Condo Adviser episode 29: Modified step-2 measures

Rod: Hello. Good evening, everybody. My name is Rod Escayola and I'm your condominium lawyer with Gowling WLG. Let me start by wishing everybody a fantastic and happy New Year. Lots of health for everybody. I think that's what everybody wants to get this year - health. And thanks for tuning in, your monthly Condo Adviser webinar. I have to tell you, over the Christmas break I was kind of scratching my head, wondering what could we possibly talk about when we join again in January? What could the topic be? A topic that's interesting and timely and useful and contentious, if at all possible, and there it is. The Province helped me out a bit. On January 3, while I was still burping my turkey, Doug Ford announced that Ontario was being rolled back to a modified set of step-2 measures. Now we left step-2, we last left step-2 on July 16. That's when we rolled up to step-3 and so that's quite the setback here for everybody. Naturally, this roll back is required as a result of the highly contagious Omicron variant. Let's not lose sight of this because when we're going to try and interpret the meeting of step-2 regulation, we need to keep in mind what is the objective? We need to keep our eyes on the ball because the objective of the regulation is going to help us understand what the regulation means and what it applies. Anyway, so we blogged about it, and then the regulations came out and we blogged some more, and we've amended our COVID tool. We're going to bring you to that tool so you see it, where you can find this information because the landscape is changing. Then every other repudiable condominium lawyer in Ottawa did the same. All sorts of people started to blog and tweet, and everybody got excited and happy until Twitter exploded, because there's another law firm out there that has a different opinion as to whether or not the regs apply. We're going to tackle this today. We're going to talk about it. We're not going to hold back. It's a thorny question. It's a charged question. If you think I got some hate mail when I was blogging about preventing cannabis smoking in condos, you haven't seen the kind of hate mail I get when I talk about closing gyms. I mean, it's just fantastic. It's apocalyptic. It's like straight out of The Apocalypse. Anyways, so to talk about all of that and to clarify what this regulation means and whether it applies to you, what we've done is I've called some condo geeks and I'm lucky enough that they were courageous enough to join us. So some of them are the usual crew. You'll recognize them and other ones are new. Well, they're not really newbies because they've been at this for multiple decades, but anyways. So let me start by introducing who we have around the table. I'm going to start with you, Nadia Freeman. She's with us out of Ottawa. Nadia is the VP of Capital Integral Property Management. She's been in the industry for some 40 years. She doesn't look it but she has been, and she's been appointed by the CMRAO to hear complaints and appeals filed with the discipline committee, and she is also a committee member preparing course documents and materials to train limited and general licencees. Nadia, we're so lucky to have you. Thank you so much. Is she there?

Nadia: I'm here. I muted. Thank you very much, everyone, and good evening.

Rod: Good evening, Nadia. I don't want to take anything away from Nadia but I got to tell you I'm a little starstruck with our next guest. You'll recognize him from many videos put out by CCI. We somehow managed to bamboozle Murray Johnson to join us tonight. He's VP of Client Operations with Crossbridge Condominium Services, President of CCI Toronto and Area Chapter and he's entered condo management in 1998. So I'm not good at math. That's probably 25 years or something like this. Award winning manager, Murray, I'm excited to have you here. Thanks so much for having accepted the invitation.

Murray: My pleasure. Thanks.

Rod: Now on the legal front I went and I got some heavy weights because we're going to talk about some contentious issues today. So I decided to add to our twin duo but without the beard. So from Lash Condo Law we have Josh Milgrom. Josh, thanks so much for joining us again tonight.

Josh: Hey Rod. Pleasure to be here again.

Rod: So Josh, how did you avoid the COVID beard?

Josh: I actually just got rid of it 2 days ago.

Rod: Oh my goodness. I think you're the only lawyer I know. So I think actually you're going to have to fill in David Plotkin's shoes because one of our favourite condo twins, I got two, actually can't make it tonight but we do have Graeme MacPherson.  Hi, Graeme.

Graeme: Hi there, everybody. Thanks for having me again, and just for the crowd, don't forget who the real favourite condo twin is.

Rod: Nice. So, Graeme, I'm going to rely on you to sort of moderate the chat line. Keep an eye on it. Sometimes we may be able to answer some comments, or not, I'm not sure so I'll ask you to keep an eye on this. So housekeeping before we jump in. The usual housekeeping. The usual disclaimers. So what do we got? First, whenever we refer to legislation, or to the state of the law, we're talking about Ontario and so if you're tuning in from somewhere else this may not apply. Second, the information we're providing today is as accurate as we can possibly make it today at 5:07 on January 12. The landscape is changing on an hourly basis. In fact, Graeme's keeps refreshing the Ottawa Public Health web page to see whether or not they'll finally come out and take a position on this. Also, keep in mind that the information we're providing today is of a general nature. If you have a question, if you're not sure what to do, if you're debating whether you should open your amenities, go and don't read blogs. Blogs are great. Don't go to Twitter. Go to your lawyer. Go to your managers. Go to your experts and ask them for advice and rely on that advice. Okay, and finally, I don't know why I have to say this but the session is being recorded and so eventually we're going to upload on it on the Condo Adviser website. You'll be able to watch it. It usually takes me about 3 to 5 days to put it up. So just be kind to me and be patient please. Okay. Now, let's see here. Where are we at here? There we are. Let's start with the first slide.

So the summary of it is this. January 5 Ontario rolled back to a modified step-2 set of measures and until then we were under step-3. So let me just bring you to our COVID tool. Let me just show this and that way you have a place to go back whenever there's a doubt in your mind as to what you should do. So you could go to your favourite condo blog and if you click on, Graeme do we see it on the screen?

