained from implementing policies that bar unvaccinated residents from accessing shared amenities and communal spaces on their premise.
Only time will tell how COVID-19 policies will fan out in condominiums in Ontario. However, considering the spread of the highly transmissible Delta variant, and with schools and other institutions beginning to think about returning to in-person operations, it seems likely that mandatory vaccination policies could be implemented in condominiums sooner rather than later.
This blog post was written by Daniella Sicoli-Zupo, a Partner in the Real Estate team, and Articling Students Sarah Antonious and Chanelle Willard. Daniella can be reached at 613-369-0378 or at firstname.lastname@example.org.