MANITOBA HUMAN RIGHTS BOARD OF ADJUDICATION
IN THE MATTER OF: The Human Rights Code, C.C.S.M. c. H175, as amended;
IN THE MATTER OF: A Complaint by Doug Gordon against Winnipeg Condominium Corporation No. 30, alleging a breach of section 13 of The Human Rights Code;
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WINNIPEG CONDOMINIUM CORPORATION NO. 30,
Susan Renard, the Complainant
Doug Gordon, representing the Complainant
Candace Grammond, counsel for the Respondent Winnipeg Condominium Corporation No. 30
Isha Khan, counsel for the Manitoba Human Rights Commission
Before: M. Lynne Harrison
REASONS FOR DECISION
- These proceedings arise out of a project for the replacement of the exterior windows in a condominium complex. The Complainant Susan Renard, and her husband, own and reside in one of the units in the complex. In her Complaint, Mrs. Renard has alleged that the Respondent Winnipeg Condominium Corporation No. 30 (the “Respondent”) discriminated against her in the provision of services relating to the window replacement project, and failed to reasonably accommodate her special needs based on her disabilities (legally blind, with 10% vision, and epilepsy), contrary to section 13 of The Human Rights Code, C.C.S.M. c. H175 (the “Code”). Mrs. Renard’s Complaint relates, in particular, to the Respondent’s decision to replace the original clear glass windows in her condominium unit with windows which are tinted. It also refers to the decision to install window handles which extend outward and are dangerous, and locks which are too high to reach without a chair or ladder.
- Mrs. Renard’s Complaint is one of four Complaints which were filed against the Respondent by four separate Complainants with respect to the same window replacement project, the other three complainants being Doug Gordon, Ronald Franklin Pollock, and Delphine Kinvig. On April 28, 2010, I was designated by the Minister of Justice as a Board of Adjudication, to hear and decide all of these Complaints.
- All four Complaints first came before me on May 28, 2010 for a hearing with respect to a number of preliminary issues. The main issue at that time was whether the Manitoba Human Rights Commission (the “Commission”) could terminate all proceedings, including the adjudication, where the Respondent made a settlement offer after the Complaints had been referred to adjudication, an offer which the Commission considered reasonable but each Complainant rejected, or alternatively, whether the Commission could withdraw from the proceedings in these circumstances.
- On October 12, 2011, I delivered Reasons for Decision with respect to those preliminary issues, in which I concluded, among other things, that the Code neither required nor enabled the Commission to terminate all proceedings respecting the Complaints in these circumstances, the Complaints having been referred to adjudication. I also concluded that while the Commission could not withdraw as a party to the adjudication, it could withdraw from actively participating at the adjudication.
- The Complainants in each of the Complaints subsequently determined that they wished to proceed with the adjudication of their Complaints. Several conference calls were convened to address different procedural matters and set dates for the hearing of the merits.
- In the course of those conference calls, counsel for the Commission, Ms Khan, outlined the Commission’s intentions with respect to its role at the hearing of the Complaints. She advised that the Commission expected to have someone in attendance each day for the hearing, but did not intend to actively participate therein. In particular, the Commission did not intend to call or cross-examine any witnesses. The Commission did intend, however, to deal with the usual preliminary matters, to make an opening statement focusing on the applicable tests and authorities, and to make a final submission and address public interest remedies, in keeping with its public interest in the Complaints.
- The procedure with respect to the calling of evidence was discussed, and it was agreed that:
- the Complaints would be heard together and general or common evidence relevant to all of the Complaints, or more than one Complaint, would apply mutatis mutandis;
- as the Complainants would bear the onus of establishing a prima facie case, they would call their evidence first, and would decide amongst themselves the order in which they would do so;
- the Complainant who proceeded first would call all of the evidence that he or she considered relevant to his or her Complaint. After the first Complainant had finished questioning a witness, each of the other three Complainants would have an opportunity to ask the witness additional questions relating to his or her own case, then the Respondent would have the opportunity to cross-examine the witness;
- after the first Complainant had completed his or her evidence, the second Complainant would call any further witnesses that he or she might have and ask questions relating to his or her case. The third and fourth Complainants would then have an opportunity to put additional questions to each witness relating to each of their cases, and the Respondent to cross-examine each witness;
- after the second Complainant had completed his or her evidence, the third Complainant would call any additional witnesses that he or she might have and ask questions relating to his or her case. The fourth Complainant would have an opportunity to put any additional questions to each witness relating to his or her case, and the Respondent to cross-examine each witness;
- after the third Complainant had completed his or her evidence, the fourth Complainant would call and ask questions of any additional witnesses he or she might have, and the Respondent would have the opportunity to cross-examine each witness;
- after all of the Complainants had completed their evidence, the Respondent would call its witnesses. After the Respondent finished questioning each witness, the Complainants would have the opportunity, in turn, to ask questions of or cross-examine the witness with respect to their own cases.
- In advance of the hearing, the parties exchanged lists of the witnesses they intended to call, together with a brief indication of what each witness was expected to address and/or expert and medical reports from individuals whose evidence they expected to rely on at the hearing.
- The hearing of the four Complaints on the merits thus continued in Winnipeg over a period of 11 days, between March 5 and 23, 2012, with submissions being heard on April 13, 2012. At the commencement of the hearing, the Complainants advised and it was agreed, that Mr. Gordon would proceed first, and call evidence with respect to his Complaint and that of Mrs. Renard, followed by Ms Kinvig, and finally Mr. Pollock. The issue of costs would be left to be addressed at a later date, if necessary.
- As provided in my Reasons for Decision dated October 12, 2011, Mr. Gordon was to act as Mrs. Renard’s agent or representative for the adjudication of the Complaint, on an unpaid basis.
- In the course of the hearing, I indicated that I would issue separate decisions, reflective of the relevant facts and circumstances in each case.
- The parties agreed, prior to the commencement of the hearing, that the issue to be determined in all four Complaints was relatively narrow, namely:
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.
- I would note at the outset that it is not my intention to recite all of the evidence adduced and argument heard in the course of these proceedings, but to comment on the most salient points where necessary or appropriate.
- Mrs. Renard testified on her own behalf. Seven other individuals also testified in support of her case, namely:
- Doug Gordon;
- Roy Fondse, a Winnipeg real estate agent;
- Kent Woloschuk, an architect;
- Dr. Richard Leicht, an ophthalmologist and specialist in diseases of the eye;
- Delphine Kinvig, another one of the Complainants;
- Krystyna Briggs, another unit owner in the condominium complex;
- Judith Christopherson, an interior designer and Delphine Kinvig’s sister.
- Four witnesses testified on behalf of the Respondent in respect of Mrs. Renard’s Complaint, namely:
- Robert Schafer, a unit owner since 1999, member of the Respondent’s Board of Directors since 2003, and President of the Board since 2004;
- John Wells, a partner in the engineering firm of Crosier Kilgour and Partners (“Crosier Kilgour”) and engineer on the window replacement project;
- Sharon Kula, property manager at the condominium complex;
- Robert Sakowski, a former unit owner and member of the Respondent’s Board of Directors from 2003 to 2008.
- Issues arose during the course of the hearing with respect to the qualification of certain witnesses as expert witnesses.
- The Complainants sought to call Judith Christopherson as an expert witness and also as a lay witness with respect to her personal knowledge or observations relating to the Complaints, particularly, though not exclusively, Ms Kinvig’s Complaint.
