VACCINATION POLICY – NEED OF THE HOUR

Introduction

The O. Reg. 645/21 (“Amending Regulation”) amending O. Reg. 364/20 does not categorically exclude condominium corporations relating to proof of Covid-19 vaccination.

The term Patron (not expressly defined in the Amending Regulation) generally refers to a customer. Patrons are required to show proof of vaccination prior to entering certain amenities that may exist within a condominium corporation which may include banquet halls/party room, conference/convention center, gym, billiards room, etc. Given that patron refers to a customer, condominiums owners and residents may not be counted as patrons. Therefore, the question which may arise is whether condominium corporations can implement their vaccine policies.

As stated above the Amending Regulation does not exclude condominium corporations coupled with a reading of Section 58 of the Condominium Act, 1998 (“ Act”), which allows condominium corporations to make their rules for promoting the safety, security, welfare of owners, does allow the condominium to create their vaccination policy.

Policy for Facilities in Condominium

The danger of catching Covid – 19 in public facilities by customers/patrons is similar to the risk of owners/residents using these amenities in a condominium. While creating and implementing a vaccination policy the corporation should act responsibly and should consider certain factors like location (indoor or outdoor) and capacity etc. to ensure effective execution of the policy. Restricting use of amenities by vaccinated residents can prove to be the most efficacious way for a corporation to comply with its statutory obligations under Section 58 of the Act to manage the property and make sure that the condominium is safe for residents and employees.

Condominium Corporation as Employers

In many cases, the condominium corporations are employers when they directly recruit staff and, in some cases, they have service providers and third-party contractors who work for the condominium. In each case they are under a duty to take reasonable precautions for protecting the health of workers. Therefore, vaccination policy can be the most effective way to discharge the duty of providing a safe workplace environment.

Considerations Related to the Ontario Human Rights Code

In a recent statement titled “OHRC Policy Statement on COVID-19 Vaccine Mandates and Proof of Vaccine Certificates” the Ontario Human Rights Commission (“OHRC”) noted that requiring proof of vaccination from those accessing a service is generally permissible under the Ontario Human Rights Code (“Code”) and notably, the OHRC notes that a person who chooses not to be vaccinated based on personal preference does not have a right to be accommodated under the Code.

We encourage condominium corporations to create and implement a vaccination policy. The team at JSM Law can sit down with you and assist you to prepare a vaccination policy. Together we can fight and bring an end to the pandemic.