Executive Summary: Key Legal and Evidentiary Issues

• Limitation question whether the respondent’s Human Rights Tribunal application was filed within the one-year deadline in s. 34(1) of the Human Rights Code.
• Dispute over whether the alleged discrimination was a single incident in August 2021 or a series of incidents into 2022 that could extend the limitation period.
• Evaluation of the respondent’s psychological condition and personal circumstances to determine if they provided a good-faith explanation for late filing under s. 34(2).
• Reliance on the parties’ correspondence record to identify when human rights concerns were clearly raised and when any refusal to accommodate was communicated.
• Assessment of prejudice to the condominium arising from delay, including engineering evidence of balcony deterioration over time and procedural delay of 22 months.
• Application of the Condominium Act, 1998 to require the owner to allow balcony waterproofing and to permit the condominium to charge back additional costs with lien rights.

Facts of the case

Peel Standard Condominium Corporation No. 745 manages a condominium where the balconies are considered common elements under the Condominium Act, 1998. The corporation is statutorily required to maintain common elements pursuant to s. 90(1) of that Act, and the balconies fall within that responsibility. Engineering evidence obtained by the condominium indicated that the balconies required waterproofing because water seeping into cracks would, over time, impair the integrity of the balconies and could eventually cause them to fail. The respondent, Zoya Voitenko, owns a unit in the building. On August 2, 2021, the condominium was in the process of applying sealant to her balcony when she demanded that the work be halted because of what she described as noxious fumes entering her unit. In an email to the condominium sent that same date, she raised concerns about her three-month-old baby inhaling the fumes. The email did not mention concerns about her own health or that of her mother. The condominium later agreed, as a good faith gesture, to defer the waterproofing of her balcony to the spring of 2022.

Procedural background

Initially, Ms. Voitenko was represented by counsel, Timothy Lockhart. Numerous emails were exchanged between him and the condominium’s counsel, Natalia Polis. In November 2021, Mr. Lockhart indicated that his client was agreeable to materials being applied to the balcony as long as the product used was neither a suspected nor confirmed carcinogen. Later in November 2021, Ms. Polis provided details about the materials intended to be used. On December 6, 2021, the condominium issued an application in the Ontario Superior Court of Justice seeking orders requiring Ms. Voitenko to provide access to her balcony to permit waterproofing, along with costs and further relief. The application was served on Mr. Lockhart on December 8, 2021. Correspondence continued into 2022. On April 4, 2022, Mr. Lockhart proposed alternate waterproofing products. On April 20, 2022, he asked whether the condominium’s position was that it had the right to expose his client to carcinogenic and toxic materials, describing this as the “chief issue.” In May 2022, Ms. Polis advised that the engineers had not approved the alternate products and that phase two of the waterproofing project was scheduled for July 6, 2022. She indicated the condominium wanted an order allowing it to waterproof Ms. Voitenko’s balcony at that time as well.

In June 2022, the condominium provided information about the product being used, including confirmation that the materials posed no health hazards. Later that month, Mr. Lockhart requested that the condominium pay for alternate accommodation for the family while waterproofing was conducted, noting that the respondent’s mother was “relatively immobile” and that Ms. Voitenko was the primary caregiver for both her mother and the baby. On July 6, 2022, Ms. Polis replied that the condominium would not provide alternate accommodation. The next day, Mr. Lockhart communicated that Ms. Voitenko would consent to the waterproofing being done in the spring or summer of 2025, when her child would be more mobile. In August 2022, he wrote that her mother was in stable condition and “mobile enough to move,” though her health was in flux. Ms. Polis responded that the contractors were no longer at the condominium and had removed their equipment, as the waterproofing was scheduled to conclude on July 6, 2022. Mr. Lockhart then advised that he believed his client would consent to having the balcony work done the following year, provided adequate notice was given.