Graeme: Yes.

Rod: If you click on COVID at the top it's going to bring you to these fancy tiles and then you're able to click on whatever tile. If you think we're in step-2 or step-1 or step-3. There's also a tile about vaccination policy, COVID screening, mask policies and so, of course, right now we're in step-2. If you go and you click step-2 you'll be able to benefit from this free opinion. But that's all it is. It's an opinion. So on the 5^th we rolled back to step-2 measures. Those are expected to last 21 days or until January 26. They made the extended. All 34 public health in Ontario have moved back to this. I'm going to upload the PowerPoint presentation on the Condo Adviser website and as you can see you'll be able to click to see the press release. You'll be able to click to see step-2 regulations. So all of these will be accessible as soon as we're done. David would normally give us a summary but you're going to do it, Graeme? So this is a brief summary of all the general rules that apply before we go into the details.

Graeme: Yeah, and because we have some nitty gritty stuff that we'd really like to get in tonight I'm going to try and keep this as brief as possible. Again, everybody, you will be able to get a copy of this PowerPoint online. Basically, the general obligations for businesses or organizations, which as an organization I take it includes condominiums, but we'll probably have more discussion on that later. The same types of regulations and rules still apply. So there's not going to be anything new here. We still have to abide by the Reopening Ontario Act. We have to comply with the Occupational Health and Safety Act and, every importantly, this is something that's going to be important depending on where you locally, we have to comply with the advice and recommendations and instructions of Public Health Officials, as well as the Chief Medical Officer. But that's going to include complying with advice about physical distancing, continuing to clean and disinfect and screening, and also as we're going to talk about later in this presentation, Public Health Officials are giving recommendations on what sorts of amenities should and shouldn't be open right now.

Rod: Right. So regardless on which side of the fence of the Pepsi versus Coke debate you fall on your amenities, indoors amenities, at the end of the day you have to follow the advice and recommendations of the Public Health Officials. Okay. So very quickly, Graeme, give us maybe the summary of the rules as they apply to social gatherings.

Graeme: This is an interesting one. As you'll see here, for social gatherings we're back down to limits of 5 people indoors and 10 people if you're outdoors. Then you'll also see there that under social gatherings it states that for organized public events it's limited to 5 people indoors. Then there's nothing after that. What's the outdoor limit for an organized public event? There is nothing on that. There's nothing stated. It's left open. So I think it's worth mentioning before continuing that these limits do expressly apply to condominium buildings. That's specifically mentioned in the regulation. So it could, perhaps, come to mind that this is great news. Maybe if we consider our AGM to be an organize public event, rather than a social gathering, I guess we can all do it in the parking lot or in the courtyard. My advice, for what it's worth, I would hesitate to advise that. To getting a whole crowd of people together all in one place, putting aside the risk of frostbite, we are still in the midst of the most transmissible variant that we've seen. So I would not be quick to jump on this kind of vacancy in the regulation and use it as a reason to hold your AGM in the parking lot, especially when we currently have a method that the Province has kind of, with some growing pains, gotten quite used to and I think it's quite effective of holding meetings electronically. The other kind of interesting thing I thought here too, very quickly, is the distinction between a social gathering and an organized public event. It's difficult to say when one becomes the other. If you have a wine and cheese at the end of your AGM, is it a social gathering? If you bring an agenda to your wine and cheese, is it an organized public event? If you've got me as a Chair I'm going to make jokes, if it becomes too fun does it become a social gathering? These are all questions that we had to grapple with if we were holding them in the parking lot.

Rod: Right. So it's a bit unclear as to whether or not there is a max limit for organized public events outdoor. But it's clear that indoors has got to be 5 people, either way. Right?

Graeme: I just want to note there's a question in chat saying that earlier we said these regulations applied to organizations but the gathering one applies to private dwellings? I just pointed that out because the regulations, in case there was any confusion because it specifically refers to social gathering, the regulations have said that if you're in a condominium you're not able to somehow get around these gathering limits.

Rod: Right. Right. It's important to note that some rules expressly refer to condos and it's important to keep that in mind because there is an opinion out there, perhaps, that if you don't expressly refer to condos then maybe it doesn't apply. I don't agree with that but we'll talk about that. Murray, in 15 seconds or less, what's the GTA landscape on gathering limits? How's that sort of shaping up in your neck of the woods?

Murray: Well I know that with our clients, certainly they were all encouraged to develop COVID response plans, and so when changes like this come into play they have to revisit those plans. Because of the strict limitations, and the transmissibility of this variant, we continue to instruct our managers to keep the offices closed. Now, what's interesting here is the boards are actually obligated to be on side with us there because as the employer, under Occupational Health and Safety, I'm looking after my staff. The board, as the owner of the workplace, has to provide a safe environment. So this plays right into all of that.0

Rod: Okay. Thank you so much. Nadia, I know that Murray had the lead on this one but anything to add in Eastern Ontario? Is there a lot of pushback? Are you encountering problems with having these gathering limits respected? I think she's muted. Let me just see.

Graeme: Yeah. Nadia, you're going to have to unmute.

Rod: Our first muter. Yes!

Nadia: Yeah. Sorry about that. No, we're not having any issues. We are respecting, our boards, owners, they're respecting the social gathering limits.

Rod: Let me ask you this. Any board meetings onsite or are all your board meetings pretty much online?

Nadia: They're all online.

