What is a condominium corporation’s duty to accommodate a resident?
Certain residents communicate a need for accommodation in relation to any one of the five social areas covered by the Ontario Human Rights Code. And where the accommodation request relates to a ground of discrimination listed in the Code, then the condominium corporation must do whatever is necessary to accommodate the person, short of undue hardship. For condominiums, the most relevant social areas are services, goods and facilities, and housing accommodation.
Under section 2(1) of the Code, “Every person has a right to equal treatment with respect to the occupancy of accommodation without discrimination because of race, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.” Section 1 of the legislation also provides that every person has a right to equal treatment with respect to services, goods and facilities, without discrimination, on the basis of similar grounds.
Thus, accommodation in a condominium law context involves removing individual barriers that prevent residents (or potential residents) from accessing condominium services and facilities, or prevent them from occupying a unit in the building. These accommodation measures may include improving accessibility, acquiring or modifying the common elements, providing support or assistance, or tolerating some breaches of the condominium bylaws or rules.
The duty to accommodate has two steps. First, the procedural component requires the condominium corporation to obtain all relevant information about the resident’s needs, and to consider how it may meet its accommodation obligation. Second, the substantive component necessitates that the condominium corporation take active steps to put the accommodation in place, short of undue hardship, so as to avoid discrimination.
In a condominium setting, the obligation to accommodate usually involves disability. In Ontario, one in seven people has a disability, and this number is expected to rise steadily over the next 20 years as the population ages. By 2031, more than six million Ontarians will either be living with a disability, or will be 55 years of age and over. Not surprisingly, accommodation of disabled residents will be the primary accommodation issue for boards and property managers in the future.
Some directors and property managers are under the mistaken belief that accommodation obligations apply only to unit owners. If a condominium corporation’s declaration restricts the availability of handicapped parking units to disabled owners, for example, some may assume there is no duty to provide an appropriate parking space to a disabled tenant of the building. This is not so. The Code makes no such distinction between owners and other full-time residents.
Where there is conflict between the Code and the condominium corporation’s declaration, bylaws or rules, these may be overridden by the obligations imposed by the Code. The Code is human rights legislation with quasi-constitutional status and has paramountcy over other laws or rules.
Deborah Howden is a lawyer and partner in Shibley Righton LLP’s Condominium Law Group. She is a labour and employment law specialist who regularly advises condominium corporations and property management companies.