On October 6, 2022, Mr. Lockhart added a new requirement that the unit be taped off with a polyethylene vapour barrier while the waterproofing was completed. The email did not specify who would pay for the barrier. On December 6, 2022, he stated that the condominium would have to pay the costs of the vapour barrier. Two days later, Ms. Polis responded that the condominium would not pay for the vapour barrier and noted that over 90 other balconies had been waterproofed without such a requirement. She stated that the waterproofing was necessary to ensure safety and security, that the corporation had an obligation to maintain the property, and that the respondent was hindering the corporation from adhering to its obligations under the Condominium Act and its governing documents. On December 15, 2022, Mr. Lockhart advised that he would no longer represent Ms. Voitenko.

On February 13, 2023, new counsel, Yulia Pesin, wrote to Ms. Polis. In this email, human rights concerns were raised for the first time. Ms. Pesin stated that the matter involved “human right considerations,” and that the respondent and her family, particularly her mother who was described as gravely ill and largely immobile, suffered from odour and chemical sensitivity. She indicated that this was the reason for the family’s adverse physical reaction to the waterproofing chemicals and that medical records were being obtained. On March 17, 2023, a Human Rights application was filed by the respondent. The condominium received a copy on August 14, 2023 and filed its response on September 8, 2023, arguing, among other things, that the application was not filed within the one-year time limit in s. 34 of the Human Rights Code.

In March 2024, the Human Rights Tribunal wrote to the respondent asking for additional submissions, including a response on whether the application was filed within one year of a human rights infringement. On March 15, 2024, the respondent replied that she had been unable to file earlier because of her physical, mental, and emotional state, describing a postpartum condition aggravated by the balcony dispute and stating that she was “unable to act and make decisions.” She attached a December 20, 2023 report from psychologist Dr. Hakim, who diagnosed Post Traumatic Stress Disorder and Major Depression caused by multiple life stressors, including the sudden drowning death of her husband in 2019. She also asserted that the condominium’s continued affirmation of its position amounted to ongoing discrimination, causing emotional impact to her and her family. On December 24, 2024, the Tribunal informed the parties that the application was approved to continue in its process, but that this was not a final decision on whether the Tribunal would ultimately accept jurisdiction.

Meanwhile, the Superior Court proceedings continued. On July 10, 2025, Wilkinson J. released a ruling that the human rights issue was to be addressed before the condominium’s application. The judge seized herself of the human rights application under s. 46.1 of the Human Rights Code because engineering evidence showed the balconies could not be left indefinitely without waterproofing due to safety concerns, and there was no indication that the Tribunal would adjudicate the application in the near future. On July 29, 2025, the parties appeared before the judge and a schedule was set for filing materials on the limitation issue, with a hearing date of November 20, 2025.

At the November 20, 2025 hearing, the respondent raised concerns about not having received the July 29, 2025 endorsement and about the time available to respond to the condominium’s materials. She requested an extension to file additional materials. The judge refused further extensions, noting that the deadlines had been clearly set, both parties had filed materials addressing the limitation issue (including case law), and both had given oral submissions. After the hearing, the respondent sent further emails to the court seeking to file materials by affidavit and to provide additional submissions. The judge declined to accept further written or oral submissions from either party on the limitation issue, finding that there were no key disputed facts regarding dates or the content of communications and that the existing record, including the original Human Rights complaint and the March 2024 supplementary submissions (with Dr. Hakim’s report), was sufficient.

Legal framework and issues

The central legal question was whether the respondent’s Human Rights application had been filed within the one-year time limit set by s. 34(1) of the Human Rights Code. Under s. 34(1)(a), an application must be made within one year after the incident to which it relates. Under s. 34(1)(b), if there is a series of incidents, it must be filed within one year of the last incident in the series. Section 34(2) allows a late application if the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

The decision referenced Tribunal case law for guidance on distinguishing a single incident with continuing effects from a “series of incidents.” In Garrie v. Janus Joan Inc., the Tribunal identified factors such as the last alleged incident of discrimination, whether the allegations concern separate independent incidents or the continuing effects of a single incident, the nature or character of the alleged discrimination, and the time gaps between incidents. Other decisions, including Clarke v. Canadian Blood Services and Mafinezam v. University of Toronto, held that an ongoing refusal based on an initial decision (such as a ban from donating blood or a trespass notice) may be a continuing effect of one original incident rather than a series of new incidents. In Visic v. Ontario Human Rights Commission, the court stated that a repeated denial of the same accommodation request does not amount to ongoing discrimination; a new or fresh step is needed to create a new incident.

