Real Estate

Size of condo doesn’t matter in duty to accommodate

By Mia Clarke, Associate Editor

Regardless of the size of the building, condominium corporations are obligated to accommodate a person with disabilities, Toronto real estate lawyer Matthias Duensing writes in The Lawyer’s Daily.

“In Ontario,” writes Duensing, principal of Duensing Law, “the Ontario Human Rights Code prohibits actions that discriminate against people based on a protected ground in a protected social area, such as employment, transportation and housing.”

And since the Code also applies to all private businesses that provide housing in Ontario, short-term rentals may be similarly obligated, he says.

“The rights of persons with disabilities in Canada are protected under various human rights legislation, both provincially and federally. Provincial human rights codes apply to provincial agencies not regulated by the federal government, and also to private businesses, organizations and individuals,” writes Duensing.

“The requirement to not discriminate against persons with disabilities with respect to housing has been examined by provincial human rights tribunals across Canada, particularly in the context of the obligations of large apartment buildings or condominiums to accommodate residents with disabilities with respect to parking spots, ramped automated entryways for the main building, ground floor apartments, therapy or service dogs and elevators,” he says.

"But to what extent does the duty to accommodate for housing extend to limited housing units, such as [short-term] rentals, or very small condominium corporations?" he poses.

In one case, a resident with muscular dystrophy asked his condo corporation to install a ramp so that he could safely use the front door, says Duensing.

Both sides agreed that the modifications were necessary to accommodate his disability “and that the construction work included altering the slope of the walkway, modifying the front step and cutting the curb, all of which were part of the common elements of the condominium,” he says.

“Under s. 98 of the Condominium Act of Ontario, owners may make additions, alternations or improvements to the common elements with approval from the board of the condominium corporation and on agreement that allocates the costs and maintenance of the changes between the corporation and the owner,” writes Duensing.

The corporation agreed to the changes but insisted that the resident should bear all the costs. The resident, on the other hand, believed the corporation should pay since the changes were to the common elements, he explains in the publication.

“The Ontario Human Rights Code provides that every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of disability,” writes Duensing. “However, if the needs of a person cannot be accommodated without ‘undue hardship’ to the entity required to accommodate, the requirement to accommodate may be vitiated.

“The onus to prove that making the accommodation would be an undue hardship rests on the entity being asked to make the accommodation and has both a procedural element (which includes taking steps to understand the accommodations being requested and what the options are) and a substantive component,” he says.

The condo argued that it should be off the hook for the costs because of its size — only 24 units — and that the funds of the corporation should benefit all owners, not just one, says Duensing.

“The tribunal agreed that the interests of the other owners is an important factor,” he writes. “However, given that the corporation did not claim that the accommodation created an undue hardship, the interests of the other owners were not as relevant."

Citing a Supreme Court of Canada case, Duensing says the tribunal stated: “Persons with disabilities face persistent social and economic disadvantages. Equal treatment instantiates a desire to rectify and prevent discrimination against persons with disabilities. To accept the respondent’s argument that the applicant bears the cost of the ramp would be inconsistent with the Code and would add to, not remedy, social and economic disadvantages.

"Even where the applicant is the only individual benefiting from the accommodation measure, unless undue hardship is established, the Code requires that the costs of the reasonable accommodation be borne by the condominium corporation.”

Duensing writes, “Unless a substantiated argument of undue hardship is advanced, the requirement to accommodate an individual’s needs may extend to other small housing entities, including [short-term] rentals.

"In May 2016, a class-action suit was filed against [one company] on the basis of racial discrimination. [The company] subsequently updated its terms of use, including a comprehensive non-discrimination policy that discusses disability, including provisions such as requiring that hosts should not prohibit the use of mobility devices, deny service dogs, charge more to persons with disabilities and refuse to provide reasonable accommodations such as providing close-by parking.”

To Read More Matthias Duensing Posts Click Here