Monday, August 25, 2014

Miller Thomson Condominium Law -  Senior Living in Condominiums: 7 Things that Condo Corporations Need to Know Right Now - by Karen Phung, Toronto

The article above which is repeated below was published by Ms. Phung in July of 2014.   Ms. Phung's comments are very insightful and fore warn of the possible difficulties which may arise in Ontario in respect of the aged and as a consequence of the imposition of Ontario's human rights legislation.  A review of Alberta law continues to reflect that human rights legislation does not apply to condominium corporations.  Notwithstanding this Alberta's Human Rights Commission continues to assert that it does and this article sheds light on the need for a proactive approach to what could become a pressing issue.  I have repeated the article in full and linked to the article above.  Thanks to Ms. Phung.  

It is no secret that Canada’s population is aging.
We have all heard the news that more and more baby-boomers (born between 1946 and 1965) are retiring, or will be retiring, in the coming years. Right now, one in seven Canadians are over the age of 65. In 20 years, that number will increase to one in four. We also know that dementia, one of the most widespread mental health illnesses affecting this generation, is also on the rise. But what impact, if any, do these issues have on condominium corporations?
Here are 7 things condominium corporations need to know about Canada’s aging population, and how seniors are impacting the condominium landscape:
(1)   The number of seniors living in condominium buildings will increase
It is common for seniors to downsize their homes after they retire. The kids have moved out, there is more time to travel, and there is no longer a need (or a desire) to own and maintain a house.
Living in a condominium building is appealing to seniors because they come with fewer responsibilities and greater convenience. Seniors can rely on others for maintenance, repair and security services. Access to amenities is faster and more convenient. Limiting one’s living space to a single floor and accessing an elevator makes it easier for those with sight, strength or balance problems to reduce their risk of injury. Condominium corporations can therefore expect a growing number of seniors purchasing units with a view to enjoying these benefits. This also means that the number of condominium owners suffering from age-related mental health illnesses will also increase.
(2)   Seniors are living longer and more independent lives, which may translate to greater issues for condominiums
Not only is Canada’s population aging, but seniors are also living longer and more independently (i.e., preferring to live on their own rather than with family members or in a care facility). Furthermore, a number of seniors have no children or other family members to care for them in their later years.
A desire for independence, combined with an inevitable decline in physical and cognitive functioning, may translate into greater problems for condominium corporations including access issues (i.e., to one’s own unit and amenities), the undesirable use of the common elements (such as monopolizing or loitering), unhealthy dependency on property managers, and illness and/or abandonment. Condominium corporations need to be mindful of the kinds of issues that may arise when dealing with live-alone unit owners with age-related challenges.
(3)   Condominiums have a duty to accommodate physical impairments and mental illnesses to the point of undue hardship
Physical impairments and mental illnesses (including dementia), constitute disabilities under section 10 of theOntario Human Rights Code. Condominium corporations therefore have a legal obligation to accommodate these disabilities to the point of “undue hardship”. What constitutes “undue hardship” will depend on the individual facts and circumstances of each case.  
Those belonging to the baby-boomer generation are known for their strong views of how they expect to live their lives after retirement. Their expectations about independence will bring increased demands on condominium corporations to respond to accommodation requests so that they may maintain a certain lifestyle and level of freedom.
Corporations may have to allow certain changes to be made to an individual unit, or to modify the common elements to accommodate a unit owner’s disability. This may include installing accessibility ramps or sound-proofing rooms. In all cases, however, it means that Corporations must respond to all accommodation requests in a meaningful and timely manner. Who pays for these accommodations may not always be easily ascertainable.
(4)   Seniors with dementia and other mental illnesses may impact the way condominiums deal with compliance matters
Dementia may not only impact a person’s memory and cognitive functioning, but it may also impair his or her day-to-day behaviour and conduct in the community. A unit owner who suffers from dementia may wander into another owner’s unit without realizing it. He or she may cause noise, demonstrate aggressive or disruptive behaviours, and may also exhibit other inappropriate conduct such as hoarding.