Rod: Right. Was that kind of a policy taken by Capital Integral, we're not going to send our manager there?

Nadia: It's definitely one of our policies. Everything is done virtually and they're actually more effective in many ways.

Rod: Yeah, for sure. Okay, moving onto the next topic. We're going to talk about face masks and I'm going to turn to you, Josh, to sort of walk us through what does step-2 provide for face masks?

Josh: Sure. Thanks, Rod. So not much new here at this point in the pandemic. We're all used to wearing face masks. Under the regulations, masks are required in all indoor common areas of condos,  where the corporation cannot ensure a 2 meter distance. Now keep in mind there are Municipal bylaws that apply, such as in Toronto, where the physical distancing qualification is not there. So anywhere you are in your common areas in condos in Toronto, there's a requirement to wear a mask. Most condo corps, at this point in time, have adopted mask policies to reflect the requirements of their local Municipality. So if you haven't done that already, definitely something you might want to consider doing moving forward. One of the issues with the mask bylaw, and under the regulations, is that we can't really ask for proof. People who claim exemptions under the mask bylaw or policies. Many of you on the call now may remember a case from last year, the Mitrovic case, where the court basically restricted the movement of a person on the common elements who claimed that they were exempt from the requirement to wear a mask. Basically the person had to use the most direct route to access their unit. What we know from this now is that we can apply those principles, from the Mitrovic case, moving forward to deal with situations where we have residents who claim to be exempt under the policy. This sort of brings us into a conversation about essential amenities, or common elements, versus non-essential ones. So things like the lobby, the parking garage if they have a car, the elevators, those are necessary for someone to use to access their units. We can't restrict access to those areas. But things like other floors in the building, or recreational facilities, maybe those are areas that we could restrict. In the ordinary course we can't ask for proof of an exemption but we have to remember that someone claiming an exemption under the mask bylaw, or under the regulations from the requirement to wear a mask, is not the same, necessarily, as someone being accommodated under the Human Rights Code. So we don't immediately have an obligation, as a condo corp, to accommodate someone claiming an exemption. Of course there's health and safety considerations for all the other residents, for the service providers, when people are not wearing masks in the common elements. If we take those principles we learned from the Mitrovic case, and apply it a little bit further, it might very well be reasonable for a corporation to prevent someone who claims to have an exemption from using those recreational facilities, unless they have a need for accommodation under the Human Rights Code, and that takes us to a different process where if someone does need to prove that they are entitled to accommodation. So we can then consider asking for medical documentation, confirming that they, for example, have a disability and have to be accommodated, and then we take part in that accommodation process and consider what accommodation is reasonable in circumstances, up to the point of undue hardship. So something to consider when dealing with residents who claim to have exemptions from wearing a mask.

Rod: So let me just summarize what I understood, Josh. So when we're dealing with essential amenities, the lobby, the mailroom, the parking garage, the elevator, anything you need to get to your unit, currently the Provincial regulation does not necessarily allow a corporation to ask for proof if somebody says, "I'm exempt". But if you're dealing with a non-essential amenity, the gym, whenever those will be open, and these other non-essential amenities, we can treat them in a different category and we may be able, at that point in time if you have the proper policies in place, you may be able at that point in time to say, sure. You claim to seek an accommodation and so, in this case, provide us with sufficient information and documents for us to be able to determine whether or not an accommodation is required, to what extent and whether or not it's going to cause undue hardship to the corporation. So like kind of two categories here. Is that kind of it?

Josh: That's exactly right. At the end of the day, as a condo corp, we have obligations to all of our other residents as well. People claiming the mask bylaw and the regulations, they don't really deal with what are the consequences to everybody else. So we need to consider those when we are permitting access to those recreational facilities.

Rod: Right. Okay, perfect. We are still kind of on time but we are sort of falling behind so, David, which is really Graeme today because you're doing both, talk about the screening at the entrances and what are the requirements, Graeme.

Graeme: This one I won't spend too much time on because this, again, isn't new but it's continuing to be a requirement of businesses and organizations. If you're going to have contractors coming in, that they need to be actively screened. Same with workers who are coming in. Rod, I think you can show the crowd an example of what these screening forms look like and operate.

Rod: Okay, let me go here and so one of the screening forms that you could have, this is an example.

Graeme: Yeah, exactly.

Rod: Do you want to talk about it? Do you want me talk about it?

Graeme: No, you can go ahead. This is your baby.

Rod: So anybody at home, if you have a Smartphone you could probably point at it and it would bring you to a page, automatically, where you would be asked some screening questions. You'd complete those. You'd press submit, and the way we've programmed it, it actually sends you an email with your own answers and it sends a copy of that email to the manager. So that's an example. It's an easy way for you to invite everybody to screen themselves, if they want, but as Graeme said it's important to keep in mind that there's a passive invitation for everybody to screen themselves, but there's an active requirement to screen anybody who works at the corporation. If you want to see an example of what the screening form looks like, let me just click on this, see what happens. This is an example and it's on the Condo Adviser website. It's maybe a bit pale for you to see it but basically you get to complete the information on this form. Which Tower are you visiting? Gowling 1, Gowling 2, the garage, etcetera, the date of your visit. Super easy to do. Then you answer these questions. If you have fever, if you've travelled, if you're dating someone who is COVID inclined and then eventually you submit it. Right? So various ways of doing this. A lot of people put this on their own website. Some managers put it on their management firm's website. But you definitely need to sort of turn your mind to screening. Anything else to add, Graeme?

