What constitutes ‘undue hardship’ for a condo corporation assessing a request for accommodation?
In human rights law, undue hardship is necessarily a fact-specific test. If a condominium corporation can establish undue hardship, there is no obligation to accommodate a resident who experiences discrimination. The undue hardship test, however, is quite onerous, and is not synonymous with mere bother, or even substantial inconvenience.
Under the Ontario Human Rights Code, what constitutes undue hardship depends on the costs associated with the accommodation, outside sources of funding (for example, whether government grants are available to offset accommodation costs), and any health and safety risks imposed by the accommodation.
According to the Ontario Human Rights Commission, these are the only factors that can be considered when assessing undue hardship. However, courts and arbitrators have established that other factors may be relevant in determining undue hardship, such as disrupting the enjoyment of other residents.
In any case, the cost of accommodation typically results in undue hardship if it significantly and adversely affects the operations or viability of the condominium corporation. With respect to health and safety, undue hardship is established only if the degree of risk — after the accommodation is made — outweighs any advantage to the accommodated resident.
For example, in Metropolitan Toronto Condominium Corporation No. 946 v. JVM, the condominium corporation moved to obtain a court order requiring a unit owner who was a paranoid schizophrenic to vacate, list and sell her unit. The owner was a hoarder who had breached obligations to rectify unsafe and unsanitary conditions in her unit for years. Over this time, the condominium corporation had taken steps to meet its duty to accommodate. It entered her unit to clean, fumigate and remove hazardous articles; it removed several bags of garbage; it involved the police.
After several years of dealing with the owner, the court ultimately found that the corporation had discharged its duty to accommodate to the point of undue hardship, particularly in light of the corporation’s obligations to the other owners, as well as health and safety risks. As a result, in a rare move, the court ordered the owner to vacate and sell her unit.
Establishing undue hardship in a condominium law context is not impossible, but it requires expert advice and, typically, a lot of patience.
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.