- As indicated above, Ms Christopherson is an interior designer. She is also Ms Kinvig’s sister. After reviewing Ms. Christopherson’s qualifications and experience with her, Mr. Gordon advised that the Complainants were seeking to have her qualified as an expert with respect to the effects of tinted windows on the interior of rooms in terms of contrast, colour perception and moisture; the construction and design of windows; how the windows could be adapted differently, in this case, for non-tinted windows; and the locks on, and energy efficiency of, the windows.
- Ms Grammond had previously indicated and confirmed that she was objecting to Ms Christopherson being qualified as an expert witness on two grounds in particular. First, she noted that opinion evidence is to be called and presented from independent individuals, and Ms Christopherson was not independent; she was the sister of one of the Complainants. This lack of independence applied not only to Ms Kinvig, but also to the other Complainants, at least two of whom Ms Christopherson had met through her sister. Moreover, the four Complaints were being heard together, and Ms Christopherson ought not to be permitted to give opinion evidence where it would have an effect on Ms Kinvig’s case as well. Ms Grammond submitted that whether the Complaints were being heard together or separately, Ms Christopherson was still not independent. Secondly, Ms Grammond argued that it did not appear that Ms Christopherson had anything to add on the merits or that she had the right experience or quantity of experience to be qualified as an expert on the topics which had been put forward.
- An expert should provide independent assistance to a tribunal in respect of matters within his or her area of expertise, and should not assume the role of an advocate. The criteria for the admissibility of expert opinion evidence were: (1) a properly qualified expert; (2) relevance; (3) necessity; 4) reliability; (5) prejudice / probative analysis; and (6) the absence of an exclusionary rule.
- Ms Christopherson is Ms Kinvig’s sister, and whether these are separate complaints or not, Ms Kinvig is involved in these proceedings. In the circumstances, this gave rise to a perception of bias, and difficulty in terms of whether independent assistance was being provided. I was also not persuaded that the evidence was necessary. Mr. Gordon referred to it adding value to his, but that is not the role entirely of an expert. I could appreciate that it might be helpful to the Complainants, but being helpful is not enough. The evidence has to be necessary, and I was not persuaded that it was. This was not to be critical of Ms Christopherson’s expertise in any way. I was simply not convinced that the criteria of objectivity, independence and necessity existed here.
- I therefore determined that Ms Christopherson could not testify as an expert witness in these Complaints.
- Ms Grammond sought to call John Wells both as the engineer on the project and as an expert witness. Mr. Wells is a partner in the engineering firm of Crosier Kilgour, the engineers of record for the window replacement project. Ms Grammond advised that the Respondent was seeking to qualify Mr. Wells as an expert in structural engineering as it related to the window replacement project at 55 Nassau.
- The Complainants objected to Mr. Wells being qualified to give expert evidence on the basis that he was not at arms’ length from the Respondent and was not unbiased. It was argued that whether Mr. Wells was competent had nothing to do with this; the objection related to objectivity and fairness.
- I had no doubt with respect to Mr. Wells credentials, or that his evidence would be relevant and probably helpful. He was, however, the engineer for the Respondent on the project which is the subject of these Complaints, and on that basis, I was not sure that he could be said to be independent or unbiased. There was a real perception of bias, where he acted as the Respondent’s engineer on this project and would also be testifying as such. In the circumstances, I determined that Mr. Wells could not testify as an expert witness in respect of these Complaints.
- The Respondent is a corporation incorporated under The Condominium Act, R.S.M. 1987, c. C170 (the “Act”). The Respondent manages and maintains a 38-storey condominium complex located at 55 Nassau Street North in Winnipeg, and known as 55 Nassau (“55 Nassau”). 55 Nassau was constructed in 1969 to 1970. It contains approximately 300 condominium units, and has an estimated 500 residents.
- The affairs of the Respondent are managed by an elected Board of Directors (the “Board”) composed of five individuals, all of whom are volunteers.
- Mrs. Renard and her husband are co-owners of one of the condominium units in 55 Nassau, together with a 0.3697% interest in the common elements. The Renards purchased their unit on June 16, 1997, and have lived there since then. Their unit is a two-bedroom corner unit on the twenty-fourth floor of the building, which faces south and east, and has four windows: one in the living room, two in the master bedroom, and one in the second bedroom.
- Mrs. Renard testified that she has two eye conditions which leave her with 10 percent vision. She also has epilepsy, for which she takes medication.
- For many years prior to 2004, there had been discussions with respect to replacing the exterior windows in 55 Nassau. The existing windows dated back to the original construction. They were aluminum frame, single pane windows, with vertical sliders. By 2004, they were almost 35 years old, and well beyond their expected 20 year lifespan.
- At or about the beginning of 2004, the Board began making a concerted push towards having the windows replaced. The windows had become obsolete. New parts could no longer be obtained, making repair work very difficult. Tests showed that the windows were far beyond acceptable levels of air leakage. There were substantial drafts and complaints of windows shaking and making whistling noises under high wind conditions. The windows were also plagued with wind-driven rain. Where windows were no longer sealed, water and wind regularly entered the building, causing water damage and a substantial draft. Water penetrating and cascading down behind the drywall was resulting in corrosion to steel studs and mould growth on the drywall. The Respondent was having to pay to repair water damage to common elements. It was also having to pay on average over $10,000 a year trying to repair the windows, some of which were said to be beyond repair.
- The Board holds monthly meetings, as well as special Board meetings from time to time. Window replacement is referred to in the minutes of a number of monthly Board meetings which were filed as exhibits at the hearing, including the minutes of each monthly Board meeting from February to December 2004.
- The first reference to tinting appears in the Minutes of a Special Meeting of the Board on December 13, 2004, which state, inter alia, as follows:
The window pane has a slight tint low e argon filled glass. The low e argon filled glass is energy efficient. The only problem with having the project over three years is the dye lots for the window tint and frames might have a slight variance. Tinted windows were discussed. The problem with tinted windows is at night the resident could see their reflection in the glass.
- Commenting on the above excerpt from the December 13 Minutes, Mr. Wells stated that the Board was considering whether they would go for clear glass, as they currently had, or incorporate a tint, both for aesthetics and performance. Advantages and disadvantages of tinted glass were discussed. One of the advantages which Mr. Wells said he discussed with the Board was 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 potential disadvantage, as indicated in the above excerpt, was that people might see their reflections in the glass more at certain times of the day.
- It took several meetings for the Board to discuss and make a decision with respect to tinting. Individual Board members provided input, including with respect to other projects they had seen, such as Place Louis Riel where Mr. Wells and his firm were the engineers of record. The Board reviewed several tints, and Mr. Wells brought boxes of tint samples to one of the meetings so that the Board members could actually look at the glass.
- The Board ultimately decided to go with tinted windows. In doing so, the Board opted for the lightest possible tint from the selections that had been presented to it. The Board’s decision was unanimous.
- The Board communicates with unit owners in a number of ways. Minutes of monthly Board meetings are available to unit owners, on request. Prior to 2008 or 2009, the Renards had not requested and were not receiving copies of the minutes of Board meetings.
- General information and notices are also put on bulletin boards located in three different areas of the building: at the parkade level, in the recreation area, and in the mail room where people pick up their mail. In addition, they are posted in all three elevators. Notices that are posted are also provided to unit owners who are visually impaired, including Mrs. Renard, in a very large font. Lengthier documents and notices or communications dealing with more serious issues may be addressed to unit owners and passed out by security.
