The Ontario Human Rights Code provides that every person has a right to equal treatment in the occupancy of living accommodation (i.e., housing) without discrimination because of disability (among other things). In turn, accommodation providers have a corresponding duty to accommodate any person with a disability to the point of undue hardship. (The concept of “undue hardship” in this context is discussed in more detail below.)
In a condominium context, in certain circumstances, the condominium corporation will be considered to be the provider of the living accommodation. This means that the condominium corporation may have an obligation to provide certain accommodations to a unit owner or resident who has a disability.
For example, this issue often arises in the context of building accessibility. If a unit resident uses a mobility aid or device (e.g., a walker or motorized scooter), and the building entry doors are heavy, the condominium corporation may be required to install an automatic door opener to accommodate the unit resident, and failure to do so could amount to a breach of the Code.
In Jakobek v. Toronto Standard Condominium Corp. No. 1626, the resident sought the installation of automatic door openers on the entrance doors from the parking garage of the building and modification of the condominium rules to allow the resident to park his electric scooter in the garage. The condominium corporation installed the automatic door openers, but did not do so until two years after the resident had requested their installation,. It also did not modify the rules. The Human Rights Tribunal of Ontario (the HRTO) determined that the corporation was in breach of its duty to accommodate the resident, and ordered the corporation to modify its rules and to pay $5,000 in damages (as a charitable donation) for the failure to accommodate the resident in a timely manner.
Similarly, if a unit resident suffers from mobility issues and cannot climb stairs, the condominium corporation may be required to install an access ramp, even if no other unit residents will use the ramp. In DiSalvo v. Halton Condominium Corp. No. 186, the owner of a townhouse unit, who had muscular dystrophy, could not access the front door to his unit by using the access stairs. He requested that the condominium corporation install an access ramp. The corporation agreed that the installation of a ramp was appropriate, but argued that the unit owner should bear the cost of the ramp because it would only service his front door. The HRTO disagreed, ruling that the corporation was required to accommodate the owner by installing the ramp at the corporation’s cost.
But the corporation’s duty to accommodate is not absolute. If it cannot accommodate a unit resident without undue hardship, the corporation will not be required to accommodate the resident. This usually comes into play where the cost is prohibitive or there is risk to the safety of other unit residents. In Metropolitan Toronto Condominium Corp. No. 946 v. M. (J.V.) (Litigation Guardian of), the court considered the case of a condominium corporation that sought an order requiring a unit owner with paranoid schizophrenia to list and sell her unit.
Over a 15-year period, the corporation had had numerous difficulties with the unit owner, including hoarding of items and garbage in the unit, infestations of pests, threatening and abusive behaviour toward other unit residents and the building superintendent, creation of several fire hazards and numerous occasions in which the owner had to be removed from her unit by police and hospitalized. In the circumstances, the court held that the corporation had met the requirement to accommodate the unit owner to the point of undue hardship, as the 15-year history of the matter satisfied the court that the unit owner could not remain in her unit without creating unreasonable health and safety concerns for the corporation and the other unit residents. As such, the court ordered that the owner vacate her unit and that the unit be listed and sold.
As a final point, it should be noted that the pre-existence of an issue is not a defence for a condominium corporation that is seeking to avoid the duty to accommodate. As such, a condominium corporation cannot respond to a request that it accommodate a unit resident by installing an automatic door opener, for example, by telling the resident that she knew that the building did not have automatic door openers when she moved in, and that she should not have moved in if she could not open the doors on her own. The duty to accommodate exists regardless.
Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.
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