Legal

July 13, 2023 Published by South Alberta Chapter

Apathy is the Enemy of Condo Boards: Condo Faces $25k Fine for Ignoring Accessibility Complaint

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

The recent decision of the Alberta Human Rights Commission in Engel v The Owners: Condominium Corporation Plan No. 9023695 o/a Glenora Manor (“Glenora Manor”) serves as a cautionary tale for condo boards dealing with Owner requests, especially where Human Rights issues may be involved.

The Complainant (“Mr. Engel”) was a long-time resident of the Glenora Manor condominium, in a unit owned by his mother, Ms. Engel. He was a full-time wheelchair user due to a physical disability. Since he moved into Glenora Manor in 2009, all units had included barrier-free access to private balconies via sliding glass doors. As they fell into disrepair, the Board voted to replace each unit’s exterior sliding patio doors. However, despite the Board’s awareness of Mr. Engel’s disability (and the fact that his previous request to make accessibility-related renovations to his unit had been granted), the Board purchased inaccessible patio doors for all units, including his.

The Engels wrote to the Board, requesting an accessible patio door for their unit. The Board provided a proposed design for an accessible door but indicated that all costs associated with obtaining the door would be the responsibility of the Engels. Despite the Engels’ attempts to negotiate and suggesting a cost-sharing arrangement, the Board refused the proposal to share costs and did not provide any further details or willingness to negotiate. Mr. Engel submitted several proposed accessible designs, after paying almost $2,000 for an accessibility assessment, all of which the Board rejected, with no explanation for why beyond a “vague concern” regarding water ingress. Despite the disrepair of the existing door, which made it particularly inadequate in the colder months, Mr. Engel was forced to keep this door in order to maintain accessibility to the patio. The Engels continued to follow up with the Board regarding their concerns about accessibility, but the Board refused to meaningfully engage with them for the next five years, leading to the present Human Rights complaint.

Section 4 of the Alberta Human Rights Act prohibits discrimination in the areas of goods, services, accommodation, or facilities and tenancy on the basis of physical disability. Despite its disrepair, Mr. Engel was found to have suffered an adverse impact by being forced to keep his old patio door, and the Tribunal found he also suffered a great deal of discomfort and loss of dignity due to the longstanding apathy from the Board. Lastly, the Tribunal found that if it were not for the Complainant’s disability, his patio door would have been replaced with the rest of the building’s units (at the CC’s cost).

The Tribunal found that the Board did not address the Complainant’s request for accommodation promptly or take it seriously. The Board’s apathy was made evident Throughout the Tribunal process, and the Board (who was unrepresented by counsel) ignored several Orders issued by the Tribunal and missed several deadlines, stating only that they believed they had complied and that they were not aware of the charge against it or what it is guilty of, so it did not know how to respond or what particulars to provide.

It was noted by the Tribunal that, throughout the initial discussions and the consequent conflict and Hearing, the Board did not seek legal advice at any time. The Board was cognizant of the accessibility issue with its choice of patio doors but continued with their purchase and installation regardless. The Tribunal found that the Board did not address the Engels’ request for accommodation promptly or respectfully, it treated the Engels with disdain and did not investigate nor assess whether it could make the accommodation, which it had a duty to pursue. The Tribunal found the Board’s strategy of “letting sleeping dogs lie” to be discriminatory and unacceptable, stating that “[t]he reality for individuals with disabilities is that they cannot afford to ‘let sleeping dogs lie’ when their access is impeded.”

The Tribunal ordered the Condominium Corporation to pay general damages of $25,000 (plus interest) to the Engels, install an accessible door at the sole cost and expense of the Condominium Corporation, pay a portion of the Engels’ legal costs, and all Board members were required to undergo human rights training before the end of September 2023.

This case illustrates the risks Condominium Corporations take when they fail to adequately address owner concerns, especially in the realm of Human Rights.

For assistance with any condominium matter, please contact Dionne Levesque, John McDougall, Kate Kozowyk, Stuart Gray, or Kendra Barlow.

Provided by SVR Lawyers; with written approval to reprint from their website: svrlawyers.com