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Human Rights Complaints
Are you prepared?
Tiffany K. Koch, LL.B.
Miller Thomson LLP
Tuesday, January 19th, 2010
Ontario’s Human Rights Code (the “Code”)
Preamble
“Whereas recognition of the inherent dignity and the equal and
inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world and is in
accord with the Universal Declaration of Human Rights as
proclaimed by the United Nations;
And Whereas it is public policy in Ontario to recognize the dignity
and worth of every person and to provide for equal rights and
opportunities without discrimination that is contrary to law, and
having as its aim the creation of a climate of understanding and
mutual respect for the dignity and worth of each person so that
each person feels a part of the community and able to contribute
fully to the development and well-being of the community and the
Province;”
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Relevant provisions of the Code:
s.1 - services, goods and facilities
s. 2(1) – right to equal treatment in accommodation
s. 2(2) – freedom from harassment in accommodation
s. 5(1) – right to equal treatment in employment
s. 5(2) – freedom from harassment in employment
s. 7(1) – freedom from sexual harassment in
accommodation
s. 7(2) – freedom from sexual harassment in employment
s. 8 – no reprisal or threat of reprisal for making claim
s. 9 – direct or indirect infringement prohibited
s. 11(1) – constructive discrimination
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S. 2(1) – Accommodation
“Every person has a right to equal
treatment with respect to the occupancy
of accommodation, without
discrimination because of race, ancestry,
place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual
orientation, age, marital status, family
status, disability or the receipt of public
assistance.”
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Legal Test for “undue hardship”:
The three considerations when assessing
whether an accommodation would
cause undue hardship are:
1. cost;
2. outside sourcing of funding, if any; and
3. health and safety requirements, if any.
* Onus of proving undue hardship rests
with condominium corporation.
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Evidence proving “undue hardship”
must be:
• Objective (financial statements, expert
opinion, data from studies, etc.)
• Real
• Direct
• Quantifiable (in the case of costs)
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Recent cases:
McMillan v. Bruce Condominium Corporation No. 6
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Ontario Human Rights Tribunal decision - June 18, 2009
Question: Does the condominium corporation’s duty to accommodate
include the obligation to pay for requested changes to a portion of the
common elements of which the owner has the exclusive use?
Held: The condominium corporation appropriately approved the unit
owner’s request to install hand railings on the front and back steps of the
Unit, but it was not responsible to pay for the installation. The steps
were part of the exclusive use common elements of the property and the
responsibility of the owner to maintain pursuant to the declaration.
“Other than the fact that the railings are needed for access, the
applicant’s request to install them is no different than the McMillans’
previous requests to install a hot tub or shed on the exclusive use
common elements of their property at their own cost.”
© 2010 Miller Thomson LLP
DiSalvo v. Halton Condominium Corporation No. 186
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Ontario Human Rights Tribunal decision – December 8, 2009
Questions:
(1) Does the condominium corporation’s duty to accommodate include an
obligation to assume the costs of reasonable accommodation measures?
(2) Is there a requirement to enter into a s. 98 agreement and does this
conflict with the application of the Code?
(3) What is the appropriate remedy for a breach of the Code?
Held:
(1) The condominium corporation was responsible to purchase, install
and maintain a semi-permanent ramp at the front entrance of the
applicant’s townhouse which was part of the condominium’s “common
elements”.
(2) S. 98 does not dictate the content of a s. 98 agreement or who must
bear the cost of alterations to a unit. Therefore, no conflict between the
Condominium Act and the Code.
(3) Tribunal awarded $12,000 for injury to dignity, feelings and selfrespect and the condominium corporation was required to develop a
human rights policy and complaints procedure.
© 2010 Miller Thomson LLP
Criteria used in assessing the appropriate amount of
compensation for injury to dignity, feelings and selfrespect:
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Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive
treatment
© 2010 Miller Thomson LLP
Metropolitan Toronto Condominium Corporation No.
946 v. M. (J.V.)
• Ontario Superior Court of Justice decision – December 29, 2008
• Held: Court satisfied that condominium corporation
accommodated the unit owner (suffering from paranoid
schizophrenia) to the point of undue hardship since June 23,
2004. Order for sale of unit granted and unit owner required to
vacate unit so very large volume of contents could be removed.
• “[A] corporation’s duty to accommodate to the point of undue
hardship should be considered in light of its obligations to other
owners. The burden of funding the corporation falls on the
owners. The cost of accommodation is borne by the owners at
least in the first instance, and ultimately, if the accommodated
owner does not reimburse the corporation. Of greater
significance is the health and safety risk to other owners, each of
whom make his or her home in this condominium.”
© 2010 Miller Thomson LLP
Pets and Disabilities:
Waterloo North Condominium Corporation No. 198 v. Donner
- Ontario Court of Justice, General Division – October 21, 1997
- Unit owner and her mother moved into condominium with “no pets”
provision in declaration.
- Mother allowed to live in with her dog which she required for assistance
with her total deafness.
- “There is no obligation upon her to exhaust every other means of
assistance before she is entitled to the protection of the Ontario
Human Rights Code.”
Waterloo North Condominium Corporation No. 186 v. Weidner
- Ontario Superior Court of Justice – June 3, 2003
- Corporation’s application for order requiring unit owner to remove dog
and comply with declaration granted by Court.
- Declaration was vital to integrity of title acquired by unit owners and
owner had sufficient notice of prohibition during purchase and failed to
show declaration was unreasonable.
