The Toronto Star has now obtained public health data which reveals that there have been more than 10,000 health and safety violations by pools and spas over the past two years. Some of these violations are occurring in condominium pools and hot tubs.
Board members and management should not be taking these violations lightly. Although it appears that some violations may be minor in nature, there is still the potential for board members, property management and the Corporation to be liable should someone enter the pool or hot tub and suffer some sort of illness or injury as a result of the violation.
The Condominium Act provides that for the purposes of occupiers’ liability, the condominium corporation is the occupier of the common elements and therefore is bound by the Occupiers’ Liability Act with respect to the common elements.
The Occupiers Liability Act provides that an occupier of premises owes a duty to take reasonable care to ensure that persons entering on the property are reasonably safe while on the premises.
This duty of care applies whether the danger is caused by the condition of the premises or by an activity carried on at the premises. With respect to pools, notices should be erected so that anyone using the pool would be aware of the risks. Notices should provide that trespassers will assume all risks. Notices should also state that no lifeguard is on duty and that users of the pool or hot tub are doing so at their own risk. Notices should also provide that if minors are using the pool or hot tub area, they require adult supervision. Other examples of notices that can be posted:
- CAUTION: Direct force of the water jets can cause injury
- THIS IS AN UNSUPERVISED AREA AND CARE MUST BE TAKEN USE AT YOUR OWN RISK.
Consideration should also be given to closing the pool after midnight (as most accidents occur during the evening hours) and maintaining adequate lighting, security and surveillance cameras.
In addition to these steps and posting notices, boards should also be reviewing the Corporation’s rules to determine whether there are comprehensive rules in place dealing with the use of the pool area. Once new rules have been put into place, the board should continue to remind residents through notices, website posting and newsletters about the various rules relating to the use of the pool or hot tub.
Rules should cover such items as what attire is permitted (clothing, bathing caps/hair ties), restrictions on food and alcohol, number of permitted users in the pool and hot tub area and the requirement that minors be accompanied by an adult.
Examples of other rules are:
- Long exposure to hot water in the hot tub may be harmful to the health of any user. Consult your physician regarding your health risk. The advised time limit is ten minutes for total usage of all heat facilities.
- Pregnant women, young children, elderly persons or persons suffering from heart disease, diabetes or high blood pressure should not enter the hot tub without prior medical consultation with their doctor.
- No one shall use the hot tub while under the influence of alcohol, tranquillizers or other drugs that cause drowsiness or that raise or lower blood pressure.
- No one shall bring breakable objects into the pool or hot tub area.
- Neither smoking, nor food and beverage consumption is permitted in the hot tub, pool area, saunas and change rooms.
- All persons using the hot tub and pool must have showered prior to entering the hot tub and pool area.
- Bathing caps must be worn by all persons with hair longer than shoulder length.
- The use of oils, lotions or creams is not permitted in the hot tub or pool area.
- No persons infected with communicable disease or having open sores on his/her body shall enter the hot tub and pool.
- Each Owner/Tenant is responsible for ensuring that guests are fully aware of all rules.
It is important that boards establish a risk management program to reduce the likelihood of any health risk or injury to anyone. This would include determining what inspections are needed and when those inspections should occur. A detailed log should be kept of all inspections and any remedial action that is taken. The time spent in implementing an adequate risk management plan is better spent than the time needed to defend a claim by an injured person.