Rod: Hello. Good evening, everybody. My name is Rod Escayola and I'm your condominium lawyer with Gowling WLG. Thanks for joining us today. This is the May the fourth episode and we have two more to go. We have today to go and we have next month's to go and then after that we'll take a break for the summer. So thank you very much for joining us. Today's topic is maybe a daunting one for some of you. We're going to take a deep dive on human right accommodations. What does that mean? How do we balance competing rights? It's a very delicate balancing act and it's a very delicate topic to approach. I think at the end of the day, if we were to poll people, everybody's in favour of apple pie. Everybody's in favour of accommodating and helping people. I think that's the kind of society we want but that comes with different challenges. How much is too much, and how much is not enough, and how do we manage competing interests? So that's going to be the topic today. You're probably wondering who are our guests tonight. Good news, folks. It's just the twins and I. It's going to be, of course, your two favourite condo twins. We have David Plotkin, of Gowling WLG. Hello, David.
David: Hello. Good evening, everyone.
Rod: I was about to say who just came back from a party weekend, but there it is, I said it. Then guarding the fort at home we have Graeme MacPherson, also your condominium lawyer. He's the evil twin. Hello, Graeme.
Graeme: Hi, everybody.
Rod: Okay, so there it is. This is who we are and this is what we're going to be talking about. So another good news, we're not going to talk about COVID. There's no update to be given. That doesn't mean that COVID is behind us. It just means that there's no update to be given.
Graeme: First time in 33 episodes, I guess.
Rod: Yeah, that's pretty good. Okay and so, you know the drill. People at home you keep the chat alive. Feel free to chat amongst yourselves. I think we have some of our usual very informed participants and so these people may be able to answer some of your questions and comments. So that is great. Keep it going. Usual housekeeping disclaimer before we dive in. For those watching this webinar just keep in mind that we're usually referring to legislation out of Ontario so you may need to adapt, as required, if you're watching from somewhere else. Also we're doing our best to provide you with information that is accurate but it's only as accurate as of the date of this broadcasting and today is May the fourth. So if you watch this in replay later on just keep this in mind. Things may or may not have changed. Also, most importantly, keep in mind that we're giving you general information. It may not apply to your situation. You may need to retain services of an expert to help you shed some more light into the specific of your situation. Finally, this broadcasting is recorded which means we're going to be uploading it on the Condo Adviser website and you'll be able to watch it. It usually takes me 4 to 7 days to get it uploaded so please be patient. So there it is. Anything else to add, one of the twins, before we dive in? I don't think so. I covered everything.
Graeme: Have you ticked all the boxes?
Rod: Okay, perfect. So these are the speakers and the agenda is on your screen right now. We're going to upload this PowerPoint presentation on the Condo Adviser website as well. So you'll be able to have a look at it later on and consult it and we're going to put other resources that we've stumbled upon in preparing this webinar. Hopefully you'll find those useful as well. Okay, so there we are. As I said, a delicate topic. Living in society means that there's all sorts of people that live together, and especially living in a condo, we're all living in close quarters. There's limited resources. There's limited amenities and there's people that come to the table with all sorts of gifts and challenges and needs and, at the end of the day, we need to find a way for it to work for everybody. As I said in my introduction, I don't think anybody is opposed to accommodating people that need to be accommodated. Everybody's in favour of that. Sometimes, however, surprisingly maybe, when a request for accommodation comes to the table the initial reaction, surprise, may be disappointment. Maybe you're wondering how can you sort of make it work for everybody if there are costs associated with this. There's also a lot of unknown, and very unfortunately, when the accommodation seeker comes to the table with a physical disability it's easier for most people to understand it. I mean you see it. Right? Where it becomes more difficult is when the disability is not readily observable. Which doesn't mean it doesn't exist, it just means that we need to think about it differently. So very delicate exercise and, as I said, unfortunately often the reaction we get from certain boards is a bit of a pushback. A bit of disappointment. A bit of a well, that person when they moved in they knew that we didn't have XYZ. So why is that all of us, collectively, have to fork out the cost and accommodate this request? Right? That's kind of maybe the initial reaction. So sometimes it takes a bit of education to help people understand the importance and the benefit of accommodating people that come from all walks of life, with all sorts of needs and challenges and so on. Okay, so there it is. That's kind of the introduction.
I think the starting point with this, David, maybe let's talk about, because we're going to talk about, you know what actually? Let me talk about this case before I go in. Graeme, maybe you can sort of launch the poll in a minute. I'm going to speak about this case that just came out of the CAT, the Condo Authority, and it illustrates perfectly the struggle and the balancing act. Because in that case it is not the corporation against someone seeking an accommodation. The issue is between two people seeking an accommodation. So on the one side you have someone who is very allergic to dogs, picked a condo corporation where pets not allowed. It's a pet free condo. She goes out of her way, picks a place where there's not going to be any dogs or cats. She moves in and has this allergy. On the other side of the table you have an owner who eventually comes forward seeking an accommodation to be able to have a dog to assist her with her mental, emotional disability. We don't know much about the disability, and that's fine, and we don't need to know much about it. The Tribunal goes out of its way to say, "We're not going to talk about it anymore than that." But you have a person that needs a dog and you have a person that doesn't need a dog, or in fact cannot be around dogs. So if you want to launch the poll, Graeme. I'm going to give a bit of information. Is the poll on? Okay, yeah, there it is. So just with the facts I gave you folks, should the dog stay or should the dog go? Then we'll release the results and then I'm going to start adding information to see if it changes at all. When we're not going to spend too much time on that but I think it's going to be a fun game to play.
