Canada's Condominium Magazine
Reader Question: “I have been battling a developer on accessibility in a condo building that I purchased pre-construction. Despite my identifying potential building design and communication accessibility for a Deaf person prior to construction as attempt to minimize (“mitigate”) costs, they have dragged their feet and given numerous excuses ie have to wait until they bid and consult with trades, have to wait until move in and so on, when we moved in, many of the accessibility items I identified and which developer acknowledged was “not yet completed”.
Now is 6 months and after PDI, and 3 walk throughs we are down to 2 items. Now they are citing that I’ve been difficult and that they have gone above requirements.
What options do I have? The Ontario Building Code does not address overall accessibility for deaf person other than fire alarm and possibility inside elevators.
What about building access (lobby, garages)? I am at extreme disadvantage with no means of being alerted from someone in the lobby.
Someone mentioned Ontario Human Rights Tribunal and unless developer can prove financial hardship, they do need to provide reasonable accommodations. Could you elaborate or advise?”
Richard Hoffman answers: “Condominium corporations are considered housing providers and are therefore under a legal obligation according to the Ontario Human Rights Code to accommodate condominium owners’ disabilities in the common areas.
The Ontario Human Rights Code gives all people equal rights and opportunities without discrimination in areas such as housing and services. The relevant provisions of the Ontario Human Rights Code are:
Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
9. Infringement prohibited
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
10. “disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
11(1) Constructive discrimination
A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
17(3) Determining if undue hardship
In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.
45.2(1) Orders of Tribunal: applications under s. 34
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
The right to equal treatment with respect to occupancy of accommodation guaranteed in s. 2(1) of the Code applies to condominiums. As housing providers, condominium corporations are subject to the Code and therefore may not discriminate against unit owners based on an enumerated ground.
The condo does have a duty to accommodate unless same would result in undue hardship to the corporation. I would have the owner contact the Ontario Human Rights office
RICHARD P. HOFFMAN
Richard Hoffman has been a member of DelZotto, Zorzi LLP since 1992, practicing in the area of condominium law. He has represented condominium corporations and unit owners through all stages of the litigation process and at all levels of Ontario Courts (Superior Court of Justice, Divisional Court and Court of Appeal). He is well experienced in handling all types of condominium litigation, from applications to enforcing compliance with declarations, by-laws or rules, to handling multi-million dollar claims for budget misrepresentation. He has also advised condominium corporations of various sizes on all facets of condominium law.
Richard is presently a member of the Canadian Condominium Institute and regularly lectures on contract and agency law in the condominium context at Humber College, as well, he is a regular contributor to various condominium magazines and has contributed to the condominium section of the Toronto Star.