- Minutes of the Board meeting on May 19, 2005 indicate that a window information session was to be held on June 2, 2005 at 7:30 p.m. Unit owners were invited to attend and the meeting took place as planned. Mrs. Renard thought she may have been at that meeting but was not absolutely sure. Mr. Schafer attended the meeting, and testified that the Board answered such questions as they could at the time. He did not recall anything contentious with respect to windows having come up at that meeting. On cross-examination, Mr. Schafer confirmed that the Board did not hold any other information meetings dealing specifically with windows prior to April 13, 2006, the date on which the contract for the window replacement project was signed.
- The Board had also discussed and arranged for the preparation of a mock-up test window, with the proposed tint, to be installed in the living room in one of the condominium units. The mock-up window was installed in unit 406 on June 14, 2005. The Board’s objective and understanding when it arranged to have the test window installed was that this would provide an opportunity for the Board and unit owners to walk through a unit, and physically see, from both inside and out, what the proposed new window would look like. After the window was installed, however, the unit owner advised that she did not want people coming into her suite. As a result, the Board arranged for a notice with a digital photo of the test window in unit 406 to be posted on the bulletin boards and in each of the three elevators, together with a request that residents view the window from the outside of the building only.
- Mrs. Renard did not see the test window in unit 406. She said that she had heard that others had gone, and had thought of going to see the window herself at one time, but found out that the lady who lived in the unit did not want any more people coming in. She therefore did not have a chance to see the window.
- Mr. Schafer’s evidence, which was unchallenged, was that the Board received positive feedback from residents after they had seen the test window, and that it did not receive any feedback from the Complainants in any of these proceedings.
- In or around December 2005, the Board had three one-foot square samples of the tinted glass placed against the window in the main floor lounge, for viewing. A Memorandum to Residents was posted on the bulletin boards and in the elevators, inviting the residents to take a look at the tint and noting that it was the exact tint that would be on the new windows. The Memorandum, dated December 8, 2005, thus read as follows:
Please note that in the lounge (main floor) there is a 1’ x 1’ piece of tinted glass, which has been attached to the window on the east side.
This is the exact tint that will be on the new windows. Please have a look at the tint.
- Mrs. Renard recalled that she looked at those three samples, but could not remember whether she provided any feedback to the Respondent with respect to what she thought of them. Mr. Schafer’s evidence was that the Board did not receive any feedback or responses after the Memorandum was posted.
- Minutes of the Board meetings on January 19, 2006 and February 17, 2006 refer to arrangements being made for the windows to go out for tender and indicate that the “tint of glass is to be based on the sample window installed in unit 406 that was provided.”
- The evidence indicates that there was a delay in the tenders going out at this time. Meanwhile, the cost of building materials was going up on a monthly basis. The Minutes of the Board meeting on March 21, 2006 indicate that the Board discussed cost and how they would pay for the windows, and refer to the tinting of the windows, inter alia, as follows:
The design of the windows include [sic] tinting to save on heating and cooling costs. John Wells noted that most new buildings install tinting for that reason. Robert Schafer spoke to the manager of The Place Louis Riel who had new tinted windows installed and he said they definitely save money with the tinting.
- The March 21 Minutes go on to state that the Board will be contacting its lawyers to request “a legal opinion to see if an owner vote is required to have tinting put on the new windows.”
- In a written opinion dated April 11, 2006, the Respondent’s lawyers stated that it was their understanding that the Board’s decision to replace the windows was due to the current condition of the windows, such that the matter had become one of repair and maintenance. They noted that decisions with respect to repair and maintenance of the building fell within the sole jurisdiction of the Board, and concluded that a vote of the owners was therefore not required.
- Two days later, on April 13, 2006, the Board entered into a contract with Gardon Construction Ltd. (“Gardon”) for the complete replacement of all of the exterior windows and the installation of new aluminum panels in 55 Nassau, at a cost of over $4 million.
- On April 28, 2006, in a document entitled “Special Reserve Fund Levy for Windows and Run-out Heating/Cooling Lines”, the Board notified unit owners and residents that the new windows were finally on their way. The Board referred briefly to various reasons why the windows needed to be replaced and certain features of the new windows, including the “improved look . . . from the energy efficiency tint of the windows”. It also indicated that the cost of the project was approximately $4 million, which would be paid from a special reserve fund levy, spread over four payments and three fiscal years. Finally, it was stated that more information would be available at the next information meeting scheduled for May 8 at 7:00 p.m.
- A Memorandum dated May 2, 2006, was also posted in the elevators and on the bulletin boards advising all unit owners of the information meeting on May 8 to discuss the window replacement project.
- Mr. Schafer attended the meeting on May 8th. He testified that there were a couple of obstacles which they had to overcome at that time. The first was whether everyone’s windows had to be replaced, as some people felt their windows were in good shape, while others felt theirs were in horrible shape. The second was the sticker price. Mr. Schafer said that they tried to explain how that cost would be broken down, based on percentage of ownership, with each unit being responsible for its share of the common elements. He said that the amounts floored people, just as they had floored the Board when it had learned how much this would cost, and that there was a great deal of opposition.
- Ms Kula, the property manager at 55 Nassau, also attended the May 8th meeting. She testified that people had many questions about the windows, especially with respect to cost of the project, and in particular, the way the costs were to be broken down, such as, for example, why someone with one window would have to pay almost as much as someone with five windows. Neither Mr. Schafer nor Ms Kula recalled anyone raising any human rights issues at that meeting.
- Mrs. Renard recalled having attended the information meeting on May 8. Asked if she spoke openly at that meeting, she replied that she did not.
- Following the meeting on May 8, the Board prepared a four-page document entitled “Window Replacement Project, Questions and Answers” dated May 18, 2006, the purpose of which was stated as follows:
The Board . . . has initiated a window replacement project for 55 Nassau. To ensure unit owners receive accurate information, the Board has prepared this question and answer sheet based on issues raised at the recent information meeting as well as questions presented to Board members in private.
- Mr. Schafer described the Questions and Answers document as providing an explanation of the window replacement project, the costs, the reasons, and where funds would be coming from. At the end of that document, it was stated that if unit owners had any further questions, they should “put them in writing and send them to the Board” as this was “the only workable way to address your concerns.”
- Mr. Schafer testified that copies of the document would have been mailed to unit owners or left at the security office, with a notice on the bulletin boards or in mailboxes stating that there was an important document for residents to pick up.
- As previously indicated, a special assessment was levied against all of the unit holders in 55 Nassau to cover most of the cost of the window project. That assessment also included a component for a smaller amount to cover the cost of replacing the heating and cooling lines in 55 Nassau. The special assessment was applied according to the each unit’s allocated share of the common expenses. Assessments for each unit were split up into four one-time payments over a period of three and a half years.
- In or around mid-May, 2006, unit owners were sent letters advising them of the estimated total amount of the special assessment for their units, based on their proportionate share of the common expenses, and stating that the first part of their share of that assessment was due September 1, 2006. No such letter to the Renards was produced at the hearing, and the total amount that they were assessed was not in evidence.