In parallel, the court also applied the Condominium Act, 1998. Section 119 requires owners to comply with the Act, and s. 90 requires the condominium to maintain common element balconies. The condominium is permitted to enter parts of residential units to maintain common elements such as balconies. These provisions formed the statutory basis for the relief sought by the condominium in its application.

Analysis of the limitation period and human rights claim

The court considered how the respondent herself framed the timing of the alleged human rights breach. In her Human Rights application, she wrote that the “original date when the incident occurred is August 2021” and said she was looking for human rights help at that time but decided to try to resolve the issue instead. She alleged that the condominium later “pushed” her further by not completing the work in the second phase of the project and by requesting that she pay for the work without accommodation, with a risk of losing ownership of her unit. In her submissions before the court, she argued that the condominium failed to accommodate her disabled mother in August 2021 by refusing to relocate the family and that this refusal was maintained in spring 2022. She also asserted that there were two further incidents of discrimination in May and October 2022, related to the refusal to relocate the family and the refusal to install a vapour barrier at the condominium’s expense.

The condominium argued that the respondent did not clearly advance a human rights claim until March 2023 and that all communications from August 2021 to March 2023 were efforts to resolve the Superior Court application. It pointed out that her concerns initially focused on possible carcinogens and later mentioned her mother’s mobility and the vapour barrier, but that no explicit human rights allegation was made until new counsel raised it in February 2023 and the Human Rights application was filed in March 2023. The condominium submitted that the original alleged breach occurred in August 2021 and that the application filed in March 2023 was therefore clearly out of time.

The court found that, based on the respondent’s own statements in her Human Rights application, she took the position that her mother’s rights were breached in August 2021. The court did not decide whether there was, in fact, a breach but held that, on her own account, she knew or ought to have known as of that date that her mother’s human rights may have been violated. Accordingly, the one-year period began to run then. The court also noted that she was served with the condominium’s application in December 2021. If she had hoped for relocation or other accommodation, the service of that application made it clear that the condominium was not providing such accommodation. Yet she did not commence her Human Rights application until March 2023, more than one year after both events.

The court rejected the argument that ongoing negotiations and later refusals could be characterized as a series of incidents extending the limitation period. It held that the condominium’s use of legal remedies under the Condominium Act, such as demanding that waterproofing be paid for individually, did not create a new human rights violation. It found no evidence of new steps or new issues that would trigger a new alleged violation. Instead, all correspondence stemmed from the same core issue: the condominium’s alleged refusal to accommodate the mother’s mobility-related disability. The refusal to pay for relocation or for a vapour barrier was described as a repeated denial of the same request for accommodation, not a separate act of alleged discrimination. Emerging medical documentation about the mother’s disability did not change the substance of the original alleged violation. The court concluded that the Human Rights application was not filed within one year of the alleged discrimination, as required by s. 34(1).

Turning to s. 34(2), the court assessed whether the respondent had established a good faith explanation for waiting until March 2023 to file. It treated Dr. Hakim’s report as reliable hearsay evidence because it was part of the Human Rights Tribunal file and had been placed before the court. The court accepted that the respondent suffered from Post Traumatic Stress Disorder and Major Depression and that she had substantial responsibilities caring for a young baby and a mother with significant health challenges at the time of the August 2021 incident. However, it held that the materials did not show that her psychological distress rendered her incapable of filing a Human Rights complaint within one year of either the August 2021 incident or the December 2021 service of the condominium’s application.

