As of September 22nd, 2021, Ontario Regulation 364/20: Rules for Areas at Step 3 and at the Roadmap Exit Step (O. Reg. 364/20) has been amended to require Ontarians to be fully vaccinated and provide proof of vaccination to access certain public facilities in the Province of Ontario. Specifically, Ontario Regulation 364/20 requires that patrons who enter a business or organization provide identification and proof of vaccination at the point of entry.
Are Condominium Corporation Amenities Included as Part of the Government of Ontario’s New Vaccination Mandate?
It is important to note that the Government of Ontario has not included condominium corporations specifically in its mandatory vaccination requirements. However, O. Reg. 364/20 requires that patrons show identification and proof of vaccination prior to entering certain amenities that may exist within a condominium corporation.
These amenities include:
- Indoor meeting and event spaces, such as banquet halls and conference/convention centres; and
- Indoor facilities used for sports and fitness activities and personal fitness training, such as gyms, fitness and recreational facilities with the exception of youth recreational sport.
It is important to note that the vaccine requirements in O. Reg. 364/20 refer to patrons rather than the general population. Given that patron generally refers to a customer, the CAO’s understanding of O. Reg. 364/20 is that condominium owners and residents would not count as patrons. These individuals would not need to show identification and proof of vaccination to enter the above amenities. If your condominium corporation allows individuals to whom the term patron applies to enter the above amenities, they are required to show identification and proof of vaccination prior to entry. However, O. Reg. 364/20 notes that the requirement does not apply to patrons:
- Who are entering the area to use a washroom;
- Who are accessing an outdoor area that can only be accessed through an indoor route;
- Who are under 12 years old;
- Who are under 18 years old, and entering the indoor premises of a facility used for sports and recreational fitness activities to participate in an organized sport, in accordance with guidance published by the Ministry of Health;
- Who provide a written document, completed and supplied by a physician or registered nurse that sets out a documented reason for not being vaccinated, as well as the effective time period for the medical reason; and
- Who are engaged in other activities unlikely to occur within a condominium corporation.
What Does it Mean to be Fully Vaccinated?
Being fully vaccinated means that an individual has received:
- The full series of a COVID-19 vaccine authorized by Health Canada, or any combination of such vaccines,
- One or two doses of a COVID-19 vaccine not authorized by Health Canada, followed by one dose of a COVID-19 mRNA vaccine authorized by Health Canada, or
- Three doses of a COVID-19 vaccine not authorized by Health Canada;
In addition to the above, the individual must have received their final dose of the COVID-19 vaccine at least 14 days before providing the proof of being fully vaccinated.
Can Condominium Corporations Create Their Own Vaccine Mandates?
Section 58 of the Condominium Act, 1998 (the Condo Act) allows condominium corporations within the Province of Ontario to create rules for:
- Promoting the safety, security, or welfare of the owners, property, and assets of the condominium corporation; and
- Preventing unreasonable interference with the enjoyment of the units and the common elements of the condominium corporation.
Therefore, a condominium corporation could create a rule requiring individuals who enter certain amenities or areas of the condominium corporation to provide proof of being vaccinated. As required by section 58 (2) of the Condo Act, the rule would have to be reasonable and would need to be consistent with the Condo Act and the declaration and by-laws of the condominium corporation. Additionally, given the complexity of this matter, condominium corporations may want to consider seeking legal advice before developing and implementing such a rule.
Important Considerations Related to the Ontario Human Rights Code
The Ontario Human Rights Commission (OHRC) noted in a recent statement titled “OHRC Policy Statement on COVID-19 Vaccine Mandates and Proof of Vaccine Certificates” that requiring proof of vaccination from those accessing a service is generally permissible under the Ontario Human Rights Code (the “Code”). This is true provided that protections are put in place to ensure that individuals who cannot be vaccinated for Code-related reasons are reasonably accommodated. This applies to all organizations. The OHRC encourages organizations that wish to mandate vaccines to allow individuals to provide the Ontario proof of vaccine certificate along with medical documentation from the individual showing their medical inability to receive the vaccine as a way of meeting their duty to accommodate.
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.