Manitoba strata corporation’s window-replacement project found not to have discriminated against owners on the basis of disability
July 21, 2016
BY Kevin Zakreski
In four complaints against the same condominium corporation, the Manitoba Board of Human Rights has ruled that replacing clear windows with tinted windows did not amount to discrimination under The Human Rights Code. Three of the complaints—Renard v Winnipeg Condominium Corporation No 30, 2016 MBHR 3, Gordon v Winnipeg Condominium Corporation No 30, 2016 MBHR 4, and Kinvig v Winnipeg Condominium Corporation No 30, 2016 MBHRC 5—involved complainants who had extremely limited vision, to the point of legal blindness. The complainant in the fourth complaint—Pollock v Winnipeg Condominium Corporation No 30, 2016 MBHRC 6—suffered from generalized anxiety disorder with panic attacks and obsessive-compulsive disorder.
The cases concerned a 38-storey condominium complex located in Winnipeg, which was constructed in 1969 to 1970. It contains about 300 condominium units, and has an estimated 500 residents. The building had “aluminum frame, single pane windows, with vertical sliders,” which, by 2004, “were almost 35 years old, and well beyond their expected 20 year lifespan.” The windows had begun to fail, resulting in drafts and water penetration.
After some deliberation, the condominium corporation’s board of directors decided to replace all the building’s exterior windows with new, tinted windows. The board concluded that “tinted glass would reduce the amount of glare and result in reduced cooling costs in the summer and reduced heating costs in the winter.”
A minority of owners opposed this decision, resulting in civil litigation and the four human-rights complaints that were the subject of these decisions. Although the reasons for each decision were extensive (running respectively to 248, 271, 279, and 284 paragraphs), there were some common features to each decision. These common features can be summarized briefly, to give a sense of the adjudicator’s reasoning. But ultimately each case turned on its own unique set of facts.
The parties in each case agreed that it engaged the following issue:
Whether the Respondent discriminated against each Complainant on the basis of disability by failing to make reasonable accommodation for his/her special needs based on disability when deciding to install or installing new windows in all condos.
Each complaint was brought under section 13 (1) of the Human Rights Code, which prohibits discrimination with respect to services and accommodation. Section 9 (1) defines “discrimination.” For these cases, the relevant part of the definition reads as follows:
failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2).
The applicable “characteristic referred to in subsection (2)” was “physical or mental disability or related characteristics or circumstances . . . .”
The adjudicator applied the same three-step test in each case, which, in the words of the Reynard decision, read as follows:
The onus is on a complainant to establish a prima facie case of discrimination. In this instance, Mrs. Renard must therefore establish, on a balance of probabilities, that she has a disability under the Code, that she has special needs based on that disability, and in particular, a special need for clear glass or untinted windows, and that the Respondent was aware of, or ought reasonably to have been aware of, that disability-related need.
The first two elements in this test (the existence of a disability and special needs based on that disability) weren’t in dispute. But each complainant failed on the third element of the test. The adjudicator’s comments in Reynard are indicative of how each of the complaints failed:
What is in dispute, at this initial stage, is whether it has been established that at all relevant times Mrs. Renard had a special need for clear glass or non-tinted windows based on her disability; and if so, whether it has been established that the Respondent was sufficiently aware of, or ought reasonably to have been aware of, that need. Based on the evidence which is before me, and for the reasons that follow, I am not satisfied that either of these elements has been established in this case.
While I accept that it is obvious that Mrs. Renard has a visual impairment and certain needs related thereto, I do not agree that it was or is obvious, or that Mrs. Renard made it clear, that tinted windows would only enhance her difficulties, or in any event, that it was or is obvious or has been established that she has a special disability-related need for non-tinted windows.
Each decision also contained a version of this comment:
The Code requires the accommodation of an individual’s disability-related “needs,” not his or her preferences or desires. In my view, this is an important distinction.
Finally, in three of the cases, the complainant was allowed to keep some or all of the original, clear windows in his or her condominium unit. The adjudicator found that this amounted to reasonable accommodation of the complainants’ disabilities.
In the result, each complaint was dismissed.