special owners' meeting

Can a condo owners’ meeting be discriminatory?

Tribunal dismisses applications in case of gathering held on religious holiday
Wednesday, April 19, 2017
By Carol Dirks

Condominium corporations are a microcosm of society, made up of individuals with divergent beliefs, practices and needs. What if boards of directors were required to select dates for annual general meetings (AGMs) or special owners’ meetings that all unit owners could attend based on their religious beliefs, family obligations, or other personal needs? This was precisely the issue that the Human Rights Tribunal of Ontario recently considered in the case of Kamal v. Peel Condominium Corporation No. 51.

The case

In the Kamal case, the board of PCC 51 obtained a condition survey from its consulting engineer indicating that major exterior repairs were urgently needed at a cost of $2 million. PCC 51 only had $200,000 in its reserve fund account. PCC 51 had previously levied a special assessment to raise funds to cover a budget shortfall, which was financially difficult for many owners. The board of PCC 51 was concerned about the financial impact of levying a further special assessment, and opted instead to look into borrowing the $2 million for repair work. In the end, PCC 51 was able to secure financing on favourable terms so long as the approval, including passing a borrowing bylaw, was completed by the end of the year.

A special owners’ meeting was called for the unit owners to discuss and vote on a borrowing bylaw. The board of PCC 51 made a point of trying to choose a date which would allow owners to attend as the borrowing bylaw would not pass unless a majority of all units voted in favour. In selecting the date for the meeting, the board specifically sought to avoid scheduling it on Eid-ul-Ahza, an important religious holiday for persons of the Muslim faith within the condominium community.

At the time the meeting packages were mailed out, Eid-ul-Ahza had not yet been declared for those Muslims who celebrate this day based on the moon sighting, as opposed to a fixed calendar date. In the end, for some Muslims, Eid-ul-Azha fell on the same day as the special owners’ meeting. Given the limitations associated with the financing, the board decided to proceed with the meeting on the scheduled date. Three unit owners subsequently filed an application with the Ontario Human Rights Tribunal against PCC 51 (who the writer of this article represented) and its property management company. The application alleged discrimination based on the unit owners’ creed due to the holding of the special owners’ meeting on Eid-ul-Azha.

The decision

In a decision released late last September, the Ontario Human Rights Tribunal found that holding the meeting on Eid-ul-Azha did not discriminate against the applicants and dismissed all three applications against both PCC 51 and its property management company.

The tribunal rejected the applicants’ contention that the corporation’s decision to hold the special owners’ meeting on Eid-ul-Azha deliberately targeted owners who were Muslim by excluding them from attending the meeting. Further, the tribunal found that there was evidence of past owners meetings held on other religious days, including Hindu holidays. The tribunal also found that PCC 51 had in good faith tried to avoid calling the meeting on Eid-ul-Azha, and that the fact that this religious day fell on the date of the meeting was unforeseen and unintentional.

No disadvantageous impact

The tribunal also found that the meeting did not have any disadvantageous impact on any of the applicants because it did not interfere with their ability to observe the tenets of their faith. Based on evidence concerning the religious obligations of each of the applicants on Eid-ul-Azha, the tribunal held that it was instead other factors within the applicants’ control that interfered with these religious observances.

Even if there was a disadvantageous impact on these three owners because of their creed, there may not have been a finding of discrimination. That’s because the tribunal found that the ability to participate in the special owners’ meeting by way of proxy, as opposed to in person, represented reasonable accommodation by PCC 51 under of section 11 of the code. Accordingly, the tribunal found that there was no infringement of any of the applicants’ rights under the code.

Proxy as reasonable accommodation

Importantly, the tribunal’s decision in Kamal v. PCC 51 recognizes that the ability of owners to participate in a condominium meeting by proxy constitutes reasonable accommodation for owners who may be unable to attend the meeting in person for code-related reasons. In addition to religious holidays, there may be many other scenarios where a condominium owner is unable to attend a meeting for reasons protected by the code, such as child care obligations, or even disability or health-related reasons.

In its reasons, the tribunal left open the possibility that a finding could be made that a religious group (or other recognized group protected under the code) had experienced distinct and disadvantageous treatment because of their creed by the holding of an owners’ meeting. For example, if a corporation made a practice of calling owners’ meetings on the religious holidays of a specific creed, then it is conceivable that there could be a finding that the owners of that creed have experienced discrimination because of their religious beliefs.

However, again, there may not be a finding of discrimination even if holding an owners’ meeting disadvantageously affected some owners because of creed (or other code-related grounds). The Kamal decision suggests there would be no violation under the code as long as these owners were allowed to participate in the meeting and vote by way of proxy.

Notwithstanding the decision of the tribunal in the Kamal case, condominium corporations should strive to respect the individual beliefs and needs of the owners who make up its community. More specifically, corporations should not consciously seek to hold owners’ meetings on dates and times that may unfairly limit the ability of some of its members to participate.

There may be circumstances when the corporation should reschedule an owners’ meeting, or at least consider the impact on a particular owner or group of owners. For example, the board of PCC 51 did make an effort to contact other members of the Muslim community after it became aware that the special owners’ meeting was to be on Eid-ul-Ahza. PCC 51 tried to determine whether the meeting would interfere with any religious rites before the corporation decided to proceed with the meeting as scheduled. The tribunal noted this effort and consideration by the board members of PCC 51, as well as others, in its decision.

“Occupancy” or “service”?

The original applications regarding the holding of the owners’ meeting on Eid-ul-Ahza alleged discrimination with respect to “occupancy of accommodation,” contrary to section 2 of the code. Whether a unit owner is able to attend a condominium meeting really has no impact on that individual’s ability to use and occupy his or her residential unit. Rather, the ability to attend an owners’ meeting, and to exercise a right to vote, is “political” in nature and forms part of the ownership rights as a shareholder of the corporation. The tribunal indicated that if the applications were improperly brought under section 2 of the code, they could be amended to be brought under section 1 of the code, which deals with equal treatment with respect to “services, goods and facilities.”

In the end, because the tribunal found that there was no discrimination, the tribunal did not have to decide whether a condominium owners’ meeting is considered either a “service” or “occupancy of accommodation” under the code. Accordingly, while it appears evident that an owners’ meeting does not fall within section 2 (occupancy), whether an owners’ meeting would qualify as a “service” under the code remains unresolved.

Two of the applicants filed a request for reconsideration of the decision by the tribunal in October 2016. The requests have not been granted as of date.

Carol Dirks is a partner at Fogler, Rubinoff LLP. Since her call to the bar in 1996, Carol’s practice has been focused in the area of condominium law and condominium-related litigation. She regularly advises boards of directors on the requirements of the Condominium Act, as well as enforcement of the declaration, bylaws and rules.

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