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People crossing Lake Shore Blvd East near Lower Jarvis St. are photographed on Mar 10 2021. With more condominium developments being built along the Toronto waterfront, access to school could become a problem for families living there. Fred Lum/The Globe and MailFred Lum/The Globe and Mail

When it comes to public-health rules aimed at preventing the spread of COVID-19, condominium corporations in Ontario are being left to decide on their own if there’s any difference between a gym in a strip mall and one inside an apartment complex.

That’s because the consensus in the legal community that advises the 12,000 condominium corporations in Ontario is that the rules for proof of vaccination to access indoor spaces don’t apply to the province’s approximately 1.8 million condo residents – unless condo boards decide they want them to.

“Right now we have the situation where anti-vaxxers aren’t able to use public gyms, but if they live in a condo with a gym they can use that,” said Audrey Loeb, partner with Shibley Righton LLP.

Since September, Ontario has required proof of vaccination for members of the public to enter a variety of indoor venues – everything from movie theatres and arenas to restaurants and sex clubs – and since Oct. 22 it has made available an app that can check the validity of those certificates. But the rules (Ontario Regulation 364/20) do not specifically address the amenity spaces accessible to people living in condominium buildings, which can include everything from restaurants, co-working spaces, meeting rooms to gyms and pools.

On October 15, the Ministry of Health stated that “facilities in apartment buildings, condo buildings, and retirement homes that are not open or accessible to the public are likely not public settings or facilities that would be subject to proof of vaccination requirements.” However, it said they are free to pass their own rules.

The Globe and Mail asked the ministry to clarify what “likely” means in this context and was told that the vaccine passport rules do not apply to condos – with caveats. “The ‘likely’ notes that there may be activities taking place inside common areas of the condo building (e.g. a catered party where the bar and restaurant provisions would apply),” said Alexandra Hilkene, who is the press secretary for Deputy Premier and Minister of Health Christine Elliott. That suggests that, depending on the activities inside those amenity spaces, the choice is less optional that it seems.

So far, it’s not clear how many condo boards have voluntarily adopted the rules. The experts The Globe spoke to had anecdotal evidence that suggests larger buildings with more staffing capacity seem quicker to adopt the rules, as do condos populated by more middle- and advanced-aged residents. And more than one large condominium-management company, whose staff would be tasked at enforcing these rules, declined to comment on whether any of their clients were creating new policies.

“It is troubling that [Premier Doug] Ford’s vaccine certificate system has some loopholes,” said Jessica Bell, NDP MPP for University Rosedale and an opposition critic on the housing file. “You need a passport to go out for dinner, but your bartender, server and the chef do not. Excluding condo gyms would be another one of those troubling loopholes that opens the door to outbreaks.

“People who did the right thing and got their shot deserve to be able to go to their building’s gym knowing that they’re safe there,” Ms. Bell said. “The Ford government should provide clear guidance based on public health and not leave it up to thousands of individual condo boards to debate their rules. "

For those eligible to receive a vaccination (those 12 and up) 83 per cent are fully vaccinated in Ontario. That leaves millions in the province unprotected either because they are too young or they are unable or unwilling to take the shot. That creates a potential danger to condo residents if their building takes the approach that pools and gyms can be used by anyone regardless of vaccination status.

Nevertheless, many condo law specialists – along with the Condominium Authority of Ontario, the provincial governing body – are saying passing the policies is optional for condo boards.

“We’re not telling our clients you have to do it [mandate proof of vaccination],” said Josh Milgrom of Lash Condo Law. “If we felt the legislation did require policies we would say so. The result is each condo board needs to decide for its own community. You have some passing policies and some that aren’t. … When something isn’t mandated you’re left with a situation where there’s not going to be consistency.”

There may be those who object to being barred from amenities they pay fees to maintain in a building they co-own, but most in the industry don’t doubt the condos have the ability to pass their own vaccine passport rules even though that has not yet been tested in court.

“They [proof of vaccination policies] are not only permissible for the board to adopt, they may be duty bound to do it,” said Rod Escayola, a partner in Gowling WLG (Canada) LLP, referring to two legal rulings on mandatory mask rules from earlier in the pandemic – one of which he argued – that have lain the groundwork to defend vaccine passport rules.

According to him, Section 117 requirements under the Condominium Act state a condo corporation has a statutory duty to “prevent dangerous conditions/activities to exist,” and to ensure a property is “reasonably safe” (Section 26).

What’s clear is that boards across the province are at least having the conversation, even if they don’t end up adopting any screening protocols.

“I think everybody’s grappling with it,” said Warren Kleiner, a Shibley Righton partner and chair of the legislative committee for the Toronto chapter of the Canadian Condominium Institute. “I have not gotten many clients asking, ‘Does this apply?’ More often it’s, ‘Can we do this, and how?’ ”

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