Aging In Place

 

Aging in Condominiums

By Patricia Elia, Eric Pelot and Caroline Karalasingham

 

Condominium corporations in Ontario, like many other sectors and industries, have turned their attention to aging demographics. According to the Ontario Ministry of Finance’s Population Projections Update for 2015 to 2041, “the number of seniors aged 65 and over is projected to more than double from 2.2 million, or 16.0 per cent of population, in 2015 to over 4.5 million, or 25.3 per cent, by 2041.” This demographic trend is something that many condominium corporations are seeking to plan and prepare for.

Additionally, there is the issue of aging infrastructure. The first condominium corporations in Ontario were declared under the first Condominium Act passed in 1967, almost 50 years ago. With aging infrastructure, condominium corporations are repairing and maintaining in accordance with obligations under the Condominium Act, 1998 (the “Act”) and are simultaneously asking themselves how the new accessibility standards will affect their reserve fund projects and whether accessibility retrofits will be required.

Although it is helpful to think of accessibility in the context of aging, it is important to remember that age and disability are not synonymous. Accessibility may be important for residents, owners, Directors and employees at any age. Further, many seniors have no disabilities. So when communicating with owners, residents, employees, directors and property management (stakeholders), it will be important for condominium corporations to avoid referring to aging residents as the target of accessibility measures. This could be considered differential treatment based on age.

 

Legislation on Accessibility

The two key statutes on accessibility that apply to condominium corporations in Ontario are the Human Rights Code (the “Code”) and the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”). The Code prohibits discrimination on a number of different grounds, such as age, race, gender, sexual orientation and disability. Under both the Code and the AODA, “disability” is defined as any degree of physical disability or infirmity, a condition of mental impairment, or a mental disorder.

 

The Code

The Code provides the right not to be treated differently on the basis of one the protected grounds, and to be accommodated by a condominium corporation, unless this would result in undue hardship.

A recent human rights case expands on accommodation in the condominium context. In Simcoe Condominium Corporation No. 89 v Dominelli, 2015 ONSC 3661 (CanLII) (“Dominelli”) the court clarified the role of the condominium in considering accommodation requests, and the standards of evidence which should be presented by a claimant.

In Dominelli, an owner kept a dog called Peaches in her unit which was over the 25-pound weight limit in SCC 89’s rules. When SCC 89 asked the owner to remove Peaches, she advised that it was a service dog as part of her job to assist children with disabilities.

The board met with the owner and advised that the accommodation was only required for dogs servicing a resident. The owner requisitioned a meeting seeking to amend the rule restricting the size of pets but was unsuccessful.

The owner then claimed that the dog was her personal service pet. SCC 89 had asked for medical documentation to support her request for accommodation and to meet to discuss her disability requirements. The owner refused to meet with the board but agreed to provide medical documentation from her physician.

The board was not satisfied with the information in the medical documentation, and repeatedly sought permission to speak with the owner’s physician to ask for clarification. The owner refused and the board was required to refuse the accommodation.

SCC 89 commenced a compliance application. The Court held that the owner had not proven her disability and therefore there was no obligation on SCC 89 to accommodate her. Further, the owner was required to comply with the rule and to permanently remove Peaches from the property.

As a result of this decision, when a condominium board receives a request for accommodation, the board must conduct reasonable due diligence and bear in mind that the claimant is responsible for establishing the existence of a disability. Recently, we have been disturbed by requests for service pet accommodation based on the recommendation of an unqualified expert such as a podiatrist. The board has the right to inquire and determine the need for accommodation based on clear medical evidence.

The board should develop an articulated policy confirming a commitment to compliance with legislation, such as the AODA and the Code, and develop a process that implements the policy in clear steps to ensure transparency of process for both parties and avoidance of bias.

In developing and implementing the policy, boards should be setting out their process for considering accommodation requests, including the information that a claimant will need to provide. The investigation process may include addressing the following questions:

 

1. What is the medical diagnosis, disability or other grounds for the requested accommodation? According to Dominelli, a disability under the Code “requires medical evidence, a diagnosis of some recognized mental disability, or ‘working diagnosis’ or ‘articulation of clinically-significant symptoms’ that has ‘specificity and substance.’” A bare assertion of pain or anxiety is not a mental disability.

 

2. Why is the requested accommodation required in relation to the disability? In Dominelli, the owner claimed that she had a “strong bond” with Peaches, though there was no evidence that a smaller dog could not be used as a service pet. Similarly, some owners with mobility issues may want a powerful or fast scooter when a less powerful one may be adequate and safer.

 

3. Is the medical expert qualified to providing evidence? In Dominelli, the medical expert was not the claimant’s family physician, nor an expert in treating her condition, but was someone she “used in Barry”.

 

4. Is the evidence provided by the medical expert neutral and objective, or is the medical expert advocating for the claimant? This may impact the credibility of the

 

 

medical expert’s evidence, and whether the claimant will need to obtain supporting evidence from an alternate, more objective expert.

