Life in Condominiums: The Duty to Accommodate Mental Health & Mental Illness

Under the Ontario Human Rights Code, condo corporations have a legal obligation to accommodate individuals suffering from a disability; mental impairment or disorder, physical or developmental. Physical disabilities are easier to notice and understand, while having generally easier solutions like ramps or automatic doors.

Nonetheless, when it comes to mental health issues or disabilities, solutions, acceptance and understanding is more difficult. To make life in condominiums easier for everyone, it is key for condo management and boards to understand how mental health and illness works in order to properly comply with this duty of accommodation.

Our current mental health system is built on responding to crisis. But so much more can be done-and done earlier - Canadian Mental Health Association

According to the CMHA (Canadian Mental Health Association), in any given year, 1 in 5 people in Canada will personally experience a mental health problem or illness.  The amount of people that choose to spend their life in condominiums increases every year, making it almost inevitable for most condominiums to face a situation involving a resident who is experiencing mental health issues. Property managers and condominium boards must understand what are the condominiums obligations towards these individuals, how to approach these delicate situations and up to what limit is the condo corporation obliged to go to comply with the duty of accommodation.

Duty to accommodate

Under the Ontario Human Rights Code, condo corporations have a legal obligation to accommodate, among other things, individuals suffering from a  physical or mental disability or disorder. This applies to all condominium corporations and supersedes the corporation’s governing documents. Accommodation might mean making certain changes to rules, standards, policies and/or physical environments. In other cases, accommodation might mean relaxed enforcement of condominium bylaws.

The duty to accommodate doesn’t eliminate the general obligation of residents to conduct themselves reasonably, communicate respectfully, and comply with the bylaws. Life in condominiums is all about balance, and as all rights and obligations, the duty to accommodate has its limitations. More specifically, the duty to accommodate is limited up to the point of undue hardship, being the limit at which accommodation would create onerous or overly burdensome conditions for the condominium corporation.

The Canadian Human Rights Commision indicates that sometimes accommodation is not possible because it would cost too much, or create health or safety risks. This is known as undue hardship. This includes but is not limited to causing significant financial impairment and impacting safety/security requirements.

Mental Health vs Mental Illness

Mental health and mental illness are often used as synonyms, but they are not. According to the CMHA:  “Mental health” is a concept similar to “physical health”: it refers to a state of well-being. Mental health includes our emotions, feelings of connection to others, our thoughts and feelings, and being able to manage life’s highs and lows. The presence or absence of a mental illness is not a predictor of mental health; someone without a mental illness could have poor mental health, just as a person with a mental illness could have excellent mental health.

Both mental health and mental illness cases need to be understood as covered under the duty to accommodate, but the limit of the undue burden will not be the same. If an occupant has disclosed that they have a mental health issue, the condominium board must act in good faith when considering how to accommodate the occupant. Accommodation must be reasonable, but it needn’t be perfect, nor must it take the exact form requested by the resident. Condominium boards should be mindful that accommodation of mental health issues can be a creative exercise.

Understanding Mental Illness

Mental illnesses are health problems that affect the way we people think about themselves, relate to others, and interact with the world around them. It is something that can affect anyone regardless of where they choose to spend their life (condominium, individual home, apartments, etc.). It affects thoughts, feelings, abilities and behaviors. Depression and anxiety disorders are the most common mental illnesses. Another common mental illness that affects more and more people every year is ADHD. But mental illness should not be associated with a lack of ability to function in the normal word nor as a stigma. Stratastic stands for diversity and inclusion of all types of individuals.

Mental illnesses are more likely to come up during times of stress or uncertainty, which can be part of many people’s jobs. However, life stress outside of work can also affect mental health. It’s important to understand that mental illnesses are real illnesses. Like other illnesses, such as diabetes or asthma, most mental illnesses are episodic. But if not handled correctly they can have serious consequences for the individual and their environment. For example, the Vaughan shooter was believed to have been suffering from mental health issues that might have aggravated the discussions with condo management and board of directors. 

Accommodating mental health 

Engaging in respectful and clear communication with the individual is instrumental in obtaining the information necessary for the board to provide an appropriate response and (hopefully) avoid claims of discrimination. Early disclosure of a mental health issue and the need for accommodation at the outset of the discussion should always be encouraged, as it enables the board to act promptly, showing the individual that their needs are being heard and taken seriously.

In case the person is causing or is believed to potentially pose dangers to himself or others, corporations can be justified in obtaining a physician’s psychiatric assessment to determine if an individual’s accommodation is appropriate for their situation. After all, property management must ensure the safety every resident's life in a condominium. Psychiatric assessments for a resident suspected of having a mental disorder can be requested by a police officer or justice of the peace. (Mental Health Act sections 16 and 17.)  The purpose is to have a guardian assigned to manage an individual’s property which includes making decisions on their behalf.

Examples cases and their solutions

• For hoarders a regular cleaning service, paid for by the resident, may address a hoarding problem while eliminating fire and pest concerns.

• In-suite noise can be muffled by requiring soundproofing of a suite.

• A resident who compulsively bangeed on walls and yelled out windows had their windows sealed. He was provided with a foam bat and was able to continue his compulsive behaviour without disturbing others.

• An owner regularly left pots on the stove for hours thus causing building-wide fire alarms. The court ordered the stove and oven locked. A care worker was hired to prepare meals and provided with a key to the lock.

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The duty to accommodate mental health and illness within condominium corporations is a complex yet important aspect of property management. Life in condominiums is not always easy, and even less if a resident has a mental health or mental illness problem. Recognizing the distinction between mental health and mental illness is crucial, as is understanding the limits of accommodation within the framework of undue hardship. Effective communication, early disclosure, and creative solutions are key in navigating these situations while ensuring the well-being and rights of all residents. By approaching each case with empathy and a commitment to inclusion, condo corporations can fulfil their obligations while fostering a supportive and harmonious living environment for all.

-Stratastic Inc.

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