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June 8, 2011 - By Patricia E. Elia

CONDOCENTRIC: Condominiums and Human Rights - A Positive Attitude - A Review of Caselaw in Ontario

Are Human Rights a Good Idea?

While the answer may seem self-evident, here are some recent headlines from the Human Rights Watch (http://www.hrw.org/en/home).

Canada, in the eyes of many new and old Canadians, represents freedom from many atrocities that compromise their basic human rights and freedoms.  Canada achieves this important status, in part, from developing and adhering to laws that protect basic human rights.  Fortunately, in condominium corporations we do not have to deal with such atrocious violations.  Nevertheless, it is important to understand the importance of human rights in the scheme of enforcing them at the condominium community level. 

In Ontario, the Human Rights Code R.S.O. 1990, c. H. 19 protects every person’s right to equal treatment without discrimination in five (5) key areas of social interaction:

in respect of fifteen (15) grounds of discrimination:

Canada is one of the most unique countries in the world because of its historical commitment to embracing the notion of a “cultural mosaic”.  An ethnocultural profile of Canada prepared by Statistics Canada describes a nation that, at the outset of the 21st Century, has become progressively more and more multi-ethnic and multicultural.  The introduction to the report stated that:

“Immigration to Canada over the past 100 years has shaped Canada, with each new wave of immigrants adding to the nation’s ethnic and cultural composition.  Half a century ago, most immigrants came from Europe.  Now most newcomers are from Asia.”

As a result, the number of visible minorities in Canada is growing.  And, Canadians listed more than 200 ethnic groups in answering the 2001 Census question on ethnic ancestry, reflecting a varied, rich cultural mosaic as the nation started the new millennium.

In the same vein, on July 20, 2005, Canada became only the fourth country in the world to legalize same-sex marriage nationwide with the enactment of the Civil Marriage Act.  Court decisions, starting in 2003, had already legalized same-sex marriage in eight out of ten provinces and one of three territories, whose residents comprised about 90% of Canada's population.  Before passage of the Civil Marriage Act, more than 3,000 same-sex couples had already married in these areas.  Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.

Compliance with human rights laws impacts the degree to which individuals and groups enjoy and can participate equally in the benefits of citizenship and community.  By allowing people to participate equally, the quality of life for individuals and ultimately for communities is enhanced.  If one examines condominiums, they are a micro-reflection of the very diverse values of Canadian society all under “one roof”.  Accordingly, compliance by condominium corporations with human rights legislation makes sense to allow for fair and equal participation in Canadian society.  The degree to which compliance will be effected will be interesting as the issues become more complex.

What is the standard of Human Rights laws in Ontario?

In the province of Ontario:

“…
Service
  1.  Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

Accommodation
  2.  (1)  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.

Harassment in accommodation
  (2)  Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, disability or the receipt of public assistance.

Contracts
  3.  Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

Accommodation of person under eighteen
  4.  (1)  Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.

Idem
  (2)  A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old.

Employment
  5.  (1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability

Harassment in employment
  (2)  Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.”

Where do Human Rights affect condominium corporations? And what should a condominium corporation watch out for?

Most often we see condominium corporations faced with possible human rights issues in the context of unit owner issues and in the context of employment arrangements of the condominium corporation, directly or indirectly.

Generally, discrimination involves a restriction, preference or distinction based on an individual’s characteristics (which while personal are not necessarily immutable) and not on individual merit, which also results in unequal treatment.  The breadth of what constitutes individual characteristics giving rise to discriminatory actions appears to be ever-changing and expanding.  Human rights law has divided discriminatory action in to four categories: direct discrimination; adverse effect or constructive discrimination; systemic discrimination and harassment.