Graeme: I don't think so. Just, again, a good reminder that I think this is one of those things that can be easy to maybe slip through the cracks. So this is just a good reminder to make sure you're doing that. Again, these slides are going to be available so everyone will have access to these links to check those out.

Rod: Okay. Murray, how does it work over there in the GTA? What are you guys doing?

Murray:  We have a broad client base but in Toronto they're either using the App or the resident portal software, whichever one they have, or they're doing it manually on paper. We have a lot of sites that are doing it manually on paper so, just to be clear, there's only two people that you're really screening. That's the workers every time before they come onto the site, and then essential visitors, which are other service providers and the trades and so forth. In some of our sites you've got to step further, and those people that have been delegated to do the screening, have had to sign a Declaration of Confidentiality. All that is is acknowledging that the manager, and the person that they delegated this to, have discussed keeping the information they collect private.

Rod: Right. Okay, perfect. So somebody's asking how do we enforce this? Well, everything is about enforcement at the end of the day. I'm going to say that if you put a sign, and if it's visible and if it's big, and if you keep changing and moving it around a bit, it's always going to attract people's attention and most people will comply. When you're dealing with staff, contractors, employees, for sure then the corporation has an obligation to ensure that that is going to be complied with. I was involved in a case where one of the live-in staff member had some hesitations, initially, and there was a bit of a discussion as to whether or not, when he or she leaves his or her unit, cause he lives there, when they leave their unit they're entering the common elements in the context of employment, or in another context, and the answer is yes. If you leave, and you enter into the common elements to go to your job, you're an employee. You're someone who works at the business or organization then you have to abide that. Graeme, elevators? Quickly, maybe.

Graeme: Elevators are not something that is specifically regulated in the step-2 regulations, however, most if not all I would say, local public health authorities do have elevator etiquette programs that they've put out. Usually you can expect to see the same things in those and it's not going to shock anybody. This is all what we're used to. So less than two people in the elevator, usually. It's best, if you can wait, to wait until it's free. Using your elbow to hit the buttons. Making sure that you wear your mask in the elevator. Having sanitizers nearby. Those types of things. Nothing too revolutionary there but, again, a good reminder.

Rod: Okay. Back to the screening, somebody asked what about people that go work into units? You have to make sure that your owners actually are in line with this and it's up to them to make sure that their contractors, their support workers have to be screened. There are people working on location and so you just have to keep harping on that. Somebody asked us how long you have to keep these forms? Most sections dealing with keeping this information, under the Reopening Ontario Act, requires you to keep it for 30 days and there's a strict requirement as to who you can disclose this to. We don't have time today to dive into that but there's plenty of blogs out there. We've blogged about it. If you go back to my COVID tool you'll see there's a screening tile so feel free to go and use that. I don't want to spend too much time on this because of the important topic we want to cover tonight, which is the gym. The fitness room. Josh, quickly, guest suites? In two words.

Josh: <laughter> The short term rental regulations specifically apply to businesses. So technically speaking guest suites might not be captured in the regulations, either as a short term rental, because that applies to businesses, or as a recreational facility. Recreational facility is not defined. This is a lot more than two words. But in any even, short term rentals are only to be provided to those in need of housing. So if your guest suite is open then certainly it should be used only for those purposes that the regulations allow short term rentals to be provided for.

Rod: Okay, perfect. Folks, you all came for one topic. You all really logged in today, and I know we're going fast, but we all logged in today because you wanted to see the big debate between the various law firms over whether or not you have to keep your fitness facilities open or closed. I mean, Twitter is on fire right now, and it's a lot of fun actually but at the end of the day you want some guidance and you came to the right place for that guidance. So we're going to share our views and opinions on that. Then after that we're going to see what others have said about whether or not you have to close your indoor recreational and sports and fitness amenities. You won't be surprised to hear, if you've read anything that I've published, you won't be surprised to hear my view and my view is that step-2 regulation requires that indoor sports and recreational fitness facilities be closed, unless, and then there's a list of exceptions. If you're dealing with professional, or semi-professional, or elite athletes. If you're dealing with early years and childcare services. If you're dealing with mental health and addiction support. Of course, if that's the amenity it's a different story, that there's an exception to that. But if it's not one of those exceptions, our reading of the regulation is that indoor recreational amenities, and indoor sports and recreational fitness facilities, must be closed. Now, how do I get there because not everybody agrees with me, and that's okay. That's okay. So how do I get there? Well, the regulation applies to businesses, places and organizations. The regulation says that each person responsible for a business or a place that is required to be closed under Schedule 2, must close that place. So if you're a business, or if you're a place, you have to close whatever is listed in Schedule 2. In Schedule 2 lists the indoor recreational amenities, the indoor sports and recreational fitness amenities, and it says you've got to close them unless you're in one of the exceptions, the elite sporting and so on and so forth. The regulation makes no reference of private versus public. It doesn't say if it's a public gym. It doesn't say if it's a private gym. In fact, the regulation and prior iterations of the regulations, spoke about patrons when dealing with vaccinations. Sometimes it spoke about members of the public. Sometimes it spoke about persons and you could sort of guess who it applied to, whether it was referring to a person, or to a member of the public, or to a patron. But in the case of the amenities, all it says is that these amenities must be closed. It doesn't matter who accesses them. There's no reference to size or capacity. I've heard a lot of people asking, what about if we only have one bike and there's only one person that go in at a time, can we then leave it open? If that's what the Province wanted they would have said something to that effect, as they did in the past. It would have said you have to have at least 2 meters, or sometimes they even said in the past you have to have 3 meters between people. That was easy for the Province to adopt these rules but that's not what they did. Now I realize that a lot will turn on businesses and places and I know that somebody on Twitter has asked me, give me a break. Everything is a place. Does that mean that people that have their own freehold home, if they have a gym in the garage or weights in the garage, do they have to close their place too? We've got to be consistent with our approach. A garage gym in someone's house is no more a fitness facility than their room is a sex club. I mean it really matters what happens in there. How many people have access to it? What's the difference between 250 gym members accessing the Good Life or 250 families accessing the gym, or the amenity, off the lobby? In any event, that's my view. If you don't like it, well, you got to change channels I guess. But let's see what other people have said and so I'm going to turn to you, I think, David, which is Graeme. What has the condo authority and the CMRAO, what's their position on this?

