“Restrictions and policies which prevent children under a specified age from residing with their parents in the latter's choice of accommodation discriminate on the basis of family status. The right which the respondents… had to equal treatment with respect to the occupation of accommodation without discrimination because of "family status", as provided for in… the Code, was infringed.” (York Condominium Corporation No. 216 v. Dudnik, [1991] O.J. No. 638 (Div. Crt.))
In light of the above decision, “family status” is now used as a basis to challenge condo rules and provisions which restrict based on age. This does not mean that age based restrictions are absolutely prohibited. In some cases they have their purpose and the Code and health and safety legislation allow for some exceptions.
For example, the Code says “any right under Part 1 to non-discrimination because of age is not infringed where an age of sixty-five years or over is a requirement, qualification or consideration for preferential treatment.” The “rights” under Part one of the Code include the right to: services, accommodation, to be free from harassment in accommodation, contract, employment, to be free from harassment in employment, vocational associations. This “sixty-five or over” distinction has not been sufficiently tested before the courts or the Human Rights Tribunal but could potentially be a justification for some programs or rules within a condo geared specifically towards those over the age of 65.
Condos have tried to argue that, with respect to recreational facilities, section 23 of the Code says that equal treatment with respect to services and facilities is not infringed when a recreational club restricts or qualifies access to its services because of family status or age. This argument has failed on the basis that a parent unit owner seeking to use the facility with his or her child has an equal shared ownership interest in the common elements, including recreational facilities, as other unit owners. Condo recreational facilities are not “recreational clubs” as intended by section 23 of the Code because membership is not voluntary. In this context, an absolute prohibition on children using a recreational facility or allowing use during a restricted time may have a different impact on parent unit owners than other unit owners.
Health and safety considerations may justify certain age-based restrictions with respect to recreational facilities. The Ontario Health Protection and Promotion Act restricts the use of certain pools on the basis of age – in some cases bathers under 12 years of age are not allowed in the pool unless accompanied by a parent or the parent’s agent who is not less than 16 years of age. Most condo pools will fall into a category of pool to which the Health Protection and Promotion Act applies. Similar considerations can be made for spas, weight rooms and other facilities where there is a genuine health and safety aspect to the restriction.
Age-based restrictions in condos must recognize the status of being in a parent and child relationship and must accommodate families. For example, having children’s pool hours Monday through Friday between 9 a.m. and 3 p.m. only, when children are often at school and parents may be at work, will have a different impact on unit owners who are parents.
All condos should have a Human Rights Policy so that if a complaint is made about an age-based restriction in their declaration, by-laws or rules, the board has a clear procedure to address the complaint fairly and internally. A condo brought before the Human Rights Tribunal on an age-based or family status matter can easily spend over $50 thousand defending a complaint.
Boards of condos with dubious age-based restrictions should also speak to their insurer about purchasing a human rights defence policy. Condos with provisions which restrict an activity or use of a facility on the basis of age should be careful that such provisions do not discriminate. Boards should seek legal advice if they have any concerns about an existing provision or if they are considering making an age-based restriction.
Andrea Krywonis is an associate lawyer at Gardiner Miller Arnold LLP, a condo-focused law firm in downtown Toronto. You may contact her at andrea.krywonis@gmalaw.ca.
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