Are Live-In Caregivers Permitted in Single-Family Condo Units?

Posted by Admin on March 14, 2013

Caregiver.jpgBy: Nicole Taylor-Smith and Barbara Holmes

 

The Alberta Court recently considered whether having a live-in caregiver constituted a violation of a condominium’s By-laws that prohibited roomers and boarders and any use of a residential unit other than as a single-family dwelling.

The unit owners, Mr. and Mrs. Davis, were an elderly couple in their 80s, who hired a live-in caregiver. Mr. Davis was blind and Mrs. Davis was suffering from dementia.  They had resided at the condominium since 2000.

After becoming aware that the owners had a caregiver residing with them, the condominium advised them that should a complaint be received, it would have to enforce the By-laws. At an AGM held a few months later, a motion to change the By-laws to allow live-in caregivers was rejected by 90% of the voting unit holders. (It looks like these owners probably don’t expect that they will ever find themselves in this position!) The condominium subsequently served notice on the owners that they were required to conform to the By-laws and that they would be subject to a monetary sanction in the amount of $50 per day for so long as the caregiver continued to live with them. This was followed by a subsequent notice directing the caregiver to vacate the unit, which she ultimately did.

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Do Condominiums Need to Disclose Mediations and Human Rights Complaints in Status Certificates?

Posted by Shawn Pulver on November 29, 2012

We are often asked by clients whether there is an obligation to include ongoing human rights complaints and scheduled mediations in their status certificates.

Thumbnail image for Thumbnail image for Board Interview.jpgSection 76(1)(h) of the Condominium Act states that the status certificate shall include "a statement of all outstanding judgments against the corporation and the status of all legal actions to which the corporation is a party." Paragraph 19 of the standard status certificate form prescribed by the Condominium Act regulations requires the condo corporation to confirm that it is not a party to a proceeding before a court of law, an arbitrator or administrative tribunal.

Therefore, we recommend that condominium corporations reference any court proceeding, human rights complaint or arbitration that the corporation is a party to. Even if there is not a significant risk that the corporation would need to pay any damages to the party who commenced the human rights complaint, the fact that the corporation is a party is sufficient for the complaint to be referenced in the status certificate.

On the other hand, we do not believe that scheduled mediations between a corporation and an owner or between two corporations (i.e., a shared facility dispute) would need to be disclosed in a status certificate, as these are not "proceedings" that could lead to any judgment being ordered against the Corporation. If, however, the matter is not settled at mediation and an arbitration is subsequently scheduled, then we would recommend referencing the arbitration in the status certificate.

Joseph Salmon featured in the Condo Voice Magazine

Posted by Admin on November 13, 2012

Joseph Salmon is featured in the latest edition of the Condo Voice magazine, in his article “Conflict Between Condominium Declaration and Religious Practices”. Joseph discusses the issues faced by condominium corporations enforcing their declarations, by-laws and rules and when corporations should use discretion and obtain legal counsel prior to enforcement. Joseph explains situations where owners have displayed religious items on the exterior of their units in keeping with their faith and traditions.

“Common practice amongst most members of the Jewish faith is to affix a small ritual item on their doorposts known as a mezuzah, which contains biblical verses written on parchment.”

He also points to examples where condominium associations in the United States unsuccessfully tried to force owners to remove the mezuzah.

“A Florida condominium association was deemed to have discriminated against a unit owner when it threatened her with a fine if she did not remove her mezuzah from her exterior door.”

You can read Joseph’s commentary beginning on page 58 of the Condo Voice magazine. For more information on obtaining a copy of the Condo Voice, please contact CCI at the link provided. 

