Skip to content

Narrow screen resolution Wide screen resolution Auto adjust screen size Increase font size Decrease font size Default font size default color brick color green color
CAFCOR Forum
_GEN_GOTOBOTTOM Post Reply
TOPIC:
#19200
PARTIAL EXEMPTION granted from COMPULSORY MASK by-law - Halton CC # 77 v Mitrovic et al 2021/03/23 18:02  
Not legal advice, as usual.

An ONSC Ontario Superior Court of Justice judge has declined to Order two 11th floor residents of a Halton highrise to fully comply with a condo by-law requiring mask or facial covering in the common elements with exposure to other residents.

In a March 19 2021 decision not yet at canlii.org the judge exempted the pair from such COVID-deterring measures " . . . in the common elements of the building while transiting for the purpose of ingress and egress, by the most direct route from their unit to the main entrance of the building, or to their parking spot at levels P1 and P2." - unquote

Presumably such "most direct" route would include elevators where going mask-less would discourage other users and arguably raise extra concerns about residual droplets. The bylaw is to be theoretically applied to at least require them to mask-up for any other common element usage - whether same floor garbage chute or area not in "direct transit" ?

Given that Ontario's Condominium Act 1998 addresses what is still headed Dangerous Activities and scopes by-law powers to address far less, in my respectful opinion this is not the sorta property & civil right that deserves much protection. Quite an eye-opener.

Taking this further, had this for comparison instead been a Rights Tribunal application against restrictions impairing an "enumerated right" - including some sorta medical condition - how would most folks look at accommodating "to the point of undue hardship" ?

Wonder how folks will think about continuing to share condo elevators with this mask-less pair ?

Halton C.C. # 77 v Mitrovic et al 2021 ONSC 2071 issued March 13/21

Pending online release of this March 19/21 decision, it is accessible by pdf at two March 22/21 articles WELL worth reading :

Lawyer Rod Escayola ( Gowling WLG ) : “Court Orders Masks in Condos – with Exceptions” http://condoadviser.ca/2021/03/court-orders-masks-in-condos-with-exceptions/condo-law-blog-Ontario

Lawyer Denise Lash ( Lash Condo Law ) : “Enforcing Mask Policies in Condos – A Recent Court Decision” https://www.lashcondolaw.com/enforcing-mask-policies-in-condos-a-recent-court-decision/
  The administrator has disabled public write access.
#19201
PARTIAL EXEMPTION granted from COMPULSORY MASK by-law - Halton CC # 77 v Mitrovic et al 2021/03/23 18:50  
from the decision :

“ . . . ( 38 ) The efforts of the HC 77 board to develop and promulgate a mask policy were not only reasonable, but necessary in the circumstances.

But, in respect of the interplay between provincial and municipal legislation and condominium policy, a condominium board may not promulgate policies that are contrary to law of general applications in the province or municipality.

They may make policies that are more restrictive in areas where the law of general application has not already occupied the field, but they cannot be inconsistent.

. . . ( 41 ) The respondents have a substantial, although not absolute or unbounded, right to privacy in respect of their medical information. . .

( 43 ) The law of general application in this instance ( Red Zone regulations and Burlington By-law 62-2020 ) , provide for certain exemptions to the requirement to wear a mask, and stipulate that no one is to be required to provide proof of the legitimacy of their exemption.

As I stated at the outset, this is a policy decision which has been made and enacted by elected officials in the Province of Ontario, the Region of Halton and the city of Burlington , in seeking to balance competing considerations.

It is not my role in this case to opine on the wisdom or scope of those policy choices, and I do not do so.

( 44 ) The Respondents in this case have provided evidence by way of affidavit that they will experience distress if required to wear a mask .

The Applicant rightly protests that their evidence in this regard is very thin. However the law of general application in this case does not require the Respondents to further substantiate their assertions.

In these circumstances, I make no findings as to the credibility of their assertions .

Even if I were inclined to do so, there is no evidentiary basis in medical terms before me to gainsay the veracity of their health claims, notwithstanding their partisan activities to promote their particular ideological beliefs in respect of vaccinations and the wearing of masks, however selfish, misguided or misplaced these may be . . . . " - unquote
  The administrator has disabled public write access.
#19202
now at CanLii.org : Halton CC # 77 v Mitrovic et al 2021/03/24 18:13  
https://canlii.ca/t/jdvmb

( why did this take 5 days ? But it took months for the 2020 Amlani decision lower court . . . )

( Halton C.C. # 77 v Mitrovic et al 2021 ONSC 2071 issued March 13/21 https://canlii.ca/t/jdvmb )
  The administrator has disabled public write access.
_GEN_GOTOTOP Post Reply
contact webmaster