By Heidi Besuijen and Melissa L. Stappler
Overview
Alberta case law has recently confirmed that the Alberta Human Rights Act (the “Act”) applies to condominium corporations. This means that condominium corporations are prohibited from discriminating against unit owners or occupants on the basis of any of the protected grounds identified in the Act, which are: race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status and sexual orientation.
When an owner or occupant informs a condominium corporation that they have an individual need (based on a protected ground) that requires accommodation, the corporation then has a duty to accommodate that owner or occupant. This requires the condominium corporation to take reasonable steps to accommodate the owner’s or occupant’s individual needs to the point of undue hardship. In other words, the condominium corporation must make reasonable efforts to find an appropriate accommodation for the individual. This might involve the physical alteration of some amenity in a condominium complex (i.e. installing an automatic door mechanism so that a person using a wheelchair is able to open the door) or it might involve permitting an owner to display an item of religious importance during a religious celebration even though this would normally be prohibited by the bylaws.
Undue hardship occurs if the condominium corporation has investigated its options in an attempt to affect accommodation, but has determined that accommodation would create onerous conditions. Undue hardship is determined in light of all the circumstances, but it must be something more than mere inconvenience. Relevant factors when determining whether an owner or occupant’s request can or cannot be accommodated include cost, level of disruption, interference with the rights of other persons, and health and safety concerns.
It is also important to remember that both the individual seeking accommodation and the condominium corporation have rights and responsibilities in the accommodation process.
Responsibilities of the Individual
The individual who is requesting an accommodation must inform the corporation in writing about their individual need(s) that require accommodation. They must also provide an explanation of why the accommodation is required. The request should be supported with documentary evidence where possible, such as a written statement from a physician. The request should also suggest what measures would be appropriate as well as how long the accommodation will be required.
It is very important that the request for accommodation be submitted to the condominium corporation clearly and in writing. In order for the condominium corporation to know how to appropriately respond to an owner or occupant’s request, it must have sufficient information about what the person requesting the accommodation needs.
Responsibilities of the Corporation
Once a request for accommodation has been received, the corporation has an onus or responsibility to accommodate. This means that condominium corporations and their Board members must act in good faith and make reasonable efforts to accommodate the owner or occupant’s request. This will involve a careful and considered review of the materials and information submitted with the request for accommodation. It might also require the corporation to gather additional information so that the condominium corporation can fully understand the nature of the request. Board members must always respect the privacy of any person seeking accommodation by not discussing the request with other owners.
From a practical perspective, it is important that condominium corporations take a creative and flexible approach when considering the accommodation options. It is okay for Board members to discuss the options with the person requesting the accommodation and attempt to identify solutions that work for everyone. Once a solution has been found, the corporation should make a formal, written agreement with the person requesting the accommodation.
Remember, the corporation must take reasonable steps to accommodate to the point of undue hardship and if that is proving difficult, the corporation should consider seeking legal counsel.
Throughout the process, the condominium corporation should also maintain detailed records including the dates and time of conversations, what was discussed, copies of communications between the parties, quotes from contractors, investigations undertaken to address the request for accommodation and any other information or materials relating to the request and the condominium corporation’s efforts to accommodate.
Alberta Human Rights Commission
Unfortunately in some cases, an appropriate accommodation cannot be agreed upon as between the parties. In such cases, it is possible that a complaint may be made to the Alberta Human Rights Commission.
Upon receiving notification of a human rights complaint, a condominium corporation should seek legal counsel to assist in the process of responding to the complaint and resolving the matter.
The details of the Alberta Human Rights Commission complaints process are too complex to deal with in this short article. Condominium corporations are urged to review the materials available on the Alberta Humans Rights Commission’s website. The materials include information about each stage of the complaints process and reference the role of the representative for the Alberta Human Rights Commission at each stage.
The Alberta Human Rights Commission website is: https://www.albertahumanrights.ab.ca
At our recent Alberta Condo Expo, we were treated to a presentation by Heidi Besuijen of Reynolds Mirth, Richards & Farmer LLP and Melissa L. Stappler of Willis Law on the topic of dealing with requests for accommodation under the Alberta Human Rights Act .