Accommodation: The Human Rights Code and Age-Related Disabilities

As the percentage of the population over the age of 65 increases and the number of Canadians residing in condominiums continues to rise, age-related disabilities will significantly, and increasingly, impact the operation and management of condominium corporations in the near future.  This, in conjunction with the increasing number of applications that have been filed with the Ontario Human Rights Tribunal (the “Tribunal”) against condominium corporations alleging discrimination on the basis of one or more of the enumerated grounds contained in the Ontario Human Rights Code (“Code”), means that condominium corporations should create and implement policies and practices to better manage risk and limit exposure to liability surrounding compliance with the Code.

For the Code to apply, “unequal treatment” must occur in one of the following areas listed in the Code: employment; contracts; housing; services, goods and facilities; and membership in trade and/or vocational associations. In condominiums, unequal treatment typically involves housing, but it is not uncommon to also see employment and contracts cited. Furthermore, the unequal treatment at issue must be based on one or more of the following enumerated grounds: race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed, sex, sexual orientation, gender identity, gender expression, family status, marital status, age, public assistance and/or record of offences.

The provision of services, goods and facilities, housing and employment are the areas governed by the Code that apply to condominium corporations. Accordingly, as the percentage of the population over the age of 65 increases, it is anticipated that condominium corporations will receive an increasing number of accommodation requests due to age-related disabilities.  Subsection 2(1) of the Code imposes on every condominium corporation a duty to accommodate residents with disabilities, and this duty contains both procedural and substantive components. The procedural component of the duty to accommodate requires an individualized investigation of accommodation measures and an assessment of the individual’s needs. The substantive component of the duty to accommodate requires consideration of the accommodation offered and if accommodation is not offered, requires that the individual be provided with the reasons why.

The accommodation process is a shared responsibility and as such all of the parties involved are required to cooperatively engage in the process, share information and avail themselves of potential accommodation solutions. Accordingly, upon receiving an accommodation request, a condominium corporation has a right to request supporting documentation from the individual and the individual has an obligation to provide same. Upon receiving said documentation, a condominium corporation has an obligation to act in a timely manner, and with due diligence and dispatch in providing accommodation as to ensure the individual does not suffer any undue hardship. As illustrated in the case of Jakobek v. Toronto Standard Condominium Corporation No. 1626 and Deaconwood Property Management Inc., 2011 HRTO 1901, failing to provide accommodation in a timely manner may result in a violation of the Code. In said case, the resident requested that the condominium corporation modify the entrance doors of its building so that the doors could be automatically opened with the swipe of a pass card, as it was very difficult for the resident to open the doors while on his motorized scooter, which he alleged was needed as a result of a disability.  The condominium corporation eventually modified its doors as requested by the resident; however, it took over two years for the condominium corporation to do so.  Accordingly, the resident filed an application against the condominium corporation on the basis that the corporation failed to accommodate him as required by the Code.  The Tribunal found that the condominium corporation failed to act with due diligence and dispatch as required by the Code and therefore breached its duty to accommodate the resident.  As a result the Tribunal ordered the condominium corporation to pay damages in the amount of $5,000. Therefore, it is imperative that condominium corporations respond to accommodation requests in a timely manner as failing to do could result in a breach of the Code and increased exposure to liability.

To ensure compliance with the Code and limit exposure to liability, it advised that condominium corporations create and implement human rights policies so that all requests for accommodation are handled in a consistent and timely manner. However, a human rights policy will only serve to limit a condominium corporation’s exposure to liability if the condominium corporation’s agents and employees implement and apply the policy in practice. As illustrated in the case of Abdallah v. Thanes Valley District School Board, 2008 HRTO 230, if a corporation’s practices are not consistent with its internal human rights policies, the Tribunal may find that the corporation is in breach of the Code. Therefore, a comprehensive human rights policy will only serve to limit a condominium corporation’s exposure to liability if its employees and agents implement and apply the policy in practice. In this regard, it is advised that condominium corporations, in in addition to creating and implementing human rights polices, provide their agents and employees with human rights training so as to further limit exposure to potential liability. 

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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