York Condominium Corp. No. 216 et al. v. Dudnik et al., (1991) 45 O.A.C. 381 (DC)

• Judge: Carruthers, Watt and Davidson, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 26, 1991
• Jurisdiction: Ontario
• Citations: (1991), 45 O.A.C. 381 (DC)

York Condo. v. Dudnik (1991), 45 O.A.C. 381 (DC)

MLB headnote and full text

In The Matter Of an Appeal under Section 41 of the Human Rights Code, 1981, S.O. 1981, c. 53, as amended (the "Code").

And In The Matter Of a decision of a Board of Enquiry established pursuant to the Code rendered by Peter A. Cumming, Paula Knopf, and Ian Springate, dated the 20th day of June, 1990.

York Condominium Corporation No. 216 et al. and York Condominium Corporation No. 229 et al. and York Condominium Corporation No. 624 et al. (appellants) v. Flora Dudnik, Ron Likhterman, Jean Likhterman, Rosa Constance Cryderman, Constance Erica Cryderman, George Ramdial, Lana Salmon and Kwame Salmon (respondents)

(753/90)

Indexed As: York Condominium Corp. No. 216 et al. v. Dudnik et al.

Ontario Court of Justice

Divisional Court

Carruthers, Watt and Davidson, JJ.

April 26, 1991.

Summary:

The respondents all filed complaints with the Human Rights Commission respecting the "adults only" restrictions or policies of several condominium corporations. Three of the five complaints were by former condominium residents. The other two complaints were by a former condominium owner and a prospective purchaser of his condominium unit, the sale to whom had been aborted.

A board of inquiry appointed under the Code held that the rights of all five complainants had been infringed by the condominium corporations and certain of their directors, officers and employees. The condominium corporations appealed the findings of infringement and the remedies granted against them.

The Ontario Divisional Court allowed the appeal in part. The court held that the owner of the condominium whose sale had been aborted was not discriminated against under the Code. The court also varied the monetary compensation granted as a remedy to the prospective purchaser of the owner's unit and her son.

Civil Rights - Topic 1087

Discrimination - Covenants in conveyances of realty - Condominiums - Restrictions on basis of age - Condominium corporations had "adults only" restrictions or policies - The Ontario Divisional Court held that because this prevented children under the specified age from residing with their parents, the rights of the parents to equal treatment respecting the occupation of accommodation without discrimination because of family status was infringed - The court further held that a unit owner was not discriminated against by reason of family status or age, where the restrictions prevented him from contracting with a prospective purchaser whose family included children - Ontario Human Rights Code, S.O. 1981, c. 53, ss. 2(1), 3, 11 - See paragraphs 16 to 24, 29, 32.

Civil Rights - Topic 1088

Discrimination - Covenants in conveyances of realty - Condominiums - Restrictions on basis of family status - [See Civil Rights - Topic 1087].

Civil Rights - Topic 7071

Provincial legislation - Commissions or boards - Jurisdiction - Compensation to victims - Section 40(1) of the Ontario Human Rights Code empowered a board of inquiry to grant a remedy for infringement of a complainant's rights, including "monetary compensation for loss arising out of the infringement" - The Ontario Divisional Court doubted whether such compensation should either be characterized as special, general or punitive damages, or awarded as such - An inquiry under the Code could not replace a civil action for purposes of obtaining an award of damages otherwise due under the common or civil law - Monetary compensation awarded under the Code must flow directly from the impugned act, must reflect the Code's scope and intent and the relevant common law principles - See paragraphs 33 to 38.

Civil Rights - Topic 7071

Provincial legislation - Commissions or boards - Jurisdiction - Compensation to victims - Section 40(1) of the Ontario Human Rights Code empowered a board of inquiry to grant a remedy for infringement of a complainant's rights - Section 40(1)(b) provided for monetary compensation including an award not exceeding $10,000 for mental anguish, where the infringement was wilful or reckless - The Ontario Divisional Court held that s. 40(1)(b) did not authorize an award of punitive damages - The court discussed the meaning of the word "wilful" in this context - See paragraphs 50 to 58.

