In a recent case in Hawaii, a jury awarded a condo unit owner $1.7 million dollars in damages after finding that the condominium association discriminated against the visually impaired owner.
The association’s rules required that all second-story units be carpeted to prevent noise from permeating to the unit below. The owner, who was blind in one eye and visually impaired in the other eye, had dark wooden floors in his unit. He said that the dark colour and the sounds made on the wooden floor helped him navigate his way in his unit. Although the unit owner provided medical evidence to substantiate his disability, the association’s board of directions had refused to make an exception for the owner. The association had fined him $200 per day over a two-year period for breaching the rules and then tried to have his unit sold through foreclosure. An e-mail from a prior board member downplayed the owner’s disability as the owner seemed to be capable of walking his dogs both on and off the condominium property. The association’s failure to accommodate the owner’s disability turned out to be a costly error in judgment.
In another case also in the US, a condo unit owner is currently embroiled in a battle with his condominium association after he was asked to remove one of two dogs, as the association’s rules only allowed one pet per unit. In this case the owner claimed that the two dogs were certified emotional support animals which his girlfriend needed to cope with anxiety and stress. The association’s initial position was that the rule would be waived if the dogs were service animals such as a seeing-eye dog or seizure alert dog, but there would be no exception made for emotional support animals. The association board intends to make its final decision on the dogs at its board meeting in September after consultation with the association’s legal counsel.
In Ontario condominium corporations are obliged to comply with the Ontario Human Rights Code (the “Code”). Section 2(1) of the Code provides that every person has a right to equal treatment with respect to occupancy of accommodation without discrimination because of disability. As compliance with the Code has priority over the condominium documents, condominium corporations are required to make reasonable accommodation up to the point of undue hardship for disabled residents. This means that conduct that is otherwise prohibited in the condominium declaration or rules may be acceptable in some circumstances in order to accommodate a disabled resident.
It is important to note that the duty to accommodate has two components: procedural and substantive. A condominium board needs to consider a person’s request and provide a response within a reasonable period of time. Disregard for this procedural step, such as undue delay in responding to the request, could expose a corporation to a discrimination claim. The substantive component of the duty to accommodate means providing appropriate accommodation after giving serious attention to the requester’s needs and considering feasible options for providing the accommodation.
More and more condominium corporations are receiving accommodation requests from disabled residents. The above cases illustrate just a couple of the disabilities and accommodation requests that a condominium corporation could face. Regardless of the nature of the disability and the accommodation request, every situation is unique and must be carefully considered by the board to ensure that the corporation complies with the Code.