Conflict Between Condo Declaration and Religious - Part 2

Posted by Joseph Salmon on May 16, 2012

Thumbnail image for mezuzah 1 .jpgIn a previous blog, we looked at a number of cases in the U.S. relating to condominium residents affixing mezuzot on the exterior unit doors. In Canada, there are no reported cases that specifically deal with mezuzot. However, the Supreme Court of Canada determined in 2004 that sincere personal religious beliefs override the terms of a condominium declaration and unit owners were allowed to erect a temporary ritual hut on their balconies (known as a Sukkah) despite the provisions of the declaration.  While this case and its ramifications has stirred some controversy in the legal community as to the extent to which a condominium corporation is required to accommodate religious beliefs, it is clear that condominium corporations do need to take religious beliefs and practices into account with enforcement matters.  Like most legal situations, especially in the realm of human rights, context and particular facts are critical and no two cases are the same.  However, the aforementioned mezuzah cases and the Supreme Court’s decision provide important factors to consider in the context of enforcement matters, including:

  • the reason for the unit owner’s infraction;
  • the underlying rationale for the rule or provision;
  • has the rule’s rationale been clearly communicated or has the corporation requested an explanation of the religious practice? 
  • are there any reasonable alternatives instead of strict enforcement or ignoring a rule?
  • have these alternatives been communicated or requested? and
  • has the rule been selectively enforced?

Ultimately, each situation is unique and it is always advisable to involve legal counsel as early as possible to avoid complications down the road.

Conflict Between Condo Declaration and Religious Practices

Posted by Joseph Salmon on May 13, 2012

Thumbnail image for mezuzah 2.jpgIn the vast majority of instances, it is important for condominium corporations to actively enforce their declarations, by-laws and rules. In fact, section 17(3) of the Condominium Act, 1998 (the “Act”), imposes an obligation on condominium corporations to take all reasonable steps to ensure compliance. However, there are certain instances when condominium corporations should exercise discretion and obtain guidance from legal counsel before seeking to enforce.  An example of such a predicament is the placement of a mezuzah on a unit’s exterior doorframe.  This issue has previously received media coverage in the United States and has recently resurfaced. 

Common practice amongst most members of the Jewish faith is to affix a small ritual item on their doorposts known as a mezuzah, which contains biblical verses written on parchment. This ritual is regarded as a religious obligation and canonized as such in the Jewish Bible (the Torah).  A potential problem can arise when a condominium corporation has a rule prohibiting items placed or affixed outside of units. On the one hand, section 58 of the Act requires rules to be reasonable. Rationales for this rule can include stylistic consistency and integrity, maintaining property values, insurance requirements, or safety concerns.

The mezuzah controversy rose to prominence in Chicago in 2001, when the condominium association at the 378-unit Shoreline Towers adopted a rule banning “mats, boots, shoes, carts or objects of any sort… outside unit entrance doors”.  The Board determined that this rule must be enforced in an absolute manner, and accordingly, Shoreline Towers management removed the hallway mezuzot. 

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Up In Smoke - Marijuana in Condominiums

Posted by Barbara Holmes on February 14, 2012

Marijuana pic.jpgA recent article in the Toronto Star discussed whether landlords could evict tenants who were growing and/or smoking marijuana for medical purposes in their rental apartments. There are concerns by landlords that growing marijuana increases the risk of mould and mildew as a result of the high moisture level needed to grow marijuana and that smoke would be permeating into other apartments and posing health risks for other tenants.

 The same concerns will also arise in condominiums. The Marihuana Medical Access Regulations allow access to marijuana by individuals suffering from grave and/or debilitating illnesses where conventional treatments are inappropriate or are not providing adequate relief. Can a condominium  corporation prevent a resident who has authorization from the federal government to grow and/or smoke marijuana, from doing so in a unit? There may be provisions in the Corporation's declaration or rules that will be of assistance, such as:

  • a prohibition on any activity that may cause a nuisance or interfere with the quiet enjoyment of other residents and owners;
  • a prohibition on any activity that could potentially damage the property or increase the insurance rates for the property.

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Condo Swimming Pools - Fun For All?

Posted by Barbara Holmes on July 14, 2011

Now that summer is here many condo residents are enjoying the use of swimming pools which form part of the common facilities available for use by the residents of the condominium.  A recent case by the Ontario Human Rights Tribunal, Pantoliano v. MTCC No. 570 and YCC No. 531, considered whether two condo corporations (who share a pool) could enforce rules that restricted the hours during which children were allowed in the pool, and prohibited children under the age of two and persons wearing diapers from using the swimming pool. 

