Addressing Complaints and Mental Health Issues in Condominiums: Strategies for Board Members
January 6, 2023
According to the Canadian Mental Health Association, 1 in 5 Canadians will experience a mental health issue or illness during their lifetime. Roughly 2 million Canadians now live in condominiums, so most of these communities will inevitably face a situation involving a resident who is experiencing such issues. Condominium boards must therefore be prepared to deal with and address mental health disorders among their residents.
Most recently, a 73-year-old man in Toronto who had a long-running dispute with his condominium corporation ended up allegedly killing five people, including three members of the board of directors. The now deceased unit owner is believed to have been suffering from mental health issues. His dispute with the condominium board was centered around concerns about an electrical room, which he claimed was causing harmful vibrations within his unit. He also claimed that members of the condominium board had actively engaged in efforts and conspired to intentionally harm him.
There were multiple court actions between the condo corporation and unit owner. In one such action in which the owner had named several board members personally as defendants, the Ontario Superior Court of Justice ultimately concluded that the claims were frivolous and vexatious (see: Villi v Camilleri, 2022 ONSC 4561). Although the condominium board had taken steps to reduce the vibrations, the occupant’s issues were apparently not fully resolved. In the days leading up to this tragic incident, he continued to post videos on social media discussing his ongoing dispute with condominium board, alleging that [the condominium board] wanted him dead.
These recent events in Toronto serve to highlight similar issues faced by the majority of condominium corporations involving resident complaints and mental health issues. Most condo lawyers would agree these types of claims have increased dramatically and were even exacerbated by the COVID-19 pandemic shut-downs.
Dealing with residents’ complaints can be exceptionally difficult for volunteer board members who have no special training in dispute resolution, but this is unfortunately a large part of the board’s duties and cannot be avoided. Identifying a potential mental health issue early on and understanding the board’s role and duties with addressing complaints, particularly where such issues exist, are crucial. This may help avoid lengthy court proceedings with high costs, and could, hopefully, also minimize the risk of tragic consequences such as these.
The following are a few general strategies for condo boards to improve their approach to complaint resolution involving residents who may suffer from mental illness or disorder:
1. Understand the Duty to Accommodate
The duty to accommodate someone with a physical or mental disability or disorder, among other things, applies to all condominium corporations. Accommodation might mean making certain changes to rules, standards, policies and/or physical environments. Strict enforcement of condominium bylaws may have to be relaxed in these instances, although the duty to accommodate doesn’t eliminate the general obligation of occupants to conduct themselves reasonably, communicate respectfully, and comply with the bylaws.
The duty to accommodate also extends to the point of undue hardship, being the limit at which accommodation would create onerous or overly burdensome conditions for the condominium corporation. This includes but is not limited to causing significant financial impairment and impacting safety/security requirements.
If an occupant has disclosed that they have a mental health issue, the condominium board must act in good faith when considering how to accommodate the occupant. Accommodation must be reasonable, but it needn’t be perfect, nor must it take the exact form requested by the occupant. Condominium boards should be mindful that accommodation of mental health issues can be a creative exercise.
2. Encourage Early Disclosure
Engaging in respectful and clear communication with the individual is instrumental in obtaining the information necessary for the board to provide an appropriate response and (hopefully) avoid claims of discrimination. Early disclosure of a mental health issue and the need for accommodation at the outset of the discussion should always be encouraged, as it enables the board to act promptly, showing the individual that their needs are being heard and taken seriously.
Ultimately, it is up to the individual to inform the condominium corporation of their particular issues and needs so as to give the corporation an opportunity to consider accommodation requests and make reasonable adjustments. On receiving information concerning an occupant’s mental health issue and requested accommodation(s), the board should try to gather as much information as possible (subject to respecting the individual’s privacy rights) and then consider ways to accommodate the individual’s needs. Practice active listening habits and acknowledge the occupant’s concerns, encouraging them to feel comfortable and respected, which will make them more likely to voluntarily disclose any mental health issues.