 

The human rights policy should be complimented by an information management or privacy policy, which manages expectation of privacy in accordance with provincial requirements, federal standards and the Act. We strongly recommend a clear and confidential method of consent, use and disclosure of personal information.

 

The AODA and its Regulations

Further to the Code, the AODA is part of the Government of Ontario’s plan to develop, implement and enforce accessibility standards. Goods, services, facilities, accommodation, employment, buildings, structures and premises will need to be accessible on or before January 1, 2025. Currently, Ontario Regulation 191/11 (“Regulations”) under the AODA sets standards for each of information and communications, employment, transportation, and the design of public spaces and customer service. An accessibility standard may apply only to a person or organization that:

1. provides goods, services or facilities;

2. employs persons in Ontario;

3. offers accommodation;

4. owns or occupies a building, structure or premises; or

5. is engaged in a prescribed business, activity or undertaking or meets such other requirements as may be prescribed.

 

The AODA and its regulations set accessibility standards that apply depending on an organization’s number of employees. Organizations may include condominium corporations. Most condominium service providers will have to ensure compliance for their employees and their customers. Organizations with between 1 and 19 employees will need to comply with new AODA accessibility standards. For example, these standards apply to any condominium corporation with a superintendent who is an employee of the corporation.

Corporations with no employees are exempt from compliance with these standards. There are additional requirements for larger organizations (20 or more employees) but these would not affect most condominium corporations.

 

AODA Standards for Condominium Corporations or their service providers with 1 to 19 Employees

Organizations (including condominium corporations and their service providers) with 1 to 19 employees are required to comply with the AODA. The deadlines to comply with the following requirements have already passed:

1. Provide accessible customer service (e.g., welcoming service animals);

2. Provide and make accessible emergency and public safety information for workers, owners and residents;

3. Train employees and board members on accessibility laws; and,

4. Proving an accessible way for people with disabilities to provide feedback to the corporation.

5. Developing, implementing and maintaining policies governing how the organization will achieve accessibility by meeting the requirements in the Regulations and how it provides services and facilities to persons with disabilities.

 

By January 1, 2017, employment practices will need to be accessible, including hiring and performance management practices and making work-related information accessible to employees. For example, this includes accommodating candidates during the interview process if necessary. Condominiums procuring services should ensure that their service providers are fully compliant with AODA requirements.

Further, certain types of information will need to be made accessible by condominium corporations upon request by employees (if any), owners or residents. This includes any documentation that is made “publicly available” and in the condominium context may include information circulated to the owners and residents, information that can be accessed under section 55 of the Act and status certificates.

As a practical matter, software often includes accessibility features that can make this an easy task. Documents prepared in Microsoft Word or Adobe Acrobat can be made accessible by using their accessibility checkers. For example, when preparing a document in Word, it is good practice to use the heading “styles” and create tables of contents to improve readability by assistive devices. Further, using black text on white background in a neutral font (such as Arial) and using at least 12-point fonts makes the document more readable for those who might have visual impairments.

By January 1, 2018, condominiums with between 1 and 19 employees will need to make new or redeveloped public spaces accessible. Redevelopment means “planned significant alterations” and excludes maintenance. Of particular relevance to condominium corporations, the AODA standards apply to new or redeveloped parking lots and structures.

 

Common Element Retrofits

Given the foregoing, one of the key questions is: When do the physical common elements need to be made accessible?

The corporation may need to retrofit its common elements if a stakeholder has a disability and requests accommodation under the Code. With respect to the corporation retrofitting units, you may recall that earlier interpretations of the AODA had suggested that unit retrofits may be required. But our understanding based on discussions with the Accessibility Directorate of Ontario, is that unit retrofits are the responsibility of the unit owner.

There is no definitive standard in that case, so accommodation is highly individualized. Further, whether or not there is a request for accommodation, a condominium corporation will need to comply with the standards set out in the AODA for spaces that are new or redeveloped after January 1, 2018.

Accessibility retrofits may be costly. Condominium corporations may be in a difficult position because these retrofits may be required by law, and difficult to fund if unplanned. Accordingly, condominium corporations may wish to be proactive and include an additional budget line amount in their reserve accounts to cover the cost of retrofitting the common elements to make them accessible on a proactive basis, whether anticipating individual accommodation requests or compliance with AODA standards after 2018. Your engineer is an asset in this regard.

The main advantage of this approach is that the funding can be done over a few years in order to avoid the need for a special assessment or a sudden increase in the common expense

contributions. Cash flow particularly adds value for communities where owners have fixed incomes.

When making an accessibility retrofit, a condominium corporation may be making a “change” under section 97 of the Act. According to section 97(1), the corporation is permitted to carry out its obligation to maintain the common elements using materials that are “reasonably close in quality to the original as appropriate in accordance with construction standards” and applicable laws including the Building Code of Ontario which will incorporate AODA standards. This work is deemed not to be an alteration, addition or improvement. Under section 97(2), the corporation may make changes that are legally required, including compliance with accessibility requirements.

