What is a Duty to Accommodate?

Image courtesy of  leckerdisabilitylawyers.ca .

Image courtesy of leckerdisabilitylawyers.ca.

Board of Directors have an obligation to take reasonable steps to ensure that all owners and occupants comply with the Condominium Act, the Declaration and the Corporation’s other governing documents (such as by-laws and rules).

Regardless of the age of a building, design or architecture, Boards also have a duty amongst others to make exceptions or to otherwise accommodate individuals with disabilities. This duty has limits, however, only up to undue hardship. Under the Ontario Human Rights Code (the “Code”), every person with a disability has a right to equal treatment. The concept of disability is defined broadly by the Code and includes, any degree of physical disability, a mental impairment, developmental disability, learning disability or mental disability.

A certain degree of hardship is naturally expected to follow from most accommodation requests. It is only undue hardship which relieves the corporation from its duty to accommodate. The factors that are taken into account to determine whether the accommodation would cause undue hardship can include health and safety concerns for others, the cost to implement the accommodation, and the effect on the morale of the other owners. Undue hardship is a high threshold to meet. Courts will give some weight to health and safety considerations, but much less to cost or morale considerations.  The costs of the accommodation will be balanced against the financial means of the organization.

In order for the Corporation to show that it has met its duty to accommodate up to the point of undue hardship, it would need to demonstrate that a proposed accommodation would create undue hardship and that there are no other alternatives.  The degree of accommodation required varies from case to case.

The Board, in consultation with the condominium Property Manager, must investigate the request fully. In all instances, steps should be taken to ensure that staff and Board members promptly report and properly handle any complaints and that they maintain a written record of all actions. 
Prior to denying a request for accommodation, Corporations should consult with their legal counsel to ensure they have understood all aspects of the request and the resultant costs and obligations to accommodate.