3. Be Responsive
Condominium boards should endeavour to substantively respond to all occupant’s complaints in a timely fashion. This not only satisfies the board’s duties of good faith, but also ensures that the occupant feels heard. If a complaint is received orally, encourage the individual to submit the complaint in writing. Document all interactions and responses.
On receipt of a complaint, investigate and ask questions to determine the what, when, where, who, how and why of the situation. As a starting point, the board needs to determine if the complaint is legitimate and reasonable. Ask open-ended questions, as this may help identify options for accommodation to address a mental health or other issue, if necessary.
Finally, keep the individual updated on what steps the board has taken and/or plans to take, so they know that their concerns are being respected and addressed. Practice empathy and work together to set goals to resolve the issue or complaint. Including the individual in the resolution process demonstrates that the condominium board is receptive and sympathetic to their concerns.
At the end of the day, not all occupant complaints or disputes are easily addressed, even when employing the above strategies, and some will inevitably wind up being decided by a court. Where mental health issues are involved, resolving complaints can be especially tricky, and sometimes even dangerous, as we have seen in recent weeks. But having a good understanding of the board’s duties, being respectful, responsive, and generally practicing good listening and communication skills will help to minimize these and other risks.
If you have questions about this blog post or others, please contact me.
This is an excellent article! I wish every condo board and PMs read this article.
What recourse do owners have when a board refuses to listen or categorically claims the issues as ‘personality’ problems?
What recourse do owners have when a board does nothing about bullying in common areas, generally with volunteers being the aggressor?
Thx
These types of cases are incredibly fact-specific and may require a legal advice particular to the issue. As a first step, try having a neutral third party review the communications to see if the approach is likely to be effective. Sometimes simply taking a step back and adopting a different communication tone or strategy can be successful. Another option is to request a brief attendance at a board meeting to air the concern and request action be taken. In a worst-case scenario, where all other means of communicating legitimate issues to the board have been exhausted and the board is still refusing to respond, investigate or properly address an owner’s concerns, legal action may be necessary. In my experience, this is rarely the case and usually the issue boils down to a communication disconnect of some sort or a simple misunderstanding of rights and duties. When presented by an owner with a matter of concern that is within the board’s mandate to address (the board’s mandate is to make all decisions on behalf of the corporation for the control, management and administration of the common property, the corporation’s real and personal property and any managed property, and to enforce the bylaws and rules of the corporation), the board should respond by at least investigating to determine if the concern is legitimate and reporting back to the owner on the steps taken, the results and any further action that may be justified or required. Again, as a last resort, an owner could potentially seek redress against a non-responsive board through the courts in what’s referred to as an improper conduct claim. Generally speaking, an improper conduct claim could arise where a board, an owner or another interested party is engaging in conduct that violates the bylaws or the Act, or is otherwise oppressive to or that unfairly prejudices or disregards another party’s interests. These are expensive claims to pursue. Further, they should not be undertaken for trivial, insignificant matters or mere technical violations.
The person who lives below us struggles with mental stability. This is a well known situation, she has been here many years, we have been here 18 months. She has complained to me directly about our noise being very loud when it is in fact normal household noise. We have placed carpets in the task areas of the kitchen, our bedroom, the entry, we wear slippers and do not play loud music. But we are retired and are either home all day or gone traveling.
The Board has now requested a meeting with us in regards to a noise complaint. Our condo policy is that the person who originated the complaint attend the meeting but in this case she will not be there. They have not confirmed it is in fact her that complained.
Are we entitled to a copy of the complaint and what sort of action can the board take against us?
Is it time for us to hire a lawyer?
Thank you for any guidance.
As I’ve often said, these cases are heavily fact-dependent. Where a complaint includes personal information about an individual, that individual may request and is entitled to receive a copy of the complaint, but when provided, the complaint may be redacted to prevent disclosure of personal information about other individuals. A meeting is not an enforcement action but may be merely the board’s attempt to investigate the complaint (which it is obligated to do), obtain more information, or resolve the issue between yourselves and the individual above you. A mental disability introduces a complicating factor around which the board of directors must tread lightly, and which may require some reasonable accommodation.