'No place to hide': Condo corporation says doctor's note not enough to keep Burlington woman, 72, from wearing mask in building
An Ontario Superior Court judge has not made a ruling yet on whether a Burlington couple - taken to court by their condominium corporation for not wearing a mask in common areas - would be ordered to comply with the masking policy.
The two seniors, Vily Mitrovic, 72, and Zoran Zupanc, 68, said they have medical issues that prevent them from wearing a mask or face shield in their Lakeshore Road-area condo.
At the Friday hearing, a lawyer who represents Halton Condominium Corp No. 77, Rodrigue Escayola, said that the court will set the standard to be applied going forward when someone seeks a blanket, total exemption."
Escayola argued that beyond the doctor's note for Mitrovic that refers to her health issues, there's no sufficient evidence of a disability.
Citing a policy on ableism adopted by the Ontario Human Rights Commission, he said that anyone who's going to ask for an accommodation has to put forward more evidence.
You have to give enough information to be able to balance the risks associated with what you're seeking with the impact it's going to have on others," he said.
While they're not seeking to know what the disability is, ... we need to be able to make an intelligent, informed decision," he said, pointing out the inconsistent statement" Mitrovic made in previous correspondence with the corporation about the extent of her condition.
On two occasions, Escayola said that Mitrovic wrote that she's going to wear a mask only if the corporation accepts the associated liability.
As a microcommunity, he asserted that a condo corporation is mandated under the Condominium Act to self-regulate and must take all reasonable steps to ensure the reasonable safety of everybody on the premises in the face of deadly global pandemic.
This condo is the home and safe place for 169 families. They have no place to hide. In fact, for the most part, they've been ordered to stay home, but that only works if the virus doesn't come to their home," he said.
Making the case for the seniors, Antoine d'Ailly, the couple's legal counsel, said that the two have taken measures above and beyond what is reasonably required by the provincial order and the municipal bylaw. And despite being exempt, he added, both have made their best efforts to cover up with a scarf or a mask or avoid people where necessary.
In response to shared images from security footage showing the seniors with no mask on while in the common areas, d'Ailly said they were not within two metres of anybody outside of their household.
With respect to privacy, he said the couple had been forced to put their medical record before the court against their preference, adding that it should not be the position of the condo board to challenge what the doctor has to say.
When asked by Justice Michael Gibson about evidence of a medical opinion or medical note for Zupanc, d'Ailly said that an affidavit has been provided that explains the difficulty of breathing experienced by the client when wearing a mask along with a request that his privacy be respected.
He is nonetheless entitled to the exemptions," he said, noting that no proof of medical exemption is required. It's not only not necessary on the provincial level, it is strictly prohibited in the municipal bylaw."
DECISION TIME
Justice Gibson said he will work diligently to produce a decision as soon as he can, with no specific timeline given.
The interim order issued on March 2 for the couple to wear masks and face coverings while in common areas remains in place until then.