Anti-masker condo dispute shows difficulty of enforcing condo mask policies, says lawyer

A recent Superior Court decision, arising out of a dispute between two anti-mask condo-owners and their condo corporation, illustrates the dubiousness of mask-mandate enforcement in condo buildings, says Miller Thomson LLP condo lawyer Jason Rivait.

The City of Toronto introduced By-Law 664-2020 in August, making masks mandatory in the common elements of condo buildings, such as elevators, staircases and lobbies. While the by-law places the onus on condo corporations to implement the requirement, it provides “no teeth” to enforce the mandate against residents, says Rivait. And though they are in violation of a city by-law, the police also cannot fine a person for ignoring the mask mandate inside a condo building’s common elements, he says.

“Condos are kind of left with this difficult task of enforcement, but they really have little to no enforcement tools available to them,” says Rivait.

The city will take action against condo corps which do not have a mask policy and signage in place which encourages compliance, but those are the only enforcement means condo corps have, other than seeking a remedy from the courts under the Condominium Act.

But the decision in Halton Condominium Corp. No. 77 v. Mitrovic, 2021 ONSC 2071 shows that, “if you'd like to spend a lot of money to enforce mask requirements through the courts, using remedies that are available under the [Condominium] Act, you can do so at your own risk,” says Rivait.

The 169-unit high-rise residential condo corporation in Burlington, Ont. brought an application against Vily Mitrovic and Zoran Zupanc, who refused to wear masks in their building’s common elements. Aside from exiting and entering the building, the two would also trek around different floors for exercise. Though defying the mask-wearing policy, they would wear “anti-masking signs” and post “anti-masking posters” around the building, said the decision. The respondents said they had medical conditions, but that they were not required to prove it.

The condo corporation sought an injunction to have the couple wear a mask; not to be on floors other than their own, aside from the lobby, parking garage and mailroom and to follow the recommendations of public health authorities, among other orders. The respondents sought declarations they were exempt from any mask requirement and that the applicants were in breach of municipal and provincial law.

Only one of the respondents produced a clinical note, backing their claim for a medical exemption.

Superior Court Justice Michael Gibson found that the wording of the condo’s mask policy, which only had one ground of exemption, was more restrictive than Burlington’s bylaw which had two. Both allowed exemption for an “underlying medical condition.” But the Burlington bylaw allowed an exemption where wearing a mask causes the person to “experience a negative impact to their emotional well-being or mental health.”

According to the Burlington policy, condo corps also could not require proof of medical exemption, a provision not found in the applicant’s condo policy.

The applicants argued that, in addition to the mask policy, they had obligation and authority from the Occupational Health and Safety Act and its own corporation’s governing documents. The condo must ensure the property is reasonably safe, has liability as occupier of the common elements and must provide a safe and healthy environment for those who work there.

Gibson sought to balance the competing rights of the respondents and the other residents, many of whom are elderly and vulnerable, said the decision.

“As submitted by the parties, in this case the Court is called upon to balance competing rights,” said Gibson. “The issues are complex and profound. There is some merit to the argument of both sides. It is a difficult balancing act. It is not one susceptible to being reduced to simplistic analysis aligned with partisan positions in which each side seeks to caricature the other side in the debate.”

Gibson’s order was that the respondents are not required to wear a mask, but they can only transit, “for the purpose of ingress and egress” by the most direct route, between their unit and the main entrance and their parking spots. If they want to carry on exercising by traversing floors other than their own, they are required to wear a mask.