It is well known that condominiums owe a duty to accommodate persons with disabilities. It is less clear, however, what constitutes adequate proof of a disability. Ambiguous medical notes containing no meaningful details are often the only documentation given to condo boards and managers, who must decide whether the legal threshold for disability is met.
Thankfully, the Ontario Human Rights Commission recently clarified this issue. On February 1, 2017, it released a new policy statement on medical documentation to be provided when disability-related accommodation requests are made.
This policy statement supplements the Commission’s detailed Policy on ableism and discrimination based on disability and explains the medical evidence requirement that forms part of the duty to accommodate.
Pursuant to the new policy statement, the type of information that condo corporations should ask of individuals seeking accommodation includes, without limitation:
- that the person has a disability;
- the limitations or needs associated with the disability;
- whether the person can perform the essential duties or requirements of being an employee, occupant or condo service user, with or without accommodation;
- the type of accommodation required to allow the person to fulfill the essential duties or requirements of being employed by the corporation, or to be a condo resident or to use the condominium’s services; and
- regular updates about when the person expects to come back to work at the condo, if they are an employee on leave.
This means that the typical nebulous one-liner physician’s note is no longer sufficient, and that persons seeking accommodation must request, obtain and present a meaningful letter from their medical professionals. The onus now falls on medical professions to take greater care in preparing useful materials, and stakeholders are no longer obliged to accept useless doctors’ notes that say nothing. In its policy statement, the Human Rights Commission highlights the importance of medical professionals providing detailed letters and reports to allow stakeholders to properly evaluate accommodation requests.
If a condo corporation is unsure of the legitimacy of a person’s accommodation request or adequacy of the supporting information provided, it is entitled to ask the person to provide confirmation or further information from the person’s qualified healthcare professional. Where the condo corporation requires more information, it should only ask for as much information as is necessary to decide the accommodation request and must avoid intruding into the person’s privacy as much as possible. Generally, a condo corporation has no right to know the cause of a person’s disability or the diagnosis, symptoms or treatment unless clearly related to the accommodation or the person’s needs are complex, challenging or unclear and more information is required to evaluate the request.
This clarity from the OHRC is long overdue. The requirement for condo residents to provide sufficient medical evidence was the focus of a 2015 Ontario Superior Court of Justice decision in Simcoe Condominium Corporation No. 89 v. Dominelli. In that case, SCC 89 applied for an order requiring the respondent unit owners to permanently remove an overweight dog from the condominium. The respondents sought no permission or accommodation from the condo corporation until they failed in their efforts to have the overweight dog remain as a therapy dog for the wife’s work with autistic children. When the property manager advised that only a service dog for a resident of their unit would potentially be exempted from the 25-pound weight restriction, the wife obtained and presented letters from a doctor saying the the dog was a therapy dog for the wife.
The court found in favour of the condo corporation. The court did not accept the wife’s evidence as to her disability and found no evidence that she had a disability within the meaning of the Code. Instead, the court found that the wife simply wanted to keep her dog in violation of the condo corporation’s rules, of which she was well aware when she moved in. The wife doctor’s notes were partisan and argumentative and therefore not credible. The doctor appeared to have adopted the role of advocate and failed to provide evidence that the wife had a disability. The respondents were required to remove their dog and pay the corporation’s legal costs of $45,750.
While condo corporations must accommodate persons with disabilities, that duty is subject to a person making a request for accommodation that is supported by reasonable information and sufficient evidence to establish their entitlement. Condo corporations have the right to request medical documentation evidencing a disability requiring accommodation, so that the request may be meaningfully evaluated.
For every legitimate request for accommodation, we see examples of spurious or bogus claims for exemptions from rules that are clearly not justified. Condo boards must be careful in granting such exemptions as they have a major impact on the community. Though most condo residents are glad to see reasonable accommodations being made to neighbours who need them, patently unjustified exemptions typically anger other residents and de-legitimizes the human rights regime and also the condominium rules. In addition to carrying out the their human rights obligations, condo boards must take all reasonable steps to enforce their declaration, bylaws and rules. Striking the right balance between these obligations requires careful evaluation of accommodation requests.
Residents should not expect to be exempted from condo rules by merely raising a human rights entitlement. The request must be supported with specific information and sufficient documentation to meet the standards set out in the OHRC’s helpful new policy statement. As the Dominelli case demonstrates, the consequences may be severe where a person refuses to comply with the condominium’s declaration, bylaws and rules and fails to provide adequate medical proof of a disability or that the accommodation they seek is actually required.