Alberta Human Rights Commission Case On Duty to Inquire

In Hart v Condominium Corporation No. 831 0969 o/a Westmount Place Condominium Corporation, 2025 AHRC 52, a visually impaired Complainant was successful in establishing that the Respondent had failed to meet its procedural duty to accommodate her when it neglected to make further inquiries into the Complainant’s accommodation request.

This case, which examined a condominium corporation’s duty to accommodate a resident’s service dog, despite “no pet” by-laws in place, reaffirms that both parties carry responsibilities in the accommodations process, but more importantly, sheds light as to when a service provider’s duty to inquire may be triggered.

Legal counsel for the Director, who supported the Complainant’s position in this case, was Bow River Law employment and human rights lawyer Sarah Coderre.

Facts

• Condominium Corporation No. 831 0969 O/A Westmount Place Condominium Corporation (the “Respondent” or “Condo”) is a condominium corporation consisting of a large multiuse development in Calgary, Alberta.
• Yael Hart (the “Complainant”) is a visually impaired individual – she is blind in one eye and has 42% vision in the other.
• To aid with her visual impairment, the Complainant had been relying on her small dog, which she largely trained herself, to guide and assist her.
• The Complainant’s dog had never been certified as a service dog.
• On or around June 1, 2021, the Complainant and her husband purchased a unit (the “Unit”) at the Condo.
• At that time, the Condo had in place a “no pet” by-law, which stated the following:

Any owner SHALL NOT … keep or allow any animal, livestock, fowl or pet of any kind (other than birds or fish restrained at all times in enclosures) at any time to reside in his unit or on the common property; PROVIDED THAT any approved animal or pet living in a unit on May 1, 1992, may continue (….) (“No Animal Bylaw”)

• The Complainant was aware of the “no pet” by-law when she was in the process of purchasing the  Unit, having had earlier correspondence in May of 2021 with the Condo Board, an elected committee tasked with the administration, management and enforcement of by-laws of the Condo.
• In their May 2021 correspondence, the Condo Board requested that the Complainant provide the dog’s service dog credentials, further pointing out that no “comfort animals” would be accommodated.
• In response, the Complainant wrote to the Condo Board explaining that emotional support animals are not required to be registered in the way CNIB dogs are.
• The Condo Board further requested that the Complainant provide credentials for the dog proving it was medically necessary.
• On May 26, 2021, the Complainant provided the Condo Board with a medical note from her doctor stating that she required the emotional support dog for medical reasons.
• After receiving the medical note, the Condo Board Secretary reviewed video footage of the Complainant with the dog at the Condo, noting via email to other Condo Board members that the Complainant used a cane and wore low vision glasses, stating “she may have a vision problem”, but went on to state that the dog “didn’t really look like any service dog”, though “it did seem trained”.
• On May 28, 2021, the Condo Board issued the Complainant an email advising her that the medical note was insufficient in establishing that the dog was medically necessary and warned her that if she brought it onsite, fines and other sanctions may be issued.
• On or around June 1, 2021, the Complainant, her spouse, and the dog moved into the Unit.
• On June 4, 2021, the Condo Board, aware that the Complainant had moved the dog into her Unit, began discussing enforcement of the no-pet bylaw. Incidentally, the Secretary of the Condo Board ran into the Complainant that same day, which resulted in a heated exchange between the two that concluded with the Secretary advising the complainant that she would be fined if she did not remove the dog.
• Shortly after the exchange, the Complainant emailed the Condo Board explaining that she was waiting for a CNIB guide dog, reiterating that her current dog was not only a pet, but necessary for her mobility.
• On June 8, 2021 the Condo Board issued the Complainant a letter stating that she would be fined $100 a day if she did not remove the dog within 10 days. The complainant did not respond to the letter.
• On June 10, 2021, the Complainant advised someone on the Condo Board that the Office of the Advocate for Persons with Disabilities (“PwD”), would be acting on her behalf in this process.
• On July 21, 2021, the Condo Board issued a letter to the Complainant indicating that they would be seeking a Court Order to have the dog removed if it remained on the premises by August 23, 2021, and that any fines accrued would be waived if she removed the dog voluntarily before then.
• The Complainant did not respond to the letter and continued to reside in her Unit with the dog.
• On August 26, 2021 the Complainant advised the Respondent that they were contemplating filing a human rights complaint (which she subsequently did), requesting that the Respondent contact her PwD advocate to discuss resolution.
• The Respondent did not contact the PwD Advocate.
• On or around November 7, 2021, the Respondent served an Originating Application on the Complainant seeking $15,000 in fines levied against her for breaching the no-pet by-law (which was subsequently reduced to a $500 fine on or around December 9, 2021, pending resolution of the human rights complaint).
• The Complainant paid the $500 fine.
• On February 7, 2022, the Complainant’s dog passed away and no further fines were levied against the Complainant as of that date.