Graeme: The CAO has put on their website, with respect to, they've got a very helpful chart where they list the different sorts of amenities and the current status of them, vis a vis the regulations and COVID-19. For facilities for indoor or outdoor sports or recreational fitness activities, they specifically write, and Rod's highlighting it for me here now, that indoor sports and fitness facilities, like pools and gyms, etcetera, must be closed with limited exceptions. Those exceptions are things like  professional sports.

Rod: Okay. So what about the CMRAO?

Graeme: The CMRAO has not stated really anything, one way or the other. What CMRAO has done for now is they have listed a series of official sources of COVID-19 information that can be accessed.

Rod: Okay. I'm going to turn to you, I think it's Josh. Let me just see. I'm going to turn to you, Murray, actually. Can you maybe give us an update on CCI Toronto? What's their position so far?

Murray: So putting on my CCI hat, we understand that there's a lot of debate out there. We recognize it. We say that right off the bat in our statement. What we're saying is that condominium boards should seek the advice of their lawyer of record. What we mean by that is the lawyer you've been going to for all these years is the lawyer whose advice you should follow rather than shopping for the opinion that best suits your position. In the meantime there's so much debate going on. I've talked to lawyers on both sides of this and on both sides they give very compelling arguments. So if I'm a director and I have to go down the middle saying whose right, go to your lawyer. They would be the ones that would have to defend you, under E&O insurance, if it was challenged. So use your lawyer.

Rod: Okay, perfect. CCI Eastern Ontario, last time I checked didn't have anything yet. No update yet from CCI Eastern Ontario. The Condo Directors Group, mainly out of Ottawa, also has some COVID resources and they also concluded that the indoor sports and recreational amenities had to be closed. I don't know if we'll be able, I'm not able to get to it right now, oh maybe. See? Yes. So they also sort of take the position that it should be closed. Okay, let's keep going and let's see who else has an opinion on that. Right, Josh. Now I'm going to turn to you and I'm going to ask you to walk us through what Toronto Public Health has stated. What is their position on this?

Josh: Okay. So yesterday afternoon Toronto Public Health came out with their guidelines, guidance, for condos. First and foremost I want to stress, and it's also first and foremost on their website, they strongly recommend, in those terms, that condos close all non-essential amenity areas. Such as gyms, pools, spas, playrooms and other high traffic areas. So that's their first point. They strongly recommend closure. But they then go onto say that the requirements for sports and rec fitness facilities to close in condos, in the regulations, does not apply to condos. Because condos are not public settings and are intended for private use (ie: for people who reside in the condos). Where you going to jump in, Rod?

Rod: Are you done or no?

Josh: I was just going to say that, as Graeme and Rod mentioned earlier on, the Reopening Ontario Act does require that organizations comply with the recommendations of public health. So we may very well be back to square one where Toronto Public Health is saying, well the regulations don't apply and you don't have to close your gym but we strongly recommend you close it and if, as condo corps, we have to comply with those recommendations then we might have to close those anyways.

Rod: Right. Exactly. I think that's the important takeaway is that while Toronto Public Health takes the position that the regs don't apply, they still say you should close it, and the rest of the regs say you should follow the guidance. So I think it's important for everybody to go to your local public health authority and to see what is the position that they are taking. That brings me to you, Graeme, and what does the Ottawa Public Health, what's their position? You're going to love this one, folks.

Graeme: I've been continuing to refresh it and Ottawa Public Health has not yet come out with a statement on indoor public fitness facilities. They are currently working on that and thank us for our patience. You can see there there's a blue link where it says you can visit for the instructions on sports recreation and fitness sector, and we don't have anything there with respect to indoor facilities. So we're going to have to keep waiting, with bated breath, on that one.

Rod: Right. Your call is important to us. Please hold.

                        <laughter>

Rod:  That's where this went. Perfect. Let's move on to, however, bylaws has come out and made a statement, Graeme.

Graeme: Yes. This one says that persons responsible for condominiums and rental units ought to align their practices and policies with respect to party rooms and indoor recreational areas, accordingly. The regulation currently requires that, subject to limited exceptions, indoor sport and recreational fitness facilities, including gyms, be closed. It then goes onto talk about social gatherings. We do have Ottawa bylaws take on this debate here.

