Cart Before the Horse – Requesting Accommodations to Condominium Common Elements Before Commencing Litigation

Gilbertson Davis LLPAdministrative Law, Commercial Litigation, Condo Construction, Condo Litigation, Construction | Builders, Human Rights0 Comments

In Charlie Andrews v. Great Gulf, 2019 HRTO 370, the applicant, a condominium owner, alleges that the respondent, builder of the condominium complex, failed to provide gender-inclusive washrooms in the pool and stream areas of the condominium building.

The builder of the condominium complex did not file a response, but rather, asked that the matter be dismissed as it had no prospect of success, as the builder could not be held liable for the alleged discrimination, since:

  1. It no longer had an ongoing service relationship with the condominium;
  2. The applicant, as a condominium board member could not point to any requests by any individual, including themselves, that the builder or condominium provide gender-inclusive change rooms;
  3. The  subject areas that were allegedly discriminatory were located in the common elements of the condominium and related to accessibility,  rendering it the responsibility of the condominium, of which the applicant was a member; and
  4. At the time the building was constructed, there were no requirement in the applicable building code that specifically addressed the issue or required non-gender binary washrooms.

In determining whether an application has no reasonable prospect of success, the Human Rights Tribunal (“Tribunal”), must assume that the applicant’s version of events is true unless there is clear evidence to the contrary or the evidence is not disputed by the applicant.

In ruling in favour of the builder’s motion to summarily dismiss the applicant’s application, the Tribunal noted:

The applicant concedes that they have not requested any accommodations or otherwise raised the issue of the need for gender-inclusive washrooms in the pool and sauna areas. I applaud the applicant’s principled goals of ensuring that the future designs of this home developer are more inclusive, but this may be a larger policy objective that cannot be addressed through this Application. While the building construction may be complete, there could be many possible ways to accommodate the needs of residents who do not identify with binary genders, for example through alternating use of spaces, or designating certain spaces as gender-inclusive. At this point, it is the condominium corporation who would be responsible for such issues and in order for the applicant to trigger these obligations, they must first raise the issue and make a request to the condominium corporation.

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