Top Ten Things Condo Managers and Boards Should Know About Human Rights in Ontario

Human Rights Protections Only Extend to "Enumerated Groups"

1. In our practice we often encounter people who believe that their human rights were violated because someone has treated them badly, shouted at them, fired them from their jobs, spread rumours about them, overcharged them for something, etc.  Whether we are acting for Respondents (Defendants), or for Applicants (Plaintiffs), we always test the evidence to determine if there is a nexus between the conduct that is being complained of and the specific protections offered by the Human Rights Code.

The Human Rights Code has a very narrow area of jurisdiction.  It applies solely to people who are members of an enumerated group (or an analogous group), and to discrimination or harassment that occurs on an enumerated ground.  The enumerated grounds are:

1. race
2. ancestry
3. place of origin
4. colour
5. ethnic origin
6. citizenship
7. creed
8. sex
9. sexual orientation
10. age
11. marital status
12. family status
13. disability
14. receipt of public assistance (in limited contexts)
15. record of offences (in limited contexts)

If an instance of bad treatment does not relate to one of these grounds or an analogous ground, then the Human Rights Code holds no remedy for the individual.  There may be remedies available for non-discriminatory harassment or bad treatment in other legal forums, but not before the Human Rights Tribunal.

The Human Rights Code Applies to Condominiums

2. Even though condo boards and management companies are private entities (non-governmental corporations) they are still subject to the Human Rights Code.  The Code provides that individuals are entitled to be free from discrimination in respect of “goods, services, facilities” and with respect to “occupancy of accommodation.”ⁱ  The Code also provides that individuals are entitled to be free from discrimination with respect to contracts.

These areas of protection under the Human Rights Code will cover nearly everything done by a condo board or management company, from making decisions about employees, to making rules and regulations for owners/residents.

The Human Rights Tribunal is an Adversarial Court-Type Body that Issues Enforceable Orders

3. Prior to June 2008 the Human Rights Commission (as opposed to the Human Rights Tribunal) had jurisdiction over the Human Rights Code in Ontario.  The Commission made the ultimate decision about which human rights matters would be permitted to proceed to a hearing on the merits.  In this respect the Commission was a “gatekeeper” for the human rights system.  The Commission’s process was collaborative and extremely lengthy.  Cases could take up to 6 years to resolve.

The Human Rights Tribunal of Ontario, which took over from the Commission in 2008, has a more adversarial process, and also features a “direct access” model.  Direct access means that anyone can file an Application directly with the Tribunal.  Compared to the Commission, the Tribunal has very little power to do any gate-keeping regarding Applications that lack merit.  What this means for Respondents is that there are very limited options for quickly and inexpensively dealing with an Application where that Application has met a minimum standard of thoroughness and jurisdictional compliance.

Although the Human Rights Tribunal is not a court, an order issued by the Tribunal is a final and binding order.  Such an order can be entered into the Superior Court and enforced by a court enforcement officer.

The Code is a Quasi-Constitutional Law

4. Section 47(2) of the Code contains a statement that the Code has primacy over other acts or regulations.  What this means is that whenever any other law, rule, or regulation conflicts with a provision of the Code, the Code takes precedence.ⁱⁱ

It is not possible to “contract out” of the Code.  What this means is that two parties cannot agree to allow discrimination to take place, notwithstanding the Code.  Any such agreement would be void from the outset.  Even an agreement that does not explicitly authorize discrimination could be found to have no force or effect if it tends to justify or permit discrimination inadvertently.

As an example, imagine a contract that a condo board may have with a particular cleaning company.  Imagine that the contract stipulated that the cleaning company would use only alcohol-based cleansers.  Imagine as well that the contract contains a provision that if the condo board reneges on the “cleanser clause,” then the whole contract is void and the condo would owe damages to the cleaning company.  If a resident in that building had a severe allergy to alcohol vapours (a recognized disability), it would be no defence for the condo board to say that there is nothing that could be done because they cannot breach the contract with the cleaning company.  The duty to accommodate would still apply in such a situation, up to the point of undue hardship.

A Party Making a Human Rights Claim Must Establish a Prima Facie Case

5. As discussed below, in religious and disability accommodation cases there is a “reverse burden” on the Respondent to prove that its rules, practices, etc. are not discriminatory.  However, before we get to that point the Applicant has to prove what is called a prima facie (or, “on the face of it”) case of discrimination.  Depending on the case this can be simple to the point that it is not even contested between the parties, or it can be complicated to the point that it becomes the focus of the hearing.

 In the disability accommodation context the Applicant must prove, (a) that he or she is a disabled person (this is not always obvious), (b) what the reasonable accommodations are for this person’s particular disability, and (c) that the Respondent has failed to provide this accommodation.

If the Applicant can prove those three things, then there is a presumption that discrimination has taken place unless the Respondent can satisfy the Tribunal otherwise.

Discrimination Under the Code Can Include “Adverse Effects Discrimination” which is also known as “Constructive Discrimination”

6. Not all discrimination is obvious.  Sometimes a neutral rule that applies equally to everyone will have an adverse effect on the categories of people that are protected by the Code (e.g., the disabled, visible minorities, religious groups, etc.).  The Code’s protections extend to situations where an apparently neutral rule or practice has a disproportionate effect on an enumerated group.