In a condominium corporation, “direct discrimination” in employment for example would be the making of rule or creation of a standard that generalizes about a person’s ability to perform a job based on an attribute such as religion.  Differential treatment with respect to rates of pay, job assignments, transfers, lay-offs, promotions, hours of work, uniforms accommodation will amount to direct discrimination if all or part of the reasons is on a prohibited ground.  “Adverse effect discrimination” applies when a policy is not discriminatory on its face but the policy is found to be detrimental to persons based on a prohibited ground of discrimination.  For example, requiring a person to work on a day of religious observation.  Thus, even though the reason for the policy is for a genuine purpose and on its face is neutral, if it has a discriminatory effect on a prohibited ground then it will be in contravention of the Code.  “Systemic discrimination” is similar to adverse effect discrimination.  It arises out of long-standing stereotypes and value assumptions to create a discriminatory effect.  In an employment context it is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion none of which is to promote discrimination.  The discrimination is enforced reinforced by the exclusion of a group because the exclusion fosters a belief.

What have the courts decided in respect of condominiums?

The following represents highlights from a few of the cases that have impacted human rights interpretations in Ontario.  The list of cases is long and continues to grow more diverse over time both within and outside Ontario.

In Waterloo North Condominium Corporation No. 198 v. Donner, 1997 Can LII 121177 (ON. S.C.), the question was whether the condominium corporation was in breach of section 3.5 of the declaration which stated as follows:

“…No dogs or other animals or pets of any nature shall be kept or allowed in an Unit or the Common Elements, including the Exclusive Use Common Elements of any Owner.”

The rules and regulations of the condominium corporation supported the no pets’ provision in the declaration.  The facts in this case were that Donner had purchased a unit from the developer under which the agreement she agreed to abide by the declaration, by-laws and rules.  She advised the condominium corporation that she would be moving in with her mother and that her mother had a dog which she needed for assistance because of her total deafness and wanted the dog to live with them.  Ms. Donner asked for an amendment to be made to the no pets’ clause due to the circumstances.

The application brought by the condominium corporation to prohibit the dog was supported by 117 out of 172 owners.  The corporation argued that every unit-holder bought their unit on the understanding there would be no pets.  Under the former (Condominium Act), a 100 percent approval of all unit owners was required to amend the declaration.  The condominium corporation also tried to rely on York Condominium Corporation v. Dvorchick [1997] O.J. No. 378, which continues to stand for the proposition that a court should not substitute its own opinion about the propriety of a rule enacted by a condominium unless the rule is clearly unreasonable or contrary to a legislative scheme.  Here the court confirmed that the Ontario Human Rights Code had been enacted by the Legislature for the benefit of the community at large and of its individual members.  Parties are not entitled to contract out of its provisions.  To allow the parties to do so would be contrary to public policy.  The judge stated that a declaration prohibiting accommodation based on race such as a “no black” or a “no white” clause, would offend and not be tolerated by right thinking members of the Canadian community and thus the court could not see why handicapped people were entitled to any less protection under the Code.  In the courts view, the Code precluded enforcement of the declaration if it resulted in discrimination. The court further found that it was not incumbent on Ms. Donner to establish that there are no other ways for her to function independently without a dog, such as the hiring of a housekeeper. The court in denying the application specifically stated that the declaration was not unreasonable.  The court only refused to enforce it because of the strict application against Ms. Donner’s mother would amount to a breach of the Code.

In Leonis v. Metropolitan Toronto Condominium Corp. No. 741 at the (Ontario Human Rights Commission), [1998] O.H.R.B.I.D. No. 12, the issue was with the complainant, a condominium owner with a child under the age of 16 who alleged he was being discriminated against on the basis of family status with respect to the occupancy of accommodation contrary to ss. 2(1) and 9 of the Code.  In this case, the recreation center was determined to be an integral part of the complainant’s occupancy of the Unit.  Pursuant to Section 7(2) of the Condominium Act (1990), the complainant had an undivided interest in the common elements.  The complainant, pursuant to the rules of the condominium corporation, was denied access to the pool with his daughter.

