Over the years, there have been several court cases that set out the relationship between human rights and the Condominium Act, 1998. These cases have dealt with accessibility, reasonable accommodation, and surprisingly more than any other issue, pets. However, there has not yet been a reported case about mezuzahs (a mezuzah is a small scroll of Hebrew verses in a decorative case that is required to be affixed to the doorpost of the home under Jewish law).
Many condominium corporations’ rules prohibit any object from being affixed to the common elements, including doors and doorposts, without the prior written consent of the board of directors. These rules are meant to control signs, advertising, and unwanted decoration from accumulating in the hallways. As well, section 98 of the Condominium Act prohibits unit owners from making changes to the common elements unless certain conditions are met. The statutory conditions, while appropriate for a large scale change to the common elements, are excessive when applied to affixing a mezuzah.
From these background facts, a couple of scenarios may arise: First, a unit owner who seeks to follow the proper procedure may request the consent of the board to affix a mezuzah. If this occurs, the board should consent. As well, while the Condo Act does not permit an owner to make changes to the common elements, it appears to allow a condominium corporation to do so on the unit owner’s behalf. Thus, both human rights law and condominium law can be satisfied by having the condominium corporation undertake to do the work.
But what about the second scenario, where a unit owner does not ask for permission, and installs his or her mezuzah without prior approval of the board? Can a board of directors demand that the unit owner take the mezuzah down? If the unit owner refuses, can the board have management take it down without the unit owner’s consent? These issues have not been resolved by the courts. Regardless of the legality of removing a mezuzah, it could be seen as inflammatory to do so. The better response would be to grant permission retroactively, while holding the unit owner responsible for the cost of repairing any damage to the common elements, and simply ask that unit owners to observe the proper procedure in future cases.
Condominium issues that touch on religion often take on a heightened degree of intensity. Accordingly, boards and managers should seek legal counsel before attempting to enforce the Condominium Act, the declaration, the by-laws or rules that would appear to prohibit a particular religious practice.