This is a good time of the year to remind condominium corporations and property managers about the January 1, 2012 deadline for compliance with accessibility standards for customer service, as provided in a regulation (O. Reg. 429/07) made under the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”).
The purpose of the AODA is to identify, remove and prevent barriers for persons with disabilities, in key areas of day-today living, such as access to goods and services, employment, transportation and access to buildings, by developing accessibility standards with which persons or organizations that provide goods or services must comply. The accessibility standards for customer service apply to such providers of goods and services on and after January 1, 2012.
Is a condominium corporation a provider of “goods” or “services” and thereby required to comply with these accessibility standards? In the human rights law context there appear to be no cases which have clearly defined the term “goods”. However, Canadian courts have used the term “service” interchangeably with the terms “facility” and “accommodation” and have interpreted all of these terms very broadly. In our opinion, there is a strong argument that condominium corporations provide “services”, as contemplated by the AODA, for the simple reason that section 97 of the Condominium Act, 1998 refers to changes in a “service” that a condominium corporation provides to owners. Such services include the use and enjoyment of recreational facilities, among other things.
If this position is correct, it means that corporations must establish policies, practices and procedures governing the provision of its goods or services to persons with disabilities, and this is what the remainder of this article deals with..
Condominium corporations are required to use “reasonable efforts” to ensure that its policies, practices, and procedures are consistent with several principles noted in the AODA regulation. One such principle is that persons with disabilities must be given an opportunity, equal to that given to others (namely those without a disability), to obtain, use and benefit from the goods or services.
The requirement to establish “policies” is best achieved through the enactment of appropriate rules and regulations for that purpose. However, the requirement for the establishment of “practices” and “procedures” (and these terms are not defined in the AODA) means that corporations may be required to go beyond the passing of rules or other formal policies. More specifically, if corporations are required to establish practices and procedures so that persons with disabilities are given an equal opportunity to “use” and “benefit” from services (such as recreational facilities), it is possible that corporations may be required to take proactive steps towards the removal of any physical barriers that prevent those with disabilities from using and benefiting from any such services.
Does this mean that corporations must now rush to carry out modifications to the common elements in order to remove any such physical barriers before January 1, 2012? In our opinion, the answer is: “no”. This is where the requirement for the corporation to use “reasonable efforts”, in respect of any such practices or procedures, becomes relevant and important. We feel that it would be unreasonable for corporations to be required to carry out common element modifications in order to remove any and all barriers to any and all persons with disabilities before the New Year. However, it is possible that “reasonable efforts” may be interpreted to mean that corporations should develop some form of plan for the future funding of barrier-removal modifications to "services", such as recreational facilities, over a reasonable period of time.
This should be accomplished by incorporating these items into the corporation’s next reserve fund study. S. 97(1) of the Act contains a relatively broad and flexible statement of what could constitute a repair, as opposed to an addition, alteration or improvement, to any such "services". The courts have also noted that this definition of repair should not be construed in a narrow or overly legalistic manner.
In light of the foregoing, we feel that corporations should be permitted to comply with the AODA regulation requirements, outlined in this article, by way of addressing the removal of any physical barriers to services in reserve fund studies and associated plans for future funding. This does not mean that corporations must rush to have a reserve fund study update performed before the New Year. However, in our opinion, condominium boards of directors should pass a resolution, before January 1, 2012, committing to the inclusion of barrier-removal work in the corporation’s next reserve fund study.
- Unit owners can better protect themselves by insuring their units with the same company that insures the condominium corporation. This will result in both the standard unit and betterments and improvements being insured and avoid any "holes" in coverage. In the event of a loss, whatever is not covered by the corporation's insurance, including the deductible and other expenses for which the unit owner may be responsible, will be covered by the unit owner's policy. If both the corporation's insurance for the unit and the unit owner's insurance are with the same company, there will be no dispute as to coverage if the damage is the result of an insured peril.
- STOP! Are you still using one of our old precedents? We are constantly updating and improving our documents and our clients should not be relying on older documents prepared by Miller Thomson. A client recently used an old tie-back agreement as a starting point and it took more time and expense to make the required updates to the agreement than if we had started with our updated precedent. Always check with us before preparing your own documents to ensure you are using our most recent precedents