Litigation and Mental Health

Litigation can have significant impacts on all parties involved -  whether it’s Board Members, property management, unit owners, or even the lawyers.   Often times, mental health of those directly involved can become a concern, especially in circumstances when the dispute being litigated is directly related to mental health issue.

When we think of mental health concerns in condominium corporation’s, we think of things like concerns with respect to hoarding disorders, addiction, self harm, Alzheimer’s and dementia etc. with the later two examples becoming more prevalent as our condominium population ages.

Litigation – An Example of Hoarding Disorders

All condominium corporation’s have an obligation to ensure that no dangerous condition exists that is likely to cause injury to an individual or damage the property or assets of the corporation.   When faced with addressing a situation with a unit owner that may be caused by a mental health concern, there is still an obligation on the Corporation to both ensure that no dangerous condition exists, and also that there provisions of the Act, Declaration, By-Laws and Rules are complied with.

One recent case that Megan and I were involved in, involved unit owners that had created a dangerous condition in their unit because of the amount of combustible material that had been stored in their unit.   As a result of the sheer amount of combustible material stored in the unit, the unit failed a fire inspection and an order was issued that required the unit to be cleared of combustible material.  When the unit owner failed to do so, the condominium corporation was left with a decision of how to ensure that there was compliance with the fire inspection order.

Ultimately, after enforcement letters did not bring around compliance, a Court Application was commenced.  In January 2022, the Court recognized that “To allow the unit to be in continued violation of a fire inspection order creates a serious hazard to the property and individual safety of other occupants of the Condominium Corporation.”   The unit owners, at that time, were self represented.  They did not raise any concerns with respect to the condition of the unit being linked with a mental health issue.  They in fact acknowledged that they needed to comply with the fire inspection order and undertook to do so. [1]

Unfortunately, after a significant amount of difference to the timing of remediation of the unit, the unit owners failed to fulfill their undertaking (and the Court Order) which required them to clean the Unit.  The condominium corporation was forced to return to Court to seek a further order - on this occasion, the condominium corporation asked that the unit owners be evicted.  Eventually, the Court agreed, because of an additional three months to bring the unit into compliance with the fire inspection order, and the previous court order – that the unit owners were to be evicted from the unit.  Although represented by counsel, on the second attendance before the Court (and the third, and the fourth), there was never any mention to a possible mental health concern.

That begs the question – would the result have been different had one of the Respondents put a mental health concern before the Court as a reason for non-compliance?   We believe the answer to be no – the result would have been the same.  In another case concerning a hoarding disorder and a condominium corporation.  In that case, the Court recognized that an enforcement order was still necessary, notwithstanding the mental health concerns, and when it came to costs, the Court acknowledge the mental illness, but stated “while the inability to declutter her unit is not something for which the respondent is morally blameworthy, the co-owners of the condominium bear no responsibility for the respondent’s hoarding.”

In other cases before the Court, condominium corporation’s have tried to work with unit owners to remove clutter and combustible materials – even going so far as to recommending Hoarding Support Coaches to work with unit owners to resolve concerns with respect to Fire Inspection Orders

Additional Considerations

One of the more frequent conversations amongst the lawyers in our office has been whether, prior to litigation starting in situations where there are mental health concerns, is whether the condominium corporation should first obtain a psychiatric assessment of a unit owner or occupant.   An Order for a mental health examination can be obtained from a justice of the peace if the condominium corporation can prove that are reasonable grounds to believe that the individual:

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

and, based upon the information before the justice of the peace, the justice of the peace believes that there is reasonable cause to believe that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

The police would then be authorized to transport the individual to a hospital for an examination.

If you have any questions, please do not hesitate to contact anyone on our team:

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.