Human Rights Insurance – Is Your Condominium Covered?
As you likely know, condominium corporations are subject to the Ontario Human Rights Code. However, not all condominiums have insurance coverage to protect the corporation and/or directors in the event of a human rights claim – i.e. an Application to the Human Rights Tribunal of Ontario (“HRTO”).
Human Rights Applications have been asserted against condominium corporations and directors for a variety of reasons, including:
- Failure to accommodate (to the point of undue hardship);
- Harassment; and
- Discrimination (any form of unequal treatment based on one of the Protected Grounds).
If successful, an Applicant can be awarded financial compensation by way of general and special damages.
- General damages – can financially compensate the Applicant for injury to their dignity, feelings, and self-respect, resulting from discrimination or a failure to accommodate.
- Special damages – can include financial compensation for losses that the Applicant has suffered because of discrimination or a failure to accommodate (for example, moving costs or lost wages).
An Application, whether frivolous or not, can be costly. Generally, the HRTO does not award costs to the successful party. This means that, even if successful, the condominium corporation/directors would normally not be able to recover defence costs from the Applicant. [Note that recovery of costs MIGHT be possible under the Condominium Act or under the condominium’s governing documents, depending upon the circumstances.]
In order to protect against the risk of a costly human rights claim, condominium corporations can review their insurance policies to determine whether they have “human rights claims coverage”. In many cases, this coverage requires a special endorsement or rider. The coverage, if obtained, often extends only to the defence costs; not to any award of damages. But this coverage is still helpful, because the defence costs can be substantial.
Human rights claims coverage is not clearly addressed by the Condominium Act. Some condominium corporations have therefore passed by-laws requiring the corporation to obtain insurance coverage for human rights claims.
Check your by-laws and coverage to determine if your condominium is protected. If not, you may wish to reconsider.