In York Condominium Corp. N. 216 v. Dudnik (1991), 79 D.L.R. (4th) 161, Divisional Court held at “occupancy of accommodation” includes the occupancy of a condominium unit and that pursuant to the Code, every person has a right to equal treatment with respect to the occupancy of accommodation without discrimination because of family status.  The court held that the essence of a “service” or “facility” under section 1 of the Code is that it is something to which any member of the public may request access, even though the actual provision of such service or facility might be subject to discretionary criteria.  Access to the recreational center is not available to the public at all and thus does not fall within the notion of the provision of a “service” or “facility”.  However, in Leonis, the Board found that occupancy of accommodation included the condominium where Mr. Leonis was living as supported by Dudnik. 

Did the Complainant suffer direct discrimination on the basis of “family status”?  The court relied heavily on the Dudnik case.  In Dudnik, the standard is that family as a unit should not be disturbed.  Dudnik states that not all disadvantages that are associated with parenthood are sufficiently disruptive to the family but that there were no obvious standards by which to measure the sufficiency of that disruption.  In this case, the Board found that the rule did not disturb the family unit. 

Did the respondent’s rules respecting the children’s use of the recreational facilities have a differential impact on parents?  Did the respondents fail to offer appropriate accommodation to the need of parents, thereby constructively discriminating on the basis of “family status”?  While rules respecting the children’s use of the centre can apply to individuals not in a parental relationship, in most incidences, most of the adults who wish to use the centre in the company of children will be parents, and the adults who will be restricted from using the facilities on their own because of child-care responsibilities will be parents.  The rules have a disparate negative impact on parents who own or occupy the affected condominiums.  Having found that the children’s rules result in a restriction on parents who are unit owners or residents, is the restriction reasonable and bona fide within s. 11(1)?  Not according to the Board.

Condominium corporations are like all corporations, comprised of shareholders to whom it is accountable for its actions.  Any measures taken to accommodate the needs of one shareholder, to use and enjoy the centre and may impact upon the other shareholders’ use and enjoyment due to which the duty to accommodate will compel such modification, must be assessed having regard to the impact of the modification on the other “employees” (comparison to bargain unit) to whom collective agreements apply.  In this case, the Board was satisfied that allowing children unrestricted access to the centre at all times would occasion undue hardship to the respondents, having regard to the impact on other unit owners.  The Board found that the children’s rules in existence at the time were not reasonable or bona fide because they did not go as far as they might have in accommodating the complainant’s needs short of undue hardship.  In this case, there were lower standards earlier.  The rules respecting the centre, it was determined, must be sensitive in concerns of all potential users.  There was evidence establishing that the recreation committee had attempted to keep in mind the changes in demographics in the building from time to time in considering what amenities to offer, and what rule to recommend.  The Board’s view was that the needs of the parents of children in the community could be best served by a requirement that at least one position on the recreation committee be made available to a unit holder or occupant who is a parent of a child under 16 years of age.  The condominium corporation was ordered that the committee convene a meeting or conduct a biannual survey of all unit owners or occupants who are the parents of the children to ascertain their views with respect to the rules.

In Niagara North Condominium Corporation No. 125 v. Joanne Kinslow, November 6, 2007 (Superior Court of Justice – Ontario), the issue was that the applicant, Niagara North Condominium Corporation No. 125, contended that the respondent was unlawfully keeping two cats in her condominium unit and sought their removal.  The application proceeded pursuant to subsection 134(1) of the Condominium Act (1990). 

In this case, the declaration provided in section 7, article II, a blanket prohibition again keeping of all pets. 

“7. Pets – No animal, livestock, fowl, fish, reptile or insect (a “Pet”) shall be permitted or kept in the building.  Any owner shall, within two (2) weeks of receipt of a written notice from the Board or the Manager requesting the removal of such animal, permanently remove such animal from the property,  No breeding of animals for sale shall be carried on, in or around any Unit.”

