Disability & Dogs: Has the Pendulum Swung Back?

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A few years ago there was a lot of talk of a Superior Court case involving a woman and her dog. There was a 25 lb weight restriction. Her dog was well over 25 lbs. The woman initially claimed she needed the dog for her work with autistic children, but later claimed she needed the dog because of her own disability. She obtained a doctor’s note that indicated she required the dog for “emotional needs”. The condominium asked for permission to talk to the woman’s physician, but she refused so the condominium rejected her request for accommodation and initiated an application for an order requiring her to remove the dog from the property. The judge found there was insufficient evidence of a disability or any medical reason for the dog to reside in the unit. The judge also stated that the condominium fulfilled its obligation and that it could not be blamed for her refusal to cooperate in the process. The judge ordered the dog removed and awarded costs of $47,000 to the condominium.

The case was hailed by some as the solution to the generic one-sentence doctor’s notes  (i.e. ones from a walk-in clinic or other physician who has spent only a few minutes with the person; ones that do not describe the disability or how the dog is required to accommodate the disability). Others were more cautious about the applicability of the case to other situations. You can read a previous post about the case here: https://ontcondolaw.com/2015/06/24/dog-restrictions-and-disabilities/

Does a recent Human Rights Tribunal decision indicate that the pendulum is swinging away from the case?

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Winter Case Law Reading

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I feel like all I write about these days is Bill 106 (the amendments to the Act). Today, I’m getting back to my roots and writing about some important decisions released by the courts and tribunals in Ontario in the past few months. The first is about the enforcement of a lien. The second is about an owner who won’t quit. And the third is about a director who felt she was discriminated against because of her age. All of the decisions are available on CanLII if you want to read them in their entirety.   Continue reading

AODA Requirements Coming January 1, 2017

time.jpgIt has been almost five years since the first deadline for compliance under the Accessibility for Ontarians with Disabilities Act. Like previous years, New Year’s day will have a deadline for many organizations. On January 1st, 2017 organizations (including condominiums) with between 1 and 49 employees must ensure the following requirements are satisfied: Continue reading

Is your Meeting Date a Human Rights Violation?

meetingIn 2015 I wrote about an interesting human rights complaint that had been started by three owners because of the date selected by their condominium and manager for the AGM. The owners claimed that they were discriminated against because the meeting was held on an important religious holiday for Muslims. They claimed that the condominium would never have held the meeting on another religion’s holiday, such as Christmas, and that they had been discriminated against because they were Muslims.

The decision has finally been released. Continue reading

Condo Harassment: Is it real?

If I had a dollar for every time I’ve heard “this is harassment” in response to a letter sent by one of my condominium clients to an owner about a rule violation I could have retired at 26. It seems to be an allegation that is thrown out without much consideration about what it actually means. What does it mean? What obligation does the board have to investigate complaint of harassment? What steps should a board take when it receives a complaint? Fortunately, recent decisions provide answers to these questions and more. I’ll briefly discuss two cases today.

The first case is Wexler v. Carleton Condminium Corporation No. 28. An owner commenced an action in Small Claims Court against the condominium seeking about $2,500.00, mostly for alleged harassment by the condominium.  The condominium argued that it was not harassing her, but taking steps to ensure that she complied with the Act, declaration, by-laws and rules.

The judge reviewed the case law on civil harassment and identified four elements:

  1. was there outrageous conduct by the defendant?
  2. did the defendant intend to cause emotional distress to the plaintiff?
  3. did the plaintiff suffer severe emotional distress?; and
  4. was the plaintiff’s emotional distress caused by the defendant.

The court found that the owner did not present any evidence of the elements and dismissed her action with costs. The judge said:

The Corporation’s conduct was not outrageous; the Corporation was enforcing the provisions of the Act, the Declaration, the By-laws and the Rules. It was exercising its statutory duties. The Corporation had no intention of causing emotional distress to [the owner], nor did it act with a reckless disregard which could have caused emotional distress to her.

