The province is considering vaccine passports. Will your condo board as well?

Soon you may need proof of vaccination to get into restaurants, theatres and other public venues. But what about the common amenities such as pools and gyms in the condo buildings where so many Torontonians make their homes?

As the province considers implementing vaccine passports, condo boards and property managers have been turning their minds to how broader public policy applies to their buildings, said Toronto lawyer Bradley Chaplick, who specializes in condo law at Horlick Levitt Di Lella.

He has been writing about the issue and last week he held a webinar for condo director and property management clients wrestling with the thorny dimensions of keeping their buildings safe.

• “Vaccines have only been available to all eligible adults for a relatively short period of time. Before that you had to be a certain age to get the vaccine and it was understood that you could not create a vaccine requirement when the access to the vaccine was so restricted,” he said.

Many condos have opened their pools and communal amenities with sign-in sheets that can be used for contact tracing. Some have created reservation systems and others have simply kept their amenities off-limits.

Although vaccine requirements can be controversial, particularly where unvaccinated condo owners are paying fees toward maintaining those facilities, public health rules are nothing new, said Chaplick. Many swimming pool regulations arose from the need to eradicate polio.

• “It is extremely common for us as a society to adopt laws requiring public health and safety and vaccination to prevent the spread of disease,” said Chaplick.

He tells his condo board clients that all new rules must have a valid purpose. In this case, safety would be considered valid, he said. They also have to be reasonable and enforceable. Residents must be given proper notice and the rules have to be consistently enforced.

The best comparison for COVID-19 rules are the smoking rules many condos instigated when cannabis use became legal, said Chaplick.

In 2019, an Ontario Superior Court of Justice upheld a condo corporation’s prohibition on smoking on balconies. One resident argued the rule was unreasonable because there was no evidence that smoking on a balcony would harm other condo dwellers. But the court found that there was broader evidence that smoking caused harm. It decided the no-smoking rule was reasonable because the resident had the option of smoking in their unit.

Chaplick says condo boards can create similarly reasonable alternatives if they want to limit amenity use to fully vaccinated residents. The most obvious one, he said, is to designate separate hours when proof of vaccination is required.

• “Outside of these hours anyone could use the amenities and there could be a cleaning protocol between the general hours and the vaccination-only hours,” he said.

That gives unvaccinated residents an option and it will likely reduce a lot of potential conflict around those who produce “bogus exemptions,” said Chaplick.

He tells condo directors to carefully consider where restricted access to amenities is required.

Guest suites, for example, are not a communal amenity so they may not require the same vaccine mandate. The same thing applies to party rooms.

• “When you rent a party room for a private event it’s not being used by members of different households from within the condo at the same time,” he said. “While that event might lead to the spread of COVID it’s not something that would necessarily affect all the other owners of the building.”

Boards have the discretion to require contractors and employees in their buildings to be vaccinated. They can terminate contractors who don’t comply with the rule and they can terminate without cause non-unionized employees who don’t meet the requirement, although they may have to provide notice or pay the worker in lieu of notice.

Chaplick advises condo boards against trying to prohibit anyone from entering the building through the main lobby.

It’s simply impractical, he said. There is no way to prohibit visitors to individual units in the building and, with a federal election on the horizon, condo residents and their boards should understand that candidates have the right to canvas condo buildings.