Part 37 published on 01/02/12
Owner ordered to reinstate exclusive-use lawn area. Corporation not obligated, under Human Rights law, to permit extra parking space constructed by owner
The owner had two parking spaces available to him: an indoor space (in his garage) and an outdoor space (on his driveway). Without permission of the Board, he constructed a second outdoor parking space – an asphalt pad – on his exclusive-use common element yard area. The owner said that he needed the second outdoor parking space because of a disability – claustrophobia – which he said prevented him from using the garage. In support of his position, the owner provided a note from his family doctor.
The Court ordered the owner to reinstate the common elements to their original condition, because the change was made without the Board’s consent required by Section 98 of the Condominium Act, 1998 and by the Declaration. The Court said:
The role of the Court in such an application as this is not to substitute its own opinion for that of the Board, but to ensure the Board has acted in good faith and in compliance with the Act, declaration, by-laws and rules. In deference to the rules, the Court should not pronounce on the propriety of rule except where the rule is clearly unreasonable or contrary to the legislative scheme. The Court should accept the board’s decision unless it has acted capriciously or unreasonably.
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In order to find the discrimination necessary to defeat the Declaration, the provision must have the effect of preventing Mr. Gorgiev from living in his residence.
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The person requesting accommodation must do his part as well. There is a duty to facilitate the search for such an accommodation… The request will be dismissed if the person requesting accommodation fails to take reasonable steps.
A person requesting a particular accommodation of disability must provide sufficient evidence to establish that the accommodation is required. Mr. Gorgiev has provided nothing other than a note from his general practitioner. That is not sufficient for him to uphold his end of the investigation. While Mr. Gorgiev has now agreed to provide medical information to support his claim of disability, he is too late.