Rules of a corporation include rule number 12, prohibiting pets.

“12.  No pets shall be permitted in the building.”

On May 1, 2002, the respondent entered into a tenancy agreement with the owner of Unit 1009 in the condominium complex.  The tenancy agreement is silent as to pets and has no bearing on this application according to the court.  The corporation requested that the tenant remove the cats.

Before she moved into the unit, she was made aware of the no pets’ policy.  Upon noticing that many people in the condominium complex, including the superintendent had cats and other pets, the respondent acquired two cats. 

The respondent also suffered from a brain injury and was bi-polar.  However, no supporting medical evidence was tendered.  It was further submitted that to enforce the no pets provision in the declaration would contravene under subsection 2(1) of the Human Rights Code which provided that:

“[e]very person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of …disability…”

“….the Human Rights Code precludes enforcement of [a] declaration if it would result in the discrimination of [the occupier]… because of her specific handicap” (Waterloo North Condominium Corp. No. 198 v. Donner (1997), 36 O.R. (3d) 243 at 248).  The court held that in order to make a finding of discrimination necessary to defeat the declaration, the no-pets provision must have been effective in preventing the respondent from living in her unit – that was not the situation here.  There was no evidence that the respondent is unable to live without her cats.  Rules passed by the condominium corporation must be reasonable.  In this case, the court found the no-pet rule to be unreasonable.  The court also went on as well to find that the no-pets provision in the declaration was not reasonable, however, this fact alone did not render the declaration invalid because of a presumption favoring validity.  The presumption arises largely because the Condominium Act contemplates the different treatment of rules and declarations:  reasonableness being expressly required for the former, but not for the latter.  Thus, a declaration that is unreasonable can still be valid as long as it is not unfair in the circumstances and with unfairness being gauged in accordance with the law and not the sensibilities of a particular respondent.

In Niagara North Condominium Corp. No. 46 v. Chassie [1999] O.J. No. 1201, Niagara North Condominium Corp. No. 46 made an application for an order directing the respondents, Raymond and Muriel Chassie, to remove their 16-year-old cat from their unit in the condominium.  Niagara claimed that the presence of the cat was contrary to the declaration, rules and regulations of the condominium corporation.  Muriel suffered mental and physical problems.  Doctors opined that the removal of her cat would be deleterious to her health.  The cat stayed in the unit.  The Chassies argued lack of reasonableness, acquiescence by the Board with respect to the presence of pets and delay in the enforcement of the declaration and rules, and as well as, the Human Rights Code considerations.  They contended that the condominium corporation’s Board knowingly set a precedent by not enforcing the no pet restrictions for eight years and that they were not notified of the no pet restriction before presenting an offer to purchase.  They also saw cats in several windows and units at various times during their visits to the premises.  The allegations as to the presence of cats on the premises were supported by other people.  The Chassies said that they would have not have bought the unit in the complex if they had known that there would be a problem about the cat.

The court found that Mrs. Chassie suffered from an ailment that can be described as a disturbance or imperfect functioning of the mind.  It is a serious and long term condition and was therefore a mental disorder within the meaning of the Human Rights Code.  The court adopted the reasoning of Salhany, J., in Donner, that while the provisions in the condominium corporation’s declaration prohibited pets does not specifically discriminate against her, the enforcement of the declaration would, in effect, do so.  The enforcement would have an “adverse effects” on her because within the board concept of adverse effects discrimination.  It would effectively prohibit her from living in the building because her cat is essential to her well being and “an important part of her treatment”.  Further, the argument that the cat is merely a companion comfort animal providing emotional support, and not a therapy utility animal like a seeing eye dog, does not stand.  Her handicap is mental not physical.

…there is a growing awareness of the extent to which animal improve the mental and physical well being of people.  It has been said that therapy dogs have been shown to lower blood pressure, another medical problem of Mrs. Chassie, and help people relax. 

