By: Nicole Taylor-Smith and Barbara Holmes
The Alberta Court recently considered whether having a live-in caregiver constituted a violation of a condominium’s By-laws that prohibited roomers and boarders and any use of a residential unit other than as a single-family dwelling.
The unit owners, Mr. and Mrs. Davis, were an elderly couple in their 80s, who hired a live-in caregiver. Mr. Davis was blind and Mrs. Davis was suffering from dementia. They had resided at the condominium since 2000.
After becoming aware that the owners had a caregiver residing with them, the condominium advised them that should a complaint be received, it would have to enforce the By-laws. At an AGM held a few months later, a motion to change the By-laws to allow live-in caregivers was rejected by 90% of the voting unit holders. (It looks like these owners probably don’t expect that they will ever find themselves in this position!) The condominium subsequently served notice on the owners that they were required to conform to the By-laws and that they would be subject to a monetary sanction in the amount of $50 per day for so long as the caregiver continued to live with them. This was followed by a subsequent notice directing the caregiver to vacate the unit, which she ultimately did.
The condominium commenced a court application for
- a declaration that Mr. and Mrs. Davis had violated the By-laws
- an injunction prohibiting a caregiver from living in their unit
- a monetary sanction in the amount of $10,000, and
- solicitor-client costs.
In order to determine whether the prohibitions in the By-laws, against the use of a unit for anything other than a “single-family dwelling” and against roomers and boarders, extended to a live-in caregiver, the Court also looked at a statement in the By-laws that set out the purposes or objectives of the By-laws. The purposes included providing for the health, safety, peace, comfort and convenience of condominium occupants.
The Court observed that the condominium had not, at any point, questioned whether Mr. and Mrs. Davis required the services of a live-in caregiver and found that their need for assistance was legitimate. In the end, based on the By-laws purpose statement, the Court held that a live-in caregiver, required to provide necessary assistance to ill unit owners, were not boarders or roomers and did not breach the requirement that units be used as single-family dwellings. In its decision, the Judge stated: “To prohibit a live-in caregiver in circumstances where one is necessary may provide a marginal enhancement to other unit holders in terms of convenience or property values, though the point is debatable. Other the other hand, such a prohibition could be devastating to the unit holders in need of medical care. I simply cannot reconcile a prohibition against live-in caregivers with the stated purposes of the By-laws.”
It is interesting to note that before considering the interpretation of the wording in the By-laws, the Judge noted that any prohibition of caregivers in the By-laws would not constitute a violation of the Alberta Human Rights Act. The Judge came to this conclusion on the basis that while the Alberta Human Rights Act prohibited discrimination against a person with respect to accommodation or facilities that are customarily available to the public, condo units are not available to the public.
If this case had occurred in Ontario, we expect that a judge would also have concluded that the caregiver could stay, but for different reasons. In Ontario, the Human Rights Code would support the owners’ position, as the Human Rights Code trumps both the Condominium Act and condominium documents. The owners would probably be able to successfully claim that the condominium corporation was discriminating against them on the basis of a disability. To bar the caregiver would effectively prohibit the owners from living in their unit, as the caregiver was essential for them to function independently. This case is analogous to WNCC No. 198 v. Donner, where a hearing-impaired owner was allowed to keep her hearing-ear dog, notwithstanding the no-pets provisions in the corporation’s declaration.
Baby boomers are becoming one of the larger demographic groups living in condominiums. As they age, more residents will want to continue to remain in their homes with the assistance of a live-in caregiver, rather than moving into a nursing home or retirement home. For this reason, we expect that more condominium corporations will find themselves facing this same dilemma. We suggest that condominiums be proactive and review this issue with their legal counsel to ensure that they are aware of the rights and obligations of both the condominium and the owners.