Real Estate

Condos grapple with accessibility accommodation

By AdvocateDaily.com Staff

Accessibility is the wave of the future, and condo corporations need good policies to deal with a growing number of requests for accommodation due to disability, says Toronto condominium lawyer Deborah Howden.

“Over the next few years we’re going to see more needs arise,” says Howden, a partner with Shibley Righton LLP. “The trend is to be more inclusive.”

In Ontario, the duty to accommodate residents stems from two pieces of legislation: the Accessibility for Ontarians with Disabilities Act (AODA) and the Ontario Human Rights Code (OHRC), Howden notes.

Some former AODA accommodation requirements are now embedded in the Ontario Building Code (OBC), which requires all new condos or those undertaking extensive renovations to meet certain accessibility requirements, she says. These include barrier-free paths of travel, access to all storeys within the building and visual fire safety devices.

“But I stress this: just because the condo is built in compliance with the building code doesn’t mean it’s accessible to all persons,” Howden tells AdvocateDaily.com.

Under the OHRC, condo corporations must also accommodate the needs of individual residents to the point of undue hardship, she adds.

“Somebody might say, ‘Fine, you have automatic push-button doors; however the height of the button is inaccessible to me because I’m lying prone in a bed, not sitting in a wheelchair,’” she says. “So the Ontario Human Rights Code will look at individual requirements to ensure accessibility is available.”

Corporations must respond to accommodation requests not only from unit owners but all residents, including family members and tenants, Howden says.

To ensure they are prepared for accommodation requests, condos should take several steps, she says.

First, they should have a clear human rights policy explicitly stating that they support requests made under the OHRC up to the point of undue hardship, Howden says.

“That policy is extremely useful in circumstances where an owner or tenant challenges the corporation’s commitment to accessibility,” she says. “It helps to say, ‘We have a policy and we follow it.’”

Condos should also make sure their property managers and staff are trained to deal with such requests, Howden says.

“Be responsive,” she adds. “If a resident makes an accommodation request, don’t dismiss it out of hand.”

It’s also important to seek professional advice, typically from a lawyer, when dealing with any accommodation request, Howden says.

Although condo corporations need only make accommodations under the OHRC up to the point of undue hardship, that threshold is very high, she says. Hardship is generally measured by two factors: cost and health and safety, but some courts have taken other factors into consideration, she explains.

On the cost side, if the accommodation requested is so expensive that it threatens the financial viability of the condo corporation, the Human Rights Tribunal of Ontario (HRTO) will typically recognize that it's to the point of undue hardship, she says.

“If a resident said, ‘I do not fit in the hallways of the building with my wheelchair. To accommodate me you are going to have to make the hallways wider.’ If that meant that the condo corporation had to essentially create a new building, that would likely constitute undue hardship,” Howden says.

An exemption may also be granted in situations where accommodation threatens the health and safety of other residents. For instance, if a resident suffers from a mental health condition that causes him to set fires in the building, accommodating his disability would put the safety of other residents at unreasonable risk, she says.

Accommodation requests are likely to rise in number and scope in the future, she says.

“The trend is to be more inclusive when it comes to the definition of disability,” Howden adds. “I can see a time where the Human Rights Tribunal of Ontario would accept nicotine addiction or obesity as disabilities.”

Moreover, accommodation requests come in many permutations and combinations, each with particular challenges, she adds.

For instance, certain condo corporations are now required to allow service animals, but that can present issues for other residents, Howden says.

How do you accommodate owners with animal allergies and service animals in the common elements? One answer may be to require that the service animal owner not linger in the public spaces,” she says.

Howden gives another example: some condos receive complaints about odours related to residents who smoke medical marijuana in their units and then venture out into the common elements. The odours may migrate to other units or the common elements and disturb other residents.

"Despite any contrary provision in the condominium documents, medical marijuana users might still have the right to smoke marijuana by virtue of the Human Rights Code. This is true even though the traditional fixes for migrating odours — such as better sealing or increased air filtration — don’t do the trick.

“So those are things that you have to keep grappling with in order to balance competing rights,” she says.

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