Governance

May 1, 2023 Published by South Alberta Chapter - By Erin Berney, Maryam Musbah

Strategies for Board Members

From the Spring 2023 issue of the CCI South Alberta CCI Review

Addressing Complaints and Mental Health Issues in Condominiums

According to the Canadian Mental Health Association, 1 in 5 Canadians will experience a mental health issue or illness during their lifetime. Roughly 2 million Canadians now live in condominiums, so most of these communities will inevitably face a situation involving a resident who is experiencing such issues. Condominium boards must therefore be prepared to deal with and address mental health disorders among their residents. Most recently, a 73-year-old man in Toronto who had a long-running dispute with his condominium corporation ended up allegedly killing five people, including three members of the board of directors. The now-deceased unit owner is believed to have been suffering from mental health issues. His dispute with the condominium board was centered around concerns about an electrical room, which he claimed was causing harmful vibrations within his unit. He also claimed that members of the condominium board had actively engaged in efforts and conspired to intentionally harm him.

There were multiple court actions between the condo corporation and the unit owner. In one such action in which the owner had named several board members personally as defendants, the Ontario Superior Court of Justice ultimately concluded that the claims were frivolous and vexatious (see: Villi v Camilleri, 2022 ONSC 4561). Although the condominium board had taken steps to reduce the vibrations, the occupant’s issues were apparently not fully resolved. In the days leading up to this tragic incident, he continued to post videos on social media discussing his ongoing dispute with the condominium board, alleging that [the condominium board] wanted him dead.

These recent events in Toronto serve to highlight similar issues faced by the majority of condominium corporations involving resident complaints and mental health issues. Most condo lawyers would agree these types of claims have increased dramatically and were even exacerbated by the COVID-19 pandemic shut-downs.

Dealing with residents’ complaints can be exceptionally difficult for volunteer board members who have no special training in dispute resolution, but this is unfortunately a large part of the board’s duties and cannot be avoided. Identifying a potential mental health issue early on and understanding the board’s role and duties in addressing complaints, particularly where such issues exist, are crucial. This may help avoid lengthy court proceedings with high costs, and could, hopefully, also minimize the risk of tragic consequences such as these.

The following are a few general strategies for condo boards to improve their approach to complaint resolution involving residents who may suffer from mental illness or disorder:

1. Understand the Duty to Accommodate

The duty to accommodate someone with a physical or mental disability or disorder, among other things, applies to all condominium corporations. Accommodation might mean making certain changes to rules, standards, policies and/or physical environments. Strict enforcement of condominium bylaws may have to be relaxed in these instances, although the duty to accommodate doesn’t eliminate the general obligation of occupants to conduct themselves reasonably, communicate respectfully, and comply with the bylaws.

The duty to accommodate also extends to the point of undue hardship, being the limit at which accommodation would create onerous or overly burdensome conditions for the condominium corporation. This includes but is not limited to causing significant financial impairment and impacting safety/security requirements.

If an occupant has disclosed that they have a mental health issue, the condominium board must act in good faith when considering how to accommodate the occupant. Accommodation must be reasonable, but it needn’t be perfect, nor must it take the exact form requested by the occupant. Condominium boards should be mindful that accommodation of mental health issues can be a creative exercise.

2. Encourage Early Disclosure

Engaging in respectful and clear communication with the individual is instrumental in obtaining the information necessary for the board to provide an appropriate response and (hopefully) avoid claims of discrimination. Early disclosure of a mental health issue and the need for accommodation at the outset of the discussion should always be encouraged, as it enables the board to act promptly, showing the individual that their needs are being heard and taken seriously.

Ultimately, it is up to the individual to inform the condominium corporation of their particular issues and needs so as to give the corporation an opportunity to consider accommodation requests and make reasonable adjustments. On receiving information concerning an occupant’s mental health issue and requested accommodation(s), the board should try to gather as much information as possible (subject to respecting the individual’s privacy rights) and then consider ways to accommodate the individual’s needs. Practice active listening habits and acknowledge the occupant’s concerns, encouraging them to feel comfortable and respected, which will make them more likely to voluntarily disclose any mental health issues.

3. Be Responsive

Condominium boards should endeavour to substantively respond to all occupant’s complaints in a timely fashion. This not only satisfies the board’s duties of good faith, but also ensures that the occupant feels heard. If a complaint is received orally, encourage the individual to submit the complaint in writing. Document all interactions and responses. On receipt of a complaint, investigate and ask questions to determine the what, when, where, who, how and why of the situation. As a starting point, the board needs to determine if the complaint is legitimate and reasonable. Ask open-ended questions, as this may help identify options for accommodation to address mental health or another issue, if necessary.

Finally, keep the individual updated on what steps the board has taken and/or plans to take, so they know that their concerns are being respected and addressed. Practice empathy and work together to set goals to resolve the issue or complaint. Including the individual in the resolution process demonstrates that the condominium board is receptive and sympathetic to their concerns.

At the end of the day, not all occupant complaints or disputes are easily addressed, even when employing the above strategies, and some will inevitably wind up being decided by a court. Where mental health issues are involved, resolving complaints can be especially tricky, and sometimes even dangerous, as we have seen in recent weeks. But having a good understanding of the board’s duties, being respectful, responsive, and generally practising good listening and communication skills will help to minimize these and other risks.

If you have questions about this blog post or others, please reach out for legal advice.

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By Erin Berney and Maryam Musbah, Field Law