Rod: That places the Ottawa condos in a difficult position because at the end of the day, unless Ottawa bylaw changes its position, and it could happen, there's a risk if you actually keep your amenities open. I think that's the message right now in Ottawa. So in Toronto the message from Public Health is the strong recommendation to close it, in Ottawa, please hold the line, we're going to tell you soon but in the meantime bylaw seems to be of the view that the regs apply. Okay. Let's see what else we've got here. I guess it's the end of the webinar. I guess everybody goes home. No, folks. You came here for the big battle of the giants. That's what you came here for. So let's talk about what lawyers have stated out there. You have our position. My opinion, I've blogged about it. I've repeated it. You're not surprised by it. I'm more on the cautious side and have been all along but what do other condo lawyers say about this? To date, and this may change because it's a moving sort of landscape, to date condos lawyer fall in three categories. One of them has blogged, repeatedly at that, that the regs don't apply to condos and that you can open your amenities. Another one, this one out of Ottawa, stated that most likely not the regs apply and you should close them. Every other condominium lawyer that I know of, that has made a public statement, has taken the position that the regs apply. But statutory interpretation is not a popularity contest. The question today is not who is right. The question today is what is right.

So let's talk about this other opinion that's floating out there and I'm going to start by saying this, I don't know why everybody's getting so excited over the fact that different lawyers have a different opinion. We're in the business of providing opinions and that's what we do. If we all had the same opinion we would all be working at the same firm. So the fact that there's different opinions is healthy and it's not surprising. That's for the opinion but I'm going to say this. While I have the utmost respect for this other law firm, and I do, I know people there. I do have a lot of respect for them. I actually disagree with their opinion and I'm sure they disagree with mine. I disagree with their opinion based on what we just discussed a couple of minutes ago; the definitions and the wording that you have in the regulations. Now this other firm states, in part, that they have heard from a senior representative of the Ministry of Health who has confirmed their position. A lot of people in the chat line right now are asking us, who's the name of that senior representative? Can we email that person? I'm going to say this. The fact that there's a senior representative that has an opinion, and the fact that the Ministry of Health has an opinion on that, and frankly the fact that Toronto Public Health has an opinion on that, is great but that's not how it works. The way it works, we all got that same email from that senior representative. All the condo lawyers I spoke to, we all got that same cut and paste email from that senior representative, saying that the regs don't apply to condos. But respectfully, the Ministry of Health does not draft regulation, and they don't interpret regulation. That's the job of a judge. This email from this senior representative will have zero value in front of a judge when you're interpreting the regulation. My blogs will also have zero value. So it's kind of an even playing field. That's not how judges interpret legislation. The way it works is you have to look at the words in the regulation, in their ordinary meaning, and then you have to interpret them, keeping in mind the purpose of the regulation. What's the objective of the regulation? The objective of that regulation is to stop the spread of this highly contagious variant. There's a reason why we went from step-3 back to step-2. There's a reason why we've closed all the schools. There's a reason why every condominium in Ontario was forced to be closed, despite the fact that they were checking vaccinations at the door, and the reason is we're trying to stop the spread. So it's in that context that you have to ask yourself the question, what are condos? If they're not businesses, are condos at least organizations, or places? So unless we're going to take the position that condos are this abstract construct, or they're a theory or an idea, or a figment of one's imagination, I think we're all going to have to agree that condos are a place. Right? The regs require places to close their indoor facilities. Now many of us lawyers, not just me, many of us have written back to this senior official and have kind of flagged various issues and concerns we had. Quite frankly, most lawyers I know, the position we've taken with the Ministry of Health is we don't care one way or the other. But the regulation needs to be clarified. If in fact the regulation stands for the proposition that it doesn't apply to condos, you got to come out and say that, because now we're in this mess where you have to look at public health, where you have to shop around read different blogs. This is a huge problem for the condominium industry and it's pegging directors against directors, and managers against directors, and managers against owners. At the end of the day just come out and clarify the regulation. That's the position we take. I'm going to say this also, before I stop thumping my bible, and I'm sorry if I come across as I must, thumping my bible basically. But I'm going to say this, the issue with this vague regulation is that there's 1.5 million Ontarians that are falling through the cracks here. We've closed gyms across the Province, gyms that were operated professionally, how is that it escapes people that a condominium gym, in most cases, presents the exact same sort of risk factors associated with that? What's the difference between 250 gym members going to the Y and 250 condo dwellers going to the gym, or having access to the gym? Now people will tell me, sure, what if my gym only has one bike, as I said. Well that may be a different story altogether. But the bigger problem we have with whether or not these regs apply to gyms is if we accept for a minute, and this is important, if we accept for a minute that the regulation does not apply gyms because gyms are somehow not a place, they're just a concept, if we accept that then condo land is left in a legal limbo. Because if the regs don't apply to condo gyms there's no screening requirement to go to the gym. There's no masking requirement to go to the gym. There's no capacity limits to be enforced. There's no tracing requirement. There's no safety plan requirement. So you have 1.5 million Ontarians that are left to their own devices. Good luck with that. See you at the next pandemic. That's the issue with this regulation as it is. That's the problem with the vagaries of this regulation. Now like at the end of the day, as I said, I'm having a lot of fun on Twitter with various firms trying to tweet louder than the other firm, at the end of the day those are just opinions. This is a lot of fun but it really doesn't matter who's right. The question is what's right? What makes most sense? Hopefully we've presented, and I'm almost done babbling, I've just been preparing for this since January 5 so you got to entertain me, folks, so at the end of the day you need to seek advice and opinions from your advisors and you also need to ask yourself these questions: what makes more sense? Is this the time where we put our guards down? I don't know. Josh, I don't know if I left anything on the table for you to add to this.