However, enforcing compliance with the Act and the condominium’s governing documents as against a person suffering from an age-related mental health illness is not as straightforward as enforcing against the habitual smoker or the music blaster from down the hall. There are laws that protect individuals with disabilities (in particular, the Human Rights Code), which may mean that strict enforcement may not be possible (or legal) in all situations. Although there is no one-size-fits-all solution to accommodation issues, condominiums must ensure they are meeting their obligations to avoid human rights complaints.
(5)   Condominiums need to establish who is responsible for paying for the accommodation
Condominium corporations will have to determine who is responsible for paying the bill for alterations or modifications that result from accommodation requests. Does the corporation pay the bill out of its operating or reserve fund, or can the amount be charged back to the unit in the same manner as common expenses? Under what circumstances should the corporation levy a special assessment?
Whether a condominium corporation can charge back the cost incurred for accommodation is determined on a case-by-case basis and largely depends on the nature of the request and what the condominium documents provide. Typically, if accommodation is made to a resident’s own unit and is for his or her exclusive use, it will be the unit owner’s responsibility to pay. If the accommodation requires a change to a non-exclusive use common element, such as installing a front entrance ramp, the corporation may have to foot the bill.
(6)   Condominiums need to be proactive, not reactive
Condominiums should adopt a proactive rather than reactive approach to these impending issues. Below are some things that condominium corporations should be doing right now:
  • Establish and implement appropriate policies and procedures for dealing with residents who have age-related disabilities that may need accommodation
These policies should include protocols for information-gathering, submitting accommodation requests, responding to accommodation requests, obtaining consents, and involving third party professionals where necessary. The corporation’s lawyer should be consulted about the best way to draft and implement these policies, keeping in mind that these policies may change over time.
  • Encourage early disclosure of health-related needs and requests for accommodation
The Corporation could create a standard form for recording this information. Senior residents should also be required to provide management with up-to-date contacts in the event of an emergency and in case consent is needed. This way, the corporation will be in a better position to anticipate problems and respond accordingly. This information could be included in the Owner’s and Tenant’s Information forms, in those buildings which use them.
  • Know your resources
There should be a protocol in place for contacting the appropriate family member, third party medical professional, or the police. There are a number of resources available to condominium corporations and their residents (including Community Care Access Centers, Mobile Crisis Intervention Teams, and Geriatric Mental Health Services). Condominiums should also take steps to familiarize themselves, senior unit owners and their families of these community resources in cases of emergency or non-emergency.
  • Encourage small changes that will have a big impact on resident safety
Making small changes to a senior resident’s unit may have great impacts on their safety and day-to-day living. Some examples include installing safety rails in the shower, applying non-slip mats in the tub, and using fire-safe appliances with automatic shut off features.
  • Document everything
Corporations need to implement a protocol for maintaining a detailed and consistent record of all accommodation requests and the Corporation’s response to those requests. Such a record will be important to demonstrate the Corporation’s efforts to comply with its legal obligations.
(7) The time to prepare is now
Condominium corporations should not wait to establish and implement the appropriate policies and procedures for dealing with these issues. As we move into a time where the demands on condominium corporations is becoming greater than ever before, condominiums should be prepared to deal with these issues head on, and with the confidence that the right systems have been put in place.

Yes you can keep your cats even though you do not have written consent; a small movement towards applying Administrative Law principles in condominium law

In the recent Alberta case of Condominium Plan No. 7621302 v. Stebbing,  Master W.S. Schlosser addressed the application of administrative law in context of a dispute over 2 cats.  Though not technically applying administrative law principles to his decision they were discussed in obiter or in passing:

Master Schlosser came to a practical solution of finding a breach for failure to obtain consent but then relieved the owner from forfeiture (an equitable remedy), without stating so and stayed the enforcement of the Order until the cat passed on:

The message is clear to condominium corporations: be consistent with the application of bylaws and do not withdraw implied consent without affording owners some ability to participate in an administrative process.  In light of the Government of Alberta's proposal to create an Administrative Board to hear condominium disputes the comments of Master Schlosser could be prescient.