Thumbnail image for indoor-pool.jpgThe applicant was the mother of a ten-month old baby who was asked to leave the swimming pool on numerous occasions on the grounds that babies were not allowed in the pool.  The majority of the residents of both condominiums were senior citizens.  The condo corporations' position on the rule prohibiting children with diapers from using the pool, was that it was necessary as there were serious concerns about the potential health risks resulting from urine/fecal contamination in the pool, which risks were heightened for elderly persons who are more vulnerable to infection.   

 The condo corporations had the burden of establishing that both rules were reasonable and bona fide and that lifting the rules would cause undue hardship to the condo corporations.  The Adjudicator felt that the condo corporations did not satisfy this burden and that the rules were discriminatory on the basis of family status. 

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Implementing an Accommodation Policy

Posted by Rhonda Shirreff on June 29, 2011

A special thank you to Ronak Shah (student-at-law) for co-authoring this article.

The Ontario Human Rights Code (the “Code”) requires condominium corporations to provide an equal opportunity to access housing and its intended benefits without discrimination on any of the grounds protected by the Code, including disability. The obligation extends to condominium boards, management, staff, owners and residents.

Time after time, human rights commissions and tribunals across Canada have affirmed that condominiums have a general duty to accommodate disabled owners and residents to the point of undue hardship. Depending on the circumstances, appropriate measures to accommodate persons with disabilities may include providing wheelchair ramps and accessible parking on the property, installing wide lobby doors that open automatically, or adding Braille to elevator buttons.

 

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Condo Accessibility- New Standards

Posted by Denise Lash on May 09, 2011

Condo towers summer ottawa ontario.JPGAccessibility Standards for Customer Service: The Clock is Ticking… 

The clock is ticking for condominium buildings: beginning January 1, 2012, private sector organizations in Ontario will be required to comply with the first of five standards to be developed under the Accessibility for Ontarians with Disabilities Act.  The purpose of the Act is to develop standards to reduce barriers that limit the full participation of people with disabilities in various aspects of society; specifically access to goods and services, employment, transportation, and information and communications. 

The first of these five standards, the Accessibility Standards for Customer Service, is currently in force for designated public sector organizations. As of next year, the standard will apply to any organization providing goods or services “to members of the public or other third parties and that has at least one employee in Ontario”. The definition is broad enough to capture condominiums which provide services (concierge, reception, etc.) to members of the public (this could include visitors for instance) or third parties (other organizations).

 

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HB's Ryan Treleaven in Spring 2011 Issue of Condominium Manager Magazine

Posted by Admin on April 12, 2011

Ryan Treleaven, an associate in Heenan Blaikie's Condominium Law Group has written an interesting article in the latest issue of CM (Condominium Manager) Magazine, published by the Association of Condominium Managers of Ontario  (ACMO),  on a case involving a condominium owner who was forced to sell their home. Ryan provides some thought on how other owners can navigate matters surrounding compliance. Here is a snippet:

In MTCC 747, Justice Code held that if an Application ‘substantially concerns’ alleged breaches of the Act, the requirement to pursue mediation is not triggered. This means that in appropriate circumstances, a Condominium may proceed directly to Court while relying on the provisions of the Act, its Declaration, Bylaws and Rules. In these circumstances, even if the Corporation fails to establish a violation of the Act, the Court may grant a compliance order restraining ongoing violations of the Declaration, Bylaws or Rules.

It is only in rare cases that a condominium should consider proceeding directly to court to obtain a compliance order. The vast majority of compliance matters can be efficiently(and cost effectively) resolved through mediation.

You can read the rest of the article here.

Breast Feeding Condo Battles

Posted by Denise Lash on March 16, 2011

Woman with Child Stroller.jpgFormer police officer, Felina Rakowski-Gallagher, decided to open a breast feeding establishment in Manhattan eleven years ago, so that women would have a place to go for practical advice on breast feeding. After her business grew from her initial cramped space, Felina decided to purchase a $825,000 condominium unit in a fancy condominium building known as the Pythian.  It took her over a year to renovate the Upper Breast Side and has now become an essential destination for lactating women in Manhattan.

Problem is that Felina and the board of directors have not seen eye to eye on certain issues. One issue that has been the focus of recent media attention is Felina's refusal to keep her brass door on the ground floor completely closed.  The board of directors of the Pythian fined her $250 for her breach of that rule.

 

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