'Troubling': Judge rules Burlington couple don't always have to wear masks in their building. The condo corporation has serious concerns with the ruling
An Ontario Superior Court judge has ruled that a Burlington couple can move about their condo building without masks, provided they avoid non-essential areas.
The ruling, which was handed down by Justice Michael Gibson on Friday (Mar. 19), noted that Vily Mitrovic, 72, and Zoran Zupanc, 68, can go, by the most direct route, from their condo unit to the building's main door, and vice versa, without masks.
During these comings and goings, they can also use the elevator and go to the main lobby, mail room and parking garage without masks but are not permitted to visit any other floors unless they put on a mask.
The judge also ended a temporary order he imposed when the court case began on March 2, which stated the couple could only leave their unit if they wore masks.
Mitrovic and Zupanc, who say they cannot wear masks due to medical issues, were taken to court by their condo corporation for not wearing masks in the common areas of 5250 Lakeshore Rd.
I'm very excited about this," said Mitrovic, following the ruling. "What's most important is that I have set an example for others to not be afraid ... The law is here to protect us."
Halton Condominium Corp No. 77 gave the couple multiple warnings prior to taking legal action, stating in one letter to Mitrovic that her circulating on multiple floors, amid a pandemic and without a mask, was "irresponsible, unreasonable and dangerous."
According to Gibson's ruling, during the court proceedings, Mitrovic presented a doctor's note dated Feb. 4, 2021, that said she was unable to wear a mask or face shield due to health problems.
The note did not specify what the health problems were.
Gibson said Zupanc provided no note, but the senior asserted that he experiences severe difficulty breathing when his nose is covered and that he feels like he is going to pass out if he has to wear a mask for more than a couple of minutes.
The judge said Halton Condominium Corp No. 77 called Mitrovic's credibility into question pointing to social media posts it says she has made that express skepticism about the legitimacy of the requirement to wear masks.
Ultimately Gibson noted the City of Burlington, the Region of Halton and the Province of Ontario have passed bylaws and regulations that provide certain exemptions to the requirement to wear a mask along with a rule that no one is required to provide proof of the legitimacy of their exemption.
The judge said the Halton Housing Corporation No. 77 mask policy cannot be inconsistent with these policies.
That said, Gibson noted, Halton Condominium Corp No. 77 has the right, and indeed the obligation, to insist upon conduct by residents that does not place the other residents at undue risk.
To that end, the judge noted it was necessary to reach a balanced decision that lets the couple come, go and access essential areas while still restricting their movements when unmasked.
Rodrigue Escayola, a lawyer representing Halton Condominium Corp No. 77, said he is concerned about the message the judge's decision is sending to Ontarians.
By not fully enforcing the mask policy, condo corporations and businesses are being placed in an impossible position where they are required to ensure the health and safety of Ontarians but are not provided with the tools to do so," he said.
It will be extremely challenging for any business or condo to enforce the provincially mandated requirement to wear a mask if anyone can seek an exemption without having to provide adequate evidence of a medical condition. This timid decision is further more troubling as Ontario enters into a third wave and Halton is inching towards another lockdown."
While both sides are considering their legal options, Mitrovic says she and Zupanc plan to move out of Burlington, noting they feel they can no longer stay in their condo.