As many of our readers already know, there is no battle between condominium law and human rights law. Provincial human rights codes take priority (almost) every time. This means that, subject only to undue hardship, condominium corporations must make a timely effort to accommodate those residents who require an accommodation for human rights reasons.
But what happens when one owner’s request for accommodation directly conflicts with that of another owner’s accommodation? For example, whose rights take priority where an owner that suffers adverse health consequences from second hand smoke relies on a rule prohibiting cannabis smoking on condominium property, but another owner needs to use cannabis for medical reasons?
The challenge is, of course, that all human rights claims like these are on equal footing.
For condominium corporations, the ideal approach is to try to find a compromise so that the conflicting rights/accommodations can co-exist.
This may include obtaining expert opinions, requesting supplementary medical information from the affected residents to explore ideas for accommodation, and co-operating with the affected residents to find a suitable solution for all parties.
In most cases, creative solutions may result in a mutually acceptable resolution. For example, can the owner that requires the accommodation to use cannabis avoid smoking it and instead use oils or edible products. Or perhaps cannabis smoking can be permitted on certain floors, units, or in designated “cannabis smoking” locations, while the rest of the property remains smoke free.
With that said, in particularly difficult scenarios where there appears to be no mutually acceptable resolution, the only remaining option may be for a condominium Board to seek directions from a court.
This type of balancing issue came before the Courts in Boivin c Syndicat des coproprietaires Terrasse Le jardin Durocher inc. In this case, an owner objected to the installation of security cameras as an infringement of his right to privacy under the Quebec Charter of Human Rights. The other owners sought to install the cameras after a large-scale break-in had taken place in the condominium’s garage. The Quebec Superior Court used a balancing approach to weigh the rights of the individual owner against the other owners’ rights to security, finding that in this case the pattern of break-ins was sufficient to justify the controlled use of surveillance cameras. While competing human rights will present unique challenges, we do know that Courts will, where possible, seek to balance the interests of all parties in such complex situations.
We have no doubt that new and unique situations will begin to unfold as the cannabis legislation comes into force. As condominiums grapple with these competing rights, the goal for every condominium to aim for remains the same: harmonious community living for all.
Stay tuned to Condo Law News to keep up to date on the latest condominium law cases!