Graeme: It's very neck in neck.
Rod: Yeah, eh? I wonder, are you able to maybe share it on the screen if you slide it. Oh no, I would have to do this, eh?
Graeme: I'm able to share it once I end the poll.
Rod: How about if I do this? Can people see it?
David: Yup. We see it now.
Rod: Okay, so that way it's going to be live. Okay. It's neck in neck. Okay, good. Let me add more information and I want to see how these numbers are going to change. So that way, Graeme, I don't think you need to relaunch it.
Graeme: Okay.
Rod: So what if the person allergic to the dog has lived there 30 years and the person that requires a dog has been there 2 years. Does that change anything? Can people change their vote at home or are they stuck with it. I think that's changing.
Graeme: Yeah, it's changing.
Rod: Okay, so it's still neck in neck. Okay, let me add more information there. What if the person who's allergic to dogs is deadly allergic to dogs? Does that make a difference as opposed to simply intimidated by dogs, or slightly allergic, or has the sniffles? What if the person is deadly allergic to dogs? Does that change anything? David, maybe have a look at chat to see if people are telling us, "Hey listen, we can't vote anymore. What are you talking about?" Okay, what about this? What if I say this, the person getting the dog was told your dog has to be 10 pounds and you have to carry your dog when you go into common elements.
David: Yeah, they can't change votes.
Graeme: I think we're going to relaunch it.
Rod: Yeah, relaunch it. Okay, so then I'm going to go back to my first question. So it was neck in neck. Folks, you saw that. So go back to the prior question. One has lived there for 30 years, the other one has lived there for 2 years. So the one that is allergic to dogs, 30 years. The one that needs a dog, 2 years. Does that make a difference? That's interesting, eh? I don't know if these people are on the line. So it's changed actually. It seems that the dog should go because the person had been there for 30 years. Okay, relaunch the poll, Graeme, and we're going to change that. Now I'm going to say this, the person who needs the dog was told your dog has to be 10 pounds or less and you have to carry your dog when you go over common elements. Turns out that she gets a dog that is 24 pounds in weight, so more than twice, and can't carry the dog because she has a shoulder injury. Does that change? See how we suddenly lost a lot of sympathy for that person. Right? And we shouldn't. I don't think we should but see how suddenly that changes a lot. Okay, let me add more to this. So relaunch the poll, Graeme. What if the person who's allergic to dogs had all sorts of evidence about her allergy to the dog now but it turns out that the corporation had another dog that had been grandfathered, or allowed, and she had never relayed any symptoms or problems with that dog. So there's a first dog that's been there. No issue. There's a new dog that just joined, huge issues. Does that make a difference?
Graeme: It certainly seems to.
Rod: Yeah. Do you see how more information trigger different emotions. I'm having a lot of fun actually with this exercise. I'm going to see if I have it all. Relaunch the poll, Graeme, and this is going to be the last one. What if the person needing the dog turns out that they don't have the dog with them all the time, obviously. So there seeing ... going in, going out without the dog. They go to the park without the dog. Maybe they go to work without the dog. So does that change the situation at all? See it seems like people think maybe the dog should go. Maybe you don't need the dog all the time, right? Okay. Let me launch then one last question. So, Graeme, relaunch that and then we're done playing. What if it turns out that the Tribunal concludes that the person allergic to dogs exaggerated her allergy, is not cooperating with the board, not providing information with respect to her disability and, in fact, has to change her evidence along the way? So for instance she wrote a letter to the board saying that, what was the expression, David? You pointed it out yesterday. Do you have it handy?
David: I don't have it but I really like that one. Let me see if I can pull it up. Yes, at one point she said the applicant felt bowled over by a dog running at her but then changed the characterization to she felt bowled over emotionally but had not really been bowled over physically.
Rod: Right. So she said she was bowled over and then when we saw the footage it turns out that actually they didn't even cross paths through the same doors. There it is. Anyways, the point of this exercise other than to eat up most of our time, was this. More information makes people react differently and when you see a prism from one side, which is the other side, you may have an emotional reaction that differs. Right? When the reality, none of that should have changed in the sense that we're dealing with two people that are seeking an accommodation, and they are entitled to be accommodated, why are we getting upset over this or over that? Why are we changing our conclusion. So anyways, that's the point of that game. So let's go now to you, David. Maybe tell us about living in a condo and what that means.
David: For sure. I think the first way, especially boards will look at it, is we have a duty to enforce the rules. This is what we do. We have a duty to enforce compliance, section 17 and 119 of the Act. We all know about that and if someone comes and says, can you do something that's an exception to a rule, or that's different from what most people are doing, that's kind of often the gut reaction and our courts have looked at the idea of community living in a condo and a lot of is it kind of like a social anthropological exercise also of like, who lives in there and what are you entitled to and competing interests. This case, the MTCC 933 case from 2020, it has an interesting kind of a view of the world that, as with living in any community, condo owners and their guests must enter into a social contract which relinquishes their absolute interest to do as they please with their real property, and instead balance their interests with those of other tenants and owners. So when you're buying into a condo you're also buying into the community. You're buying into, as Rod introduced, the different competing interests that might exist. That's part of what the board needs to also consider in enforcing rules and in reviewing and accepting accommodation requests. So it goes on to say, to summarize the principles, where someone chooses to live in a condo community, whether as an owner or as a tenant, they do not enjoy unlimited freedom to do as they please. Rather, they must conduct themselves in accordance with the rules of the community and with due respect and consideration for their neighbours and fellow residents. They must govern and limit their personal activities, taking into account the impact of those activities upon other residents, as regulated by the condo rules. I'll also add to that, as regulated by the Human Rights Code and our duties to accommodate, because it's a two way street.
