Owners and occupants of condominiums have a duty to comply with the Condominium Act, the declaration and the corporation’s other governing documents. In fact, the board of directors has an obligation to take reasonable steps to ensure that all owners and occupants do, in fact, comply with these governing documents. But condominiums also have a duty to make exceptions or to otherwise accommodate individuals with disabilities. This duty exists regardless of the age of the building and of whether the building complies with the building codes.
However, this duty to accommodate has limits. The duty to accommodate is only up to undue hardship. That is to say that the corporation would not have a duty to accommodate someone’s disability if it imposed on the corporation undue hardship. More on this further below. Let’s first start by defining what is a disability.
What is a disability?
Under the Ontario Human Rights Code (the “Code”), every person with a disability has a right to equal treatment. The concept of disability is defined broadly by the Code and includes:
- Any degree of physical disability;
- A mental impairment, developmental disability, learning disability or mental disability.
A disability can be triggered by age, an accident, an injury or an illness.
What’s undue hardship?
A certain degree of hardship is naturally expected to follow from most accommodation requests. It is only undue hardship which relieves the corporation from its duty to accommodate. The factors taken into account to determine whether the accommodation would cause undue hardship can include the following:
- Health and safety concerns for others;
- Cost to implement the accommodation;
- Effect on the morale of the other owners.
Undue hardship is a high threshold to meet. Courts will give some weight to health and safety considerations, but much less to cost or morale considerations. The costs of the accommodation will be balanced against the financial means of the organization.
Where the corporation is able to show that a proposed accommodation would create undue hardship and that there are no other alternatives, then the corporation has met its duty to accommodate up to the point of undue hardship. In such cases, the corporation cannot be expected to do anything more.
The degree of accommodation required will vary greatly depending on the facts of each situation as well as on the disability and on the accommodation being sought. Condominium corporations should take steps to ensure that staff and board members promptly report and properly handle any complaints and that they maintain a written record of all actions. They should also consult with legal counsel early in the process and certainly before denying a request for accommodation. These situations are legally tricky and require tact and diplomacy.