Human Rights and Accommodation: A General Guide and the Competing Rights of Other Owners to Quiet Enjoyment
Subscribe to receive updates from Deo Condominium Lawyers.
The Human Rights Code
A condominium corporation’s declaration, by-laws and rules are always subject to the Human Rights Code (the “Code”). The Code ranks in priority to any provision in a declaration, by-law or rule that has the effect or consequence of discriminating against an individual with a disability. In other words, the Code will “trump” or override any provision in the declaration, by-laws or rules that has the intended or unintentional effect of discriminating against Code-protected grounds, including disabilities. A “disability” is defined in the Code very broadly and includes a physical disability, a medical condition, a condition of mental impairment or mental disorder.
Substantively, a condominium corporation has a positive duty pursuant to the Code to accommodate persons with disabilities, up to the point of “undue hardship” (discussed further below), and subject to the individual satisfying any applicable legal tests (also discussed below). The condominium corporation also has a positive duty to ensure procedural fairness when considering accommodation requests.
The onus of proving a “disability” is on the individual requesting the accommodation. Certain physical disabilities will be self-evident. However, other forms of disabilities, most notably, mental health impairments and medical conditions are not self-evident. In those circumstances, the condominium corporation can request more information as part of the duty of procedural fairness to help get a better understanding of the particular disability in order evaluate an accommodation request. There are limits on the information that can be requested as discussed below.
One of the principles under the Code is human dignity. When evaluating Code based requests for accommodation, the condominium corporation has the positive duty to ensure that the request is handled in a fair, objective and equitable manner having regard to the underlying principle of dignity. That means ensuring that proper consideration and evaluation is given to a request having regard to the principles of the Code and the specific facts of each case. Procedural fairness also requires the condominium corporation to engage in a dialogue with the individual requesting accommodation, where necessary (particularly in less obvious disability cases) in order to ensure that the person’s needs are adequately addressed. Recommendations for developing and implementing a policy to ensure procedural fairness, and substantive consideration of Code related requests are outlined further below.
The condominium corporation can request more information from an individual making an accommodation request about that individual’s disability. However, requests for further information should only be made if there is insufficient data or evidence supplied to substantiate a disability in the first place. There is a fine line between the entitlement to request further information and overreaching into a person’s private affairs, including private medical conditions. For instance, where a doctor confirms certain medical facts in writing that would be sufficient as standalone proof of a medical need for accommodation, then requesting information about the individual’s medical condition may be overreaching. However, if an individual provides only generic medical information or medical treatment information that does not identify a disability and a necessity for accommodation, then it may be appropriate to request additional information.
As mentioned above, condominium corporations have a duty to accommodate, but up to the point of undue hardship. Undue hardship is a relatively high threshold and is determined by evaluating various factors identified by the courts over time, including the following factors:
- The cost to provide the necessary accommodation – the facts of previous cases decided by the Human Rights Tribunal and the courts, including in the context of condominium-related accommodation requests, indicate that it would not be uncommon to expect that a corporation should spend a significant amount of its budget (e.g. 10% or more) in order to satisfy the duty to accommodate.
- Conflicting legal requirements in attempting to provide the necessary accommodation – i.e. in complying with one law, the corporation would commit a breach of another law.
- Safety and security requirements.
Given the nature of most accommodation requests, including parking accommodation requests and pet accommodation requests, there is no undue hardship that would prevent the condominium corporation from adequately satisfying the duty to accommodate.
Policy for Dealing with Accommodation Requests
The most practical method for ensuring the condominium’s compliance with the Code and the duty of procedural fairness pursuant to the Code is to implement a policy for receiving, processing and communicating about accommodation requests. By way of summary, the policy must address the following:
- Intake: More often than not, property management is the individual who receives accommodation requests. However, it is also prudent to appoint one or more directors to liaise with management (and possibly counsel) to expedite responses accommodation requests as and when received.