Josh: Rod, I think you covered most of it but there is a comment here from Marlene Lundy saying if you use the logic of 'my condo only has one bike or can we limit to one use?' why can't commercial gyms do the same? Why can't they argue they're just letting patrons into small rooms, one at a time, to work out? I think that's an excellent point and condo gyms come in all sorts of shapes and sizes but so do commercial gyms. There's lots of commercial gyms that are very small and the regulations did not exempt commercial gyms that only allow one patron at a time. It could have done that but they didn't do that. In the same way that they didn't carve out condos from the application of the regulations. Condos, like you've been saying, are places. Their gyms are places. So, frankly, I don't see a way to interpret that in any other way. Just like you, Rod.

Rod: Okay. Yes, Murray.

Murray:  Rod, it's not unusual when we're talking and debating various sections of the Condominium Act, all of us, without exception I think, fall back to the comment that you made. What was the intent of that section? Here I think that's probably the heart of everything. Whether you agree or disagree, what was the intent of stepping back and putting more restrictions in place? If not to limit the spread of this variant then I'm at a loss to the reason.

Rod: Right. So is there sort of a Crossbridge position on this? What's the recommendation that you're giving and is there a lot of pushback?

Murray: I can tell you the vast majority of our clients have closed those amenities. They will open the guest suites in the case of an emergency. If there's a flood and somebody needs somewhere to stay then they do extra cleaning. But for the most part they're closing it down. We have a couple that have gone out and done due diligence, and when you look at the process they went through to come to the decision to open it, you could almost say they're acting on the advice of a different kind of profession. We're not going to stick our neck out for sure because there's so much debate. We recognize that and our comment is to make sure that it's due diligence, that you're considering the health and welfare of your community and that you're following legal advice. If you do those things you're position, no matter what it is, is defensible.

Rod: Right. Sort of building on your suggestion that we have to look at the purpose. What's the purpose of this new regulation? I'm going to say this, if at the end of the day, don't repeat this folks at home, it's just us here, but if at the end of the day the gym can open and there's no such restrictions surrounding it, well that would be the best place to hold your AGM. Make sure everybody brings a yoga mat. If everybody's wearing shorts I guess we're at the gym. It just so happens that somebody's talking to us. There's just a lack of logic behind applying a piecemeal approach to these regulations. Nadia, what's the landscape look like in Ottawa?

Nadia: Most of our condominiums have adopted policies to supplement their regulations and this applies to elevators, laundry rooms, gyms, pools, libraries and amenities. So bottom line is that they're closed. The reaction from residents have been relatively positive as they understand, and the Omicron variant is quite dangerous, and people are really afraid. So I just find that they're respecting the rules of closure.

Rod: Okay. That's encouraging. My experience, and of course I only hear about it when it doesn't go well so maybe my experience is skewed a bit, but in my experience there's a fair, strong pushback from a minority but very vocal set of owners, especially when a lot of people are saying, where I live for instance, our gym is as big as a broom closet and so even on a best case scenario you can only have one person, maybe two, and so some people are taking the position does that even make sense? You got to fall back on the regulation. You got to fall back on the directives that you get from public health and so on and so forth. Graeme, anything to add? I'm not sure I left anything on the table here.

Graeme: There's not much to add except, and maybe this is more akin to if you're going to ask me for a word of wisdom at the end, I'm going to have to think of a new one, but I guess I'll say that any pushback or kind of reluctancy, I mean, it makes sense. People are tired. Everybody's tired of this. But the reality of the situation is unfortunately that the only way to keep it under control, and do what we can to try and limit the spread of the virus and keep those who really need to be protected safe, is we unfortunately do have to have some personal sacrifices. We do have to give up our gym memberships for the time being. We do have to try and stay away from our friends and family for the time being and nobody likes it. I guess I'll just say, if we just all worked together to try and commit to this, it's the easiest way that we can get back to the good times.

Rod: Yup. Josh, I'm putting you on notice. I'm going to give you 2 minutes to talk about vaccinations, if you are up to it. But just to give you time to gather your thoughts around that, if you want and if not I'll cover it, or we'll do it together, let's just have a quick, quick, quick poll and I'm going to ask two different questions. So the first question is, raise your hand if your gym is closed. If the indications that you're getting is that in the foreseeable future it's going to remain closed. I know you can't see the future but let's see how many people have a closed gym so far. That's interesting. We're at 90 out of 200. Graeme's going to do the math here to give us a percentage.

Graeme:  Don't worry. I'm doing this in my head. I haven't just grabbed a calculator.

Rod: Okay, and in the meantime I'm going to go to the next question. I'm going to lower everybody's hands and I'm going to ask the next question. So every hand goes down and the next question is, whether you think it should be closed. Regardless of what you're doing, regardless of what is being imposed on you, those who think the gym should be closed. Not whether or not the regs apply. What makes more sense for you as should gyms be closed in condos? So let's see what kind of numbers we get. This is just a poll to give 2 minutes for Josh to prepare his spiel on vaccination. It's about the same. We're at the halfway point. About 50%25 of our viewers have it closed and 50%25 are of the view that it should be closed. Okay, perfect. Graeme, somebody was kind enough to give you the answer, the mathematical answer is 45%25.

Graeme: Of course, I was definitely able to calculate that in my head. Lawyers are renowned for their arithmetic skills.

Rod: Josh, have you turned your mind to vaccination in condos and whether it applies and what are people doing?

Josh: Yeah, absolutely. We have many of our clients who have developed vaccination policies for use of the amenities, for residents. So something like just for all residents, generally, a requirement to be vaccinated that's not something that we're seeing. But in terms of using their recreational amenities, those non-essential amenities, absolutely a vaccination policy is something that condo corps can implement. As well as dealing with staff and service providers. We're seeing policies that deal with those as well. Again, we're talking about trying to prevent a spread. It prevents serious illness from COVID so anything that a condo corp can do to protect its residents, to protect its service providers, those things are on the table.

