In the recent case of Castlegreen Co-Operative Inc. v Carmichael, the court discussed the human rights issues at play when terminating the membership of disabled co-operative members.
Ms. Carmichael joined the Castlegreen Co-Operative (the “Co-Op”) located in Thunder Bay, Ontario in 2005. She is confined to a wheelchair, has a learning disability, cannot read, and requires frequent assistance from local community care organizations. She also lives on a fixed income from Ontario’s Disability Support Program.
In early 2013, Ms. Carmichael’s failure to comply with the Housing Agreement resulted in her membership being revoked. The Co-op received frequent complaints about odour, likely from the presence of fecal matter from her cat and dog; Ms. Carmichael’s unit had fallen into disrepair; and Ms. Carmichael’s son and his girlfriend resided in the unit in contravention of the Housing Agreement.
Ms. Carmichael challenged the Board’s decision to repossess her unit, claiming a breach of her rights under the Human Rights Code. Ms. Carmichael argued the Co-Op had a duty to accommodate her disability to the point of undue hardship. She claimed that the Co-Op failed in its duty by not inquiring into her needs or making proposals that would assist her in complying with the requirements of the Housing Agreement.
Ms. Carmichael’s claim failed; the court held that her disability was not a factor in the termination of her Co-Op membership. As outlined by the court, “the difficulty lies not with any limitations Ms. Carmichael has in maintaining her unit, but rather with her decision to keep pets which creates a situation where her choices are infringing on the rights of other co-operative members.” The court further held that it was Ms. Carmichael’s choice to let her unit fall into disrepair, as well as to allow her son to reside in the unit. Her disability did not play a role in her breaches of the Housing Agreement. The court noted that the Co-Op’s repeated efforts to meet with Ms. Carmichael regarding the cleanliness of her unit provided her with ample opportunities to remedy the situation. These acts were sufficient to satisfy any duty to accommodate.
Condominium corporations and co-ops have a duty to accommodate persons with disabilities. When an issue arises, directors and/or property management should meet with disabled unit holders and propose accommodative measures. However, an obligation also rests on the person asserting the need for accommodation; he or she must assist in identifying the need and finding solutions to achieve accommodation.
Special thanks to Michael McDonald and Alyssa Gebert who assisted with this article.