Rod: Right. That's what's interesting about this whole thing. Why are you moving in this pet free condo if you need a dog? Why are you moving in this condo that doesn't have a barrier free access to XYZ, right? That one I don't like as much. Let's go back to the dog. At the end of the day, in certain cases, when you move into a condo you have obligations to abide by the rules and, if you don't like the rules, you should pick a different condo. That's kind of the starting point under the condo world but now I'm going to ask Graeme to come that and to tell us, okay wait a second. You've got to balance that with the human rights obligations. So to you, Graeme, now.
Graeme: Alright. As Rod said, of course we have to balance the obligations to abide by the Condominium Act and the condominium's governing documents, but that needs to be weighed against the obligation to ensure that we're complying with the Ontario Human Rights Code. What that Code does is protect everyone in Ontario from discrimination, vis a vis certain social areas, and those social areas are services, contracts, employment, entry into professional associations and what's most important here for our discussion today, is housing. So in other words the Ontario Human Rights Code will protect individuals in Ontario from being discriminated, vis a vis their housing. So the question then becomes, okay, if we're protecting people from discrimination what is discrimination? The Human Rights Code doesn't actually give us a set definition, so we look in these circumstances to case law, and we can conclude that discrimination occurs when these three things happen. The individual has to have a characteristic that's protected from discrimination and we'll talk about those in a minute. They have to have experienced an adverse impact within their protected social area. For example, they have to have experienced an adverse impact with respect to their housing, and the protected characteristic has to have been a factor in the adverse impact they've experienced. So what that means is, the example is if someone has a disability and they are told that they're being too noisy at night and it has nothing to do with their disability, they have not been discriminated against because they may have suffered an adverse impact. They may have got a nasty letter, or asked to pay legal fees or something, but it wasn't as a direct result of their disability that they are protected on the basis of.
If we go to the next slide, this is where we can see what the protected grounds are in the Code. So these are the grounds upon which we are all entitled not to be discriminated against on. Those grounds are race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance. I think one of the most common ones to raise a tag in condo land, and certainly for the purposes of our discussions here today, is the protected ground of disability. The question then becomes if we know that these are the protected grounds, and people can't be discriminated against on the basis of these grounds, with respect to their housing, how is that enforced? The most common answer, I think we're going to delve a little more into this later on in the presentation, but the kneejerk reaction is through the Human Rights Tribunal, which is a Tribunal that's been established for resolving claims of discrimination and harassment under the Code. This Tribunal is able to hold mediations, hearings and make orders and even for people to pay damages. The Human Rights Tribunal also has concurrent jurisdiction with the Superior Court. What I mean when I say concurrent jurisdiction is that the court can also, it's also able to hear concerns about human rights and make findings on that. I think as we'll see later on in this presentation, based on the expanded jurisdiction of the Condominium Authority Tribunal, human rights concerns can sometimes make their way before that Tribunal as well.
Rod: Okay, wonderful. So you're right. I think what we're more likely to see as a request for accommodation are those based on a disability. If there's discrimination based on anything else I see on that list, that's not good. Now that's not good.
Graeme: The reason I think disability is a bit of a hot button topic is because, like you said, an accommodation based on disability usually requires someone to fork over some money to make something accessible or to allow for some sort of accommodation. Whereas the other ones, I mean if someone is being discriminated on those bases, it's tough to see any sort of justifiable reason behind that sort of behaviour.
Rod: Right. So let's define then a disability, very briefly. Disabilities, we're getting some clues in the Human Rights Code of Ontario. Now a disability can be triggered by age, an accident, an injury, an illness. Very important to keep in mind that a disability can be transitory in nature. If we go back to the first case that we discussed, the Ontario case versus MTCC 844, the two dogs, well there was one dog, in that case it was clear that the emotional need for the dog was transitory. You don't need the dog all the time. Depending on how the day goes. Depending on what stressing factor were triggered during the day. Depending on all sorts of factors sometimes you need the reassurance of the animal and sometimes less. Right? Now physical disabilities. Those are the ones that, unfortunately, are more likely to be able to identify and therefore they sometimes attract more sympathy. Physical disability and infirmity, malformation, disfigurement, paralysis, amputation, blindness, deafness, muteness, you can read. That's what it is. I've highlighted physical relies on the service animal because one of the questions that came up in that case was this is not a service animal because she is not physically relying on the animal. But you have to look at the other definition under the Code which is a mental disability. So when it comes to physical disability, one of the elements, or one of the signs, or one of the disabilities is when you physically rely on an animal. I'm not sure why they haven't added that under the mental disability definition but it is what it is. So the mental disability is defined as a mental impairment, developmental disability, learning disability, mental disorder, etcetera. Those definitions are not closed. It includes these but there may be more. Now of interest is this, there actually needs to be a disability to be accommodated. There needs to be a working diagnosis of a recognized, in this case mental disability. There needs to be some form of an articulation of clinically significant symptoms. There needs to be some substance and that comes from the Dominelli case, which is maybe not accepted by everybody. In the Dominelli case, it's a case where an individual wanted to have their dog, Peaches was the name of the dog, and in that case there lacked a certain sort of diagnosis. It was kind of a vague sort of well I have a disability. I kind of need the dog. The dog makes me feel better. Dogs make everybody feel better. So it needs to be a bit more than I really like the poodle. In that case there seem to have been some vagueness around what was in fact the disability. Something else to keep in mind is this. The distinction between service animals and emotional support animals. Service animals, they're usually identifiable. The eye-seeing eye dogs for instance. You can see that they're providing a physical assistance to someone. It is obvious. They're usually trained to perform a specific task. Either to guide someone who has vision impairment, or to detect low blood sugar, or to detect an oncoming crisis of some sort and they're usually certified. Not always. Whereas an emotional support animal isn't. They usually provide comfort and security. They're not trained for a specific task other than just providing. I mean, animals do that. They bring comfort to those who like them, of course. Some people that don't like them, that's a different story. They're usually not certified.
