Legal

May 14, 2024 Published by South Alberta Chapter - By Matthew Ryan

Can Sophie The Dog Stay?

From the Spring 2024 issue of the CCI South Alberta CCI Review

What Are A Condo Board’s Duties To Accommodate? What Remedies Are Available When A Condo Board Fails To Accommodate?

Introduction

Recent caselaw shows many condo boards and their members do not properly handle accommodation requests from tenant/owners on human rights grounds. In large part, these issues are also faced by landlords of non-condo multi-family buildings.

Sophie the Dog

Sophie was a White German Shepherd service dog brought home by Monika Karnis to her high-rise condo in February 2022. She was to be Monica’s service dog to support her condition which often led to vertigo and instability while walking.

Shortly after making her first payment for Sophie’s birth and training, Ms. Karnis emailed her condo board to alert them of her purchase, since she lived in a condo building with a “no-pets” bylaw. Frustratingly for Ms. Karnis, the condo board initially said that she did not have a disability and therefore did not need accommodation. However, after hiring a lawyer the condo board changed course and accepted that Ms. Karnis’ condition was a disability.

Some time later, the condo board sent a draft Accommodation Agreement to Ms. Karnis that allowed her to bring a service dog into her condo, except for certain breeds including German Shepherds. The condo board took issue with Sophie’s size and breed because they considered German Shepherds to be dangerous.

This quickly led to an impasse, because Ms. Karnis had by then invested substantial funds in Sophie and her training, and was not prepared to abandon her investment. Convinced that Sophie was not a good dog, the condo board brought an application before Ontario’s Condominium Authority Tribunal to have her removed.

The condo board was unsuccessful in its application and Sophie was allowed to stay. How could this expensive exercise be avoided by the condo board?

The Tribunal ordered that Ms. Karnis was allowed to keep Sophie, who was also fashionably ordered to don a “SERVICE ANIMAL” vest while on common property to notify neighbours of her exceptional status.

One flaw in the condo board’s position was its lack of expert evidence. This is a common criticism levied by tribunals where layperson condo board members give evidence in disability matters that often ought to come from experts. The tribunal in Ms. Karnis’ case didn’t accept the board’s concerns over Sophie’s size and breed because they had no expert evidence to suggest that a White German Shepherd is more dangerous than other dogs of similar size. Specifically, the Tribunal wrote:

The board cannot insulate itself from scrutiny when addressing accommodation requests without providing a cogent rational for its position after using reasonable diligence. I have been presented with insufficient evidence that the board took reasonable steps to fully inform itself and investigate Ms. Karnis’ request and specifically, whether Sophie posed an unreasonable risk.¹

Ms. Karnis’ case is a good reminder of the duties faced by condo boards when approached with a request for accommodation. Although Ms. Karnis was in Ontario, her condo board’s missteps have been repeated by boards across the country.

Legislation in Alberta

The Alberta Human Rights Act outlaws discrimination in providing services, accommodation or facilities to the public, and it applies to organizations like businesses and charities. However it may surprise some condo boards that the Human Rights Act and its accommodations also apply to condominium corporations.² Although the Condominium Property Act allows broad remedial discretion where the Court finds so-called “improper conduct” has taken place, this does not stop condo owners and tenants from advancing human rights claims separately under the Human Rights Act.

Furthermore, the Alberta Human Rights Act equally applies to landlords of multifamily residences in the same way it applies to condo boards.

Duty to Accommodate

Although condo boards have volunteer directors who meet infrequently, a request for accommodation under the Human Rights Act must be dealt with timely and diligently. The Supreme Court of Canada has accepted that, once an accommodation request is received, there is a procedural duty to accommodate.³ In Leary⁴, the BC Human Rights Tribunal offered the following advice to assist condo boards and managers meet their procedural duties to accommodate:

• Address requests for accommodation promptly, and take them seriously.
• Gather enough information to understand the need for accommodation, including necessary medical information.
• Obtain expert opinions or advice where needed, at the condo board’s expense.
• Take a lead role in investigating possible solutions.
• Rigorously assess whether the condo can implement an appropriate accommodation solution.
• Recognize that a condo board cannot avoid its obligations under human rights legislation by simply voting to deny an accommodation.
• Approach the issue with an attitude of respect.

Condo boards and managers must take these duties seriously. Although courts and tribunals often give deference to board decisions under the common law business judgment rule, there is far more scrutiny of board decisions that engage human rights issues. The Ontario Condominium Authority Tribunal finds in Karnis that the care, diligence and skill required of a board must be commensurate with human rights principles of dignity, individualization, integration and full participation.⁵

A defence often raised by condo boards is the financial impact of a requested accommodation. However such defences are usually rejected by human rights tribunals. In Cush, the condo board argued that it could not build a wheelchair ramp for the disabled complainant until many years later, due to higher priority projects such as elevator replacement, cladding replacement, and balcony renovation.⁶

The condo board argued that these necessary repairs took priority over the wheelchair ramp because of its responsibilities under the Condominium Property Act to maintain and repair the condo building. This argument was rejected by the Tribunal because the Condominium Property Act cannot be raised as a defence to the Human Rights Act.