The expectation under s. 11 of the Code is that where a neutral rule has a disproportionate effect on an enumerated group, reasonable accommodations should be made to alleviate that disproportionate impact.ⁱⁱⁱ  Liability under the Code arises when these accommodations are not made.

There have been a few examples of this type of constructive discrimination in the condominium context, the most famous of which is the case of a condominium in Montreal that had a blanket prohibition against structures on balconies.

The problem in this case was that observant Jewish residents wanted to construct “sukkahs,” or ritual huts, on their balconies.  The apparently neutral rule against balcony structures had a disproportionate impact on Jewish residents.  The Supreme Court ruled that it would be a reasonable accommodation in the circumstances to allow the residents to construct sukkahs, and that the blanket prohibition against balcony structures was discriminatory as regards observant Jewish residents.^iv

The Limit on what Constitutes Reasonable Accommodation is the Point of “Undue Hardship”

7. The drafters of the Code recognized that at a certain point the measures needed to alleviate adverse effects discrimination could become too onerous.  Section 11 of the Code is structured in such a way as to require the party seeking to defend the neutral rule to prove that its rule is a bona fide requirement.  In adverse effects cases the Code starts from the presumption that discrimination has taken place, and then asks the alleged discriminator to prove that the rule is bona fide and that making an exception or accommodation to the rule would be an undue hardship, failing which there will be a breach of the Code.

This is a departure from the normal practice in trials and administrative proceedings where variations of the “innocent until proven guilty” rule generally apply.  In human rights cases involving accommodation issues there is a “reverse burden” on the defendant to justify its rule or its practice, and to explain why making an exception or an accommodation would be an “undue hardship.”

There are only Three Factors Relevant to Proving Undue Hardship

8. In our practice we act for Respondents (Defendants) and Applicants (Plaintiffs) in human rights matters.  In adverse effects cases the Respondent will often be required to have substantial evidence supporting the claim that a particular accommodation constitutes an undue hardship (this is assuming that a prima facie case has been established by the Applicant, see (5) above).

There are only three relevant factors to determining whether there is an undue hardship:

1. cost;
2. health and safety;
3. sources of outside funding.

The Human Rights Tribunal cannot consider any other factor that a Respondent may point to as an explanation for why the accommodation would be too onerous.  For example, some respondents have argued that their customers would desert them if they accommodated a person with a particular disability.  The Tribunal has ruled that “customer preferences” are not a relevant factor.^v  The same would logically extend to “resident” or “owner” preferences in the condominium context.

The most common arguments made regarding undue hardship relate to cost and health and safety.  To return to an earlier example from the condominium context, it may be possible to show that a hut constructed on a balcony would pose a structural threat to the balcony itself, or be a fire hazard.  Engineering evidence would be required to prove that assertion.  From the cost perspective, one could advance an argument that a particular accommodation would be so expensive as to cause the condo corporation to run a deficit, but the corporation would have to open its books and provide detailed accounting information to substantiate that claim.  It is also possible that a Tribunal could find that it would be reasonable for a condo corporation to run a deficit in order to accommodate a resident in certain circumstances.

Arbitrators under the Condominium Act Must Hear Human Rights Arguments

9. Many, if not most, condominiums require purchasers of units to sign an agreement containing an arbitration clause.  The clause typically provides that if the owner and the corporation have a dispute, they agree to resolve that dispute through the process contemplated under the Arbitrations Act.

Many condominiums have also passed a Mediation Arbitration By-Law applicable to all residents, rather than have individual agreements.  The By-Law sets out procedures to be followed in the face of a dispute.  If the By-Law passes the test provided under the Condominium Act it is then registered on title to each unit and procedurally binds each unit owner and the corporation.

The Supreme Court has recently ruled that certain administrative law decision-makers cannot decline jurisdiction to hear a human rights argument that has been properly advanced before them.  What this means for the condominium context is that if an owner/resident believes that the condominium corporation is not properly accommodating a disability or a religious requirement, then that issue can be argued before the arbitrator, and the arbitrator would most likely be required to decide the matter one way or the other, and to apply the Code in so doing.^vi

Previously, an arbitrator could have refused to hear a human rights issue on the basis that the only matter before the arbitrator was a dispute under the Condominium Act, or a matter relating to the enforcement of a condominium’s declaration, by-laws, etc.  The arbitrator could have previously taken the position that there was no jurisdiction to consider and apply the Human Rights Code.

Having a Human Rights Policy is a Generally Good Idea

10. Generally speaking it is a good idea for organizations to have human rights policies, and we have acted for several condominium corporations in drafting policies and procedures.  However, the major caveat to this statement is that it is counterproductive to have policies that cannot be enforced, or that will not be enforced in practice.

Whenever we draft a human rights policy for an employer, a condominium corporation, or another organization, our first consideration is always: “What are the actual capabilities of this organization?”  If we are dealing with a small organization with limited resources, we draft a simpler policy with fewer procedural steps.  If the organization is a large one with greater capabilities and resources, then the policy can be more detailed and comprehensive.

If a condominium corporation has a human rights policy that provides procedural or substantive guarantees that go above and beyond what is required by the Code, and if those procedures are not followed in a given case, the Tribunal can make a finding of liability.  In some cases the Tribunal has looked at an organization’s internal policies and found inconsistencies between the policy and the practice, leading to a conclusion that there was a breach of the Code.^vii  The lesson here is that a comprehensive and thorough policy that is not followed in practice could do more harm than good.