If a co-ownership of hundreds of units has amongst its co-owners many members of the Anglophone minority, should it provide them certain documents related to the general meeting of co-owners in English? We could very well imagine that Anglophone co-owners want to obtain the notice of meeting, the agenda, the minutes and the modifications to the Declaration of co-ownership to be voted on in preparation in their participation in the decisions pertaining their co-ownership. We think that the right to equality provided by the Quebec Charter of Rights and Freedoms (herein after “Quebec Charter”) can be invoked by the Quebec Anglophone minority in the context of co-ownership to obtain certain reasonable accommodations.
The Right to Equality
The right to equality is not an autonomous right, but protects individuals against discrimination in the exercise of their other rights provided at the Quebec Charter on the basis of any ground mentioned.1 Indeed, following section 10 of the Quebec Charter, a “distinction, exclusion or preference” based on the language is discriminatory when it “has the effect of nullifying or impairing” the right to the recognition and exercise, in full equality, of a right or freedom of the person. It is pursuant to the freedom of expression in the language of its choice, in full equality, that the Human Rights Tribunal has established that a syndicate of co-ownership cannot prohibit the use of the French language during a general meeting of co-owners.2
Once a standard or practice has a discriminatory effect, even in the absence of a discriminatory purpose, the service provider or the organization responsible for the standard or practice infringing the right to equality has an obligation of reasonable accommodation.
For the Anglophone minority, it is the exercise in full equality of the right to peaceful enjoyment and free disposition of property that can be infringed in the context of a general meeting of co-owners.
The Right to Peaceful Enjoyment and to Free Disposition of Property
The co-owner is an undivided owner of the common portions of the co-ownership and it is through his vote during the general meeting of co-owners that he exercises its right to peaceful enjoyment and free disposition of property.3 It is by this means that he expresses its voice for the important decisions made for the property of which he is a co-owner. It is why the refusal to give effect to a proxy submitted less than 48 hours before a general meeting of co-owners was judged petty, even if the delay of 48 hours was provided for in the notice of meeting.4
It is true that section 55 of the Charter of the French Language provides that contracts pre-determined by one party must be concluded in French, except if the parties expressly consent otherwise. That being said, this provision is provided so that the francophone community is not forced to consent to clauses drafted in English without being able to give a free and informed consent, and not to force the Anglophone community to conclude contracts in French.5 Considering the quasi-constitutional status of the Quebec Charter, the Charter of the French Language should be interpreted in a way that respects it, therefore that does not forbid the translation of contracts pre-determined by one party in the context of co-ownership.
In society, a member of the Anglophone community will generally have the occasion to expressly consent to conclude a contract pre-determined by one party in its language. For example, when concluding a contract with cellular phone providers – a typical form of contract pre-determined by one party – an English version of the contract will without any doubt be available given the size of the Anglophone minority of Quebec and a clause of explicit consent will be contained to it. For our purposes, the recourse to the Quebec Charter allows to take into account the specific context of a co-ownership that is the one of a micro-society in which the rights of minorities must be respected.
We think that the refusal to submit the notices of meetings, the meeting agendas, the minutes of the meetings or to communicate the modifications of the declaration of co-ownership to be voted on in English would constitute a distinction on the basis of the language in the exercise of the right to peaceful enjoyment and free disposition of property, in full equality, in a manner to nullify or to impair that right. Indeed, it would compromise the possibility, for the members of the Anglophone minority, to have their voice heard in a free and informed manner on the decisions to be made through their voting rights.
Undue Hardship
The obligation of reasonable accommodation is born in the context of labour relations in the decision Ont. Human Rights Commission v. Simpsons-Sears.6 When a co-owner is subject to an infringement to its right to equality as described above, it is the syndicate’s obligation to accommodate the co-owner that is wronged. To be discharged of its obligation, the syndicate would need to demonstrate the following elements7:
- The standard was adopted for a purpose rationally connected to the mission of the syndicate;
- The particular standard was adopted in an honest and good faith belief that it was necessary to the fulfilment of that legitimate purpose;
- The standard is reasonably necessary to the accomplishment of the legitimate purpose, which means that it is impossible to accommodate the individual without imposing undue hardship upon the syndicate.
To assess whether an accommodation causes an undue hardship, the courts generally take in account three factors8:
- The financial and material resources of the organization (for example, the real cost of the accommodation requested, the size of the organization, the structure of the organisation, etc.);
- The impact on the rights of the other individuals (for example, the risks for health and security, the adverse effect of the accommodation on others, etc.)
- The proper functioning of the organization (for example, the adaptability of the premises or of the equipment, the amount of people affected, the scope of the accommodation, etc.);
With respect to the undue burden for the proper functioning of the organization, the simple administrative convenience shall not defeat a request for an accommodation9. For example, in the context of co-ownership, the Human Rights Tribunal has ruled that changing the location of a parking space for an individual affected with morbid obesity was a reasonable accommodation and that it did not cause an undue hardship to the syndicate of co-ownership.10
That being said, we are of the opinion that it would be false to say that the recognition of the right to accommodation on the grounds of language would open the door to translation of documents in all languages, because the criteria of undue hardship will namely take into account the size of the co-ownership, the number of co-owners of another language, the availability of translators and the costs incurred by such accommodation.
Written by Me Léa Couture-Thériault , LL.B., J.D.
Contact the author : l.c-theriault@fisetlegal.com
1: Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 R.C.S. 238.
2: Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bertrand et al., [2001] R.J.Q. 1684.
3: For example, see : 1096, 1097(1), 1098(2) et 1102 C.c.Q.
4: Tremblay c. Syndicat des copropriétaires le Saint-Claude, 2005 CanLII 6743 (QC CS).
5: Beachcomber Hot Tubs Inc. c. Lapointe, 2004 CanLII 4673 (QC CQ).
6: [1985] 2 S.C.R. 536.
7: British Columbia (Public Service Employees Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, para 54.
8: José WOEHRLING, « L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse », (1998) 43 R.D. McGill 325, 347.
9: Daniel PROULX, La discrimination dans l’emploi. Les moyens de défense selon la Charte québécoise et la Loi canadienne sur les droits de la personne, Cowansville, Éditions Yvon Blais, 1993, p. 91.
10: Commission des droits de la personne et des droits de la jeunesse c. Syndicat des copropriétaires «Les Condominiums Sainte-Marie», 2010 QCTDP 1 (CanLII).