Consequences for Breach

Most human rights disputes in the condo context relate to parking access, wheelchair accessibility, service animals, and smoking rules. Condominium boards must take human rights complaints seriously. The Human Rights Tribunal of Alberta has broad powers to order remedies including compensation, and these orders are enforceable just as a court order.

Several cases illustrate the risks faced by condo boards when human rights complaints are not properly addressed. In Jakobek, the condo board eventually approved the claimant’s request for accommodation to park his motorized scooter in the parking garage, but only after repeatedly failing to seriously address Mr. Jakobek’s complaint.⁷ The Human Rights Tribunal of Ontario ordered the condo corporation and its manager to pay $5,000 to charity and to complete an online human rights training course.

In Engel, the condo board utterly failed in its procedural duty to the complainant and his request for wheelchair accommodations.⁸ Among the board’s transgressions were a failure to respond to Mr. Engel’s concerns and several failures to respond to case management directions given by the Human Rights Tribunal. It was argued by the Director of the Human Rights Commission that the respondent condo board viewed the complaint as a mere inconvenience that it was not required to take seriously or participate in.⁹ The Tribunal ordered the condo corporation to pay damages, to install an accessible patio door for Mr. Engel, and for all board members to complete human rights training.

The procedural duty may also require a condo board to consult experts, as noted above in the Karnis case. In Engel, the condo board relied on the lay opinion of a board member in rejecting designs offered by the complainant for wheelchair accessible patio doors. The condo board’s decision in Engel was not accepted by the Tribunal since the board member was not an expert in accessibility or construction.

How far can tribunals go in crafting remedies?

Human rights tribunals in Canada have broad remedial powers granted under their founding legislation. This may include declarations that certain bylaws of the condo violate human rights and are unenforceable. That is what occurred in a 2020 decision of the BC Human Rights Tribunal, where a “no-dog” bylaw was ordered unenforceable against a disabled complainant.¹⁰

In Jakobek, the complainant was disabled and used a motorized scooter to remain mobile. He requested accommodation from the condo board to park his scooter in the underground parking stall designated to his unit, because the condo’s bylaws were silent as to whether this was permitted.

After finding that the condo board had discriminated against Mr. Jakobek, the Human Rights Tribunal of Ontario ordered the condo board “ensure that the by-laws of the condominium, by amendment, specifically permit that mobility assistive devices can be parked in the parking garage.”

This is a surprising remedy awarded by the Ontario tribunal. How is a condo board meant to comply with such an order if the bylaw amendment does not receive enough votes to pass? And if the amendment does not pass, what then can be done to enforce the order?

Most challenging are situations where a complainant seeks bylaw amendments that impact other owners. In Leary, the complainant suffered from breathing issues related to smoke ingress in her apartment. Smoking was neither permitted nor prohibited under the condo’s bylaws. In response to the complaints, the condo board twice put forward proposed bylaw amendments to restrict smoking, but neither received enough votes to be successful.

The BC Human Rights Tribunal did not go so far as to order the bylaws amended to prohibit smoking, but rather meekly ordered that the condo board “work together” with the complainant to determine whether preventing smoke ingress is a tenable solution that can be accomplished without undue hardship on the condo board.

It would have been controversial had the Tribunal in Leary ordered the condo board to amend its bylaws to prohibit or limit smoking. Such an order would restrict the rights of smokers in their unit. These concerns were voiced by the BC Human Rights Tribunal in Bowker,¹¹ where the complainant sought an order for the enactment of a non-smoking bylaw. Ultimately, the Tribunal did not order a non-smoking bylaw, characterizing such a remedy as “an interventionist measure given that it reaches into the behaviour of owners in their own homes.”

Conclusion

If you are a condo board (or the landlord of a multi-family residence), human rights complaints from tenant/owners must be seriously and respectfully evaluated. These accommodation requests can create difficult situations that require outside assistance. If you are facing an accommodation request, a lawyer can help navigate the process and minimize your costs and liability.

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^{1 - York Condominium Corporation No. 435 v Karnis et al., 2023 ONCAT 181 at para 59 [“Karnis”].
2 - Condominium Corp. No. 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183.
3 - British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 [“Meiorin”]
4 - Leary v Strata Plan VR1001, 2016 BCHRT 139 [“Leary”].
5 - Karnis, supra note 1 at para 73.
6 - Cush v Condominium Corporation No. 7510322 o/a Renfrew House, 2022 AHRC 87 [“Cush”].
7 - Jakobek v Toronto Standard Condominium Corporation No. 1626, 2011 HRTO 1901 [“Jakobek”].
8 - Engel v The Owners: Condominium Corporation Plan No. 9023695, 2023 AHRC 37 [“Engel”].
9 - Ibid at para 28.
10 - Daughter by Parent v The Owners, A Strata, 2020 BCHRT 105.
11 - Bowker v Strata Plan NWS 2539, 2019 BCHRT 43 [“Bowker”].}

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Matthew Ryan
Mclennan Ross LLP