In the Ontario case of Halton Condominium Corp No 77 v Mitrovic, 2021 ONSC 2071 the Condominium Corporation (the “CC”) applied for an Order and permanent injunction requiring the Unit Owners, the Mitrovics, to wear masks in compliance with its Mask Policy. The CC’s Mask Policy required all residents to wear masks while “in any enclosed common space.”
Residents exempt from the Mask Policy included children under the age of two, persons with medical conditions that prevented them from wearing a mask, and persons unable to place or remove a mask without assistance. The Mitrovics claimed exemption under the Mask Policy, claiming they suffered from medical conditions that prevented them from wearing masks. However, the Mitrovics refused to provide any proof of their alleged medical conditions, relying on the City of Burlington By-Law 62-2020 prohibiting condominium corporations from requiring proof in such instances.
Although the CC was found to have the authority to enforce the Mask Policy, the Court held that the CC was equally bound by the City’s bylaw and therefore, were not allowed to require proof of the Mitrovics’ medical conditions.
The Court was then tasked with balancing the rights and interests of the Mitrovics against those of the other residents in the condominium. The CC alleged that the Mitrovics’ engaged in dangerous activity contrary to the OntarioCondominium Act by failing to wear masks while frequenting floors of the building on which they did not reside.
The Court agreed, and found that the Mitrovic’s actions were dangerous as alleged and were likely to cause injury, or the transmission of COVID-19, to the other residents of the condominium. However, in light of the Mitrovics underlying medical conditions, the Court permitted the Mitrovics to “circulate any interior common elements without a mask, for the purposes of ingress or egress, by the most direct route from their unit to the main entrance of the building”.
The Court granted the permanent injunction prohibiting the Mitrovics from frequenting any other common areas, including but not limited to a prohibition on:
any floor other than that on which they reside;
the mail room; and
unless the Mitorvics were wearing a mask.
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