Analysis / Conclusion

In review of the facts, the Alberta Human Rights Tribunal (the (“Tribunal”) identified 2 issues:

1. Did the Complainant demonstrate a prima facie case of discrimination?
2. Did the Respondent Condo meet its procedural duty to accommodate the complainant?

In review of Issue 1, the Tribunal turned to section 4 of the Alberta Human Rights Act (the “Act”), which provides that no person shall be discriminated against with respect to goods, services, accommodation or facilities on the basis of a protected characteristic nor denied goods, services, accommodation or facilities that are customarily available to the public.

Since the Complaint is a member of the public customarily served by the Respondent as a consequence of her Unit purchase at the Condo, the Act applies.

The Tribunal then reviewed the test for prima facie discrimination as set out in Moore v British Columbia (Education), 2012 SCC 61, which requires the Complainant to show:

1. They have a protected characteristic under the Act,
2. They experienced a negative or adverse impact, and
3. Their protected characteristic was a least a factor in the adverse impact they experienced.

Looking to the facts, the Tribunal found that Complainant suffered adverse impacts with respect to the services she required from the Respondent when they failed to accommodate her disability, issued fines, and further brought legal proceedings against her for her refusal to remove her dog from the Unit. On this point, the Tribunal stated:

[89] The sole reason for the Legal Proceedings was the complainant’s breach of the No Animal Bylaw. According to the Medical Note, the complainant (1) needed “an emotional support dog for medical reason”; and (2) had the Dog as “an emotional support animal”. There is a link between the use of the Dog as “an emotional support animal”, the complainant’s ‘medical reason’, and the adverse impact of the Legal Proceedings. Whether, upon further review, the Condo Board would have discovered that there were other ways to accommodate the complainant, or that the Medical Note was not supported, one will never know. The Condo Board moved to the fines and filing Legal Proceedings and did not request any more information from the complainant.

Therefore, the Complainant had made out a prima facie case of discrimination

On Issue 2, the Tribunal reviewed the law on the duty to accommodate, which provides that while an individual seeking accommodation under the Act has a duty to communicate their disability, service providers have both procedural and substantive obligations to accommodate individuals with disabilities to the point of undue hardship.

This means that procedurally, a service provider has a duty to take the necessary steps to determine what kind of accommodation might be required and how accommodation might be achieved, and substantively, a service provider has a duty to provide reasonable accommodation measures up to the point of undue hardship.

Turning to the facts, the Tribunal found that the Respondent did not meet their procedural obligations in their duty to accommodate when they failed to inquire further about the Complainant’s accommodation request. In this case, after receiving the medical note from the complainant indicating the dog was medically necessary, instead of communicating with the Complainant to understand and engage in meaningful dialogue on how the accommodation might be achieved, the Respondent opted to fully enforce its by-laws. Notably, it did not matter that the medical note provided by the Complainant contained limited information, and not the detailed “ironclad” justification the Respondent was looking for. The Respondent’s duty to inquire was still triggered, which they opted not to do.

Consequently, the Tribunal concluded that the Respondent had discriminated against the Complainant in failing to meet their procedural duty to accommodate under the Act, and awarded, among other things, $15,000 in general damages to the Complainant for injury to dignity.

My Take

This decision reiterates the importance of cooperation in the accommodation process, but further, highlights that the procedural obligations in the duty to accommodate are not just confined to the collection and assessment of medical documents or records. Rather, fulsome discussion and engagement with the individual seeking accommodation should take place, especially if that medical documentation lacks clarity or detail, as there is no exact formula detailing what a medical support note, for example, must contain. The process is active, not passive.

Service providers, however, must also be careful not to overstep their procedural duty to accommodate in inquiring further, as pushing for or requiring too much detail on health records, for example, can raise issues around privacy and harassment. This is why it is best that the parties approach the accommodations process from a flexible and solutions-oriented approach.

Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.