In the recent case of Kovaleva v. Metropolitan Toronto Condominium Corporation 1000, the former President of the condominium corporation had made a claim to the Human Rights Tribunal in which she alleged that she had been removed (by the Board) from the office of the President and as a signing officer based on prohibited grounds under the Human Rights Code. She claimed that the actions of the Board had been discriminatory. Continue reading “Some Human Rights News for Condominium Corporations”
A recent decision by the Human Rights Tribunal, Luk v. York Condominium Corporation No. 382, recognizes that it can take some time for a condominium board to implement a policy to investigate complaints about owners.
In this case, five months was considered a reasonable timeframe for the board to implement the policy, because the Condominium Corporation addressed complaints while the policy was being prepared.
The dispute began with a settlement agreed to by the parties, under which the Condominium Corporation was required to institute a policy “pursuant to which it would investigate any complaints that owners or residents have violated any of the condominium’s rules, and if substantiated, take what it deems to be appropriate action in accordance with the Human Rights Code, the Condominium Act and any other applicable statutes or law.” No deadline for doing so was set in the settlement.
The complainant brought a further application in the Human Rights Tribunal (less than two months after the minutes of settlement were signed) that the Condominium Corporation had breached the minutes of settlement by failing to implement the policy in a reasonable period of time.
The policy was adopted five months after the minutes of settlement were implemented.
The Tribunal was sympathetic to the owner’s position that, because of verbal threats experienced by some residents, the Condominium should have adopted the policy on an urgent basis. However, the Tribunal accepted the Condominium’s position that it took residents’ complaints seriously and acted on them, thus mitigating the need to adopt the policy urgently.
The Tribunal found that the Board adopted and implemented the policy within a reasonable timeframe.
The Tribunal also stated that the Condominium was diligent in developing its policy, especially given the election of a new Board during that period, the fact that the Board only meets monthly, and also that the process included a review by legal counsel.
This decision recognizes that the process of a Board of Directors in managing the affairs of the Condominium Corporation can often take time, and instantaneous results should not be expected.
A recent decision of the Ontario Human Rights Tribunal, involving harassment at a co-operative corporation, may also be important for condominium corporations.
In the case of Welykyi v. Rouge Valley Co-operative Homes Inc., the Tribunal held that the Co-op’s Board of Directors had failed to adequately address harassment of members of the community. Briefly, the facts were as follows.
There was tension between a previous group of Board members and the new Board. This tension stemmed from a dispute about the alleged use of Co-op funds to renovate a particular Board member’s unit. Between April 28, 2012 and September 15, 2012 an anonymous and unidentified person wrote or posted eighteen upsetting and disparaging messages about certain members in the Co-op. Some of the targeted members were from the previous Board.
Some of the messages referred to specific individuals and their unit numbers. The content included terms related to disability, race, sex, gender identity, ancestry, age or receipt of public assistance. These are prohibited grounds of discrimination in relation to the occupancy of accommodation under Ontario’s Human Rights Code. The messages were posted around the Co-op, in the mail room, on specific members’ doors and written on the walls of the elevators.
The new Board had made some efforts to deal with the harassment. For instance, the Board sent notices to all members (instructing against vandalizing the property) and ultimately sent a further notice against the specific postings. The Board also relocated two security cameras and installed twenty-two fake cameras. The Board also offered mediation to some of the members affected by the postings. At the same time, the Board had asserted that there was only so much that could be done, because the culprits could not be identified.
The Human Rights Tribunal said that the Board’s efforts were not enough, and held that the Board was in violation of its obligations (under the Human Rights Code) to take reasonable steps in the face of such harassment.