- In late August, 2006, a second test window was installed in a thirty-third floor unit on the North side of the building, as a test for both the unit owner and the construction company. While installing the window, the contractor learned that the windows in the building were all hooked together, from the second to the thirty-eighth floor on each column of windows, and the new windows would have to be installed in the same design, as opposed to following the original plan where the more urgently required windows would be replaced first.
- The Renards paid the first instalment of the special assessment which was due September 1, 2006, in the amount of approximately $4,000.00. Mrs. Renard testified that at the time the instalment was due, they were in favour of and supporting the project.
- On September 11, 2006, the Respondent issued a Memorandum to All Owners at 55 Nassau regarding the next steps and plans for window installation. That Memorandum referred to the change in the sequence and manner in which the windows would have to be installed, and indicated that they would be starting work from the second floor of the “03” riser.
- The Board posted a second Memorandum to the unit owners of 55 Nassau on September 11, announcing that they had rented a room at Place Louis Riel Hotel for the weekend of September 16 and 17, so that residents could view the tint on the new windows which had been installed there recently. It was noted that the “window construction and tint is (sic) identical to 55 Nassau’s new windows.” Unit owners were invited to make time on those days to come and view the windows from the inside.
- The Renards were aware of this arrangement, but did not go to see the windows at Place Louis Riel. Mrs. Renard said that she did not know why they decided not to go, she just knew that they did not go. When she was asked if it was fair to say that she would have decided not to attend Place Louis Riel because she already knew what the windows looked like, she could not say if that was the case. She knew that she had seen the windows in the building after that, but was not sure of the timing. She had not seen the test window and could not remember on what date she first saw someone else’s window.
- In late July 2006, Mr. Pollock had filed a 25-page Statement of Claim against the Respondent in the Court of Queen’s Bench, in File No. CI 06-01-48045 (the “Pollock proceeding”). A number of claims or alternate claims for relief were listed in the first paragraph of the Statement of Claim, the first of which was for an order that the Respondent “stop from proceeding, or . . . continuing with the new ‘window project’”.
- Mrs. Renard was not involved in that action as a party or in any other capacity. She acknowledged that at that point in time she was actually in favour of the window project.
- The Respondent responded to that claim by filing a Notice of Motion seeking, among other things, an order striking the claim on the grounds that it was frivolous and vexatious, that it constituted an abuse of process, and that it failed to disclose a reasonable cause of action.
- The Respondent’s Motion to strike the Pollock claim was heard before the Master on September 29, 2006. Mrs. Renard was in attendance at that hearing. At the end of the hearing, the Master delivered an oral decision, granting the Respondent’s Motion to strike out the Statement of Claim. In his decision, a transcript of which was filed as Exhibit 86, the Master stated, inter alia, as follows:
When I look at the claim I see that the claim has 23 claims for relief or alternative relief, that’s just the claims for relief. It advances the concerns of three other unit holders . . . . It attacks Mr. Schafer, it attacks a Mr. Sakowski and in paragraph (h) attacks a few others. It names the Board of Directors and states that the Board of Directors are being sued, but does not name them as defendants.
The claim’s central theme . . . is to stop or change the window installation and to seek the claritory [sic] relief, but it covers human rights legislation, the Charter of Rights and Freedoms, it advises of an intention to file a notice of constitutional question. It pleads that many unit owners are elderly, sick, disabled, do not understand the language, are infuriated and upset. The plaintiff also pleads that he is upset by the swimming pool policy. As counsel says, how do I plead to that? (page 3)
- The Master went on to conclude, at page 4, that:
Somewhere in all of this there may well be a valid claim that should be heard and determined on its merits. If the plaintiff could focus in on that claim. But this litany of complaints is not a concise statement of the material facts and it is replete with evidence. . . .
For all of these reasons the claim is struck.
- On October 25, 2006, the Board issued a Memorandum to unit holders advising that there was a delay due to some testing issues with respect to the windows, and indicating that windows would first be installed on the northeast corner.
- On November 1, 2006, a Memorandum from Management to the Residents of 55 Nassau was posted, advising that the windows had passed the required testing, and manufacturing of the windows would begin shortly.
- On November 21, 2006, a Memorandum from the Board to the Unit Owners of 55 Nassau was posted, advising that two new windows had been installed in the hair salon, and inviting owners to view the windows, but asking that they do so from the hallway.
- On November 21, 2006, Krystyna Briggs, another unit owner who testified at the hearing but is not a party to any of the Complaints which are before me, initiated an application against the Respondent in the Court of Queen’s Bench, File No. CI 06-01-49638 (the “Briggs Application”), for an order declaring that the contract for the window project was ultra vires because it had not been approved by a vote of the unit owners. Mrs. Renard was not a part of the Briggs proceeding.
- On November 22, 2006, the Respondent held its 2006 Annual General Meeting (“AGM”). The meeting was chaired by Michael Kay. Mr. Schafer testified that the Board had decided to bring Mr. Kay in as an independent chair to run meetings, after the Respondent’s 2003 AGM had lasted for just over six hours, due to people monopolizing the meeting, throwing it off the agenda and speaking out of turn.
- The Minutes of the 2006 AGM refer to the election of the Board of Directors. Mr. Schafer said that the AGM was “in the middle of the window debate” and that the group opposed to the windows had put forth two candidates for the Board. He said that prior to the election, he had stated to those in attendance that a vote for the incumbent board was a vote for the window replacement project. The incumbent board was re-elected.
- The Minutes also refer to the resident of unit 203 having spoken about her windows, and the chair having asked her to contact the Board as this was not the forum for such a discussion. Mr. Schafer testified that controversial matters are typically not dealt with at AGMs. Other than the discussion with respect to these two items (Mr. Schafer’s comment with respect to the vote and the comments regarding unit 203), Mr. Schafer did not recall anything being said at the AGM about windows.
- Mr. Gordon testified that one of the unit owners had tried to speak about human rights at the AGM, and was told by the chair to sit down. There is no reference to this in the Minutes.
- Mr. Gordon sought to introduce recordings of the 2006 AGM which Mrs. Renard had made, and of a subsequent meeting on April 11, 2007 which he had made. Neither Mrs. Renard nor Mr. Gordon had requested permission to tape those meetings. After hearing submissions from all of the parties on this matter, I ruled that the tape recordings would not be admitted into evidence. I recognize that an adjudicator has the authority under subsection 39(2) of the Code to “receive at the hearing such evidence or other information as the adjudicator considers relevant and appropriate, whether or not the evidence is given under oath or affirmation and whether or not it would be admissible in a court of law”, but was not satisfied that these recordings were sufficiently reliable, necessary or relevant to the issue to be determined in this case. The Minutes of the meetings in question were in evidence and witnesses had the opportunity to testify and had testified with respect what took place at those meetings.
- The Briggs Application came on for hearing before Justice Jewers on January 24, 2007. Reasons for Judgment were delivered February 14, 2007, resulting in an Order declaring:
(a) that the complete replacement of all existing exterior windows at 55 Nassau Street North is a non-substantial alteration or improvement to the common elements that requires the approval of a majority of unit owners at a duly convened meeting held for that purpose;
(b) that the contract entered into by the respondent with Gardon . . . for the replacement work is ultra vires but may be ratified by the requisite majority of the unit holders pursuant to s. 16(1.2) of The Condominium Act.
- In his Reasons, Justice Jewers stated that the Order stopping any further work under the contract with respect to the units in which the Applicant herself had an interest would remain in effect until the requisite vote had been held and majority approval given, but expressly declined to order that all work under the contract should cease. The Order preventing any work being done thus applied to Mrs. Briggs’ units only. No steps were taken to set aside or appeal that Order.
