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.

Case summary prepared by Kendra Barlow.

For assistance with any condominium matter, please contact Dionne Levesque, John McDougall, Kate Kozowyk, Stuart Gray or Kendra Barlow.