The recent decision of the Ontario Human Rights Tribunal (“the Tribunal”) in DiSalvo and Halton Condominium Corporation No. 186 (“DiSalvo”), provides that condominium corporations will have to shoulder the cost of modifying common elements to accommodate the needs of a disabled resident, even where the modifications are solely for the benefit of one individual.1
Halton Condominium Corporation No. 186 (“the Corporation”) is a complex of 24 townhouse units. Mr. DiSalvo is an owner of a unit and has muscular dystrophy. As a result of his medical condition Mr. DiSalvo had difficulty ascending and descending the front step and landing area when entering and exiting the front door of his unit. The front step and landing area were common elements.
Mr. DiSalvo requested that the Corporation install a stainless steep ramp with railings so that he could properly access his residence. The total projected costs for installation of the ramp was $3,850.00 with annual maintenance costs of $143.00. The Corporation acknowledged that Mr. DiSavlo was disabled and that the ramp was appropriate accommodation for his special needs, but as the ramp was only for his use and benefit, the Corporation refused to pay for the installation and upkeep costs.
Mr. DiSalvo filed a human rights complaint alleging that since the landing and front step was common element property, the Corporation had a duty to accommodate his disability by paying for the installation of the ramp.
The Tribunal ruled that the Corporation must pay for the installation of the ramp. Although the ramp was solely for Mr. DiSalvo’s use and benefit the Tribunal did not find that altered the Corporation’s obligation to accommodate Mr. DiSalvo’s disability. Rather, the Tribunal found that unless the installation of the ramp would amount to undue hardship upon the Corporation, it had to shoulder the full cost for the accommodation.
Several important concepts about human rights and the scope of the duty to accommodate as it pertains to common elements arise from this decision:
- The Ontario Human Rights Code applies to condominium corporations.
- Condominium corporations have a duty to accommodate to ensure that disabled residents have equal access and use of all common elements.
- The fact that the accommodation may be for the sole use and benefit of one individual does not preclude a condominium corporation from having to provide and pay for the accommodation.
- A condominium corporation has no duty to accommodate if providing the accommodation (i.e. modifying the common elements to be accessible to the disabled individual) amounts to undue hardship on the corporation.
- The interests of other owners are a factor to be considered when determining if the accommodation poses undue hardship.
- If undue hardship is not established, the interests of owners and the costs to owners does not diminish a corporation’s obligation to provide and pay for reasonable accommodation.
The principles in this case must be contrasted with MacMillan v. Bruce Condominium Corporation No. 6 (“Bruce”).2 In Bruce, an elderly owner with mobility restrictions sought to have the condominium corporation pay for the installation of a hand railing on the steps leading up to his unit. The corporation’s declarations stipulated that the steps and landings outside of the units were exclusive use common element property.
The Tribunal ruled that the condominium corporation had no duty to accommodate with respect to exclusive use common element property. In this case, the exclusive use common element property was designated solely for the use of one owner and that each owner had responsibility for maintaining their respective exclusive use property. As such, the Tribunal found there could but no extension of the duty to accommodate to the corporation as a whole.
The duty to accommodate owners with special needs and the obligations that flow from that duty will largely turn on the common elements at issue. If the common elements are for the use and enjoyment of all owners, a condominium corporation must provide and pay for any reasonable accommodation, up to the point of undue hardship, to make the property accessible to disabled owners. On the other hand, if the accommodation pertains to exclusive use common elements, a condominium corporation need only grant permission to allow an owner to make reasonable modifications to that property, but the corporation will not have to pay for any costs associated with the accommodation.
The DiSalvo case is also instructive concerning procedural obligations when discharging the duty to accommodate. Before meeting with Mr. DiSalvo to discuss his accommodation needs, the Corporation demanded that he produce a legal opinion confirming it had a legal duty to pay for the ramp. Despite providing two information bulletins from the Centre for Equality Rights in Accommodation, the Board of Directors remained reticent to discuss the need for accommodation. Moreover, the Board of Directors stifled Mr. DiSalvo’s attempt to air his accommodation needs at the annual general meeting.
In addition to finding that the Corporation must pay for the installation of the ramp, the Tribunal awarded Mr. DiSalvo $12,000.00 for injury to dignity, feelings and self-respect due to the Corporation’s failure to meaningfully discharge the duty to accommodate. This case illustrates that unwillingness to engage in substantive and meaningful discussions about the accommodation process will expose condominium corporations to increased liability for loss of dignity damage awards. When presented with a human rights claim condominium corporations are well advised to cooperatively and collaboratively search for suitable and appropriate accommodation by closely examining the unique facts and circumstances of the special needs at issue.