Next topic is going to be this, and I'm sorry we sort have a lot of Rod in a row, but then I'm going to switch to the condo twins in a couple of minutes. So we've talked about the requirement to accommodate. I should flip it this way. Graeme spoke about the prohibition against discrimination based on an existing disability. So if somebody comes to the table with a disability, they sometimes need to be accommodated, and we'll talk about various examples but maybe somebody needs a ramp to access their unit. Maybe somebody needs to park their mobility assisted scooter somewhere so they can actually come in and out of the building. So when somebody comes to the table with a request for accommodation, the corporation has a duty to accommodate, up to undue hardship. So you can't just respond, "Listen, you bought into this. You knew that dogs weren't allowed. You bought into this. There's no ramp going to the pool. It is what it is." It's not like that. That doesn't work like that. You have a duty, as a condo corp, to accommodate up to undue hardship, and we'll define undue hardship in a couple of minutes. That duty to accommodate is divided into two sub-duties. The procedural duty, which basically is sort of the softer side of the duty. You need to listen. You need to acknowledge the individual needs. You need to treat people with respect. You need to investigate options in good faith. You need to be respectful. You need to answer in a timely manner. You need to keep the process moving forward. Often people will say, "We haven't heard from Graeme in a long time so maybe the disability went away and he doesn't need anymore his emotional support cat or whatever it is that he needs." Right? You need to give them an answer and you need to explain why you're giving the accommodation or why you're denying it. That's the procedural side of the duty and then there's this substantive duty, which is you kind of need to look for a solution. I can't make a list of all the solutions. It could be moving a parking spot. It could be installing a ramp. It could be granting alternate access to the gym. It could be allowing a support animal or a service animal. So ultimately the substantive duty is to try to find a reasonable accommodation unless undue hardship would result from it. Okay, so there it is. David, what is undue hardship? Because we only have to accommodate unless it would cause undue hardship. So what is undue hardship?
David: So undue hardship is a very high standard. As we know there's the positive duty to accommodate, up to the point of undue hardship. So the starting point is you have to accommodate and if you aren't able to accommodate you have to then, the burden shifts to you to prove an undue hardship. There's only three considerations there. The first is cost, and to be clear it has to be a very high cost, and it has to be quantifiable. So it can't just be a cost of the ownership as a whole would be upset because this person is getting special treatment. That's not a quantifiable cost. It has to be so substantial that it would, in the words of the Supreme Court, alter the essential nature of, this was the example, the enterpriser of the condo. The other two considerations are there outside sources of funding that are available. So sometimes there are certain government programs or tax benefits. It's a little weird for condos, because tax deductions don't really work out the same way for not for profits as they do for individuals, but there's sometimes outside source of funding and health and safety requirements. So there was one case that I saw recently, it goes back a number of years, but it was MTCC 946 versus Litigation Guardian for someone. It was a very unfortunate fact. Very difficult facts. There was an owner who was paranoid schizophrenia. She had paranoid schizophrenia and over a 15 year period the corporation had numerous instances where the owner was hoarding items, garbage in the unit, infestation of pets, there was some threatening behaviour towards other residents and the condo worked over many, many years, in this case it was 15 years, to try as issues arose, address them, accommodate, do the best we could, as Rod explained in the procedural way and in the substantive way, to listen and then to implement solutions and at a certain point they ... the court and said, "We can't do it anymore. We are claiming undue hardship. It's been 15 years. We've had to involve the police. There's been significant costs." and in that case the court ordered the owner to actually have to vacate the unit and the unit be listed and sold. That's a very extreme example but that's an example of health and safety and that's where it was argued as successfully of an undue hardship. Now, certainly it doesn't always need to be a 15 year drama for it to rise to that level, but it's really important to consider that inconvenience, morale, preferences are not valid considerations in assessing undue hardship. It really has to be an extreme heightened cost or health and safety requirement to meet that standard, to not accommodate. By not accommodating, that doesn't just mean it's not a black and white I want this. No, you can't get it. You then say no but let's see what else we could do to help meet you in the middle. It's a continuing discussion. A continuing obligation to accommodate. So even if you say I can't give you the exact type of service elevator you want, it's going to be $600,000.00, what other options can we do as a community to work together to try and accommodate you?