- Mrs. Renard had continued to be in support of the window project until sometime in January or February 2007. Asked whether it was Justice Jewers’ decision that had prompted her to change her views about the project, she said no, that she thought she had changed her mind after reading an Affidavit of Peter Turner which was filed in support of the Briggs proceedings.
- In a subsequent Affidavit sworn April 9, 2007 (see para. 85 below), Mrs. Renard deposed that by email and hard copy on February 20, 2007 and March 14, 2007, she requested of the Board that she did not want these new windows. Neither email was produced at the hearing, and Mrs. Renard was not sure whether she still had them.
- On February 23, 2007, Mr. Pollock had filed a Notice of Application against Gardon, the Respondent and the Government of Manitoba in the Court of Queen’s Bench, File No. CI 07-01-50819 (the “Gardon Application”), listing 13 forms of relief which he was seeking, including a declaration that he did not owe any money to the Respondent on the assessment regarding the contract declared ultra vires by Justice Jewers, and an order that Gardon halt all work until a decision has been made as to whether the contract is ratified by law. He also sought an order that Gardon was not allowed to do any work in his unit until the Human Rights Commission had made a decision in respect of a complaint which he had filed with the Commission in December 2006.
- On April 3 and 5, 2007, the Respondent held window information meetings to answer questions on the windows. Mrs. Renard thought she could recall those meetings taking place at that time.
- On April 9, 2007, Mrs. Renard swore an Affidavit in the Gardon proceedings, in which she stated as follows:
- I am registered as legally blind with 10% vision, and have epilepsy.
- I live with my husband . . . who is blind.
- I do not have the new tinted windows in as yet.
- However, I have been in 2 units that do, and it is harder for me to see with those windows.
- I have requested to the board of directors and Sharon Kula (the property manager) by email and hard copy on February 20, 2007, and March 14, 2007, that I do not want these new windows.
- However, . . . (building engineer) phoned back and said “we are coming in to do the windows.”
- Being threatened increases my stress levels, which in turn can cause seizures. In the past I have had stress related seizures.
- Because I felt threatened, I hired a lawyer to write a letter (dated March 19, 2007) on my behalf that I wouldn’t provide access for them to enter my home.
- I have paid the first installment (about $4,000) because at the time I felt the windows were necessary because I believed the Board of Directors were acting in my best interest.
- However, that was before I went into the other 2 units and found out how they affected my limited vision in a negative way. And besides that, I can hardly see the handle, which extends outward, dangerous for my circumstance, and I can’t reach the locks, the top one being about 8 feet high, which I could only reach by standing on a chair or ladder
- I do not want these tinted windows, and I want my money back.
- I informed the current Board of Directors and Sharon Kula of my limited vision in about 2005, and they have been providing me since then with my own personal copies of written notices which are posted in the building because some of them are too high for me to read. The office leaves them for me at the security desk, where I pick them up. . . .
- Mrs. Renard’s evidence at the hearing before me was that this Affidavit was her official notification to the Respondent that she had a visual impairment; that she had a concern about the tinted windows and did not want the windows. Mrs. Renard further indicated that she had never had a response from the Respondent to her Affidavit, nor had the Respondent ever contacted her in an attempt to accommodate her disability or to actively investigate her concerns about the windows.
- Mrs. Renard agreed, on cross-examination, that no medical documentation was attached to the Affidavit, or to the Complaint that was subsequently filed, and that her medical documents were only provided after the Complaint was filed.
- On April 11, 2007, the Respondent held a special meeting of the unit owners, chaired by Mr. Kay, to vote on the contract. Mr. Gordon testified that prior to that meeting, he and a number of other individuals had been working with Peter Turner, who Mr. Gordon described as a windows expert they had hired, to come up with an option which included non-tinted windows and would be less expensive. He said that a request was made prior to the April 11 meeting to have a second option heard, but that it was made absolutely clear to them that only one option was to be heard, that being to ratify the contract. Mr. Schafer’s evidence, on cross-examination, was that he knew that Mr. Gordon’s group had spoken to other companies, but was unaware that they had a bid or specifications prepared, and that he did not recall Mr. Gordon asking him about a second option. Mr. Turner was not called as a witness at the hearing.
- Mr. Gordon testified that at the April 11, 2007 meeting, he heard people getting up to talk about the windows, and being basically told to sit down, that they were opposing the windows contract. He said that one individual, who is not a party to the proceedings before me, got up to speak about human rights and was specifically told not even to talk about it and to sit down. Mr. Gordon said that he was allowed to speak, and was trying to get his points across about the windows within the two-minute time limit, but was consistently interrupted by the chair of the meeting. Mr. Gordon acknowledged, on cross-examination, that the two-minute time limit was imposed on all individuals who wished to speak. Mr. Schafer’s evidence was that no human rights issues were raised at the meeting.
- The Minutes of the April 11 meeting reflect that a Motion was made at the meeting that a vote be held to approve the complete replacement of all existing exterior windows at 55 Nassau and to ratify the contract entered into by the Respondent with Gardon for the replacement work. A further Motion was then made, seconded by Mr. Gordon, to amend the original Motion, to in effect provide for two separate votes, the first to approve the replacement of all existing windows and the second to ratify the contract. The Motion to amend was defeated, and the question from the original Motion was put to the vote. A total of 253 votes were cast, representing 85.54% of the available vote. A large majority of the unit owners (202 or 79.84% of the votes cast) voted in favour of the window replacement project and the contract with Gardon, thus ratifying the contract. The number of votes against totalled 49 or 19.36% of the ballots cast and 2 ballots were spoiled.
- The Gardon Application came before Justice McKelvey on April 12, 2007, and the date of May 18, 2007 was set for the hearing of the merits of the Application. Justice McKelvey also granted an interim injunction until the hearing of the merits, preventing the Respondent from taking steps under any lien and NEPS which had been registered against the units owned by Mr. Pollock and four others, including Mrs. Renard, who had indicated that they would be applying to be added as Applicants.
- On May 2, 2007, Mrs. Renard filed her Complaint with the Commission. Her Complaint, which was signed April 24, 2007, reads, inter alia, as follows:
- The Board of Directors and Sharon Kula, Property Manager are aware of my disability (legally blind) in that approximately 2005 they began to provide me with my own personal copy of any written notices which were posted in the building in order that I may read them with the aid of a device.
- The Board of Directors of the [Respondent] indicated to all owners that they were going to put in new tinted windows. I believed that the Board had my best interests in mind and I therefore paid the first installment of approximately $4,000.00.
- Subsequently, I had the opportunity to visit two units at 55 Nassau Street, North that had the new tinted windows installed. I found that the tinted windows affected my vision in a negative way. In addition, I could hardly see the window handle which extends outward which is dangerous in my circumstance and also I cannot reach the locks, the top one being about 8 feel [sic] high, without standing on a chair or using a ladder.
- To date, the new tinted windows have not been installed in my condo unit.
- I informed the Board of Directors and Ms Kula by email and hard copy on February 20, 2007 and March 14, 2007 that I do not want these new windows based on my disability.
- In response, I received a telephone call from Norm Simms, Building Engineer stating that, “we are coming in to do the windows”. Being threatened increases my stress levels, which in turn can cause seizures. I have had stress related seizures in the past. I was forced to hire a lawyer to act on my behalf.