© 2010 Miller Thomson LLP
Pets and Disabilities - con’t
Niagara North Condominium Corporation No. 46 v. Chassie
- Ontario Court of Justice, General Division – April 7, 1999
- Declaration and rules of condominium contained “no pets” provisions,
however, not consistently enforced.
- Unit owner suffered from mild depression and high blood pressure –
Court held sufficient to constitute “mental illness” and a disability under
the Code.
- Unit owner’s doctor stated that forcing her to abandon cat would cause
her “severe emotional and physical detriment”.
- Court held the cat was therapy utility animal. “There is growing
awareness of the extent which animals improve the mental and physical
well being of people. It has been said that therapy dogs have been
shown to lower blood pressure, another medical problem of Mrs.
Chassie, and help people relax. In the specific circumstances of this
case, a part of Mrs. Chassie’s treatment for her mental disorder,
depression, is the emotional support provided by her cat.”
© 2010 Miller Thomson LLP
Discrimination Based on “Family Status”:
Dellostritto v. York Region Condominium Corporation No. 688
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Ontario Human Rights Tribunal decision – March 2, 2009
Limited hours children ages 16 and under could use indoor swimming
pool shared by two condominiums and families with children excluded
from participating in Recreation Committee.
Condominium corporation’s posting and distribution of promotional
materials describing building as an “adult lifestyle” building contributed to
unwelcoming atmosphere described by applicant.
Corporation agreed to modify pool restrictions, remove “adult lifestyle”
signage and establish a Families Committee during the Case Resolution
Conference, therefore, no longer discrimination based on family status.
Tribunal awarded general damages of $1,000 to applicant.
Rules which are “unduly restrictive” are discriminatory, however,
Tribunal confirmed that corporation was not required to remove all
restrictions.
© 2010 Miller Thomson LLP
Discrimination Based on “Family Status” - con’t
Nipissing Condominium Corporation No. 4 v. Kilfoyle
- Ontario Superior Court of Justice decision – September 3, 2009
- Court held: The condominium’s declaration which restricted the use of
units in the condominium project to a “one family residence” to exclude
roomers and/or boarders was valid and did not infringe the Code.
- Corporation already used a more expansive definition of family in order
to comply with the requirements of the Code.
- A “one family residence” is a basic social unit which involves more than
merely sharing short term temporary sleeping quarters and shared
facilities on a rental basis.
- “Those units which violate the occupancy restriction are receiving the
benefit of the return on their investment while the other owners are
picking up the additional costs being incurred as a result of these
multiple tenancies.”
© 2010 Miller Thomson LLP
Sexual Harassment:
- Definition of “harassment” in s. 10(1) of the Code means:
“engaging in a course of vexatious comment or conduct that is
known or ought reasonably to be known to be unwelcome.”
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Subjective and objective test for harassment - the subjective test
is from the view of a reasonable third party taking into account the
perspective of the person being harassed.
No requirement that a person object to the conduct or comment at
the time for a violation of the Code to exist.
Comments do not always have to be sexual in nature – can be
comments on how a person is dressed.
“sexual orientation” not specifically listed ground of discrimination
in the Code, but the Ontario Human Rights Commission’s policy
position is that it is included and this is supported by case law.
© 2010 Miller Thomson LLP
Sexual Harassment - con’t
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Sexual harassment includes unwelcome sexual comments or remarks,
leering, inappropriate staring, unwelcome demands for dates, requests
for sexual favours, and displays of sexually offensive pictures or graffiti.
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Examples:
– gender-related comments about a person’s physical characteristics or
mannerisms
– unwelcome physical contact
– suggestive or offensive remarks or innuendoes about members of a specific
gender
– propositions of physical intimacy
– gender-related verbal abuse, threats or taunting
– leering or inappropriate staring
– bragging about sexual prowess
– demands for dates or sexual favours
– offensives jokes or comments of a sexual nature
– questions or discussions about sexual activities
– rough and vulgar humour or language related to gender
© 2010 Miller Thomson LLP
What should condominium Boards and
property managers be doing?
• Apply rules, by-laws and declaration provisions consistently and
even-handedly. If a rule has been enforced differently because of
human rights criteria, keep detailed notes of the particular
circumstances so enforcement of the same rule can be justified
against others.
• Review rules annually and amend any rules which may indirectly
result in discrimination against a person or a group.
• Formulate and adopt a policy statement which acknowledges the
application of the Code to condominiums, and states clearly that
the corporation does not tolerate discrimination or harassment.
– We have found that this will be taken into account by the Human
Rights Tribunal in assessing the conduct of the condominium
corporation after a complaint is made.
– Discussing and adopting a policy assists in educating the Board and
property management on their respective duties under the Code.
© 2010 Miller Thomson LLP
con’t
• Implement a complaints procedure.
• Prepare and distribute a Sexual Harassment Policy.
• Consider accessibility when carrying out any renovations or
refurbishments of the property – costs are always greater when
steps have to be taken later and making the property accessible
can increase the value of the units.
• When a request for accommodation is made:
– Always do an overall cost-benefit analysis, even for the most
challenging requests - the cost of litigation will exceed the cost of
making the requested alteration to the common elements.
– Meet with the unit owner to discuss the available options and
understand the option most desired by the owner – the Board must
look for accommodation method that maintains “dignity” of the
person.
© 2010 Miller Thomson LLP
Questions?
I may not know the answer, but I will
definitely get back to you with one!
Thank you.
© 2010 Miller Thomson LLP