Rod: There it is. Wonderful. So now everybody just keep your eyes on David's face because I've added a slide to his section. He doesn't know it yet.
David: Oh. That's okay.
Rod: There it is. I'll cover it even though it's got your name. So back to the Tamo case, the case where the two owners over the dog, and just so everybody knows the dog's name is Murphy. I just love the fact that they always put the animal's name in these decisions. Peaches, Murphy and so on.
David: I feel like it's harder to evict a dog with a name as cute as Peaches. It just adds colour to the narrative.
Rod: That's right. So in this case something was interesting is that the CAT, the Condo Authority Tribunal, had to ask itself, undue hardship on whom? While normally the undue hardship is on the corporation, in certain circumstances you have to look at the hardship that an accommodation will have on somebody else here. So in this case, if we allow Ms. Clancy to have Murphy, what's the impact on Dr. Tamo? So in certain instances you need to look at the impact it has on other people. On other owners. There's a bit of a balancing act here. So that's the slide.
David: I couldn't have said it better myself, Rod.
Rod: There it is. That's why they pay me the big bucks. Graeme, back to you. We've talked about accommodating disabilities but you don't always get what you want, at the end of the day. Right?
Graeme: Exactly. This actually is quite fortuitous because there's a question in chat that I think is relevant to the issue I'm about to discuss. That is, does the duty to accommodate mean that we have to give the person that we're accommodating the result that they want, or would prefer? The answer to that is, not necessarily. The duty to accommodate requires us to ensure that if a person needs an accommodation they get what they need, and that not necessarily will always align with what they'd prefer. We can see some quotes I've got here on the slide that have been taken from the Ontario Human Rights Commission's policy on ableism. What it says is that human rights case law makes it clear that the purpose of the Code is to accommodate a person's needs, not their preferences, and it also says that if there's a choice between two accommodations that will respond equally to a person's needs in a dignified way, then the accommodation provider is entitled to select the one that is less expensive or less disruptive to the organization. We can see this at play in a very recent case that came before the Condominium Authority Tribunal, and that's Martis versus PO Condominium Corporation 253. In this case the owner's son who resided in the unit was diagnosed with a medical condition that required him to have an emotional support animal. This condo, before that time, was a no pets condo. The dog that was ultimately selected was a Labrador that would essentially grow to be 60 or 70 pounds. So the condo threw a couple of means, and I won't get into the nitty gritty of what occurred, but the condo essentially suggested a 25 pound weight restriction, in light of the fact that this is a no pets building and people have chosen to live here on the basis that maybe they're afraid of big dogs, or maybe they're allergic to dogs. So the condo's board was of the view that a reasonable accommodation would be to say you could have an emotional support animal as long as it's under 25 pounds. The Condominium Authority Tribunal ultimately found that this was a reasonable restriction and that the condo board could impose this condition as an accommodation under the Code. The Tribunal cited those provisions that we referred to above and made note of the fact that while this individual may have preferred the Labrador that he had selected, he was not able to demonstrate with evidence why this animal, in particular or even an animal of that size in particular, was what was required to provide him the emotional support that he needed. So in the absence of such evidence the Tribunal found that imposing a weight restriction was a reasonable accommodation.
Rod: There it is. So your needs should be accommodated, your preferences not necessarily. So that brings me to the next question is, if somebody's going to come to the table seeking an accommodation, what information are we entitled to ask from the accommodation seeker and what is the accommodation seeker obliged to provide? It's a two way street. This is a discussion we're having and so the person seeking the accommodation must advise of the existence of a disability, not of what the disability is. Naturally, if they want to share more information that's great, but the existence of a disability and they must provide information on the accommodation that they're seeking. What is it that I'm seeking? There needs to be a link between the disability and the accommodation being sought and that person must cooperate and must participate in the accommodation searching process. If I go back to the Dr. Tamo case, or Murphy's dog, in that case it turned out that the person who was allergic to the dog was not really forthwith with her information. Was not really providing enough information for the corporation to be able to truly balance the level of allergy, or disability, or reaction, or danger associated with the dog, with the other's persons disability. If you're going to seek an accommodation you have to provide information. You have to participate in the accommodation search. You must respond to reasonable requests. Now, that doesn't mean that the corporation can ask anything they want to ask. There's a list of info, I'll call it that, that the corporation is entitled to seek and I got that straight out of the 2016 policy on ableism. We'll put a link to that policy on the Condo Adviser. So basically, you're entitled to ask for a confirmation that there is a disability. Not what the disability is. You're entitled to ask about the limitations and the needs associated with the disability. As a result of this disability I need to consumer cannabis, have a dog, whatever it is. We're entitled to know whether you can, it really comes out of an employment setting, but in the condo world can you perform the essential duties or requirement of a condo occupant? So this is interesting because we had a debate yesterday, or a discussion yesterday, the three of us as to what extent do we need to accommodate a disability? Certainly to access your unit. Certainly to access your parking spot. What about do we need to accommodate access to the gym or to the pool? Is that an essential element of condo occupancy? You'll have to watch a different episode. Next episode maybe we'll cover that. But so on the screen you see the various kind of information you can ask and we're entitled to seek and to discuss this with, in certain cases, with your health care professional to try to ascertain, or identify, alternatives to the accommodation you're seeking. The exercise is a respectful one and the objective is to find a solution. But this is a two way street. You need to give us information. Naturally whatever information you get, it's highly personal and you have to treat it that way. In fact, you should treat it with the utmost confidentiality and you should limit who has access to that piece of information. It's on the need to know basis, basically. Not everybody on the board necessarily needs to know what Graeme's disability is. There's often a stigma associated with disability and with the need to be accommodated. You need to sort of tackle this very carefully and with kid gloves.
