What if a Condo Resident Is in Violation of the Province’s Covid-19 Restrictions?

A number of our clients have asked: What is the condominium corporation’s obligation if we learn that a resident is in violation of any emergency order from the province?  For example, what if we learn about non-essential renovations being carried out by an owner in a unit?

In my view, there’s no “set answer” to this question. The steps you take could vary from situation to situation. However, I offer the following general comments:

  1. From my review of the province’s current Emergency Orders, I couldn’t find any specific provision stating that condominium corporations (or landlords) have any duty or authority to enforce the emergency orders against residents.
  2. However, condominium corporations certainly have the right to report violations on the condominium property, including in the units.
  3. I think that a condominium corporation could very possibly be held responsible (and therefore subject to fine) for any violation occurring on the common elements, because condominium corporations are obligated to control the common elements (per Section 17 of the Condominium Act) and also because a condominium corporation is deemed to be the occupier of the common elements (per Section 26 of the Condominium Act).   
  4. In my view, it is far less likely that a condominium corporation could be fined for any violation (by a resident) within a unit.  However, I think that the best way to avoid this risk is to notify the relevant enforcement authorities if you ever learn of such a violation within a unit.  [More on this below.]
  5. Condominium corporations also have the right (and the obligation to owners and occupiers in the condominium) to take reasonable steps to prevent unsafe conditions both on the common elements and in the units (per Sections 17 and 117 of the Condominium Act).
  • In my view, a condominium corporation should certainly take reasonable steps to ensure that the condominium corporation and all residents comply with the province’s Emergency Orders while on the common elements. The enforcement steps could include the usual enforcement steps for any violation, such as communications with the violator, lawyer’s communications (if necessary) and legal process (again if necessary). In such cases, I think you could also consider notifying the relevant enforcement authorities (namely the municipality’s local by-law and provincial offence enforcement officers) of the violation. [In most cases, you could start by advising the resident that you will have no choice but to notify the authorities if the violation continues. And you would then report the violation if the violation continues.] 
  • In terms of violations within the units, I think you should again consider notifying the relevant local enforcement authorities (after warning the resident). That way, you avoid any suggestion that you bear some joint responsibility (as a condominium corporation) because “you have shared responsibilities in relation to the property and therefore should have notified the authorities”.

IN ADDITION: Depending upon the circumstances, you may well decide to take your own enforcement steps (again: communications, lawyer’s communications, legal process, etc.) under condominium law. You would essentially be taking steps to enforce any relevant Rules or Policies as well as Section 117 of the Condominium Act. [There are now at least two Court decisions supporting a condominium corporation’s right to take such enforcement measures.]

But again, this will be for the Board’s consideration in each case.

One last note: If a condominium corporation happens to be fined for a violation by a resident, the condominium corporation might be able to recover the fine back from the resident and/or the owner of the unit… perhaps based upon an “indemnification” provision in the condominium’s governing documents. This is something to be considered (if such a situation ever arises!).

Stay tuned to Condo Law News to keep up to date on the latest developments on condominium law!