- On Wednesday, April 11, 2007 a meeting took place with the Board or Directors and a vote was held by the condo owners. The result of the vote was that the majority of condo owners wished the tinted window project to move forward and no consideration was given towards my request for reasonable accommodation based on my disabilities.
- On May 7, 2007, Mrs. Renard filed her Motion to be added as an Applicant in the Gardon proceeding.
- The Gardon Application came on for hearing before Justice Simonsen on May 18, 2007, at which time Mrs. Renard, Mr. Gordon and one other individual were added as Applicants to those proceedings. At the conclusion of the hearing, Justice Simonsen reserved her decision on the merits, and in order to preserve the status quo pending that decision, granted further interim injunctions preventing steps being taken pursuant to the NEPS or replacement of the windows in the Applicants’ units.
- On July 6, 2007, Justice Simonsen delivered her decision in the Gardon proceedings. In her Reasons for Judgment, Justice Simonsen identified the relief which the Applicants were seeking, based on their submissions at the hearing, as: an injunction restraining the Respondent from taking any steps under the lien and NEPS registered against each of their titles until the resolution or adjudication of their Human Rights Complaints; an injunction restraining Gardon from replacing the windows in their units until the resolution or adjudication of these Complaints; pending litigation orders; and unspecified relief based on various alleged violations of their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
- Addressing each of these points in turn, Justice Simonsen dismissed the Application in its entirety. With respect to the replacement of the windows, Justice Simonsen concluded “that the balance of convenience weighs in favour of allowing the window replacement to continue, including replacement of the windows in the applicants’ units, and having any modifications to the applicants’ windows as may be ordered by the [Commission] dealt with following the Commission’s decision.”
- On July 30, 2007, the Respondent filed its Reply to Mrs. Renard’s Complaint.
- The Respondent did not replace any of the windows in the Renards’ unit subsequent to the release of Justice Simonsen’s decision. Mr. Schafer testified that the Board decided to let the Complainants keep their windows, and to devise a plan which would ensure that the building envelope would be inspected and maintained in a satisfactory manner.
- Between mid-2007 and the date of the hearing, crews continued replacing the windows in the other units at 55 Nassau, including those around Mrs. Renard’s unit and the two units owned by Mr. Gordon and the Pollocks. With respect to Mrs. Renard’s and the other two units, new metal flashing has been installed, and has been attached to the building and sealed with caulking, in order to protect the building envelope while maintaining the original windows. The metal panels have also been replaced. No significant changes have been made, however, to the windows themselves. None of the four windows in Mrs. Renard’s unit have been replaced, and she therefore continues to have the original clear-glass windows in her unit.
- The Board has proposed maintaining the existing original window in Mrs. Renard’s unit and those in the other two units, with regular inspections by the Respondent’s maintenance department, under the supervision of the building engineer. In the event that the windows were to break, they would look at whether parts could be manufactured by the maintenance department or sourced by the engineering firm, or alternatively, whether parts from old windows could be recirculated or reused. Mr. Schafer said that the new windows for these units have been purchased and are in storage in the complex. It is the Board’s intention that when the Complainants move, the existing windows would be replaced, at the cost of the Respondent.
- Mr. Schafer testified that he has not been involved in any discussions with Mrs. Renard with respect to other options for her windows.
- There is no dispute that the Renards have now paid the full amount of the special assessment in respect of their unit.
- With respect to the costs of replacing the windows, as estimated by Mr. Wells, Mr. Schafer stated that the Board sees it as a very large item. He said that the Board prepares a five-year capital budget, which is amended throughout the year as projects are completed and as other projects become apparent, and that they are spending every penny they have, and more, over the next five years on their primary concern, that being the building envelope. He said that they cannot delay any work that would affect the integrity of this 38-storey structure because if they fall behind, it only costs more and more to catch up. They had just completed an elevator upgrade and replaced the cooling system, and had various other projects ongoing, including upgrading and repairing the plumbing system and doing repairs to the parkade.
- Mr. Schafer testified that he does not notice a difference in the amount of light coming in with the new windows. He has noticed, however, that there is less glare and that it is not as hot in his unit.
- Documentary evidence which was filed at the hearing indicates that there has been a significant reduction in energy consumption at 55 Nassau since the new windows were installed. Mrs. Renard said that she had heard it said that the new windows were more energy efficient, but did not really know if that was the case.
- Dr. Richard Leicht is a retina specialist within the specialty of ophthalmology at the Winnipeg Clinic. On December 13, 2007, Dr. Leicht prepared a report with respect to Mrs. Renard addressed “To Whom It May Concern”, in which he states:
Ms. Renard is a patient under my care. She has visual disability with low vision. Brighter lighting and illumination would be expected to serve her better and her visual functioning. I do not suggest tinted windows as this would cut down on the amount of available illumination.
- On cross-examination, Dr. Leicht stated that he saw Mrs. Renard only once as a patient in his office, on a referral basis. He agreed that typically individuals with the type of condition that Mrs. Renard has would want to take steps to maximize light. Dr. Leicht acknowledged that there could be situations where one would want to decrease light, including, for example, if it was causing unwanted glare.
- With respect to his statement that “[b]righter lighting and illumination would be expected to serve [Mrs. Renard] better and her visual functioning”, Dr. Leicht acknowledged that this was not a certainty and is something that can be different for every person with low vision. Dr. Leicht said that there is an element of subjectivity in terms of what the individual is comfortable with.
- Dr. Leicht did not particularly recall discussing Mrs. Renard’s perception of tinted windows with her. He agreed that his statement that he did “not suggest tinted windows” for her was based on the fact that Mrs. Renard has low vision, that this was probably a general statement that he would make for any person with low vision, and that there could always be exceptions.
- Kent Woloschuk testified for the Complainants as an expert witness. Mr. Woloschuk is a registered architect, with experience in window replacement and building envelope upgrades.
- For the purpose of providing his opinion, Mr. Woloschuk had viewed the windows in Mr. Gordon’s and the Pollocks’ units, as well as the recently installed window system in another unit. Mr. Woloschuk stated that the tinted glazing on the new windows changes the quality of the natural light available in a unit. He observed that visible light transmission has been reduced, and that this may or may not affect individuals who have reduced vision capabilities, depending on their individual conditions.
- On cross-examination, Mr. Woloschuk confirmed that he could not speak to how tinting would affect someone’s abilities. He could not say that the reduction in the amount of light would make it harder for an individual with limited vision to see, only that it might or might not do so, and might or might not affect his or her ability to function in that space. He said that for this, he would have to rely on opinions or perceptions by the individuals in that space.
- Mr. Woloschuk testified that it would not be too difficult to install clear, non-tinted windows as opposed to tinted ones in a unit. He concluded that if the other components with respect to the newer style of windows remained the same or similar, clear glazing would comply with the building code. In Mr. Woloschuk’s opinion, it would have been cost neutral, or could have cost slightly less, to install clear glazing as opposed to tinted glazing if this had been done as part of the original installation. In his evidence, Mr. Schafer agreed with this last statement by Mr. Woloschuk, but added that was only half the picture; it spoke to installing the clear glass for the Renards, but did not take into account the additional cost of replacing the glass with tinted glass when the Renards eventually moved.