The Tribunal noted that the Co-op had no harassment or discrimination policy, and also no training in relation to such matters. But, more importantly, the Tribunal said that the Board had failed to respond properly to the particular incidents. Here’s the key extract from the decision:
In my view, the formal processes and policies that a housing provider may have in place are less important than what it actually does once it receives a complaint of harassment. Whether the respondent’s reaction to complaints of harassment was reasonable, depends, as noted, on the unique circumstances of each case. One of the unique and obvious characteristics of this case was that the harassment experienced by the applicants was egregious and persistent. In this context, the evidence does not support the respondent’s contention that it took the matter seriously or addressed it with a sense of urgency. In my view, the respondent’s most significant failure was the complete absence of communication with the applicants. In my view, when a respondent receives a human rights complaint it should acknowledge the complaint, assure the complainant(s) that the complaint is important, and that action will be taken to address it. In ongoing situations such as this one, a respondent should maintain contact with the complainant(s) and keep them apprised of the actions the respondent intends to take. Such communication is particularly important in the housing context, where a housing provider does not have control over the residents and therefore has limited ability to investigate and address complaints. An employer, by contrast, can compel its employees to participate in investigations and may take action even when investigation results are inconclusive. In cases of surreptitious harassment, such as this one, it may not be possible to catch the culprit, but the victims must be assured of their right to live in an environment free from discrimination and harassment. The evidence was that the Co-op never contacted the applicants about the flyers.
The Tribunal awarded each complainant $3,000 to compensate for the failure of the Board to adequately investigate and address the complaints. The Tribunal also ordered the Board to inform all members of the Co-op about the award and to post copies of the decision on the Co-op bulletin boards for a period of six months.
In my view, there is a real possibility that these same concepts could be applied to a condominium corporation. For these purposes, Co-ops and condominiums are very much analogous.
Of course, the obligations under the Human Rights Code are only triggered in cases of harassment on prohibited grounds of discrimination. Note, however, that a condominium corporation may have separate obligations to address many types of harassment on the condominium property, because of the corporation’s duties (in Section 17(3) of the Condominium Act) to take reasonable steps to enforce the Condominium Act, and the corporation’s declaration, by-laws and rules. Even if harassment does not involve prohibited grounds under the Human Rights Code (so that a claim to the Human Rights Tribunal is therefore not a possibility), harassment may often violate Section 117 of the Condominium Act, or provisions of the corporation’s declaration, by-laws and rules.
To read more about human rights issues in condominiums, see our previous blog post on human rights insurance.
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.
As you likely know, condominium corporations are subject to the Ontario Human Rights Code. However, not all condominiums have insurance coverage to protect the corporation and/or directors in the event of a human rights claim – i.e. an Application to the Human Rights Tribunal of Ontario (“HRTO”).
Human Rights Applications have been asserted against condominium corporations and directors for a variety of reasons, including:
- Failure to accommodate (to the point of undue hardship);
- Harassment; and
- Discrimination (any form of unequal treatment based on one of the Protected Grounds).
If successful, an Applicant can be awarded financial compensation by way of general and special damages.
- General damages – can financially compensate the Applicant for injury to their dignity, feelings, and self-respect, resulting from discrimination or a failure to accommodate.
- Special damages – can include financial compensation for losses that the Applicant has suffered because of discrimination or a failure to accommodate (for example, moving costs or lost wages).
An Application, whether frivolous or not, can be costly. Generally, the HRTO does not award costs to the successful party. This means that, even if successful, the condominium corporation/directors would normally not be able to recover defence costs from the Applicant. [Note that recovery of costs MIGHT be possible under the Condominium Act or under the condominium’s governing documents, depending upon the circumstances.]
In order to protect against the risk of a costly human rights claim, condominium corporations can review their insurance policies to determine whether they have “human rights claims coverage”. In many cases, this coverage requires a special endorsement or rider. The coverage, if obtained, often extends only to the defence costs; not to any award of damages. But this coverage is still helpful, because the defence costs can be substantial.
Human rights claims coverage is not clearly addressed by the Condominium Act. Some condominium corporations have therefore passed by-laws requiring the corporation to obtain insurance coverage for human rights claims.
Check your by-laws and coverage to determine if your condominium is protected. If not, you may wish to reconsider.