Civil Rights - Topic 7071

Provincial legislation - Commissions or boards - Jurisdiction - Compensation to victims - A condominium unit owner was unable to complete a sale of his unit to a prospective purchaser with a child, because of the "adults only" restrictions imposed by the condominium corporation - The Ontario Divisional Court reversed a finding that the owner was discriminated against and, in any event, also disagreed with the quantum of monetary compensation awarded the owner (special damages of $4,000 plus general damages of $1,000) - See paragraphs 39 to 41.

Civil Rights - Topic 7071

Provincial legislation - Commissions or boards - Jurisdiction - Compensation to victims - The Ontario Divisional Court held that the "adults only" restrictions imposed by a condominium corporation discriminated against the parents of children under a specified age - The discrimination was not done "wilfully or recklessly" within s. 40(1)(b) of the Ontario Human Rights Code - The court held that the parents were not entitled to monetary compensation because of mental anguish or stress, but for loss arising out of the infringement of their respective rights - The court upheld the amounts awarded the parents for "general damages" for "loss arising out of the infringement" - See paragraphs 48 to 61.

Civil Rights - Topic 7071

Provincial legislation - Commissions or boards - Jurisdiction - Compensation to victims - A condominium unit owner was unable to complete the sale of his unit to a prospective purchaser with a child, because of the "adults only" restrictions imposed by the condominium corporation - A board of inquiry under the Human Rights Code awarded the purchaser "general damages" of $25,000 as a remedy - The Ontario Divisional Court reduced the award to $1,000 to the purchaser and $500 to her child, for their "loss arising out of the infringement" of s. 2(1) of the Code - See paragraphs 42 to 47, 62 to 63.

Words and Phrases

Wilfully - The Ontario Divisional Court discussed the meaning of the word "wilfully" as found in s. 40(1)(b) of the Ontario Human Rights Code, S.O. 1981, c. 53 - See paragraphs 50 to 58.

Cases Noticed:

Royal Insurance Co. of Canada v. Ontario Human Rights Commission, Hope and Zurich Insurance Co. (1985), 12 O.A.C. 206; 51 O.R.(2d) 797, dist. [para. 18].

Bhadauria v. Seneca College (1981), 37 N.R. 455; 124 D.L.R.(3d) 203, refd to. [para. 36].

Foster Wheeler Limited v. Ontario Human Rights Commission (1987), 8 C.H.R.R., refd to. [para. 37].

Vorvis v. Insurance Corporation of British Columbia, [1989] 1 R.C.S. 1085; 94 N.R. 321, refd to. [para. 51].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 12-13, 16]; sect. 15(1) [paras. 12-13, 16].

Human Rights Code, S.O. 1981, c. 53, sect. 2 [para. 5]; sect. 2(1) [paras. 11, 23, 26-28, 30, 32, 45-46, 61-62]; sect. 3 [paras. 11, 26-28, 30]; sect. 7 [para. 25]; sect. 8 [para. 11]; sect. 9(1)(a) [paras. 12-13]; sect. 9(1)(d) [para. 17]; sect. 10 [paras. 14, 16, 23]; sect. 11 [para. 30]; sect. 20(4) [para. 5]; sect. 40 [paras. 45, 51]; sect. 40(1)(a) [paras. 33, 65]; sect. 40(1)(b) [paras. 33, 51-58]; sect. 41(1) [para 1]; sect. 41(3) [para. 47].

Counsel:

Michael Speers, for York Condominium Corporation No. 216 and No. 229;

Howard W. Winkler, for York Condominium Corporation No. 624;

M.D. Laposky, for the Ministry of the Attorney General for Ontario;

David C. Moore and John M. Rattray, for the Ontario Human Rights Commission;

Charles M. Campbell, Mary Truemner and Sheena Scott, for the respondent, Lana Salmon.

This appeal was heard before Carruthers, Watt and Davidson, JJ., of the Ontario Divisional Court, on January 8-10, 1991. The decision of the Divisional Court was delivered by Carruthers, J., and released on April 26, 1991.