I understand that the condominium asked for over $35,000.00 in costs from the owner, even though cost recovery in Small Claims Court is normally limited to 15% of the amount claimed. The judge found that a higher amount was necessary to penalize the owner for her unreasonable behaviour and awarded the condominium $20,000.00 in costs. This means that at least $15,000.00 in costs will become common expenses all because this one owner felt harassed by the board satisfying its duty to ensure the owner complied with the Act, declaration, by-laws and rules.

The second case is Welykyi v. Rouge Valley Co-Operative Home Inc.. A group of 10 owners made human rights complaints against a co-operative. The owners claimed that the board did not respond appropriately to discriminatory and vulgar messages posted throughout the co-operative over a 5 month period. The Tribunal characterized the messages as “truly heinous” displaying a “shocking level of ignorance and intolerance.” Many of the owners were previous board members. According to the decision, there was tension between the “old board” and “new board”. The board never identified the person or persons responsible for the messages.

The Tribunal reviewed the case law, including the obligation of a housing provider, such as a condominium’s board, to address complaints of violations of the Human Rights Code. The Tribunal described the factors to be used in assessing whether a complaint has been adequately addressed:

  1. was there in place a harassment policy, complaint mechanism, and training?;
  2. once a complaint was made, was it taken seriously, dealt with promptly and sensitively, and reasonably investigated and acted upon?; and
  3. was a reasonable resolution found and was it communicated to the complainant?

The factors are not definitive, but are to be used as a general guide.

It is clear from reading the decision that the Tribunal was primarily concerned with the board’s failure to acknowledge the complaints and investigate them. The Tribunal found “significant deficiencies” in the board’s response and awarded each owner $3,000.00. The Tribunal also ordered the board to circulate the decision.

While it is a case about a co-operative its principles will likely be applied to condominium boards. In my opinion, the important points to take away from the case are:

  1. condominiums should have anti-harassment policies, rules or complaint procedures in place;
  2. boards should be trained in human rights issues;
  3. boards should acknowledge complaints and keep complainants informed;
  4. boards have an obligation to promptly investigate complaints of harassment, which should include speaking with the complainants and anyone else who may have knowledge of the incidents;
  5. boards have an obligation to take steps to prevent harassment, which may include re-positioning cameras or improving security features; and
  6. boards should condemn harassment, which may be done at meetings or by sending out notices to all owners condemning the behaviour.

Interestingly, the Tribunal seemed to suggest that the installation of fake cameras could have been an option for the co-operative:

Relocating a camera in this way was appropriate action for the Board to take. The installation of fake cameras, whatever the other issues that arise with deploying non-functional cameras, could have been a reasonable approach for the Board to take in light of its poor finances. Non-operational cameras could be a deterrent, provided that the fact that they do not function does not become known.

The Tribunal also criticized the board for failing to investigate because they relied upon bad advice that they had to capture the perpetrator to find a proper resolution:

Catching a harasser is not always possible, as in this case, and a housing provider should not focus on apprehension to the exclusion of other considerations, such as communicating with and supporting the victims.

As such, the board had an obligation to investigate the complaints and support the victims, even if it was unlikely to determine who were the culprits of the messages.

This was a long post, but the cases highlighted so many important point about harassment in condominiums that it was impossible to cut any portion out. Do you have any practical solutions to addressing harassment?

Mental Health in Condos

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.  Continue reading

Dog Restrictions and Disabilities

I am regularly asked by clients to assist them with enforcement of dog restrictions (i.e. weight limits) or complete prohibitions in a condominium’s documents. Sometimes an owner will claim that he or she needs the dog because of a disability. The mere mention of the word (disability) immediately increases the anxiety felt by the board and manager. It seems many owners are aware of this anxiety-inducing affect and use the word without regard for its actual legal meaning. There was a recent case where an owner did just that, but the condominium refused to back down without adequate evidence of her disability.

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