Managing the Effects of Dementia in Condominium Communities

Dementia is the most common mental health disorder affecting Canadian seniors.[1] As the percentage of the population over the age of 65 increases and the number of Canadians residing in condominiums continues to rise, dementia disorders will significantly impact the operation and management of condominiums corporations in the near future.

There are several different types of dementia, all of which affect an individual’s memory, cognitive abilities and behavior.[2] In this regard, individuals with dementia may experience a variety of disturbances in their behavior, such as psychosis (hallucinations and delusions), depression, agitation, wandering, aggression and noisiness.[3] 

Human Rights Implications

As dementia affects an individual’s memory, cognitive abilities and behavior, a resident with dementia may engage in conduct that violates a condominium corporation’s declaration, by-laws and/or rules in addition to the Condominium Act (the “Act”). Pursuant to subsection 17(3) of the Act, a condominium corporation has a statutory obligation to ensure that residents comply with its declaration, by-laws and rules. However, when a resident with dementia acts in violation of a declaration, by-law, or rule, this statutory obligation may be overridden by the Ontario Human Rights Code (the “Code”). The following provisions of the Code are relevant:

Subsection 2(1) of the Code, which provides:

“Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.”

Subsection 10(1)(b) of the Code, states that “disability” means:

“a condition of mental impairment”

Subsection 11(2) of the Code, which provides:

“The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without unduehardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”

Subsection 17(2) of the Code, which provides:

“No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”

Subsection 47(2) of the Code, which provides:

“Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.”

Pursuant to the Code, dementia is a disability and a condominium corporation has a duty to accommodate a resident with dementia up to the point of undue hardship. In this regard, the duty to accommodate takes precedence over a condominium corporation’s obligation to ensure compliance with its declaration, by-law and/or rules. A condominium corporation would be precluded from enforcing its declaration, by-laws and/or rules against a resident with dementia if enforcement of same would result in unequal treatment on the basis of disability. In such a case, a condominium corporation would be required to accommodate the resident up to the point of undue hardship. 

For example, if a resident with dementia frequently yells or screams when they are distressed thereby interfering with the quiet use and enjoyment of the condominium property by other residents and acting in violation of the condominium corporation’s declaration, by-laws and/or rules, the condominium corporation may be precluded from enforcing same against the resident. If this were the case, the condominium corporation may be required to accommodate the resident, up to the point of undue hardship, by permitting the resident to make some noise up to a reasonable level and/or by installing soundproofing in the resident’s unit to limit the amount of noise that emanates from their unit.

a) Duty to Accommodate

When exercising its duty to accommodate a resident with dementia, up to the point of undue hardship, a condominium corporation as part of its policy on dealing with human rights based requirements:

• obtain as much information as possible from the individual regarding their mental impairment;
•  obtain an expert opinion on the individual’s mental impairment as well as possible accommodation solutions;
• ensure that all possible accommodation solutions are fully investigated;
• keep a record of all the actions taken by the condominium corporation;
•  maintain confidentiality; and
• grant clearly established accommodation requests, up to the point of undue hardship, in a timely manner.[4]

b) Undue Hardship

As previously stated, a condominium corporation only has a duty to accommodate a resident with dementia up to the point of undue hardship. Determining what constitutes undue hardship depends on the costs associated with accommodation as well as any health and safety risks posed by same. 

Costs would only result in undue hardship if the costs associated with accommodation are so high that same would substantially affect the condominium corporation’s viability.

Potential health and safety risks would amount to undue hardship if the degree of risk that remains after accommodation has been made outweighs the benefits of enhancing equality for the resident with dementia. In this regard, if accommodating the resident would do little to decrease the safety risk that the individual poses to other residents and/or them self, a condominium corporation may be able to establish that it has accommodated the resident up to the point of undue hardship.

Immediate Response

In addition to the suggestions provided in the paragraph above titled “Duty to Accommodate”, if a condominium corporation is concerned that a resident has dementia and may and/or does pose a safety risk to them self and/or others, the condominium corporation may incorporate the following into its policies and procedures:

1. Know the resident’s emergency contact person or a family member. 
2. The condominium corporation should also contact the local Community Care Access Center (“CCAC”) and request that same dispatch a worker to assess the resident’s capacity and provide a safety assessment of their unit;
3. ince the CCAC cannot assist the resident without their consent or the consent of a family member, if said consent is not provided and the resident continues to pose a safety risk to them self and/or others, the condominium corporation should contact the local police department and request that same dispatch a community service officer in emergencies in addition to the condominium corporation's lawyer; and
4. The condominium corporation may bring an application to the Superior Court of Justice for an order requiring that the resident seek in-home care and/or vacate their unit, pursuant to Section 117 of the Act. A lawter should assess the appropriateness of this remedy.

Proactive Measures

As the percentage of the population over the age of 65 and number of Canadian residing in condominiums continue to rise, it is advised that all condominium corporations take proactive steps to ensure compliance with the Code and protect the safety of all residents. A prudent condominium corporation may create a policy detailing the procedures to be followed when dealing with residents with mental health issues, such as dementia, and distribute said policy to  residents.  Such a policy may include the following:

1. Advise residents of community support services available to seniors.
2. Advise residents of preventative measures that can be taken to make their units safer including the following:

• installing appliances that have an automatic shut-off feature;
• ensuring that all small appliances are located away from sinks and/or any other source of water;
• installing safety equipment in the bathrooms;
• adding non-slip stickers to slippery surfaces such as tile floors;
• removing any loose rugs; and
• keeping emergency numbers by the phone for quick access.[5]

3. Encourage residents to submit a Resident Information Form to the condominium corporation on an annual basis.  Each Resident Information Form submitted to the condominium corporation by a resident may provide the contact information for the resident’s family doctor, advise of any medical conditions that the resident may suffer from, list any medications that the resident may be taking, and provide the name and telephone number of the resident’s emergency contact. The Resident Information Form should also contain a provision granting the condominium corporation the authority to disclose the information contained in same to emergency personnel if the resident’s health and/or safety, as determined by the condominium corporation acting reasonably, is in jeopardy. In this regard, each Resident Information Form submitted to the condominium corporation should be signed and dated by the resident submitting same.
4. The policy should include and advise residents that, if the condominium corporation is concerned that a resident has a mental health issue that may and/or does pose a safety risk to themselves and/or other residents, the condominium corporation will follow the procedure set out below:

a)  The condominium corporation will contact the resident’s emergency contact person or a known family member. 

b) The condominium corporation will also contact the local Community Care Access Center (“CCAC”) and request that same dispatch a worker to assess the resident’s capacity and provide a safety assessment of their unit. 

By following the suggestions provided above, a condominium corporation will be able to comply with its statutory obligations and also be able to protect the safety and welfare of residents by preventing minor incidents from escalating into major emergencies.

[1] Canadian Mental Health Association, Seniors and Dementia Disorders, including Alzheimer’s Disease.

[2] Alzheimer Society of Canada (2003a). alzhemier.ca

[3] National Advisory Council on Aging, Care and Treatment of People with Dementia and Cognitive Impairments (2002).

[4] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (2009).

[5] Alzheimer Society of Canada (2011). alzhemier.ca 

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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