- Mr. Woloschuk said that on the assumption that the Respondent already had the windows constructed, his office had estimated the probable construction cost for changing the glass from tinted to clear and installing the windows in the building to be $4,000 per window: $2,500 for the installation of clear glazing instead of tinted glazing, and $1,500 for the frame installation. The construction cost was calculated based on the average size of the windows in the three affected units, and took into account material and labour. On this basis, and as Mrs. Renard has four windows, the probable cost for installing the new windows, with clear glass, in Mrs. Renard’s unit would be $16,000.
- Mr. Woloschuk stated that the estimate was based on the work being done in conjunction with the original construction, similar to the other windows in the building. He noted that there is an economy of scale in doing the entire project at once, as part of a large scale window renovation, where no additional craning or complications are involved.
- Mr. Woloschuk commented that there were a lot of variables involved in this case that his office was not aware of. If they had to come back after the fact and install the windows as a one-off or stand-alone project, significant other costs would be involved. These could include additional mobilization costs, and costs for such things as insurance, building permits and overhead. Mr. Woloschuk could not say off the top of his head and without some research what the stand-alone costs to replace the windows would be. He noted that without knowing the full scope of the work, there were too many variables involved.
- With respect to the locks, Mr. Woloschuk stated that in order to change the locks, they would have to modify the entire window configuration, as the locks are an integral part of the window frame. The locks could have been accommodated at a lower height at the original time of installation. In order to change the height of the locks now, however, the window insert would have to be modified with the locks lower on the frame. Again, Mr. Woloschuk was not in a position to estimate, off the top of his head, how much it would cost to change the locks.
- John Wells testified as the engineer on the window replacement project.
- Mr. Wells calculated the cost, including labour and materials, of supplying and installing a new living room window frame/glazing assembly and one bedroom glazing unit into the existing frame in Mrs. Renard’s unit would be $18,500. To change out the glass later, replacing the clear glass with the tinted glass, would be $12,000.
- The Complaint which Mrs. Renard filed did not address the remedies which she was seeking. In an email dated February 11, 2012, Mr Gordon set out the remedies which Mrs. Renard was seeking. Seven additional remedies were listed in a subsequent email dated April 11, 2012.
- As indicated above, as of the date of the hearing, all four windows in Mrs. Renard’s unit were the original windows, with clear glass; none of them had been replaced.
- With respect to certain allegations in the Respondent’s Reply to her Complaint, Mrs. Renard stated that she had never said anything, either verbally or in writing, to the effect that she wanted to have the other owners pay for her new windows or to retain her old windows in her unit. (p. 256)
- Mrs. Renard agreed, on cross-examination, that over the years while the project was going on in other parts of the building, she did not have a conversation with the Respondent about having the new windows put in her unit, and that she had maintained that was not what she wanted. (p. 286)
- Asked what her reaction would be if the tinted windows were to be put in her unit, Mrs. Renard responded:
I don’t want the tinted windows because I find they’re -- it just makes it so much less natural light coming in through the window and, with my eye conditions, I need natural light.
- Mrs. Renard was asked on cross-examination about the allegation in paragraph 4 of her Complaint that she could hardly see the “window handle which extends outward which is dangerous” for her. The evidence was that the handle or crank, which is used to open the window, protrudes into the room about two or two and a half inches. Mr. Gordon had testified that the crank interferes with his window coverings, and Mrs. Renard said that she was sure that it would interfere with hers too. Mrs. Renard agreed that the handle was not a safety issue, but rather a “pain” in that it interferes with the window coverings.
- Mr. Schafer testified that some unit owners have bought foldable or collapsible handles because the crank interferes with their drapes or blinds. Alternatively, he said, it is possible to take the screw out and slide the crank off, then slide it back on when opening or closing the window.
- Mrs. Renard was also asked about the locks which are used to lock the windows. Mr. Gordon had testified that those locks are sharp and pointed and protrude a little more than four inches. Mr. Schafer’s evidence was that the locks will protrude when they are opened, but that as long as the window is open at least three-quarters of an inch, the locks can be recessed as if the window is closed and will not protrude. Mrs. Renard acknowledged that she was not familiar with the ability to fold down the locks, even when the windows are open, so that they do not protrude into the room.
- With respect to how this matter has affected her, Mrs. Renard testified that throughout the entire period of time since this matter started, she has been really concerned that she would have to have the tinted windows, which would be intolerable for her. She said that she needs the lighting and natural light. She has been pretty nervous the whole time wondering whether she would have to put up with tinted windows, and it has been very frustrating.
- With respect to indications by the Commission that it might be seeking an order that the Respondent implement certain policies and what the Respondent has itself done in this regard, Mr. Schafer testified that working with a human rights lawyer, the Board has taken steps to develop three different draft policies for 55 Nassau which they were prepared to implement. The first two, entitled “Policy of Nondiscrimination” and “Discrimination Complaint Resolution Procedure”, were prepared for and with the Board for setting up a non-discrimination policy and a complaint resolution procedure. The third, entitled “Accommodation Policy”, was prepared not only for the Board, but for other residents as well, as a reminder of how to interact with persons with disabilities.
- Asked about any other contacts or steps which the Board has taken with respect to human rights issues, Ms Kula testified that subsequently, in 2010, when they were installing new elevators at 55 Nassau, the Board asked to have someone from the Commission come and meet with them to discuss what their obligations were as far as the elevators were concerned. The individual who came from the Commission spoke to them about reasonable accommodation for residents in general, and they discussed not only the elevators, but also the interphone or intercom system and other more general matters with him. The Board then posted notices, listing buildings where residents could go and see various types of features which had been installed in elevators, such as lighting and buttons, which might be appropriate for residents with any kind of problem. Ms. Kula said that the elevators which were eventually installed at 55 Nassau have a number of features, including bright lighting, different buttons, and voice enunciation, and in her view, are the best in the city.
- With the agreement of the parties, Mr. Pollock proceeded first with his final submission, and Mr. Gordon second. Mr. Gordon began by indicating that he and Mrs. Renard adopted the arguments and principles which Mr. Pollock had advanced in his submission.
- With respect to Mrs. Renard’s Complaint, Mr. Gordon submitted that the evidence of several witnesses clearly established that Mrs. Renard had a disability and special needs. It was submitted that Dr. Leicht made it clear that she has a visual impairment, that increased illumination is a recognized treatment for low vision, and that a reasonable solution for her is not to have tinted windows in her condominium. Mr. Woloschuk, the architect, also testified that tinted windows will affect the quality of light in rooms. Mr. Gordon argued that Mrs. Renard’s own evidence confirmed Dr. Leicht’s statements, that she made it clear that she observed the windows at a friend’s place, and would have difficulty with the tinted windows, that she is legally blind, that it is obvious that tinted windows would only enhance her disability-related difficulties, and that non-tinted windows would leave her in the exact same situation as before, living with a visual impairment at a manageable level.
- It was submitted that the evidence showed that Mrs. Renard must make significant adjustments to enable her to participate fully in society. She has developed techniques and mechanisms for coping with her condition, and having tinted windows runs counter to the recommended methods she generally employs to adapt her environment to her needs. Whether subjective or objective, her strategies for coping with her disability would be diminished with tinted windows.
- It was submitted that Mrs. Renard did not initially raise her concerns with the Respondent because she was persuaded that she would not be negatively impacted by the new windows. Having determined, around February 2007, that that was not the case, she tried by email to resist having the new windows installed, then officially communicated her “disability issues with the tinting” to the Respondent on April 9, 2007, by filing her Affidavit in court.