Application was dismissed.  There was medical evidence that the cat had been Mrs. Chassie’s companion for sixteen years including the doctor’s opinion that to force her to abandon it would cause her extreme emotional distress. 

In Ernie Dellostritto, Applicant and York Region Condominium Corporation No. 688 (Case Resolution Conference Decision)(2009), the applicant was a father of two teenage children and resided with his spouse and children in York Region Condominium Corporation No. 705 which shared recreational facilities with York Region Condominium Corporation No. 688.  The human rights complaint underlying this application arose out of what the applicant characterized as a systemic pattern of discrimination in accommodation on the basis of age and family status, by three respondents since the time that he and his wife moved into the building.

The condominium corporation was built and was marketed as an adult only building.  Upon failure to resolve all the issues, the applicant agreed that some purpose had been made in resolving some of the systemic issues.  For example, the “adult lifestyle” signage was removed, Code cards were posted throughout the complex and other efforts were underway to integrate families with children into the condominium community.  The respondents also stated that training for property management and Board members had been arranged and a Policy on Family Status had been created and implemented. 

The primary issue that remained unresolved related to the age restrictions affecting the children’s use of the recreational facilities, in particular the use of the swimming pools.  Specifically, whether the family swim rule restricting the children under the age of 16 to use pools only during family swim hours has a discriminatory effect on Mr. Delostritto on the basis of age and family status.  The application was dismissed because there was no evidence of any discrimination, direct or otherwise, experienced by the applicant because of or related to his age.  Here the Tribunal agreed with the reasoning in the Leonis case and found that the family swim hours in effect were not unduly restrictive and did not constitute discrimination on the basis of family status. 

The question considered by the Tribunal was whether the applicant’s rights under the Code had been violated by a rule that restricts his ability to visit the pool at anytime he chooses?  The applicant did not argue that the rules in place was so restrictive that they deprived him from using the pools or other recreational facilities; rather he took the position that any restriction on the ability of his daughter to use the pools at any time that they choose is a violation of his right to be free from discrimination.  It was determined not to be.

The panel found that the more the restrictive rules governing access as well as the change in the minimum age for unaccompanied access from 16 to 18 years of age, the posting of ‘adult lifestyle’ signage and the promotion of the building as “adult lifestyle” contributed to the atmosphere that the Dellostrittos described as unwelcoming to them as a family with children.  Their evidence was also accepted but the sense of feeling unwelcome caused them not to use the condominium corporation’s shared facilities and instead they took their children elsewhere.  For these reasons they found that the respondents; that is the condominium corporation, was in violation of section 2.1 and 9 of the Code.  The Tribunal awarded $1,000 in general damages to the applicant. 

In a recent case, Metropolitan Toronto Condominium Corp. NO. 946 v. J.V.M.( Public Guardian and Trustee of) [2008] O.J. No. 5412, the applicant condominium corporation brought a motion for an order requiring the respondent unit owner to vacate, list and sell her unit pursuant to a June 23, 2004 order (the Order).  The Order provided that if the respondent, who suffered from paranoid schizophrenia, did not comply with the requirements of the Condominium Act and the applicant's declaration, by-laws and rules she would be required to vacate and sell her unit. In March of 2007 a fire inspection disclosed "serious safety concerns" in the respondent's unit; in May of 2007 the applicant's agent removed 150 bags of garbage from the respondent's unit and there was evidence of a fire in the freezer compartment of the respondent's refrigerator.  A court order in January of 2008 provided the applicant could clean the respondent's unit if the respondent failed to do so; in February of 2008 the applicant's agent cleaned and disinfected the unit due to an abundance of fecal material and vermin being present in the unit.  In February of 2008 the applicant, concerned for the safety of the respondent, contacted the police. The police entered the respondent's unit, which was so clogged with possessions it took them a few minutes to find the respondent; there was a strong odor of urine and feces in the unit and the respondent had placed clothing, books, papers and other articles on the stove burners.