David: Rod, there's a question in the chat that somewhat deals with the last issue, only provide to people who need to be aware of the information. So the question is basically summed up as owner's start seeing someone who let's say has a dog. No one else is allowed dogs. They start complaining to the board. Is the board allowed to disclose just the mere fact that this person requested accommodation, has been granted it, or is even that too far? Or is it really just like we can't tell you anything? Draw your own conclusions.
Rod: Right. I think you can certainly, because you need to sort explain why there's a dog suddenly in a pet free condo, so I think it's reasonable and adequate to disclose, not at large, I don't think I'd send a newsletter to everybody. Everybody you may see Murphy the dog at the elevator. I wouldn't do it this way but when people ask I think the answer has to be very, very short and should be along the lines that the corporation has received a request for accommodation and has granted it. Sometimes even if there's certain conditions associated with it, to assist and reassure the other people, the dog will have to have a muzzle and will have to be on a leash. But that's about it. Now I'm not sure I would say an accommodation was granted to Graeme but people are able to sort of connect that last dot. Right? So I think that's how I'd tackle it.
Graeme: Rod, sorry, can you go back to the last slide because we got another question that I think is worth addressing as well, in the chat.
Rod: Sure.
Graeme: The one prior to this. So the question was how can a board, for example, tell what sort of accommodation is required without knowing what the disability is? I think it's just worth highlighting again that the information that you are allowed to obtain is what limitations or needs are associated with disability. So we don't need to know, for example, what specific diagnosis you've been given. What we need to know in order to accommodate you is, what limitations are associated with your diagnosis so that we can know what issues we need to address in order to make sure that your accommodation is adequate.
Rod: Right. So an example would be this, I don't need to know whether the disability is PTSD or schizophrenia, but I need to know the limits and the needs that you have as you need a service or an emotional support animal. I'll need to know what's the true, absolute reason behind that and if it's PTSD I don't need to know what it's related to. It's related to abuse, it's related to a war, it's related to a pandemic, I don't need to know that. So it's really the focus should be on the fact that there is a disability, what are the needs associated with it and they need to be associated with it. Right? Okay, let's keep moving. David, I'm going to turn to you and help us understand when do we go to the Human Rights Tribunal and when do we go to the CAT? Because recently the CAT's jurisdiction has expanded to include disputes over pets and, of course, the first answer we usually get when we raise an issue over a pet is, well that is a service animal or an emotional support animal so I need an exception. How does that work? How do these two jurisdictions work?
David: Yeah, so Graeme kind of introduced the idea of concurrent jurisdiction and this was set out in a number of Supreme Court cases also about kind of the purpose of the Human Rights Code is really to kind of touch on all areas that require the accommodation analysis. So if you're before the CAT on an issue of parking, it may be that that parking issue has certain layers to it, and some of those layers are accommodation based and the CAT wouldn't necessarily just punt that part of the investigation to the Human Rights Tribunal. It could address the issues in which it has its jurisdiction in. We now know parking, storage and chargebacks related thereto and all that and it can address those issues as they fit within that box. If you have a pure just discrimination claim, or accommodation claim, that falls outside the CAT's jurisdiction, that's not something the CAT could do. But if there's kind of the overlap, is the best way to say it, the CAT might be able to address it within its jurisdiction.
Rod: Okay.
David: The Condominium Authority Tribunal. Someone asked what the CAT is. Condominium Authority Tribunal.
Rod: Good question. Good answer. Perfect. I think what I want to add to this discussion of the jurisdiction of the Human Rights Tribunal versus the Condo Authority Tribunal, I'm going to say this, is that so far the Condo Authority Tribunal appears to be faster than the Human Rights Tribunal. There are a couple of cases out there where there were pending cases before both and where the condo corporation would take the position that, wait a second, we're in the front of the wrong Tribunal, so you CAT have no jurisdiction over this and there's a case pending in front of the Human Rights Tribunal. The Condo Authority Tribunal has kind of ignored that and so far they've kind of taken a very expansive view, in my view, of their jurisdiction. I think at one point there's going to be either an appeal to the Divisional Court or there's going to be a decision from the HRTO that's going to sort of maybe pull the reins a bit on whether or not the Condo Authority Tribunal has all the jurisdiction that it says it has over the Human Rights issues. Anyway, time will tell. I'll just leave it at that for now. Let's move on to the next slide. Let me see what is the next slide. I think it's going to be, oh, we're going to talk about practical examples now. Just a couple of cases to illustrate some of that stuff that we've talked about. There was a question that I've seen in the Q&A where somebody says, what if you suspect someone is lying about their disability or their needs, and I have to say that that is, maybe regrettably, often the reaction. Often we're thinking, do you really need a dog. Do you really need that dog? Really? I remember a case where somebody wanted to install, on their balconies, exclusive use balconies, outside, some shades or some blinds of some kind and the person was taking the position that they needed to have this installed because they have a sensitivity to light. Then people would just wait and check if she was going to the grocery store with or without sunglasses and what do you when you walk in the pharmacy? Like do you have blinds around you all the time? So that was one of the questions. Or another question that we often see is with the mask issue and this COVID pandemic and so somebody that says, I can't wear a mask. When I put the mask on I feel like I'm choking. I can't breathe. Then we have a picture of that person at Home Depot with a mask on. So there's a certain sort of reaction where people say, we kind of think you're lying. That's a very delicate sort of position to take. I'm not suggesting that anytime anybody asks for an accommodation you have to give it to them and you got to take their word at face value. But I think the starting point should be to accept that that person has a disability and, in fact, the Human Rights Tribunal says that that threshold is very low. The threshold to accept the existence of a disability. But there are cases where the Tribunals conclude that there isn't a disability. So that means that the person either made it up or the evidence didn't support it.
