A recent case decision from the Human Rights Tribunal of Ontario (the “Tribunal”) focused on the obligation to accommodate disabled residents.
In October of 2016, a disabled resident requested that automatic door openers be installed at their building’s front entrance to allow him to easily enter the building while using his scooter, walker or cane. The resident’s initial request and a subsequent request by the resident’s lawyer were ignored. After several undertakings by building management to install the automatic openers by March, 2017 and then August, 2017, this did not happen. In September, 2017 an engineering report submitted to the building owners concluded that it was not possible to install automatic openers in compliance with the Ontario Building Code as the doors would be opening onto a narrow sidewalk and potentially could push people onto the road. However, this report was not provided to the resident. In December of 2017, automatic door openers were installed at the rear entrance to the building. A buzzer, additional lighting and planters were also installed at the rear entrance to make it safer and more inviting.
The resident commenced an application before the Tribunal claiming that he had been discriminated against because of his disability and that the installation of automatic door openers at the rear of the building did not constitute reasonable accommodation. The resident claimed that being forced to use the rear entrance was embarrassing and an injury to his dignity as other residents were entitled to use the front door.
The Tribunal acknowledged that there is a “duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public”. However, the Tribunal noted that this duty is subject to the principle of reasonable accommodation to the point of undue hardship. This means that an accommodation seeker is not entitled to a “solution of his choice or a perfect solution” – just reasonable accommodation. The Tribunal concluded that after determining that the installation of automatic openers at the front entrance of the building was not feasible, the installation of automatic openers at the rear entrance was a reasonable solution and that the building owners had discharged their duty to accommodate the resident.
However, the Tribunal determined that the building owners failed to discharge the procedural component of the duty to accommodate as they had failed to deal with the resident’s accommodation request with “due diligence and dispatch”. In all it took about 15 months from the time that the resident moved into the building to make an entrance to the building accessible. Consequently, the Tribunal ordered the building owners to pay the resident the sum of $10,000 in general damages as compensation for injury to dignity, feelings and self-respect.
This case should serve as a warning to all condominium corporations that receive a request to accommodate a disabled resident. Not only must the corporation assess the request and all accommodation options open to it, it must do so promptly and within a reasonable time period after the request has been made. Even if the corporation ultimately does take measures to accommodate the disability, it could be found to have breached the procedural duty to accommodate if the request has not been dealt with in a timely manner.
Denise Lash is Founder of Lash Condo Law.
Denise great article. Based on how our own prior Board of Directors acted when we requested a simple railing be placed onto concrete steps at 90 Sherbourne , that being denial of the railing to allow safety and ease of access – it looks like it will have to be #HumanRightsTribunals #AccessibilityDirectorate #AODA filings that will push #CondoOwners #CondoBoards #CondoManagers to truly ensure the #BuiltEnvironments are indeed accessible to #PeopleOfAllAbilities Besides, seeing as 33% of the aging population possesses 55% of the wealth with another 17-20% of Canada’s population having at least 1 disability but billions in annual discretionary monies, it will be the intelligent #CondoBuilders #CondoManagers #FM #CondoBoards who will see a huge business opportunity in creating environments that use #UniversalDesign #HumanFactorsDesign elements . The #ROI is loud and clear! #BeyondJustTheBuildCode
A condo resident lives on the third floor of a walk-up building. He’s lived here for 10 years. He recently suffered a stroke, and now demands that the condo corporation install an elevator to allow him to access his unit. Due to the age of the building making elevator installation almost impossible, and its extreme cost to try to install, surely the condo corporation (meaning the other unit owners) should not be made to pay for an after-the-fact device to serve one unit owner who until his stroke was able, like all the other unit owners, to access his unit as a healthy person. If he had his own single-family home, he would have to pay for any changes (ramps, lifts, etc,), not his neighbours or the municipality. Kindly explain the interpretation of human rights law or the legal logic requiring the condo corp to install this very costly device at this late stage (10 years after the resident bought his unit). I have read some opinions that the condo corporation has no option except to install the device and assess the cost to the other unit owners (shareholders in the corporation).
Hi great question – I am Jane Sleeth expert in #accessibility #BuiltEnvironmentAudits for #Condos @optimalperformance for 29 years. Another way to look at this is in the following way:
1. We are all temporarily abled
2. after the age of 55 we all have at least 1 disability
3. 33% of the Canuck population are over 55 and possess 55% of the discretionary money annually
4. Making #inclusivedesign #accessibledesign for one person when done well will benefit everyone. Think of the Mom’s and Dad’s with kids and dogs in your building who will benefit: other aging residents: you when you have many shopping bags or luggage: you or someone in your family with a temporary disability such as a fractured leg or following surgery.
In other words let’s let this be a discussion about being innovative and also consider the fact the investment in an elevating device will add value to your building and condo.
#ParadigmShift #WeAreAllTemporarilyAbled #peopleofallabilities #diversity #inclusion #BusinessCase
Quick question for Denise: Do you represent condo owners/residents with disabilities in helping them to encourage Boards of Directors and Condo management Co’s to ensure a timely and reasonable accommodation occurs? This will be helpful to know as in our practice at Optimal we find most condo law firms represent the interests of the Boards. Look forward to hearing back.