We have previously written about the obligations the Ontario Human Rights Code places on condominium corporations. A recent decision of the Ontario Small Claims Court stemming from a person with a disability’s inability to obtain a disabled parking space highlights the need to ensure that condominium corporations abide by the provisions of the Human Rights Code and Condominium Act (the “Act”) as well as the corporation’s declaration, bylaws and rules.
In finding the condominium corporation liable to pay damages and costs of more than $10,000, the judge noted that “All condominium corporations should put in place a fair plan for accommodation of the parking needs of handicapped residents, purchasers and residents that become handicapped.”
Andrea and Gary Friman were a married couple living in Thornhill, Ontario. Both had health concerns: Andrea suffered from epilepsy, while Gary had multiple sclerosis and a serious heart condition.
Due to their health concerns, the Frimans decided to sell their multi-level townhouse and purchase a single-level condominium. Mr. Friman saw a listing for Unit 203 in York Region Standard Condominium Corporation No. 1062 (the “Corporation”), located just three kilometers away from their townhouse.
The Frimans viewed Unit 203 as well as three unsold units still owned by the Developer. Mr. Friman testified that while touring the units, a director of the Declarant Board (the “Director”) told him that it would be “no problem” for him to have a disabled parking space. Mr. Friman also testified that he told the Director he would need another parking space for his daughter, and that the Director showed him a vacant parking space close to the elevators that he could rent.
The Corporation’s declaration stated that if a person with a disability purchased a unit that was assigned a parking space which was not designated for the disabled, another owner who had a disabled parking space would be required (if he or she was not disabled) to exchange spaces.
The Frimans decided to purchase unit 203, and made an offer conditional on them being able to switch the unit’s assigned parking space for a disabled parking space. The vendor rejected this condition. The Frimans then re-made the offer, this time conditional on them being able to obtain either a disabled parking space or a parking space within 50 feet of the elevators. The vendor also rejected this condition.
Undeterred, the Frimans removed any condition regarding a parking space and signed an Agreement of Purchase and Sale.
After paying the $20,000 deposit, Mr. Friman emailed the Condominium’s Property Manager and requested that the parking spot assigned to unit 203 be exchanged for one of the disabled parking spots. He also inquired about renting a parking spot for his daughter.
Based on information provided by the Director, the Property Manager responded that the Board could sell the Frimans a disabled parking space for $20,000. She also stated that the Board did not rent parking spaces.
Mr. Friman responded and asked if the developer would rent him the disabled parking space that he had been told was not being used. However, the Director told Mr. Friman he could no longer purchase a disabled parking space.
The Frimans’ lawyer sent a letter to the Corporation’s property management company stating that without confirmation that his clients could purchase a disabled parking space, his clients would be backing out of the purchase of unit 203.
The Corporation’s lawyer responded that all of the Corporation’s disabled parking spaces were occupied, and that a standard parking space could be purchased for $20,000.
Faced with their inability to secure a disabled parking space, the Frimans backed out of the purchase of Unit 203. They were able to negotiate a return of just $5,000 of their $20,000 deposit.
Having lost $15,000 of their deposit, the Frimans sued the Condominium, the Developer, the Director, the property management company, and the Property Manager.
The court found the Developer and the Corporation liable to the Frimans for misrepresentation concerning the availability of a disabled parking space, the Corporation liable for failing to accommodate Mr. Friman under the Human Rights Code, and the Corporation and the Director liable for failing to abide by the provisions of the Act as well as the Corporation’s declaration, bylaws, and rules.
1. The Developer and the Corporation made misrepresentations
The Court found that the Developer and the Corporation made a number of misrepresentations regarding the availability of a disabled parking space and a space closer to the elevators:
Prior to the purchase of Unit 203, the Director told Mr. Friman it would be “no problem” for him to have a disabled parking space, and that a parking space close to the elevator was available.
Subsequent to the purchase, the Property Manager stated in an email that the Frimans would be able to purchase a disabled parking space for $20,000.
The Developer and the Corporation made numerous confusing statements regarding the disabled parking spots. The Director told Mr. Friman that he was not going to sell him any spots. The Corporation and Developer’s lawyer eventually said they would sell Mr. Friman a spot, but gave no details that would allow the Frimans to evaluate if it would meet their needs.