Okay, practical examples. Are you the first one, Graeme, about certain supporters.
Graeme: I am, yes.
Rod: Go ahead.
Graeme: I won't belabour this point too much, because we already briefly talked about this case, but I think it just goes to show that one of the most common requests for accommodation that I think condo corporations will see are requests for either service animals or emotional support animals. I think what the Martis case that I talked about earlier shows is that even if you are in a pet free condo, it's not going to be a good position to take, I think, to stand firm that there will be no animals in this building, period. In this case the corporation was found to have acted reasonably by finding a compromise in the middle by suggesting in light of the fact that this is a pet free building, why don't we meet in the middle by putting a weight limit on the dog? So that doesn't interfere too much with the other owners who chose this building, presumably, with the knowledge that there wouldn't be pets there, but on the other hand, allows the individual who needs an emotional support animal to get that animal. Would it have been a different story if this persons, the nature of their disability, required them to have a larger animal? Perhaps and I think that goes to show that every case will be considered on its own facts and has its own nuances. But the main point I think is important to draw from that is that even if you do have a blanket no pets rule, there's got to be room of accommodations.
Rod: Okay, perfect. The Martis case. I'm going to talk about the Jakobek case and that's 2011 already. Wow. So I called it the scooter case and in this case somebody with limited mobility had one of those scooters to move around. That scooter was fairly big and Mr. Jakobek preferred not to park it in his unit. It took too much room. It was also hindering egress if he needed to leave the unit in case of emergency. There was an issue with that and so he wanted to be able to park his scooter in his parking spot. His own parking spot. Now he would have needed to install electricity. That's before EV discussions, EV charging stations were even a thing, so he needed electricity to be able to charge it. He was prepared to pay for it and for the installation. He also wanted to install, because from the parkade to the elevators there was a door that was difficult for him to manoeuvre and open, and he wanted to install some motion detector that once you swiped your fob key or your access card, the door would open automatically so he wouldn't have to open it, and he offered to pay for that. I don't understand what happened in people's minds, but they thought that no, in fact we should not allow that, even though the accommodation seeker was prepared to pay for most of these changes. With respect to the parking of the scooter in his own parking spot, they said look at the rules we have here. The parking spot can only be used for a vehicle, a shopping cart or a bicycle. Yours is neither one of these things so you can't park it. You can imagine the field day that everybody had at the Human Rights Commission that day. In fact, the Human Rights Tribunal unsurprisingly sided with Mr. Jakobek and fined, in fact, the corporation and I think ordered also, well certainly ordered the accommodation, but ordered sensitivity training and actually fined the corporation. I can't remember the amount now. So that's an example where a solution was easily accessible and this accommodation deal with mobility or accessibility. Along those lines, I'm going to turn the floor now to David, where we're going to talk again about accessibility issues and you're going to talk about the ramp cases.
David: Yeah, so in 2009 there were two kind of successive decisions that came out that were very, very diametrically opposed to each other, both out of the Human Rights Tribunal. The first one, it's backwards on the slide, but the first one was the McMillan case where there was an owner who was requesting installation of railings on the front and rear steps of the dwelling, just for physical accessibility reasons. The dispute was not about whether the condo was willing to install the ramps or not but it was who was going to pay for it. So the condo was like, it's fine, cool. We'll do it but you're requesting it for your use so you pay for it. In that case, strangely, the Tribunal actually sided with the condo on that saying that since this only affected one owner and it was no real difference than installing a hot tub or a shed on an exclusive use common element that they would have to do at their own cost, because it's always kind of the debate between the section 98 changes, who pays for it and accommodation, who pays for it. So in that case they actually sided with the condo's argument but the following case of DiSlavo was a little more instructive, I think, and has been picked up a lot more and I think is, respectfully to the first decision, the one that's actually the correct analysis of it. So in that one the owner of a townhouse unit, who had muscular dystrophy wasn't able to access the front door of the unit, had requested an access ramp. Again, the corporation agreed to do it but the debate was always about, again, who should pay for it. In this case they said that equal treatment with respect to occupancy requires more than just establishing that all townhome units have essentially the same front entrance. Equal treatment under the Code requires that where this can be achieved with accommodation measures, short of undue hardship, all occupants, including those with disabilities, have meaningful access to their units. In my view, whether there is one or multiple users of the ramp, it would not be in accordance with the purposes of the Code to require the applicant to bear the costs of the accommodation measure. So this is often a discussion that comes up, we're a condo of three injured owners, only one person needs it. How is it fair to make everyone else pay for it? The purposes of the Code is not a popularity contest or an evaluation of how many need it or not. There's also the argument that once you have it installed it may actually help many other people in the future. But it's not about how many people are going to need it or use it, it's is there legitimate accommodation request and if so that accommodation request needs to be met up to undue hardship. The final quote that I like in here was about kind of the reasoning and the rationale for all of these accommodations. They quote to an Eldridge case from the Supreme Court. Persons with disabilities face persistent social and economic disadvantages. Equal treatment substantiates a desire to rectify and prevent discrimination against persons with disabilities. To accept the respondent's argument that the applicant bears the cost of the ramp would be inconsistent with the Code and would not add to, not remedy, social and economic disadvantages, even where the applicant is the only individual benefiting from the accommodation measure. Unless undue hardship is established the Code requires the cost of the reasonable accommodation be borne by the condo corporation. So that was diametrically opposed to the other case that imposed the cost on the individual owner and I think is more relevant and applicable case law to consider.