 

Condominium and Owner Responsibilities

Generally, condominium corporations are responsible for providing accessible common elements so that owners and residents can access their units and common element amenities without barriers. This is also usually a common expense, so all owners contribute to the funding of accessible common elements.

On the other hand, owners are responsible for removing barriers within the unit boundaries at their own cost. This is because condominium corporations are only required to manage the common elements and their assets. A similar argument may also apply where an owner or resident requires changes to exclusive use common elements. One solution may be an agreement pursuant to section 98 of the Act, according to which the owner may make an accessibility-related modification at their own cost.

Some condominiums are receiving requests from residents or family members to assist with residents who may require additional care because of mobility or mental health issues, such as dementia. Again, these disabilities may or may not be related to age.

Requests for assistance may include the following, and condominium corporations should consider involving legal counsel to advise on related risks:

 

1. Requests to assist residents within the unit – A condominium corporation needs to be mindful not to take on additional responsibilities beyond what is stipulated in the Act and its Declaration, By-laws and Rules. Owners or residents may require assistance within their unit, but the corporation is not an assisted living facility or care provider. There are many resources available to assist residents and the corporation can provide related information to owners and residents to alleviate the use of the corporation’s resources.

 

For example, “A Guide to Programs and Services for Seniors in Ontario” is one such resource and is available in many languages including French and English. This guide provides information about programs and services for assisted living, many of which are available regardless of age. This guide includes information on caregiving, finances, health and wellness, housing and transportation needs. A copy can be obtained or ordered through <www.ontario.ca/seniors>.

 

2. Requests for communication with family members or care providers about a resident –While there are obligations for family members to support each other, including children’s obligation to support their parents if needed, the obligation does not extend to the corporation. A corporation should not take on additional obligations and risks. Condominium corporations should also be mindful not to assume that relatives are the

 

 

legal representatives of the resident, unless the necessary legal documents authorize decisions on behalf of a resident.

 

3. Allowing care providers into the building – Ideally, owners should control access to the common elements. If this is not possible, the corporation may consider allowing care providers into the building on behalf of the owners, as well as due diligence steps such as a sign-in sheet, registered fobs or checking the identification of any care provider that condominium staff grant access to. The community may wish to avoid strangers wandering around on the premises.

 

The condominium corporation is the occupier of the common elements for liability purposes. Thus, the corporation should include a regular review of the common elements for tripping or other hazards and take prompt steps to correct these when discovered.

Further, if there are any unsafe conditions within the units, the corporation may become involved at that point and require the owner(s) and resident(s) to take steps to comply with the safety requirements in the Act. Any safety breaches within the unit will likely need to be corrected at the owner’s cost.

 

Training under the AODA

As mentioned above, the deadline for implementing AODA training for corporations with 1 to 19 employees has already passed.

According to section 7 of the Regulations under the AODA, employees, persons participating in the development of policies, and any person providing services or facilities of or for an organization with at least one employee must be trained on the standards under the AODA and the Code as soon as practicable. Condominiums providing services and facilities may also need to provide customer service training pursuant to section 80.49 of the Regulations.

This means that board members and employees (such as a superintendent) will likely need to be trained. Further, the condominium corporation’s service providers (such as property management) will likely also need arrange for their own training.

The Ontario Human Rights Commission has prepared training videos and interactive quizzes that satisfy the section 7 requirements. It may take about 20-40 minutes to complete the training, available at the following web address: <http://www.ohrc.on.ca/en/learning/working-together-code-and-aoda>.

 

Aging Capital Assets

In managing aging capital assets, a board should proactively seek the assistance of engineers and perhaps consultants and/ or designers who are familiar with the Building Code requirements that will make spaces more friendly and accessible through creative design and material appreciation. Further, thinking ahead and combining capital asset replacements so that AODA standards can be integrated may make economic and practical sense.

For example, making curbs wheelchair accessible and painting them to improve visibility can be incorporated into a repaving project for efficiency. Similarly, one of our clients worked closely with a designer during a recent retrofit to ensure that its lobby was helpful for individuals with accessibility concerns including visual impairment.

As buildings age, it is critical that reserve funds are kept up to date and are fully funded. At a certain age in the life cycle of a building, the building will experience the need to replace costly capital assets such as elevators, roofs, parking garage membranes etcetera. To be underfunded can put significant pressure on the resources of individuals on fixed incomes. Thus, being proactive and saving over time can lessen or eliminate the negative effect. In addition, many corporations are relying on loans to supplement underfunding with success.

Fortunately, in the condominium context there are many resources to assist in developing meaningful solutions as buildings experience the effect of the passage of time and people present needs that will have to be accommodated. In addition, there are many resources available in the private and public domain to persons who require assistance regardless of their age. Being proactive is the first step to helping your community to keep up with changes in the law and the needs of people in your community.