A June 2009 decision of the Ontario Human Rights Tribunal offers useful guidance about who is responsible for the cost of making exclusive use common elements accessible for persons with physical disabilities.
In McMillan v. Bruce Condominium Corp. No. 6, the condo complex consisted of 32 one-story detached townhouses. The balconies, yards and entrances to the units were designated in the declaration as exclusive use common elements, which is typical of such communities.
The entrances to the units were built with two exterior wooden steps extending from the landings at the front and rear of each townhouse. The landings were built with railings but the steps were not.
Over time, a unit owner developed mobility problems and became unable to enter the unit safely without assistance. The owner consequently asked the Board to install hand railings on the steps at both entrances to the unit.
The Board responded by giving the owner permission to install the railings at her cost. The owner took the position that the corporation was responsible for the cost and was obliged to accommodate her physical disability by installing the railing itself. The owner then complained to the Ontario Human Rights Tribunal that the corporation had contravened the Human Rights Code by failing to install the requested railings.
The Tribunal heard evidence that similar requests to install railings had been made and granted to owners in the past on the basis that the cost of the work be paid by those owners. The evidence also showed that the owner in question had previously asked for and received permission to install a shed and a hot tub on her exclusive use common elements and that she had paid the cost of those items.
The Tribunal noted that the condominium declaration contained the following typical clause:
No alteration, work, repairs, decoration, painting, maintenance, structure, fence, screen, hedge or erection of any kind whatsoever (the work) shall be performed, done, erected or planted within or in relation to the common elements (including any part thereof over which any owner has the exclusive use) except by the corporation or with its prior written consent or as permitted by the by-laws or rules.
The Tribunal also considered section 98(2) of the Condominium Act, 1998, pertaining to changes made by owners where the change or alteration relates to a common element over which the owner has exclusive use. That section permits such changes if the Board is satisfied that the proposed addition, alteration or improvement:
a) will not have an adverse effect on units owned by other owners;
b) will not give rise to any expense of the corporation;
c) will not detract from the appearance of buildings on the property;
d) will not affect the structural integrity of buildings on the property; and
e) will not contravene the declaration or any prescribed requirements.
After considering the evidence and the interplay between the declaration and section 98 of the Condo Act, the Tribunal dismissed the complaint on the basis that:
…the [unit owner] has not experienced discrimination on the basis of disability and that [the Corporation] did not contravene the Code when the Board refused to pay for the installation of hand railings on the front and back steps of the Unit. The circumstances of this case are distinct from a condominium corporation’s obligation to make common areas accessible. [The Corporation] approved the request to install hand railings within its authority but it is not responsible for areas defined as common elements that fall within a unit owner’s exclusive use.
The Tribunal also correctly observed that a change made to the common elements to accommodate a disability is no different than, for example, the installation of a shed or a hot tub. The fact that a change is necessary to accommodate a disability does not change the obligations set out in the declaration or the Condo Act.