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Mandatory Vaccination Policies and Condominium Corporations

Mandatory Vaccination Policies and Condominium Corporations

By:

Posted September 9, 2021

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 daniella.sicoli-zupo@mannlawyers.com.

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Daniella Sicoli-Zupo

Daniella Sicoli-Zupo

Since being called to the Bar of Ontario in 1995, I have practiced in the areas of family law, real estate law, and wills and estates. In 2005, I focused my practice primarily on assisting clients in the area of residential real estate law. Since 2012, I have also assisted clients with their commercial refinancing and worked with several builders, completing their land development work and sale transactions.  I truly enjoy seeing a development progress from vacant land to the finished project. I am a lifetime resident of Ottawa. I graduated from the University of Ottawa with a Bachelor of Arts degree in 1990 then obtained my law degree from the University of Western Ontario in 1993. I was called to the Bar of Ontario in 1995. I have sat as the Treasurer and Member of the Board of Directors for Villa Marconi Long Term Care Centre in Ottawa. I... Read More

Read More About Daniella Sicoli-Zupo
Chanelle Willard

Chanelle Willard

I recently completed my J.D. from the Programme de common law en français (Juris Doctor) at the University of Ottawa. Prior to attending law school, I studied Science de l’activité physique (Human Kinetics) with a particular focus on psychology. During my studies, I worked at the Parliament of Canada as a Proceedings and Verification Officer in the House of Commons. I also had the opportunity to work as a Travel Consultant for the Government of Ontario. Last but not least, I am the proud owner of a small business. Throughout law school, I’ve volunteered with the Health Professions Appeal and Review Board. I had the opportunity to draft countless summaries of decisions made by the Board. I also volunteered with Pro Bono Ottawa where I conducted daily consultations at the Ottawa Court Support Center. Much of my time was spent participating in the Women’s Legal Mentorship Program where I helped... Read More

Read More About Chanelle Willard
Sarah Antonious

Sarah Antonious

I am an associate with the firm’s Commercial Litigation and Estate Litigation groups. My practice focuses exclusively on contentious litigation which often requires me to deal with complex commercial matters, as well matters that involve interpersonal conflicts between parties. I am a results-focused litigator who is both detail-oriented and a big-picture thinker. To all of my clients, I am an empathetic advocate who prioritizes a careful, strategic and resourceful approach to every conflict. I was called to the Ontario Bar in 2022, after graduating from the University of Ottawa (English Common Law program) and completing my articles with the firm. Prior to obtaining my law degree, I attended Carleton University, where I earned a Bachelor of Arts (Honours) majoring in Law with a Concentration in Business Law. Before joining Mann Lawyers, I spent time working at a federal regulatory tribunal specializing in accessibility for people with disabilities. During that time,... Read More

Read More About Sarah Antonious

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