HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ernie Dellostritto
Applicant
-and-
York Region Condominium Corporation No. 688
Respondent
AND BETWEEN:
Ernie Dellostritto
Applicant
-and-
Comsec Property and Financial Management Ltd.
Respondent
AND BETWEEN:
Ernie Dellostritto
Applicant
-and-
York Region Condominium Corporation No. 705
Respondent
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: David Muir
Indexed as: Dellostritto v. York Condominium Corporation No. 688
1These are three Applications filed August 13, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2A Case Resolution Conference in this Application was held on January 19, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant, his spouse, as well as several residents of the respondent condominium.
Background
3The applicant is a father of two teen age children and resides with his spouse and children in York Region Condominium Corporation No. 705 (YRCC 705) which shares recreational facilities with York Region Condominium Corporation No. 688 (YRCC 688). The respondent Comsec Property Management was the property manager of YRCC 705 and YRCC 688.
4The human rights complaint underlying this Application (the complaint) arises out of what the applicant characterizes as a systemic pattern of discrimination in accommodation on the basis of age and family status, by the three respondents since the time that he and his wife moved into the building in 1989. A reprisal is also alleged.
5When the condominium was built it was marketed as an adult only building. As time passed and in response to human rights challenges to adult only condominium and apartment type residential accommodations these kinds of facilities began to describe themselves as “adult lifestyle”. Whether as a consequence of the manner in which these buildings were marketed when built, or for other reasons, there is no dispute that the residents of the two condominiums are overwhelmingly retired or near retired individuals and families whose children have long since left the family home. Many of the residents are elderly.
6The complaint included allegations that the respondents distributed promotional materials describing the building as an “adult lifestyle” building, posted signs advertising the building as an adult lifestyle building, and excluded families with children from membership on the Recreation Committee which had the effect of preventing families with children from the full use of the shared recreational facilities.
7The Delostritto’s both gave evidence that for many years they felt unwelcome and unwanted when using the common areas of the condominium including the recreation facilities with their children. They confirmed the allegations set out in the complaint and testified that as a result of the unwelcoming atmosphere and the fact that their hours of access to the recreational facilities were more restricted at the time they often took their children elsewhere.
8Many of the issues between the parties were resolved while the complaint was being investigated by the Ontario Human Rights Commission. As part of a proposed settlement at the Ontario Human Rights Commission it was agreed that all “adult lifestyle” signage would be removed, a Families Committee would be established, Code cards would be posted, and ant-discrimination training would be provided to the property manager and condominium Board members. It was also agreed that the hours that families with children could use the pools would be extended to allow greater access. For example, children had only been allowed into the pool between the hours of noon and 6 p.m. on weekdays. These hours were changed to allow access from 2 p.m. to 8 p.m. every weekday but Wednesday thus allowing working families greater access. Unfortunately the settlement fell apart because of the parties’ misunderstanding of what one of its terms meant in practice. There was no disagreement that I could consider the proposed settlement as part of the context to this Application.
9Despite the failure to resolve all of the issues, the applicant agreed that some progress had been made in resolving some of the systemic issues. For example, the “adult lifestyle” signage has been removed, Code cards are posted throughout the complex and other efforts are underway to integrate families with children into the condominium community. The respondents also state that training for property management and Board members has been arranged and a Policy on Family Status has been created and implemented.
10In addition to these general and systemic allegations, the central thrust of the complaint, and the primary issue remaining unresolved in the Application, relates to the age restrictions affecting children’s use of the recreational facilities, in particular the use of the swimming pools. It is argued that the age restrictions amount to discrimination against Mr. Dellostritto on the basis of age and family status in that they restrict his ability to use the facilities with his teenage children.
11As noted above, the two respondent condominium corporations share a recreational facility which includes an indoor and outdoor pool, tennis courts, indoor racquet courts, a gym and weight room, etc. The Application relates to the use of all of the facilities in theory, although it was agreed at the outset that the parties would confine their evidence and argument to the use of the pools. Accordingly these reasons focus on use of the pools and the indoor pool in particular. It is clear however that similar issues arise with respect to all of the other shared use facilities in the recreational complex.
12Although not central to this dispute, the process by which rules for the use of the shared recreational facilities are developed has played an important part in the parties’ attempts to deal with their disputes and has been a source of considerable frustration for the applicant. Because the two condominiums share facilities, special governance rules were adopted, in effect devolving decision-making with respect to some aspects of the management of the recreation facility to a joint Recreation Centre Committee.
13It is agreed that when the applicant became a resident in the respondent condominium, there was a rule that prohibited persons under the age of 16 from entering the recreation center including the pools unless accompanied by a person