With the Centre for Addiction and Mental Health reporting that one in five Canadians experience a mental health or addiction problem every year, it is not surprising that the subject of mental health in condos is something that is likely to arise for corporations and management companies.
Condominium corporations have a duty to enforce their community’s rules, but they also have a duty to accommodate individuals with disabilities to the point of undue hardship. Past cases indicate that the threshold for this as it relates to mental illness is quite high.
A judge recently stressed the importance of following all procedural steps in a Superior Court of Ontario case regarding the “ongoing pattern of erratic behaviour” of a condominium resident. This was in response to the applicant’s legal counsel saying that the condominium corporation was frustrated at the slow pace of the proceedings given, in the judge’s words, “that the residents in the applicant condominium building have been living with and enduring a very difficult situation.”
The condominium corporation raised concerns that the resident was a risk not only to herself, but also to other residents. By the condominium corporation’s account in affidavits, the tenant had been found sleeping in stairwells and had lit a fire in her unit.
At a hearing in February of this year, the judge appointed a litigation guardian to the case after the condominium resident failed to appear in court. The judge had ordered that the respondent undergo a mental examination by a licensed physician or psychologist last autumn, in advance of this latest hearing.
“Not only does the affidavit evidence strongly suggest that (the tenant) may be suffering from mental health problems, but her non-attention to and non-compliance with the requirement of this case suggest that she is not able to deal with legal proceedings on her own,” the judge wrote in his ruling.
He adjourned the case until later this upcoming spring to give the litigation guardian the opportunity to contact the condominium resident in order to ensure that she is adequately informed as to the proceedings and he can properly represent her interests.
For Chris Jaglowitz, condo lawyer at Gardiner Miller Arnold LLP, this case has all the hallmarks of a precedent-setting 2008 case, in which he was one of two representatives acting as public guardian and trustee for the respondent.
In Metropolitan Toronto Condominium Corporation No. 946 v. J.V.M., a judge ordered that the respondent, a condominium resident who suffered from paranoid schizophrenia, to vacate and list the unit.
This followed a 15-year history marked by reported fire hazards, noise and odour complaints, pest infestations and threatening behaviour towards the superintendent.
During that time, the condominium corporation, via its superintendent and solicitor, was in contact with the condominium resident’s father, medical doctor and social worker. The condominium corporation also brought in cleaning and pest control companies on a handful of occasions.
Other interventions included visits from paramedics, police, fire department and a public health nurse, as well as the periodic hospitalization of the resident. More than a decade passed before the condominium corporation filed an application with the court to request that the resident be ordered to vacate and list the unit.
In Jaglowitz’s view, the precedent set by this case means that condo corporations can elevate such situations to the courts sooner than occurred here. However, forcing a resident out, especially when disability relating to mental illness is involved, is an extraordinary remedy. The courts will proceed with caution and take care to protect the tenant’s rights.
Often hidden, mental health problems in condos typically become the business of the condominium corporation and its management company when damage occurs or residents complain, Jaglowitz says. The most common concerns that he encounters are hoarding, which poses health and fire safety risks, and behavioural issues, which can be either harmless or threatening.
As a first step, Jaglowitz recommends finding out who else, if anyone, lives in the unit and can potentially act as an ally in the situation.
“If you’ve got someone who lives alone … the board and management sometimes have to be detectives to find out who’s buzzing up and who’s visiting (in order) to make contact with those family members or with the social workers, if those people don’t voluntarily come to the condo board or manager,” he says.
“Once they’ve got that contact, it becomes possible for the condo to gather information: What is the person’s prognosis? What’s their difficulty? Are they getting partial support, are they getting full-time support, are they getting no support?”
As with any complaints, they need to be written to document the extent and duration of the problem, Jaglowitz says. In cases of threatening behaviour towards contractors, employees and property management staff, the condo corporation and management should already have a policy in place that deals with workplace violence and harassment, per Bill 168, Occupational Health and Safety Act.
While the Condominium Act gives condominium corporations the ability to seek relief when the conduct of a unit owner might cause damage or injury, Jaglowitz says that the Human Rights Code requires that condominium corporations treat individuals who are experiencing such difficulties with respect and dignity. Accordingly, it is best to pursue non-court solutions first.
Allowing a resident’s social worker to attend the building outside of visitors’ hours would be an example of not letting condominium rules get in the way of a simple measure of accommodation, he offers. In the MTCC No. 946 v. J.V.M. case, the public guardian and trustee asking the condominium corporation to periodically clean the unit was deemed by the court to be beyond what would reasonably be required.
“We have to remember to treat people compassionately and that they are our neighbours,” Jaglowitz says.
Michelle Ervin is the editor of CondoBusiness magazine.
