Condominium corporations in Ontario have clear legal obligations when it comes to accommodating residents with disabilities.
Under the Human Rights Code (the “Code”), disability is a protected ground, and housing providers, including condominium corporations, must accommodate disability-related needs to the point of undue hardship.
A disability under the Code is broadly defined and includes physical, mental, cognitive, and sensory impairments. Once a resident establishes that they have a bona fide disability and that accommodation is required for use and enjoyment of the common elements, the corporation must engage in a meaningful accommodation process.
The duty requires flexibility. Corporations may need to modify or exempt resident(s) from rules, policies, or practices where they create barriers for a resident with a disability. However, the obligation is to provide reasonable accommodation, not necessarily the precise accommodation requested.
Undue Hardship: A High Threshold
The duty to accommodate is limited. The legal limit is undue hardship. In assessing whether undue hardship has been reached, relevant criteria include:
- Cost
- Outside sources of funding
- Health and safety considerations
Importantly, cost alone does not automatically amount to undue hardship. The corporation must demonstrate that costs are real, objective, and sufficiently significant that they would materially impact the corporation’s financial viability or fundamentally alter the nature of its operations. Minor expenses, administrative inconvenience, or opposition from other owners will not meet this threshold.
Similarly, health and safety concerns must be legitimate, evidence based, and substantial. Speculation or generalized concerns will not suffice.
The Corporation May Determine the Accommodation
A common misconception is that a resident is entitled to the exact accommodation they demand. That is not the law. While the process must be collaborative and conducted in good faith, the condominium corporation retains the authority to determine how accommodation will be implemented, provided the solution reasonably addresses the disability related need.
For example, if a resident requires modifications to common elements to improve accessibility, and has made specific requests to address the issue, the corporation must assess the request and consider viable solutions. If more than one reasonable option exists, the corporation may select the option that effectively addresses the accommodation need while maintaining proper governance and fiscal responsibility. The owner’s preferred accommodation can be considered, but it is not determinative.
Conclusion
Accommodation requests must be approached carefully, thoughtfully, and in good faith. The duty to accommodate is significant, and the threshold for undue hardship is high. At the same time, condominium corporations are not required to abandon their governing authority or implement a resident’s preferred solution if another reasonable accommodation is available.
For more information on this topic, please review Lash Condo Law’s human rights guide: https://www.lashcondolaw.com/condo-human-rights-guide/
