What to do with an anti-masker?

April 8th, 2021 by Celia Chandler

We’ve all seen them – people who don’t wear masks, or who wear them improperly, in situations where they are required. Often, we can achieve the necessary distance from the person so that we feel safe. But what if this happens in a place where we cannot escape, for example, in the common spaces of the building where we live?

Well, the courts considered this in a recent case, Halton Condominium Corp. No. 77 v Mitrovic (HC77). The condo won a very luke warm victory – while the court agreed it has a right to pass a mask policy and a right to enforce that policy, it said that a person could be exempt from the rule when traveling directly from the door to their unit, if they have a medical condition that prevents them from masking, even one without proper medical documentation.

So what does HC77 say?

Mitrovic and Zupanc own and occupy a unit in a high rise condo in Burlington. They must travel through the lobby, the elevator, and hallways to get to their unit. They were not wearing proper face covering while in the common spaces of their building, each saying that covering their mouth, nose, and chin was not possible due to medical conditions. They refused to provide the condo with any medical evidence. Furthermore, at least one of them was seen in the building, on floors other than her own, not wearing a mask, wearing an anti mask sign, posting anti masking posters, and exercising.

The condo applied to have the court declare that their behaviour is dangerous as allowed under the Condominium Act and order them to wear masks while in common indoor spaces at the condo.

During the legal process, one of the two provided a medical note that said “Mrs. Mitrovic is unable to wear a mask or face shield due to health problems. She will vaccinate for Covid as soon as she can.” (This is the kind of unhelpful medical note we see regularly – it does not address the purpose of a note as set out by the Human Rights Commission. We blogged about the Commission’s approach to medical notes here.) The other continued to say that he had a medical condition but provided no evidence at all.

It is a challenge to know what the rules are because every government has its own and often are they inconsistent with one another. In this case, the court highlighted the inconsistency between the Red Zone requirements, the Burlington masking by law, and the condo’s own masking policy as it related to the exemption from the masking requirement.

The court ultimately fell on the side of the freedom not to mask in cases where there is a medical reason but did not agree with the condo’s requirement to proving the exemption. The basis for the court’s decision? The Red Zone Regulations and the Burlington by-law do not require proof for the exemption and they trump the rules of the condo. While the judge admitted that there was very little evidence from the condo owners in question that they couldn’t wear masks, they couldn’t be required to provide better evidence by the condo.

The judge went on to say:

“On the other hand, the HCC77 Board has the right, and indeed the obligation, to insist upon conduct by residents that does not place the other residents at undue risk. No person is an island. To echo the words of Justice Stinson, where someone chooses to live in a condominium community – whether as an owner or a tenant – they do not enjoy unlimited freedom to do as they please. Rather, they must conduct themselves in accordance with the rules of the community and with due respect and consideration for their neighbours and fellow residents. Further, they must govern and limit their personal activities taking into account the impact of those activities upon other residents, as regulated by the condominium rules.” para 45

For that reason, Mitrovic and Zupanc were ordered to mask unless they were on a direct path from the door to their unit, ending their seeming conscious flouting of the rule throughout the building.

This is a disappointing decision for multi residential buildings. While we understand the impracticality of requiring medical documentation from the general public – on transit for example – buildings have a culture of requiring notes to support human rights requests. Providing notes is part of the meaningful inquiry into the validity of a human rights request and determining appropriate accommodation. There is no reason why the same principles and process shouldn’t apply to a request for a significant request for accommodation – mask exemptions.

We hope that the court will have a chance to examine this issue again on a different set of facts and rule in favour of medical documentation. Or we hope that the province will set a different set of rules for masking and medical support in its next iteration of regulations.

Filed in: Housing, Human Rights, Litigation

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