Live-in Caregivers are Family
A recent Alberta decision from January, 2013, Condominium Plan No. 9910225 v. Davis (Alberta Court of Queens Bench), held that the ‘Single family’ provision in a condominium’s by-laws did not prohibit a caregiver from living in the unit with a resident. In this decision, the Court found that “the presence in a unit of a live-in caregiver, who is required to provide necessary assistance to infirm residents, does not mean the unit is ‘being used other than as a single family dwelling.”
The condominium’s by-laws stated that the units could only be used as single-family dwellings, and that roomers and boarders were prohibited. The owner, who was 87 years old and blind, hired a live-in caregiver. The condominium corporation was of the view that a live-in caregiver was prohibited by the single family provision. The corporation sought to change the by-laws to specify that live-in caregivers were permitted, but 90% of the voting unit owners voted against the change at an annual general meeting. The corporation then started a court application to seek an order requiring the caregiver to vacate the unit.
The Court held that condo by-laws are a private contract among unit owners, to which the Alberta Human Rights Act and the Canadian Charter of Rights and Freedoms do not apply. It also held that there were no prior cases on the issue of whether live-in caregivers, nannies, or maids were prohibited by single family provisions. The Court therefore made its decision based on its interpretation of the by-law itself, finding that the by-law did not prohibit live-in caregivers.
In coming to its decision, the Court examined a ‘purposive provision’ in the by-law. This provision stated that the purpose of the by-law included health, safety, comfort, and convenience of condo owners. The Court found that these purposes were incompatible with prohibiting live-in caregivers who are required to provide necessary care to residents. Therefore, the Court felt that the term “family” should be interpreted to include live-in caregivers. The Court added that it would be open to the corporation to pass a new by-law, specifically prohibiting live-in caregivers, if it wished, stating; “that way, prospective purchasers might be made aware that, in the event that they suffer some catastrophe or infirmity, [the corporation] will require them to vacate, rather than have access to necessary live-in medical care.”
What does this decision mean for Ontario condominium corporations? This decision is helpful for corporations that have single-family provisions, but wish to allow live-in caregivers. On the other hand, corporations that are seeking to exclude live-in caregivers, with or without an express provision to this effect, are still facing some uncertainty. My sense is that the Court only decided this matter with reference to the by-law to avoid addressing the more contentious human rights issue. The Court’s decision that the Alberta Human Rights Act did not apply to condo corporations was based on a narrow application of that Act. In Ontario, we know that the Human Rights Code and the Accessibility for Ontarians with Disabilities Act both apply to condo corporations and that it would be more difficult to avoid the human rights implications of such a prohibition. As such, I believe that prohibition of live-in caregivers might not even be possible in Ontario.