As provinces gradually gear up for reopening and ease some coronavirus restrictions, there are proactive measures and legal concerns condo communities might want to think about when it comes to managing and maintaining amenities like pools and fitness centres.  Perspectives were shared amongst property managers, legal professionals and building service providers during a CCI Huronia webinar on Tuesday evening, hosted by Sonja Hodis, a litigation lawyer at Hodis Law.

Legal considerations for opening amenities

Condo corporations in Ontario are currently required to keep common element areas closed as stated in a provincial order issued by the Emergency Management and Civil Protection Act.

Ashley Winberg, associate at Elia Associates, notes that once this order is lifted, there may still be municipal requirements and recommendations to keep these areas closed. If this is the case, she suggests following suit. If common elements are permitted to open, any authoritative guidelines issued should be followed.

“Once there is no requirement or recommendation that facilities be kept closed, it’s really going to be up to your condominium corporation to decide whether or not to open these facilities,” she says.

When condos do decide to open amenities, there are some legal items to consider. She says that under the Condo Act and Occupiers’ Liability Act, a corporation would be deemed to be the occupier of the common element facilities for liability purposes. Under the Occupiers’ Liability Act, the corporation would have to take reasonable steps to prevent against foreseeable harm.

“If there is no vaccine and COVID-19 is still present in Ontario, it could be foreseeable that someone could contract COVID-19,” she says, noting that a waiver could be executed to absolve the corporation of having the liability in the event someone does get COVID-19 in relation to using any of the facilities.

“However the waiver in and of itself would not be enough. Ideally you want your condo corporation to create rules and restrictions or policies with respect to how and when facilities can be used.”

Restrictions should be consistent with government orders and might require a cap on the number of people who can use the facility at one time: limit hours or require users wear personal protective equipment.

These restrictions, however, will only be effective if enforced—a much more difficult feat for smaller corporations without security staff or an on-site superintendent. She also notes the frequent cleaning and disinfecting that will have to be completed—additional costs that should also be factored into the decision to open a facility.

“At the end of the day, you may determine that it’s in your corporation’s best interests not to open up the facilities, given the increased cost or risk because you’re not able to prevent against the foreseeable harm in a reasonable manner,” she cautions.

Property manager perspective

When it comes to reopening amenities, Jeff Struewing, vice-president of operations and licensed property manager at Shore-to-Slope Property Management, says much will depend on the unique assets of each condo corporation. For large outdoor assets, like tennis courts or park areas, physical distancing should be easier to enforce.

“When you get into tighter confined spaces, like small fitness rooms, saunas or hot tubs, it is very difficult to maintain the two-metre separation,” he says.

He recommends signage for facilities include the number of users allowed and necessary precautions. Messaging should be sent to all owners. A registration process for booking time at a facility could also be rolled out, with sanitation occurring between users.

The cost for extra sanitizing and cleaning could be rather excessive and make it cost prohibitive for smaller corporations without staff on site, he notes. Larger corporations might also face issues, such as not having enough time to wipe down all the equipment and touch points, like hand rails and washrooms frequented by owners and guests.

“If it is not financially feasible or the staffing isn’t available to maintain the safety and sanitization required, then it might not be the best thing to open the facility,” he suggests.

Reopening and maintaining the pool

Despite the idle use of condo pools right now, Leigh Merswolke, CEO of LCM Property Services Inc., offered some advice for condo corporations when it comes to protecting and reopening the pool. Besides securing the premises to prevent access to unauthorized persons, condo corporations should consider the following items:

• Continue to operate circulation equipment where the water is present, and reduce flow where it is allowed through that jurisdiction or if your system allows for it. Reduce the make-up water used, but continue to add fresh water to the pool.
• Continue regular inspection using a Certified Pool Operator. Monitor water quality, keep water balanced and think about lowering the usual level of sanitizer. Keeping the sanitizer level “at two or three” is recommended for healthy water.
• Monitor filter pressure and continue the process of backwashing to thoroughly clean the filter and subsequently the water.
• Heat can be turned down or even turned off, but plan ahead for reopening to make sure it is tested and operational.
• Take steps to stop legionella and other bacteria from growing, due to extended closures in areas like hot tub spas.
• Examine equipment daily, watch out for any leaks and check seals, to make sure everything is running properly. Before reopening, anticipate additional needs like spacing between chairs and the number of people who may be allowed into the pool.
• To protect an outdoor pool, even if it remains closed through the year, all surfaces should be cleaned and inspected for repairs to prevent two seasons of dirt and staining from accumulating. Now may be a good time to catch up on necessary maintenance for tanks, filters or cement repairs. Different materials call for different treatments. Check rubber liners for leaks; all pools, especially with liners, need to have pressure on the pool wall to offset ground pressure on the outside. Rainwater runoff can erode around the pool and side walls can cave in without the pressure of water in the pool—a very expensive repair.
• Maintain good communication with staff working in the building so they know what to do, who should be in the facility and how it should be maintained. Also sustain communication with the community. Residents need to anticipate what is happening and understand the reasons why, so they won’t be upset.
• Schedule health inspections as soon as possible. Some condo corporations may be required to have pools inspected before they open. Keep in mind, public health teams are under pressure now so they may be working with limited resources.
• Review insurance policies, and perhaps speak with legal counsel to see if there is general liability for the premises; most of those will exclude injury from communicable diseases so we want to be cautious there. We also want to schedule increased cleaning and sanitation for washrooms and all facilities connected to the pool, including the deck.

“We want to be ready to open when restrictions are lifted, even if it is a limited capacity,” he says. “This will likely reduce the time needed to gear up for increased capacity when it is permitted. But we also want to be patient; it is important that we do not open our facility before the guidelines allow. Be cautious here; we don’t want to jump the gun.”

Despite a lack of government directives on reopening amenities like pools, Anne Maria Korpikoski, public health inspector, safe water, rabies and vector borne disease, Middlesex – London Health Unit, said condos should think about employee screening, what physical distancing looks like for venues, how to increase accessibility for hand hygiene and how you will meet requirements prior to opening. Public health officials in various jurisdictions offer online guidance and resources when it comes to sanitizing and disinfecting high-touch areas, along with steps to take regarding social distancing—an important component for trying to prevent spread once facilities open.

Maintaining the pool surfaces will also help from a number of standpoints, she adds, such as preventing diseases from issues like standing water known to attract mosquitoes.