When COVID first hit almost every strata corporation with a common room, exercise room or clubhouse shut them down. That could easily be done relying on s.71(b) of the Strata Property Act (SPA) which allows the strata council (as opposed to the owners) to make a significant change to the common property where “there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage”. However, as we learn more about COVID and how to manage the risks associated with it, a question arises as to how long that provision can be relied on. On top of that, owners are beginning to clamour for such facilities to reopen. What should strata corporations who find themselves in such a situation do?
If there is a desire to keep such facilities closed, then that decision should be put to the owners under s.71 of the SPA. By way of a ¾ vote, the owners can vote to either permanently or indefinitely close such facilities. Without such a vote, strata corporations may find themselves compelled to reopen facilities and put the appropriate safety measures in place.
Under the Occupiers Liability Act, a person in control of premises has an obligation to make them safe for the persons using them. The standard against which they will be judged is one of reasonableness. What is reasonable in terms of COVID protection can be ascertained, in large part, by reference to the guidance documents published by the BC Centre for Disease Control and the BC Ministry of Health. Following those and other generally accepted protocols should provide a defence against any claims brought by owners or others who contract COVID from using such facilities.
Implementing those protocols can be done through the passage of Rules. S.125 of the SPA provides that “the strata corporation may make rules governing the use, safety and condition of the common property and common assets”. Where such Rules are made, the strata council must:
(a) inform owners and tenants of any new rules as soon as feasible;
(b) set them out in a written document that is capable of being photocopied (and post them on signage where appropriate);
The bylaws should be reviewed to ensure that none of them conflict with protocols and rules that are put in place, particularly those that might affect the number of people who may use a facility and when they might do so. Where a rule conflicts with a bylaw, the bylaw prevails.
Each strata corporation’s protocols will have to be customized for their unique situation. However, consider including in the Rules (or in a use document) a requirement that any person who uses the facility and later contracts COVID will promptly notify the strata of that fact. A list of who used the facilities and when they did should also be kept. That way those persons can be notified if there is a potential of exposure. If the strata corporation does collect information about those residents who use the facilities, it will need to set out, either in the Rules or the use document, the purposes for which the information may be collect and used. Otherwise, it may run afoul of the provisions of the Personal Information Protection Act.
If additional cleaning and monitoring is required, consider how that will be paid for. Keep in mind the limitations on unapproved expenditures contained in s.98 of the SPA. At this stage of the pandemic none of them would qualify as “emergency” expenditures since the strata corporation has had time to plan for them. Will those costs be offset by a fee charged under s.110 of the SPA? If so, the fee is not effective until the rule setting it has been ratified or a bylaw containing it has been passed.
Inquiries should also be made with the strata corporation’s insurer with respect to what limitations, if any, its liability policy may have. A through review of the policy itself might be in order as obscure exclusion clauses may exist and apply. The lack of insurance coverage might well impact the owners’ decisions to close the facilities and how the protocols are developed.
Lastly, the strata corporation can consider requiring persons using the facilities to sign waivers before using them. Imposing such a requirement as a prerequisite for use is potentially a significant change in use under s.71 of the SPA. As such, it should probably be imposed by way of a bylaw (in order to meet the ¾ vote requirement of s.71). However, waivers have limitations. In order to protect the strata corporation they should specifically refer to COVID and list the specific risks being assumed in the use of the facilities. A court is likely to construe any waiver narrowly. A waiver can also include indemnity language such that the strata corporation can recover any losses it suffers from someone who spread COVID through the use of the facility.
In the end, owners must consider what risks (financial and physical) they are prepared to accept. Where a facility is reopened, a carefully crafted plan and protocols should be developed and then reviewed by legal counsel.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
