Human Rights Complaints Are you prepared?

1. Human Rights Complaints Are you prepared? Tiffany K. Koch, LL.B. Miller Thomson LLP Tuesday, January 19th, 2010

2. 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;” © 2010 Miller Thomson LLP

3. 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 Relevant provisions of the Code: © 2010 Miller Thomson LLP

4. 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.” © 2010 Miller Thomson LLP

5. 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 • health and safety requirements, if any. * Onus of proving undue hardship rests with condominium corporation. © 2010 Miller Thomson LLP

6. Evidence proving “undue hardship” must be: • Objective (financial statements, expert opinion, data from studies, etc.) • Real • Direct • Quantifiable (in the case of costs) © 2010 Miller Thomson LLP

7. Recent cases: McMillan v. Bruce Condominium Corporation No. 6 • 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

8. DiSalvo v. Halton Condominium Corporation No. 186 • 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 self-respect and the condominium corporation was required to develop a human rights policy and complaints procedure. © 2010 Miller Thomson LLP

9. Criteria used in assessing the appropriate amount of compensation for injury to dignity, feelings and self-respect: • 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

10. 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

11. 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

12. 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

13. Discrimination Based on “Family Status”: Dellostritto v. York Region Condominium Corporation No. 688 • 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

14. 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

15. 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.” • 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

16. Sexual Harassment - con’t • 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. • 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

17. 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. What should condominium Boards and property managers be doing? © 2010 Miller Thomson LLP

18. 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

19. Questions? I may not know the answer, but I will definitely get back to you with one! Thank you. © 2010 Miller Thomson LLP