January 28th, 2016 was Bell Let’s Talk Day. It is a multi-year initiative to raise awareness, acceptance and action for mental health issues. This year alone it raised over $6 million. In honour of Bell Let’s Talk Day I thought that I would write about mental health issues in condominiums.
Mental health in condominiums is an issue that is likely to increase in frequency as living in condominiums becomes the norm. The aging population will also make it an important issue as certain mental health issues (i.e. alzheimer’s and dementia) are more common as we age. The symptoms may include memory loss, confusion, hallucinations, delusions, depression, anxiety, or aggression.
The Duty to Accommodate
Every condominium in Ontario has an obligation to accommodate an owner with a disability, whether it is a physical or mental one, up to the point of undue hardship. The obligation is set out in the Human Rights Code (the “Code”). The assessment of undue hardship is usually limited to considerations of any significant financial impairment to the condominium or health and safety concerns, but on rare occasions the courts have considered the effect on the other residents.
It is important to remember that the duty to accommodate takes priority over any provision of the Condominium Act, 1998 (the “Act”) and the condominium’s declaration, by-laws and rules. This means that where an owner is in breach of a rule the condominium may not be able to enforce against that owner if the breach is related to his disability. In some instances the owner must be permitted to breach the rule entirely (i.e. a seeing eye dog in a no dog building), but often a compromise can be made so that the owner can comply with the rule in a way that balances the competing interests at play. A compromise may include granting approval for changes to the common elements or units where the type of change requested would not ordinarily be approved.
Making a Request for Accommodation
Where an owner has a disability that requires accommodation by the condominium it is up to the owner to:
- advise the condominium of the nature of the disability and the accommodation required;
- co-operate with the condominium and provide information as reasonably requested by the condominium and the experts involved; and
- participate in discussions regarding solutions.
The owner cannot claim that he has a disability and expect the condominium to accommodate him without assisting throughout the process.
The trouble is that with mental health issues the owner is often unwilling or unable to satisfy the obligations set out above. While it will be more difficult when the owner is not co-operative, the board should not ignore the owner’s conduct when it is obvious that an owner is suffering from some type of mental health issue since the owner could become a danger to himself or others, or cause damage to the units or common elements. If the owner is not assisting in the process the condominium might need to discuss the issues with the owner’s family, friends, or support workers to gather sufficient information to address the situation.
Responding to Requests for Accommodation
When the condominium receives a request for accommodation from an owner (or his family or care workers) it should, at a minimum, do the following:
- Act in good faith in reviewing the request and accept it unless there are legitimate reasons to deny it;
- Gather as much information as possible from the person regarding the nature of the disability and the requested accommodation;
- Keep information confidential and not disclose it to the other owners or residents;
- Assess if the requested accommodation is obvious or if additional information (i.e. medical reports) is necessary to support the request;
- Investigate accommodation options;
- Maintain a record of all communications with the owner about the request; and
- Respond to the request in a timely manner.
In some instances the request will be easy to grant because it is obvious in the circumstances, such as allowing a person with serious vision impairment to have a seeing eye dog. In other cases it might be wise to get advice from the condominium’s lawyer about the condominium’s options before responding to the owner’s request.
It is also important to make sure that any interaction with the owner while reviewing the request is done in a way that protects the owner’s confidentiality and dignity. The interactions must also ensure that the directors and manager are not put in a situation that might be risky. It is best not to meet with the owner in their unit alone and may be better to avoid face-to-face interactions altogether. In most instances nothing harmful will happen from face-to-face interactions, but in rare instances the owner may become overwhelmed and act out against the director or manager.
In some instances the owner’s conduct might be so extreme that it requires the intervention of the police, health or fire inspectors, or the courts. The conduct may be so extreme that the condominium may be able to get an order forcing the owner to vacate the unit and possibly even an order requiring the owner to sell the unit. These are extreme remedies that should be discussed in detail with the condominium’s lawyer before any discussion (or threat) is made of them with the owner or his family.
Like many areas of condominium management, it is best to develop policies and procedures to address mental health concerns before issues arise. Here are some suggestions:
- Create policies and procedures for responding to requests for accommodation and dealing with residents with disabilities, including policies for safeguarding the information received and protecting the privacy of the owner.
- Maintain a record of key information on family members or emergency contacts for every owner and keep it in a secure location accessible only by the manager or board.
- Be supportive. Encourage owners to disclose their disabilities or suggested improvements to make the condominium more accessible (i.e. in terms of the physical layout and communications from the board to the owners).
- Know the contact information for your local community support resources.
- Ask for help if you need it. Ignoring mental health issues won’t improve the situation.
They say that in our lifetime most of us will suffer from a mental health issue or know someone close to us that will experience one. Treat the owner like you would if he was your best friend or parent: with dignity, respect, and compassion.