The respondent was ordered to vacate and sell her unit. The applicant's attempt to force the respondent to sell her unit was prima facie discrimination but the applicant had accommodated the respondent's disability to the point of undue hardship subsequent to the Order.  The respondent was estopped from re-litigating issues but the court exercised its discretion to permit the respondent to litigate the issue of whether the applicant had accommodated the respondent since the Order. In this case, the Corporation had accommodated the respondent for several years and had become well acquainted with the disability.  The court found that her actions as a result of her disability had reached the threshold of undue hardship.  The evidence of the applicant was that it had accommodated the respondent’s disability to the point of undue hardship.

The duty to accommodate includes both a procedural and substantive duty.  The procedural duty to accommodate requires that the accommodating party obtain all relevant information about the party’s obligation to give consideration to how it may property meet its obligation.  The substantive duty to accommodate is the obligation, short of undue hardship, to take steps to avoid discrimination.   The condominium corporation was very well versed in the characteristics of the respondent’s illness, it cyclical nature and its manifestations.  It took numerous steps to meet its substantive duty granting leave to the corporation to enter the respondent’s unit to clean it, fumigate and remove of hazardous articles; the corporation removed 150 bags of garbage.  The condominium made a second application to have the unit owner sell her unit and in addition to the provision of additional medical information by the respondent, the court ordered the unit owner to clean the unit, which the corporation did again. Again, the superintendent who had not seen the respondent in a few weeks became concerned called the police and the police entered the unit.  The unit was so clogged with possessions that it took three officers to find her lying on the floor under a pile of clothing incoherent.  Here the court affirmed that a corporation’s duty to accommodate to the point of undue hardship should be considered in light of its obligations to other owners.  The burden of funding the corporation falls on owners.  The cost of accommodation is borne by the owners at least in the first instance, and ultimately, if the accommodated owner does not reimburse the corporation.  Of greater significance was the health and safety risk to other owners.

The question which this case poses is how far will the courts require a condominium corporation to go?  In this case, it seems like it was fortunate that the corporation did not burn down in the interim. 

What can a condominium corporation do to effect a positive attitude towards Human Rights?

  1. Understand the condominium corporation’s obligation to comply with the Code.
  2. Develop policies and procedures with a view to ensuring that the 15 areas of discrimination are not violated.
  3. Understand that the declaration, by-laws and rules are subject to and can be trumped by the Code.
  4. Have the legal risk assessed by your legal professional.
  5. Look for insurance coverage for Human Rights Defence costs and awards.

New Possible Issues:

While the issues surrounding adult lifestyle condominium corporations and pets is relatively clear, there are some new and interesting human rights issues that are on the horizon for condominium corporations as a result of aging populations and changes in public policy:

  1. What is corporation’s duty to accommodate patients with dementia, Alzheimer or other similar mental conditions?
  2. What about the pervasive smells of medicinal marijuana that may fill the hallways of the condominium corporation or migrate into other units?  What is the duty to accommodate?  What is the risk to other unit owners?
  3. Where a person with a physical disability (i.e. is in a wheelchair, buys in a condominium corporation and knows there are no wheelchair ramps or common element door openings), what are the condominium corporation’s obligations to accommodate?

Things a Condominium Corporation Can Do:

  1. Develop policies in the area of human rights that support the Human Rights Code and your condominium community.
  2. Have a method of considering human rights requests and for determining possible solutions.
  3. Document the process of managing a request for accommodating a complaint etcetera.
  4. Be reasonable and proactive.
  5. Use mediation and arbitration provisions under the Act.
  6. Document for evidentiary purpose.
  7. Consistency enforce.
  8. Speak to your lawyer.
  9. Consider accessibility issues.
  10. Ensure that your corporation has human rights defence claims insurance.

BIBLIOGRAPHY

Secondary Sources

Caselaw

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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