The Alberta Human Rights Commission decision of Susan Cush v
Condominium Corporation No. 7510322 o/a Renfrew House recently
confirmed the Human Rights Act and the Condominium
Property Act obligations on condominium corporations,
including their duty to accommodate. The Human Rights Act
prohibits discrimination against any person with respect to goods
and services, accommodation, or facilities because of certain
protected grounds. In Ms. Cush's case, this protected ground
was physical disability, which was not disputed by the
parties.
The complainant, Susan Cush ("Ms. Cush"), alleged that
the condominium corporation, Renfrew House ("Renfrew
House"), was discriminating against her contrary to the
Human Rights Act. Ms. Susan Cush was 69 years of age at
the time of the hearing. She was involved in an accident in 1977
that resulted in her being an incomplete quadriplegic. This
resulted in the serious mobility concerns and Ms. Cush required a
four-wheel walker when walking. Ms. Cush was unable to access her
unit via the front door of the building because of stairs at the
entrance and was unable to safely use the lane at the back of the
building due to its uneven nature resulting in a tripping hazard
for Ms. Cush and her walker. Ms. Cush alleged that Renfrew House
discriminated against her by refusing to assign her an underground
parking stall and not constructing a ramp at the front entrance of
the building for her.
Ms. Cush purchased the unit in question in 2004 and rented it out
until 2017 when she moved in with the intention of residing there
permanently. Renfrew House argued that Ms. Cush knew about the
issues with the parking spot and ramp when she purchased the unit.
However, the Commission found that, even though her disability
existed when she purchased the unit, her condition significantly
deteriorated over time.
In April 2017, Ms. Cush wrote to the condominium board requesting a
ramp at the front of the building, automated doors at the front
main entrance and back garage entrance and the assignment of an
indoor parking stall. The issues that remained outstanding at the
time of the hearing were relating to the parking stall and the ramp
at the front of the building, as Renfrew House did install
automated doors at the back garage entrance. Ms. Cush was able to
establish a prima facie case of discrimination in relation
to both the indoor parking stall and the ramp at the front entrance
so the question before the Commission was whether Renfrew House had
breached their duty to accommodate.
Renfrew House did not have titled parking stalls, nor did they have
enough parking stalls for all the Units to have an assigned stall.
They had a mixture of units with assigned indoor parking spaces,
assigned indoor parking spaces in a neighbouring building, assigned
surface level outdoor parking or no assigned parking space at all.
This arrangement had been in place since 1975. When the condominium
had been converted, some units paid a higher price to have an
indoor parking stall assigned to it. The parking stall Ms. Cush had
been assigned was in an alleyway behind the building making it
unsafe for her to access the building with her disability. Ms. Cush
had previously requested an indoor parking stall when visiting the
property and on these occasions, Renfrew House had been able to
accommodate her requests to use one on a temporary basis. The
Commission accepted that by allowing Ms. Cush to use an indoor
parking stall when there was one available, and the willingness of
other owners in the condominium to swap or rent stalls to others
when Ms. Cush requested one, Renfrew House had met their duty to
accommodate Ms. Cush in respect of the parking stall. The
Commission noted that there is no obligation for perfect
accommodation under the Act, so the duty to accommodate had been
met with respect to the parking stall.
In respect of the request for a ramp, Renfrew House had agreed that
a ramp would be a reasonable accommodation at some point in the
future, but cited financial considerations as the reason for their
delay in constructing the ramp immediately or providing a
definitive timeline for when one may be installed. The Commission
concluded that Renfrew House was not acting in good faith regarding
construction of the ramp because it would not commit to a timeline
in which the ramp would be completed instead stating that it
"might" be complete in the next three years. Renfrew
House cited their obligations under the Condominium Property
Act regarding capital expenditures as one of the many reasons
the ramp had not been completed. The Commission however, emphasized
that the obligations under the CPA did not mean that a
condominium could forego its obligations under the Human Rights
Act. The Commission found that Renfrew House had breached
their duty to accommodate in respect of the ramp, and their steps
toward construction (or lack thereof) were not reasonable and
justified in the circumstances.
As a result of failing in their duty to accommodate with respect to
the ramp, general damages in the amount of $20,000 were awarded to
Ms. Cush for "loss of dignity and self-respect". The
Commission further directed that the ramp at the front of the
building must be constructed by June 2025 at the latest. Lastly,
all current condominium board members were required to undertake
mandatory human rights training by June 2024 and all new members
must complete the training within 6 months of election,
indefinitely.
Originally 17 November 2022.
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