- Mr. Gordon submitted that once Mrs. Renard officially notified the Respondent of her disability-related concerns with the windows, the Respondent was obliged to inquire further, or ask her to substantiate her claim verbally or in writing, if it was not satisfied that she had adequately proven her disability or associated needs.
- Mr. Gordon argued that the Respondent failed to reasonably accommodate Mrs. Renard and the other Complainants and their disabilities. Even though Mrs. Renard brought her desire for accommodation to the Respondent’s attention, through documents filed in court as part of related litigation, the Respondent did not act on this information, other than to ignore or dismiss it.
- In Mr. Gordon’s submission, the Respondent did not follow any process, or at least any sufficient one, for considering Mrs. Renard’s disabilities, and whether accommodation was warranted, or whether reasonable accommodation was possible. Mr. Gordon argued that the Respondent had an obligation to initiate an accommodation search on receiving a request for accommodation, and to conduct that search in a manner that was most respectful of the person’s dignity. He added that the person making the request must also participate in the process, and cannot refuse a reasonable accommodation offer. He submitted, however, that Mrs. Renard never had the opportunity to engage in the process due to the Respondent’s refusal to consider any options.
- Mr. Gordon argued that there was no substantive content to evaluate in this case. From the outset, the Respondent was convinced that no deviation from the planned project could be accepted. It demanded full compliance with its plan for the windows, and did not allow any dissent or entertain any requests for modifications or alterations of any kind.
- Mr. Gordon noted that at one point the Respondent declared undue hardship on the basis that having different windows would result in decreased property values, but had since abandoned that position. The Respondent also cited the cost of modifications. Mr. Woloschuk’s evidence made it clear, however, that it was possible to install clear windows. In Mr. Gordon’s submission, if the Respondent had acted when the windows were being installed for the other owners, the cost factor would have been neutral.
- Mr. Gordon submitted that the evidence does not establish that replacing Mrs. Renard’s windows at this time would result in undue hardship to the Respondent. He argued that the estimated cost for replacing all of the Complainants’ windows was approximately $40,000. He noted that Mr. Schafer had said that increased condominium fees could pay for the cost of their new windows. In his submission, this nullified any argument of undue hardship in terms of costs.
- Mr. Gordon submitted that as a last resort, in the last week of hearings in these proceedings, the Respondent suggested that it had accommodated Mrs. Renard and the other Complainants by having them keep their old windows. He noted that Mr. Pollock had shown in his submission why this was unacceptable, and referred me to that submission. As evidence that the Respondent never intended leaving the old windows in as an accommodation, he pointed to the fact that he and Mrs. Renard had both been contacted by the Respondent to put in windows. He submitted that Mrs. Renard’s testimony was that she never said that she wanted the old windows.
- Mr. Gordon further submitted that the Respondent had attempted to suggest that modifications were subject to undue hardship because the Complainants were so difficult to get along with and made it impossible for the Respondent to respond to them. Mr. Gordon stated that there had been lots of issues over the years at 55 Nassau, including issues which neither Mrs. Renard nor the other Complainants were involved in. He observed that 55 Nassau is a bit of a contentious place, but that it goes without saying that this does not make Mrs. Renard or the others troublemakers. They had a right to go to court, and there was really no undue hardship just because they did so.
- In Mr. Gordon’s submission, the Respondent did not have a right to ignore notification of the Complainants’ disabilities on the basis that it was stated as part of an affidavit in a separate legal proceeding. Three legal cases were initiated after the contract was signed with Gardon, two of which dealt with disabilities, yet the Respondent claims that it did not know about such issues. In his view, it was hypocritical of the Respondent to argue that what happened was the fault of the Complainants because they did not make their disabilities known earlier.
- Mr. Gordon stated that the minutes of Board meetings which were filed as Exhibits in these proceedings were revealing. His conclusion or impression, after reviewing those minutes, was that the Board purposefully kept the window replacement project as inconspicuous as possible to keep the unit owners uninformed, and sanitized the minutes. The Board knew that the owners would object to the contract. In his view, what is interesting is not so much what is in the minutes, but what is left out. Over the two-year period prior to the signing of the contract, the minutes make no mention of, among other things, disability issues, the cost of the project, or a design change. In Mr. Gordon’s submission, the owners were blind-sided with the contract.
- Mr. Gordon argued that the strategy of keeping the owners uninformed continued after the contract was signed. He said that when he and others investigated, they discovered that they could have had a contract that was much less expensive and would have dealt with their disability issues. He argued that they had a presentation by a windows expert planned for the April 11, 2007 meeting where the ratification vote was to be held. That presentation would have dealt with disability issues, but he was not allowed to make it. In his view, Justice Jewers took the decision away from the Board and gave it to the owners. The Board then arranged it so that the unit owners could have their vote, but not hear all of the information they needed to make an appropriate decision.
- Mr. Gordon argued that various actions of the Board, including its control over what was sent out or communicated to owners, and the actions and attitude of the Board and the chair at meetings, were adversarial and created a very prejudicial environment for bringing up disability concerns and issues. Mrs. Renard thus testified that she did not feel like she wanted to speak up at meetings because she saw what they did to other people. That was the adversarial environment the Complainants encountered, both prior to and after the signing of the contract, when they tried to communicate their disability concerns to the Board, and that environment has continued since then.
- Exhibit 24 to the proceeding was an email dated February 11, 2012 setting out the remedies which Mr. Gordon was seeking on behalf of Mrs. Renard. Those remedies are as follows:
- Costs and damages.
- As confirmed by the architect we hired, the following remedy is possible:
That the windows be constructed exactly like the new windows put into the other owners’ units with the following exceptions:
- that the windows contain no tinting.
- that the window locks and cranks (if used) be somehow recessed into the window frame to prevent visually impaired persons from bumping into them and harming themselves.
- that the window locks and cranks are low enough to be easily accessible from a standing position on the floor to prevent possible accidents from happening when standing on a chair or ladder.
The Positions of the Parties
- an order that the Respondent develop and implement a reasonable accommodation policy within two months of the date of my decision herein, that the Commission be involved in reviewing or approving that policy, and that the policy be circulated among all existing unit owners and provided to new unit owners on their purchase of units at 55 Nassau;
- in order that at least two of the Respondent’s five volunteer Board members be required to attend an accommodation workshop, put on by the Commission or otherwise, within one year of the date of my decision, and that every five years the Respondent review which Board members have received reasonable accommodation training and make best efforts to have new Board members take similar training as well.
Analysis and Decision
13(1) No person shall discriminate with respect to any service, accommodation, facility, good, right, licence, benefit, program or privilege available or accessible to the public or to a section of the public, unless bona fide and reasonable cause exists for the discrimination.
. . . .
(d) 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).
. . .
(l) physical or mental disability or related characteristics or circumstances . . . .
. . . . Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility . . . .
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. . . . Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. (Emphasis added)
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
It must be remembered, of course, that accommodation does not have to be absolute or “perfect” accommodation. Rather, by definition, it must be reasonable. It may be that there is more than one alternative available, and in that instance, the employer or service provider, as the case may be, has the right to choose which accommodation it shall offer.
Dated at the City of Winnipeg, in Manitoba, this 6th day of June, 2016.
M. Lynne Harrison