Each province in Canada has its own Human Rights Code and in a case where there is a conflict between the law and most other legislation and by-laws, the human rights code in each province has supremacy. The purpose of human rights legislation is to protect Canadians from discrimination in different areas of their lives, such as their housing, employment or services.

Through human rights laws, all residents have the right to equal access to and enjoyment of their homes, without discrimination based on a variety of personal characteristics, such as race, age, mental or physical disability, sexual orientation, or being in receipt of government benefits such as social assistance or Employment Insurance.

In many cases, discrimination means treating someone differently on the basis of a personal characteristic. For example, a condominium corporation would be discriminating if it had a by-law that explicitly excluded families with children. Such a by-law would treat families with children differently than other households. Similarly, a condominium by-law that does not permit unrelated individuals to live together in a unit could be seen as discriminating based on what is called in human rights terms “marital status.” Such a rule treats households made up of single, unrelated individuals differently than households where the individuals are married or otherwise related.

However, discrimination can be much more nuanced than this. In many situations, treating people the same can actually lead to discrimination. Consider, for example, a resident who is visually impaired and uses a “seeing eye” dog. The condo she lives in has a “no pets” by-law. Treating this resident the same as other residents would mean that she would not be allowed to have her dog. Such a rule would deny the resident the ability to live independently and fully enjoy the benefits of her housing like other residents – the “equal” treatment would actually deny her equality.

It is also important to realize that discrimination does not have to be intentional. The condo corporation that put in place the “no pets” by-law was almost certainly not trying to discriminate against people with visual impairments who need to use service animals. However, that would be the effect of the by-law. If the effect of a rule is to deny a particular group of people, such as people with disabilities, equal access to housing, then that rule could be a violation of human rights law. By putting in place a “no pets” by-law, and then refusing to adapt the rule for a person with a disability, the condo corporation unwittingly discriminates against current and future residents with disabilities.

Treating a resident with equality means responding to, or accommodating, their particular needs. For the woman with the service dog, accommodating her needs may mean waiving the “no pets” rule. For a resident with mobility impairments, such as Mr. DiSalvo, it may mean installing a ramp. For a family with young children, it may mean ensuring that pool and recreation facility requirements and hours do not unreasonably restrict their ability to use and enjoy these services.

Condominium corporations, like other housing providers, need to respond to the unique needs of residents with disabilities, families with children, older people, newcomers to Canada, and other groups protected under human rights legislation. The goal of human rights laws are to provide equal opportunity in a way that is particular to the individual’s needs by promoting their integration and full participation in the life of the condo. This means that it would be inappropriate to tell a resident using a wheelchair that he can enter and exit the building using the loading ramp at the rear of the building, or to direct families with children to the “family” building.

Condominium corporations are not expected to bankrupt themselves in addressing their residents’ needs, but the process of accommodation can mean a significant expenditure. Corporations may have to be creative in funding the necessary modifications to their buildings, such as through applying for public programs like CMHC’s Residential Rehabilitation Assistance Program. Ultimately, however, addressing residents’ needs appropriately in a timely manner will be less costly than ignoring them.

The consequences of refusing to create accessible space can include higher insurance costs, increased condo fees, and community conflict. In Mr. DiSalvo’s case, failing to spend a few thousand dollars on the common elements of the condo led to the board incurring otherwise unnecessary legal fees.  In the end, as reported on the CondoBusiness website, the condominium was ordered to install an accessible ramp and to train condominium members about discrimination, disability and Ontario’s Human Rights Code. The Tribunal also ordered the board to pay $12 thousand to compensate Mr. DiSalvo for injury to his dignity. All of this could have been avoided if the condominium board had the proper legal information going in, and had appropriately addressed Mr. DiSalvo’s needs.

The Human Rights Tribunal found that “Even where the applicant is the only individual benefiting from the accommodation measure, unless undue hardship is established, the Code requires that the costs of the reasonable accommodation be borne by the condominium corporation.” Adjudicator Flaherty continued in her written decision, “I find that by insisting on a position that was wrong, at law, by failing to consider alternatives, and by creating a barrier to substantive discussions, the respondent [Halton Condominium Corporation No. 186] has also failed to meet its procedural duty to accommodate the Applicant.”

Litigation is a costly and unnecessary tool in these matters. The financial and personal costs of pitting individual members against the rest of the membership lead to unnecessary conflict. The challenge is to keep things on a professional level and not make it about one person's needs. After all, a push-button door at the front entrance and a ramp make it easy for everyone to get into the building, whether you are in a wheelchair, using a cane, bringing in a bundle of groceries or having an elderly relative visit.

Resources
 
For a list of human rights commissions across Canada:
http://www.chrc-ccdp.ca/links/default-en.asp#provincial
 
In Ontario:
Human Rights Legal Support Centre – in particular see:
http://www.hrlsc.on.ca/docs/Duty%20of%20Accommodation%20%20FINAL%20OCTOBER%2028%20%202009.pdf
Your right to accommodation under the Human Rights Code
Centre for Equality Rights in Accommodation
http://www.equalityrights.org/cera/
 
Ontario Human Rights Commission
http://www.ohrc.on.ca/en

John Fraser is the program coordinator at the Centre for Equality Rights in Accommodation. Jennifer Ramsay is the communications and outreach advisor at the Human Rights Legal Support Centre.