Rod: Okay, wonderful. When you go to court it's always a bit of a mystery, what are you going to pull out. It's like a box of chocolate. You never know what you're going to get. But it's not always good. I may be showing my age now. Hopefully Michael Clifton is still on the line to appreciate the reference to Forest Gump.
Graeme: I may be a millennial but I've seen Forest Gump.
Rod: It's going to you, Graeme. You've got a couple of seconds here to talk about the medicinal cannabis, an example of accommodation surrounding that.
Graeme: I think what I'll do here is just kind of walk through the considerations that would need to be had if there was a request for a medicinal cannabis accommodations. Because we do know that a lot of people do use CBD or THC for reasons of either pain relief, or emotional support, or what have you and that's fine. But as we've kind of talked about the lessons we've learned here today, the questions that are going to need to be asked are is there in fact a disability in place and does that disability require the consumption of cannabis, and if so, does that consumption need to be via inhaling it or can it be consumed orally? Other questions that we can consider are if it needs to be inhaled, does it need to be inhaled in the unit? Can it be inhaled somewhere else like on the street or even maybe out on the balcony? If it needs to be inhaled in the unit, can we put things in place like air filtration systems to help control the smell? Lots of different ideas. Some of which may work, some of which may not, but the point there is to show that these are the types of questions when you're faced with an accommodation to start asking. Rather than saying, how can we deny this, start asking how can we make this work in a way that will satisfy the need but will be as least disruptive to everyone else, as we can feasibly do?
Rod: Yeah. An interesting case. Too bad Denise Lash is not with us tonight. An interesting case that Denise Lash worked on dealt with competing interests, where you had an individual who needed to consumer cannabis and you have another one who is allergic, deadly allergic, to cannabis. So you have a perfect example where you have two needs to be accommodated. Both of them are based on a disability and how do you reconcile that? Now this case didn't go to court and that's to the credit of everybody that was involved, including the media. They were able to resolve it and there it is. Okay. So I think, folks, we have reached the end of this webinar and it's 1 minute to go.
I'm going to do my usual roundtable. See if the twins have anything to add before we go and I'll start with you, David. Any parting words or words of wisdom?
David: Yeah, just to drive home that it's an ongoing discussion in a back and forth, and it's not just a black and white yes, we accommodate, no, we don't and the procedural duty is something you can't just brush over because if you don't listen and react and work with the accommodation seeker, that can open you up to damages. The Tribunal has that ability to slap you for not being a listener, in many ways.
Rod: Right. In fact there used to be a time where we used to say, you know what? The worse that's going to happen is you're going to get a fine of about $10,000.00 at the Human Rights Tribunal. I l mean it's not the great news to announce at the AGM but now these fines have increased, actually, and they're significantly higher. Graeme, words of wisdom?
Graeme: I guess my words of wisdom would be that when these situations arise, try to give people the benefit of the doubt. Not to say that everything you hear will necessarily be true but I find the difference between the matters that resolve easily and cost effectively are those where the board goes in with a mind to try and find a solution, rather than trying to kind of push it away. I think not only does that help foster a better environment at your condominium, but it can also save you in the long run in legal fees, because oftentimes when people get their backs up against the wall that's when the debate starts and that's when the lawyers really start to shine.
Rod: Right. This is all about how you get the information from people. If you approach it truly with respect, and if you truly approach it with a desire to get information to be able to resolve it, it's a tango. Two people need to be involved to dance. But if you're able to get people to a discussion, and I would even say if you're able to do it in person or virtually as opposed to firing off emails, I mean the next world war will be started over in the email because it's so difficult to interpret the emails and the tone of the email. So try to get to the bottom of the problem in view and with a desire to find a solution to it. So there it is. We have spent 60 minutes together. It was fast. Thanks for joining us. As usual we have our monthly webinar is the first Wednesday of the month. It's going to be on June 1. It's at the same time. 5:00 o'clock. You will need to register again and to register you need to go to your favourite Condo Adviser website and click on the webinar tab and you'll get a link to register and so on and so forth. By the way, if you go into condo tools you'll be able to find a nice sort of cheat sheet about accommodations and how to tackle them. I'll post that as well but you can always find it there. So that's it, folks. It's 6:02. I think I'm late for my next meeting. I'd like to thank all of you for taking the time to join us tonight and that's it. I think we've turned the corner. The string is here. Summer is around the corner and so there it is. Thanks so much, everybody, again for attending our webinar. Thank you, David. Thank you, Graeme and see you next month.