The Frimans relied on these misrepresentations and, as a result, were put in the position of having contracted to buy Unit 203 but having nowhere to park that would allow Mr. Friman to get into the building.
2. The Corporation breached its duty under the Human Rights Code to accommodate Mr. Friman
As we have previously reported:
The Ontario Human Rights Code requires condominium corporations to provide an equal opportunity to access housing and its intended benefits without discrimination on any of the grounds protected by the Code, including disability. The obligation extends to condominium boards, management, staff, owners and residents.
Time after time, human rights commissions and tribunals across Canada have affirmed that condominiums have a general duty to accommodate disabled owners and residents to the point of undue hardship. Depending on the circumstances, appropriate measures to accommodate persons with disabilities may include providing wheelchair ramps and accessible parking on the property, installing wide lobby doors that open automatically, or adding Braille to elevator buttons.
It this case, the Court found that it would have been a reasonable accommodation for the Corporation to switch the parking space assigned to Unit 203 for either a disabled space or a space closer to the elevators.
The Corporation’s failure to do so constituted discriminatory treatment that caused the Frimans stress and was a factor in their decision to not close on Unit 203.
3. The Corporation and the Director failed to abide by the provisions of the Condominium Act as well as the Corporation’s declaration, bylaws and rules
The Court found that under the Act, declaration, bylaws, and rules, the Corporation and its Board of Directors were under a duty to keep records of parking space leases and of the vehicles using each spot. If this had been done, the Court noted, it would have been very easy to determine who was using the disabled spaces and whether any suitable parking spaces were available.
However, in breach of these provisions, the Corporation appears to have been confused regarding the state of the disabled parking spots. Even at trial, the Corporation was not able to provide any leases or disabled permits to prove that disabled parking permit holders were using the designated parking spots.
Furthermore, the Corporation’s declaration stated that if a disabled driver purchased a residential unit that was assigned a parking space which was not designated for the disabled, the owner of a disabled parking space would be required (if he or she was not disabled) to exchange spaces.
The court held that The Director and the Corporation should have followed the declaration and when asked to do so by Mr. Friman should have switched the parking space that was assigned to Unit 203 for one of the disabled spots.
As noted, the Frimans lost $15,000 of their deposit when they backed out of the purchase of Unit 203. The Court awarded them $7,500, plus legal costs of $2,950.
The Court found that there were three reasons for their failure to go through with the purchase: a failure to secure a suitable parking space, the failure of their existing townhouse to sell, and their ongoing health issues. The court gave all three reasons equal weight, and attributed $5,000 of their loss to the failure to secure a suitable parking space.
As the Developer owned the parking spaces that should have been used to accommodate the Frimans, and employed the Director who made the misrepresentations to the Frimans (he was a member of the Declarant’s Board of Directors), it was held to be liable along with the Corporation for the sum of $5,000.
The Corporation was ordered to pay $1,500 in damages due to its failure to accommodate Mr. Friman, in breach of the Human Rights Code.
The Director of the Declarant Board and the Corporation were ordered to pay the Frimans $1,000 for their failure to abide by the Act, the declaration, the rules and the bylaws.
Finally, all of the defendants were ordered to pay the Frimans a total of $2,950 in costs and disbursements.
Key points to remember
Dealing with potential human rights issues can be tricky, so keep in mind the following tips:
Condominium corporations must take the accommodation of owners with a disability seriously. The judge in this case was careful to note that there is not a general duty to provide disabled parking to all owners with a disability, as “It may be in some condominiums that due to a lack of handicapped parking spaces this accommodation cannot be met.” However, she insisted that “All condominium corporations should put in place a fair plan for accommodation of the parking needs of handicapped residents, purchasers and residents that become handicapped.”
As mandated by the Act, condominium corporations must ensure they maintain adequate records.
Members of the Board of Directors have an obligation to manage the affairs of the corporation, which requires being familiar with the relevant statutes and the corporation’s declaration, bylaws, and rules. The Director in this case admitted he had never read the declaration and relied on the Property Manager to notify him of any problems – this is not acceptable.
Representatives of condominium corporations should be careful when making representations to prospective purchasers as purchasers may rely on these representations when deciding whether to purchase a unit.
If you have any questions regarding your condominium corporation’s obligations under the Human Rights Code or other legislation, contact a lawyer.