Bedbugs (Part Two)

In the case of Caster and Hearthstone Community Services Ltd., the resident was claiming discrimination as a result of adverse treatment due to a bedbug infestation in his unit. The Human Rights Tribunal determined that it does not regard a bedbug infestation as a “disability” under the Human Rights Code.

The Tribunal noted the distinction between having a bedbug infestation in the unit, and having experienced adverse treatment as a result of being bitten by bedbugs. The Tribunal noted that a “disability” requires some degree of physical disability, infirmity, malformation or disfigurement, caused by bodily injury, birth defect or illness. Despite the applicant having experienced bedbug bites as a result of the infestation, he had not claimed discrimination because of the bites; rather, his claim was based on the infestation of his unit. As a result, the claim was denied. The Tribunal noted that there was some evidence that a bedbug infestation might manifest itself through ‘bites, bumps or rashes on the body’ that could be regarded as some degree of disfigurement caused by bodily injury. However, that was not the basis of the claim in the Caster case.

What can we learn from the case?

As stated in our earlier bedbug blog, these pests can infest any home; no one is immune to the possibility of having bedbugs in their unit. Since the tribunal was not faced with having to determine whether a disability existed as a result of being bitten by bedbugs, there is still a possibility that a human rights claim could perhaps be brought against a condominium corporation as a result of treatment of a person suffering from bedbug bites, albeit not simply as a result of an infestation. It is likely that an individual would have to be treated adversely as a result of the physical state of being bitten by the bedbugs in order to be successful in a claim of discrimination.

Although the Tribunal decided that a unit infestation was not a disability, this author believes that if an owner or resident experienced adverse treatment by someone, on behalf of the condominium corporation, who had knowledge of the bedbug infestation, in combination with that person having any visible bites, then the Tribunal might determine that the combination of the two circumstances could support a claim under the Human Rights Code, especially if there were other protected grounds identified in the complaint, such as mental health issues.

The bottom line is that in the case of a bedbug infestation, it’s important to treat the resident with fairness and dignity; whether or not the resident may be responsible for the cost to eliminate the infestation.

Condominium Corporation’s Records as Court Evidence

When minutes of a board of directors meeting are prepared and held as part of the condominium corporation’s records pursuant to s. 55 of the Condominium Act, 1998, be mindful of the fact that the condominium corporation is creating potential evidence that can be admissible in court as proof of the facts stated in the minutes, unless evidence is tendered to the contrary. Subsection 55(7) of the Condominium Act, 1998 states that:

"A copy that a corporation has certified under its seal to be a true copy of a record is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts stated in it."

There is no prescribed form of minutes to be kept by the condominium corporation. The minutes must include:

  • the date of the meeting;
  • confirmation of attendance and quorum;
  • the decisions/resolutions passed at the meeting;
  • perhaps a brief statement of the topics discussed.

But additional detail is not mandatory. Even so, you may wish to include some additional detail in light of the fact that the minutes might one day be used by the corporation as proof of what was said or done in the past, unless proven otherwise. Alternatively, the minutes might also be used against the condominium corporation, for instance if the Board’s past actions or decisions are one day challenged in a legal proceeding.

The Board should bear this subsection of the Condominium Act, 1998 in mind when minutes are created. Firstly, you should ensure that the information contained in the minutes is accurate. And, depending upon the circumstances, you may also want to consider just how much detail the minutes should contain.

2014 National Condominium Conference

Several of our lawyers attended this past weekend’s National Condominium Conference in Toronto. It was, again, a superb event, with numerous sessions of interest to Directors, Managers and others in the condominium community.

Our own Nancy Houle was one of the panel members for the opening plenary session – the Rapid Fire Legal Update – featuring four of Ontario’s leading condominium lawyers.

One note that may be of particular interest to our readers: The Minister of Government and Consumer Services, David Orazietti, addressed the full delegation (by way of video recording) as part of the opening remarks. In his address, the Minister answered the question: “When can we expect the anticipated amendments to the Condominium Act?” His answer was: “Soon”.

So, the amendments to the Condominium Act may indeed be coming soon. We’ll of course be watching for them.

New Requirements for Carbon Monoxide Detectors

November 1 to 8 2014, is Carbon Monoxide Awareness Week in Ontario. As a part of Carbon Monoxide Awareness Week, we thought we would write about the recent changes to the Ontario Fire Code, in relation to Carbon Monoxide Detectors (‘CO Detectors’), and their impact upon condominium corporations.

Very generally, the new requirements – for condominiums – are as follows:

  • For smaller condominiums (six units or less)* CO Detectors must be installed by April 15, 2015.
  • For larger condominiums (more than six units)* CO Detectors must be installed by October 15, 2015.

[*if the building contains a fuel burning appliance, a fireplace, or a storage garage]

Note that CO Detectors will not necessarily be required in every unit. For specific direction on this, we refer you to the website of the Ontario Association of Fire Chiefs: http://www.oafc.on.ca/carbon-monoxide.

For a full discussion of this topic, see Cheryll Wood’s full article on New Requirements for CO Detectors.