Positive Developments for Housing Providers on Reasonable Accommodation
Two recent decisions of the Human Rights Tribunal are instructive for those in property management with respect to the duty to accommodate. Both cases involved physical modifications to residential complexes and include insight into: the procedural duty to accommodate; the substantive duty to accommodate; and, what is reasonable accommodation.
In Polito v. Briarlane, the tenant requested accessible access to the residential complex by way of an automatic door opener on the front doors. The landlord’s position, based on expert advice, was that an automatic opener on the front doors was not possible and the landlord installed an opener on the rear entry door instead. The tenant claimed that having to access the building through the rear door offended his dignity and was not a reasonable accommodation.
The tenant’s first request for modification to the front doors was submitted to the landlord in September 2016 and the landlord did not respond to the request for accommodation until February 2017 and did not obtain an engineer’s report until September 2017. The engineer’s report had not been shared with the applicant at any time prior to the hearing before the Tribunal.
Despite the tenant’s objection to the landlord’s offer to install automatic doors openers to the rear door, the rear doors were affixed with an opener on December 20, 2017. In July 2018, the landlord installed a buzzer system at the rear door.
The Tribunal found that during the period from the tenant’s initial request for accommodation and when the landlord commissioned the engineer’s report, the landlord failed to discharge the procedural component of the duty to accommodate– no steps were taken by the landlord to investigate options for accommodating the physical needs of the tenant. The breach of the landlord’s procedural duty to accommodate resulted in general damages being awarded to the tenant in the amount of $10,000.
The Tribunal did find, however, that by making the rear doors to the building accessible, the landlord discharged its substantive duty to accommodate; and, even though the accommodation was not the preference of the tenant it was, nonetheless, a reasonable accommodation.
The decision in Polito is a clear reminder that the steps taken by a housing provider in responding to a request for accommodation are just as important as the end result. In the case of MW v. Minto Properties Inc., the Tribunal was satisfied that the installation of a lift/ramp in the residential complex requested by the tenant was not possible based on the landlord’s thorough investigation into same, and agreed that the landlord’s offer of a transfer to a nearby accessible building was a reasonable accommodation in the circumstances. In that case, the landlord was found to have satisfied both its procedural and substantive duties to accommodate and the application was dismissed.
The emphasis on reasonable accommodation and the Tribunal’s acceptance in both of these cases of “next best” or alternative solutions that aren’t perfect and aren’t the preference of the tenant, is a positive development for housing providers. Of course, in arriving at a reasonable accommodation, it is clear from these cases that the housing provider must respond to requests for accommodation promptly and effectively and engage appropriate experts where the situation warrants.
Kristin Ley, a Partner at Cohen Highley LLP, specializes in residential tenancies, human rights and regulatory compliance. She can be reached at email@example.com or 519-672-9333 x 316 if you have any questions about the above or require advice in these areas.