Now that summer is here many condo residents are enjoying the use of swimming pools which form part of the common facilities available for use by the residents of the condominium. A recent case by the Ontario Human Rights Tribunal, Pantoliano v. MTCC No. 570 and YCC No. 531, considered whether two condo corporations (who share a pool) could enforce rules that restricted the hours during which children were allowed in the pool, and prohibited children under the age of two and persons wearing diapers from using the swimming pool.
The applicant was the mother of a ten-month old baby who was asked to leave the swimming pool on numerous occasions on the grounds that babies were not allowed in the pool. The majority of the residents of both condominiums were senior citizens. The condo corporations' position on the rule prohibiting children with diapers from using the pool, was that it was necessary as there were serious concerns about the potential health risks resulting from urine/fecal contamination in the pool, which risks were heightened for elderly persons who are more vulnerable to infection.
The condo corporations had the burden of establishing that both rules were reasonable and bona fide and that lifting the rules would cause undue hardship to the condo corporations. The Adjudicator felt that the condo corporations did not satisfy this burden and that the rules were discriminatory on the basis of family status.
No direct evidence was presented as to why lifting the rule restricting the hours during which children could use the pool would result in undue hardship for the condo corporations. The Adjudicator determined that the condo corporations did not have protocols in place to reduce the risk of health problems at the pool facility and that based on the evidence that was presented, the health risks in allowing children in diapers to use the swimming pool was extremely small. The Adjudicator commented that the witnesses presented by the condo corporations did not have expertise in the area in which they were asked to provide evidence and in particular, they did not have expertise in health risks associated with recreational water or risk-reduction nor did they have any experience in swimming pool design, maintenance or operations standards or expertise in the laws governing the operation of pools in Ontario or elsewhere. This leads us to believe that perhaps the decision may have been different had the condominium corporations provided more qualified experts to give an opinion on the potential health risks.
The Adjudicator awarded the applicant damages in the amount of $10,000.00 and directed the condo corporations to revise or repeal the offending rules. It is interesting to note that the applicant had already moved out of the condominium by the time that this case was decided and that the applicant was self-represented. Also, the damages award was imposed against both of the condo corporations jointly and severally, not just against the condominium in which the applicant resided. The Adjudicator also specifically stated the the decision relating to children wearing diapers only applied to the swimming pool and the decision did not address this same restriction vis-a-vis the whirlpool.