Several points supported this conclusion. The respondent had retained counsel almost immediately after the incident and remained represented by the same lawyer for about sixteen months, including the one-year period after service of the condominium’s application. In her submissions to the Tribunal, she wrote that she had been looking for human rights help in August 2021 but chose to try to resolve the issue directly, which suggested she was capable of considering a Human Rights complaint during the relevant period but decided not to pursue it. Dr. Hakim’s report stated that during the time she was in dispute with the condominium, she attended a mediation and resolved a legal dispute with the adult children of her deceased husband regarding his estate, indicating that she could engage in legal matters in that timeframe. Finally, Dr. Hakim did not state an opinion that she had been incapable of filing a Human Rights application within one year of the alleged incident as a result of her psychological distress. On this basis, the court found that she had not established a good faith reason for the delay and denied her request to have the Human Rights application accepted outside the one-year deadline.

Prejudice to the condominium and procedural consequences

The court then considered whether the condominium had suffered prejudice as a result of the delay, as required by s. 34(2). Engineering evidence indicated that the balconies required waterproofing because water introduction into the concrete contributed over time to erosion of the balcony’s integrity. The procedural history showed that the original hearing date for the condominium’s application was March 10, 2022, but the matter was adjourned several times. On February 12, 2024, another judge adjourned the hearing for two months to allow the Human Rights Tribunal to address the Human Rights application. When the matter came back before Wilkinson J. in July 2024, she adjourned the application sine die to allow for additional engineering evidence. Further attendances were held in January, April, and July 2025 to manage the interplay between the Human Rights issue and the condominium’s application and to set timetables. The court found that the Human Rights complaint delayed the condominium’s application by 22 months. It held that there was no doubt the condominium had been prejudiced by the late filing, given the procedural delays, the anticipated continued degradation of the concrete balconies over time, and the additional legal fees incurred to address the Human Rights complaint and the limitation issue. This prejudice provided an additional basis for denying any extension of time under s. 34(2).

Relief under the Condominium Act and financial implications

Having determined that the Human Rights application was filed out of time and would not be accepted late, the court found no further procedural impediments to deciding the condominium’s application. By the time of the ruling, argument on that application had been completed on April 28, 2025. There was no dispute that s. 119 of the Condominium Act requires owners to comply with the Act and that the condominium is required to maintain common element balconies under s. 90. It was also undisputed that the condominium is permitted to enter parts of residential units to maintain such common elements. In oral submissions, the respondent acknowledged that the condominium had to proceed with waterproofing the balconies.

The court ordered that the respondent must permit the condominium to proceed with waterproofing her balconies on a date chosen by the condominium. If the respondent wishes to have a vapour barrier installed during the waterproofing, she is allowed to do so at her own expense, so long as it does not delay the work once scheduled. The court further addressed the financial consequences of the delay. It noted that the waterproofing of the respondent’s balconies could have been completed in August 2021 and again in July 2022, at no additional cost to her, when the rest of the project was being carried out. Because the work on her balconies was not done at those times, the condominium would now incur extraordinary expenses to arrange for equipment and waterproofing specifically for her balconies. The court held that it was appropriate for her to pay these additional costs. It ordered that the condominium is permitted to charge back the costs of the future waterproofing of her balconies in the same manner as common expenses payable to her unit, with corresponding lien rights in favour of the condominium.

On costs of the proceeding, the court stated that the condominium was wholly successful in its application and is presumptively entitled to costs. It encouraged the condominium and the respondent to attempt to agree on a payment amount and plan. If they are unable to agree, the condominium may file a costs submission by December 12, 2025, and the respondent may file a responding submission by December 19, 2025. The decision specifies that cost submissions must not exceed three pages, double-spaced, and provides directions for filing through Case Center and by email. The motion date of March 30, 2026 was vacated.

In conclusion, the successful party is Peel Standard Condominium Corporation No. 745. It obtained an order compelling the respondent to permit balcony waterproofing and allowing the condominium to charge back the additional costs of that work as common expenses with lien rights, as well as a presumption in favour of an award of its legal costs. The ruling does not state any specific dollar amounts for the waterproofing chargeback or for costs, and the total monetary amount ordered in favour of the condominium cannot be determined from the text of the decision.