Is A Condo Board Discriminating By Scheduling An AGM or Special Meeting On A Religious Holiday?
For those of you who read my work on a regular basis, you have already guessed that the answer to the above question is: "it depends". Each situation is very dependent on the facts but a condominium corporation that schedules a AGM or Special Meeting on a day of religious observance might not be discriminating. An Ontario Human Rights Tribunal Decision illustrates the point.
The Condominium Corporation, Peel Condominium Corporation No. 51 ("PCC 51") was faced with a significant problem when they obtained a consulting engineer's report advising them that they had to rapidly complete approximately $2 million of exterior work including work to make the exterior concrete balconies safe. At the time, PCC 51 had only $200,000 in reserve. If the conducted a special assessment, unitholders would be faced with an assessment between $10,000 and $12,000.l Although PCC 51 would have the right to register the special assessment as a lien on each unit and enforce payment under power of sale, there were significant concerns that a number of unitholders would lose their condo unit if the board proceeded in this manner.
The board sought alternative options can was able to secure a financing package if it was able to pass a by-law, requiring a special majority by the year end. The board scheduled a special meeting to pass the by-law.
The relevant consideration was whether the date selected for the special meeting would conflict with Eid-ul-Ahza, a holiday that is set by calendar date (in to some observers) or in relation to the new moon (by other religious observers). The board thought they selected appropriately, but the appearance of the new moon meant that the special meeting would coincide with Eid-ul-Ahza. Unfortunately, the board lacked enough time to reschedule the meeting so they decided to proceed with the meeting.
Three unitholders objected and applied to the Human Rights Tribunal of Ontario alleging that the condo board had discriminated against them. The Tribunal disagreed and dismissed the application. Key to the dismissal was evidence that the board had previously held meetings on other religious holidays such as Hindu religious dates. Moreover, there was no disadvantageous impact in that the unitholders were not prevented in any way from observing the tenets of their faith. Most importantly, however, was the fact that no unitholder was disadvantaged because all were allowed to vote by proxy.
The ability to vote by proxy is reasonable accommodation if a unitholder is unable to attend for reasons based on the Human Rights code such as religious observance, disability or child care obligations.
The Lesson: As a condo board, try to accommodate as many unitholders as possible. However, where accommodation is not possible allow alternate ways to participate (such as Skype attendance for disabled) and voting by proxy. Bear in mind, however, that habitual scheduling that appears to discriminate, such as the custom of scheduling meetings when a particular faith group cannot attend, may be viewed as de facto discriminatory.
Kamal v Peel Condominium Corporation No. 51, 2016 HRTO 1282 https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto1282/2016hrto1282.pdf
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