Rod: Something important to keep in mind, Josh and you touched upon it, in fact the regulation provides that when dealing with employees, an employer has to adopt a policy, if it's recommended. Basically the language of the regulation is you have to follow the advice of public officials and the health officials with respect to the adoption of a policy for employees. I've sort of blogged on that if you go back to the COVID tool, and if you go into the vaccine tile, you will see that most public health areas are in fact advising that employers shall adopt a vaccination policy. It doesn't say what you have to put in it. I think a policy we often see for employees and staff and contractors is either show proof of vaccination or test. So sometimes I kind of see that in a policy. I don't know if that's what you have. Do you have the vaxx or test approach, Josh?

Josh: Yeah, we're seeing that for sure.

Rod: Okay. Anyway, so that's for staff and employees and people that work at the corporation. But as Josh indicated, for residents I think you would limit that mainly to non-essential amenities, and what is clear is that there's no legal obligation to seek proof of vaccination. I think we've all agreed that it doesn't apply to condos. But condos can. Okay, folks, we're running out of time and I see the chat room, some people are asking me to rephrase my poll and rephrase my question, and folks, this was just a poll for fun.

Graeme: We're not going to be publishing the results of this study. Don't worry.

Rod: Nobody's getting elected tonight. Don't worry about it. That's it. Anyway, we're running out of time. This was a lot of fun actually. I don't know about you but that was a lot fun. I had a lot of steam that I needed to let go. So I'm just going to go around the table, thanks people and I'm going to ask you as well if you have a last minute piece of advice or parting words. I'm going to start with you, Nadia, because I didn't give you a lot of air time. First, big thanks for having joined us today and for having help us prepare this. I mean, it flowed smoothly but we worked at that, all of us together yesterday. So thank you for that. Any parting words, Nadia?

Nadia: Just everyone be safe. Make sure you're at least double vaccinated. Stand in line for your third and good luck to all us because I know that we're all really, really tired of this. But take it outdoors. Cross-country ski. Walk. There's a lot of outdoor activities.

Rod: Okay, fantastic. Thank you, Nadia. Murray, I said it before and this is the last time I'll say it because you're head's going to get bigger, but I'm so excited to have you here with us and thank you so much for your time and for all the work you did in the background. Some people don't know that but I know last week you were contacting condo lawyers, and putting us in contact and trying to get to the Ministry of Health, and getting information. That's commendable. So thank you and the floor is yours for parting words, if you have any advice.

Murray: Well, I have one. When we talked about elevators and in talking to some of the residents in our client's sites, people get a little nervous and they get angry. So what I say to you is, remember it's easier to remove yourself from a dangerous situation than it is to control strangers. Do it in a nice way. We have to be nice to each other. Otherwise the next variant will be litigation.

Rod: Oh, I love that. <laughter> That's funny. That's well said. Avoid the next variant, the litigation variant. That's fantastic. Josh, big thanks for joining us. Big shoes to fill because you had to sort of replace Denise here but big thanks. Any sort of parting words to share?

Josh: Yeah. First thing I want to say, boards and managers are in a really difficult position, with all the mixed guidance being provided and the lack of clarity, and we all feel for you. We all apologize on behalf of the industry, generally. It would have obviously been much easier if the regs specifically dealt with condos. But as we've been saying all along, condos can be more restrictive than the public health restrictions to ensure health and safety. Opening up gyms and rec facilities, being less restrictive than what's required in those commercial facilities, at least in Toronto, inconsistent with public health advice, we simply don't recommend it. So be safe everybody and take care of each other.

Rod: Okay. Yes, thank you, Josh. We forgot another source of information, folks at home. We've talked about the CAO. We talked about CCI. We talked about Acts. But we forgot one, and I apologize for that, CAI Canada also came out with a very strong and supportive message and they're of the view that amenities must be closed. That's the interpretation of the regulation, as it exists now, and so I'm going to add them to the slide as well. I'm going to put a link to their statement. That's from CAI Canada. Thank you to one of our readers for reminding me of that and I apologize for that. Graeme, you almost had the last word.

Graeme: Okay. I already gave some sage advice and some sage thoughts, I think, so I'll just remind everyone to really, really be careful out there these days. This is very contagious. It's easy to slip up so just be careful. Stay alert and stay safe. Hopefully in February, when we do our next webinar, we can come with good news.

Rod: Okay. Thank you, Graeme. I'm going to say this, by the way folks, even though you saw the Spanish blood in me tonight coming out and that's fine. But at the end of the day I think I've learned something in this pandemic and it is that we have to accept that everybody has a different view. Everybody has a different level of tolerance to risk. Everybody has it and we all have to accept that and respect that. That's something that I have learned because initially my opinion was so strongly held. It was just like sort of black and white. There's 50 shades of grey out there and we really have to be nice to each other while we navigate this incredibly difficult time. Our next webinar is going to be on February 2, Wednesday. I'm not sure what we're going to talk about. Who knows? You will need to register again. You'll be able to find information and the link to register by clicking on the webinar tab on Condo Adviser. So again, it's February 2, the first Wednesday of the month basically, at 5:00pm. Thank you, everybody. Be safe and thanks for tuning in. It was a lot of fun. I don't take your time for granted. I really appreciate the fact that you spent an hour with us. Thank you, everybody. Have a great evening and see you in February.