Condominium corporations have a duty to accommodate a resident’s disability – to the point of undue hardship. But that doesn’t mean that accommodation is required in every case.
Two recent decisions of the Ontario Human Rights Tribunal are good examples of cases where accommodation was not ordered – even though the resident suffered from a disability.
In Taite v. Carleton Condominium Corporation No. 91, a resident had a disability that limited his neck movement, causing him pain and affecting his mobility, particularly in colder weather. As a result, he claimed that he needed a large truck, and an outdoor parking space in which to park the truck (because his large truck could not fit into the condominium’s parking garage). The Tribunal dismissed his claim and said that the decision to drive the large truck was a “personal preference” rather than a true need.
In Robinson v. York Condominium Corporation No. 365, a resident suffered from electro-magnetic sensitivity, and claimed that changes made to the building’s security system had caused her suffering to increase. The Tribunal dismissed her claim because the evidence did not indicate that the changes to the security system had increased electro-magnetic radiation in any way that could have affected the Applicant’s symptoms.
Section 46 of the Condominium Act, 1998 (the Act) sets out the requirements for a meeting requisition from owners, and requires, among other things, that the requisition document be signed by at least 15% of the owners. In the recent case of Hogan v. MTCC 595, the Court was required to determine whether or not printed names were sufficient to constitute ‘signatures’ for the purposes of section 46 of the Act.
The Court decided that the printed names were sufficient to meet the signature requirement. The judge found that the printed names clearly and unequivocally conveyed the intention of each of the individuals named on the requisition. There is no requirement in the Act that a requisition be ‘signed’ in cursive writing, and there was no concern respecting the authenticity of the printed names (i.e. there was no allegation that someone other than the named individual had printed his/her name).
This case does not address the issue of whether or not other forms of signatures – such as electronic signatures – might also be acceptable as a signature on a requisition form. Although this has not been tested in Court, there may be room for the argument that a ‘signature’ requirement could be satisfied by an electronic signature or even email confirmation – as long as the electronic signature or correspondence reliably identifies the individual ‘signing’.
When a resident appears to be suffering from a mental illness, this can raise concerns for other residents, as well as for the resident in question. Depending upon the specific circumstances, many possibilities may merit consideration, including:
- Does the resident have family that might assist?
- Is the resident receiving any assistance from social or health services?
- Does it make sense to involve public authorities (such as the Police, Fire Department, Health Department, Municipal By-law Enforcement)?
- Should steps be taken to have a Guardian appointed for the resident?
A resident with a mental health illness has a disability, which a condominium corporation must take reasonable steps to accommodate (“to the point of undue hardship”). But at the end of the day, the other residents are also entitled to the peaceful enjoyment of their homes. These interests can be difficult to balance.
If issues cannot be resolved by other means, a Court Application may provide a remedy. In such cases, it may also be necessary to arrange for appointment of a litigation guardian – usually the Public Guardian and Trustee – to navigate the Court process on behalf of the disabled resident. The recent case of York Condominium Corporation No. 301 v. James is one such example. In that case, the Public Guardian and Trustee was appointed as litigation guardian, and the Court subsequently ordered that the unit (owned by a resident with a mental illness) be vacated and sold.
Under Section 75 of the Condominium Act, 1998, the Declarant is accountable for any amount by which the first-year expenses exceed the Declarant’s budgeted expenses for the first year (the “first year budget deficit”).
In a phased condominium, this obligation also applies to each one year period following creation of each phase.
But there is a further question: Does the Declarant’s obligation for the “first year budget deficit” following creation of a particular phase apply to the full deficit for the entire condominium (during that one year period)? Or is the Declarant only obligated for the part of any such deficit that applies to the units in the particular phase?
This question has not been answered by the Courts. However, from a review of Sections 75 and 147 (4) of the Act, it appears to me that there is certainly an argument that the Declarant is accountable for the full deficit for the entire condominium (during the one year period following creation of each phase). This is also necessary to ensure that all purchasers are rendered “whole” (i.e. do not suffer any loss due to such a deficit).