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A Condominium Corporations Duty to Accommodate- (The Abstract Page- OBA Real Property Section Newsletter)

(Published  in The Abstract Page – OBA Real Property Section Newsletter, February 2010)

In DiSalvo v. Halton Condominium Corporation No. 186, the Human Rights Tribunal of Ontario dealt with the content of the duty to accommodate under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") and the consistency of that duty with the obligations of a condominium corporation under theCondominium Act, 1998, S.O. 1998, c. 19 (the "Act").

The applicant, Mr. DiSalvo, owned and resided in a townhouse condominium unit. He suffered from muscular dystrophy and was confined to a wheelchair which significantly limited his ability to enter and exit his townhouse unit through the front door. The applicant advised the condominium’s board of directors that he would require accommodation in the form of a wheelchair ramp to the front door of his townhouse unit. Because the ramp would be constructed entirely on the common elements a dispute arose between unit owner and the condominium corporation as to who would responsible for the cost of the ramp.

While the condominium corporation agreed that the ramp was indeed an appropriate form of accommodation in the circumstances, it felt that it should not bear the full cost associated with the installation and maintenance of the ramp. The condominium corporation was concerned that there was a conflict between its obligations in complying with s. 98 of the Act and the obligation to accommodate the unit owner under the Code. In this regard, the condominium corporation asked the unit owner to sign an agreement pursuant to s. 98 on the basis that he would bear the cost and responsibility of maintaining the ramp. The condominium corporation took the position that the unit owner’s refusal to sign a s. 98 agreement placed the corporation in conflict with its obligations under the Act.

Section 98(1) of the Act provides, among other things, that an owner may make an addition, alteration or improvement to the common elements that is not contrary to the Act or the condominium’s declaration, if the condominium’s board of directors, by resolution, approves the addition, alteration or improvement to the common elements. This section of the Act further provides that the unit owner and the condominium corporation enter into an agreement that allocates the cost of the proposed addition, alteration or improvement and sets out the respective responsibilities for repair of damage as well as maintenance and insurance of the addition, alteration or improvement. It is noteworthy that the Act does not dictate who will bear the costs and responsibilities for any addition, alteration or improvement to the common elements. The entrance ramp that the unit owner had proposed was to be constructed entirely on the common element of the condominium.

In its submissions to the Tribunal, the condominium corporation agreed that it had a duty to accommodate under the Code, but argued that such duty did not include an obligation to assume the cost of providing the accommodation measures. Pursuant to the Code, where a duty to accommodate is found that duty is only negated where the obligated party can establish that its obligations under the Code impose an undue hardship given the circumstances.

The condominium corporation did not take the position that the cost of the ramp created an undue hardship on the corporation, but rather that the interests of unit owners in having the corporation’s funds used "only for the good of the majority" of unit owners inform the content of the corporation’s duty to accommodate under theCode. In determining the criteria of undue hardship, the Tribunal’s Vice-Chair, Michelle Flaherty, found that the interests of other unit owners were relevant in determining whether there was undue hardship. To the extent, however that the condominium corporation argued that some threshold other than undue hardship apply in the condominium context, the Vice-Chair disagreed. The Vice-Chair held that a consideration of the interests of other unit owners did not create a different threshold for condominium corporations under the Code, nor did it suggest that absent undue hardship the interest of other owners qualify the rights of another unit owner to accommodation.

In finding that the condominium corporation had a duty to accommodate, it was held that no inconsistency or conflict between the Act and the Code existed. In the end, the decision in DiSalvo stands for the proposition that in the event that a s. 98 agreement is entered into by a condominium corporation, that agreement must comply with the obligations of the condominium corporation under the Code. It would seem that this decision also stands for the proposition that where a duty to accommodate is found, regardless of the fact that the accommodating measure may only benefit an individual unit owner, unless undue hardship is established, theCode requires that the cost of reasonable accommodation be borne by the condominium corporation.

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