- Initial communications: If an accommodation request is made orally, then the individual must asked be asked to submit the request in writing. Once received in writing, an immediate acknowledgment of receipt should be communicated to the individual, together with a statement that a further communication will follow with the expected time frame by which the board expects to be in a position to decide the request.
- Initial evaluation: Contemporaneously with receiving a request, an initial evaluation of the accommodation requested and of the individual’s particular circumstances will need to be conducted. The purpose of that initial evaluation is to determine whether or not there is an obvious disability that can be accommodated expeditiously, or if the disability is not obvious and if further information and dialogue with the individual is required.
- Request for further information: If it is unclear whether or not the person has a disability, then the individual should be invited to a meeting with management the purpose of which is to learn more about the individual’s circumstances and the individual’s needs, such as the nature of the individual’s condition, whether or not the condition is permanent, but also to explain the due diligence and process that the condominium corporation is obligated to satisfy and that further information may need to be requested by the board in order to properly evaluate the request. If that meeting resolves the information concerns, then the board can decide whether to accommodate the individual’s request. If the meeting does not resolve the information concerns, or if the information concern relates to a medical letter that may be vague or incomplete, then the board should consult with counsel. Very few physicians articulate detail about a patient’s condition, because of an independent obligation for privacy that physicians owe to their patients. However, many physicians’ letters do articulate a medical need for accommodation, which is often enough. Further, when an individual requests accommodation on the basis of a medical (or mental health) condition, then the individual has placed his/her personal condition in issue and the condominium corporation has the authority to request further information, but only up to the point necessary to consider the accommodation request.
- Set estimated time periods to evaluate and respond to requests for accommodation: One of the consequences many boards encounter when dealing with accommodation requests that often leads to discontent and disputes is time delays. When an individual’s disability is obvious, the accommodation request should be dealt with quickly – i.e. a couple of weeks’ time at most. Where an accommodation request is not obvious and further communication and/or information is required, then that further communication or information request should also be dealt with quickly – i.e. a couple of weeks’ time. Once a communication or information request is in the individual’s control, then the board has satisfied part of its due diligence obligation. When a responding communication or information request is satisfied, then the board should also set a short timeline for consideration of the information. In a nutshell, accommodation requests, including those that may involve disabilities that are not obvious should be dealt with in a few weeks’ time (subject to any delays on the part of the individual).
- Get advice where there is uncertainty: If there is any doubt as to whether or not the individual is entitled to accommodation and the condominium corporation is obligated to give accommodation, then request advise shortly after receiving information from the individual.
- Document the response to the accommodation request in writing: Once a decision is made, that decision must be conveyed in writing to the individual requesting accommodation. If accommodation request is denied, then the reasons for denying the request must be clearly and completely articulated. Where an accommodation request is granted with conditions (i.e. requesting revalidation of a disability on a periodic basis), then the conditions must be reasonable having regard to the nature of the disability.
The longer an accommodation requests takes to be resolved, the greater exposure the condominium corporation has to potential disputes and liabilities. If an accommodation request may appear to require lengthy consideration (because of extenuating circumstances), then temporary accommodations may need to be provided.
Does the Duty to Accommodate Allow the “Accommodated Individual” to Disturb the Quiet Enjoyment of Other Residents?
Receiving an accommodation does not permit the accommodated individual to disturb or be a nuisance to other residents, staff or contractors of the corporation.
Condominium corporations have a duty to enforce the Condominium Act, 1998 (the “Act”) and take all “reasonable” steps to ensure that the unit owners and occupants, including those being accommodated, comply with the Act and the corporation’s governing documents
For example, a person with a disability that is allowed to keep a dog in a no pet building may not allow that dog to bark incessantly thereby disturbing other residents. If the problem continues to be a nuisance to neighbouring residents despite the corporation’s best efforts to resolve the matter cooperatively, then the corporation may be forced to take further steps to enforce compliance.
There are many other circumstances where the activity of an accommodated person is not permitted, and each situation must be evaluated individually.