STRATA CORPORATIONS AND THE HUMAN RIGHTS CODE

I am quite certain that the average strata council member (or owner for that matter) gives little or no thought to the impact of the Human Rights Code on the operations of the strata corporation and the multitude of decisions that a council makes in the course of carrying out its mandate. However, given some recent decisions of the British Columbia Human Rights Tribunal (the “Tribunal”), that may change. An increasing number of complaints to the Tribunal now involve strata corporations. Many of the decisions being made are likely to have a significant impact on strata corporations.

The Human Rights Code (the “Code”) is a provincial statute. Broadly speaking the purpose of the Code is to prevent discrimination and discriminatory practices. The specific purposes of the Code (which are set out in Section 3) are as follows:

(a) To foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia.

(b) To promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(c) To prevent discrimination prohibited by this Code.

(d) To identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code.

(e) To provide a means of redress for those persons who are discriminated against contrary to this Code.

Section 4 of the Code states that it prevails over all other legislation (which includes the Strata Property Act).

As an aside, I have often heard claims that certain decisions of a strata corporation are against the Charter of Rights and Freedoms. Such claims, however, have no basis or foundation in law. The Charter does not apply to private relationships such as that between an owner and a strata corporation (see Condominium Plan No. 931 0520 v. Smith (1999), 24 RPR (3d) 76 (ABQB)).

While the Code overall deals with discrimination related to a variety of different activities, there are essentially only two sections with which strata corporations need to be most concerned. They are Section 8—Discrimination in Accommodation, Service or Facility and Section 10—Discrimination in Tenancy Premises. (Each of these areas will be examined in more detail below).

A person who feels that they have been discriminated against can file a complaint with the Tribunal. The Tribunal will (after a number of procedural steps) hold a hearing and determine if the person who filed the complaint was in fact discriminated against. Section 2 of the Code states that there need not be any intention to discriminate in order to be in violation of the Code. If the effect of an action is discriminatory, that is enough to be in violation. If a violation is found to have occurred, the Tribunal can order a person or organization to stop contravening the Code, to do or not do something and to pay monetary damages (which have reached as high as $10,000.00 in some cases).

The direct application of the Code to the actions and decisions of strata corporations was upheld in Konieczna v. The Owners Strata Plan NW2489 2003 BCHRT 38. (Section 121 of the Strata Property Act already makes bylaws, which contravene the Code unenforceable). In Konieczna the Tribunal held that the strata corporation is capable of providing “services” which are “customarily available to the public”. This is the precondition for the application of section 8 (see more below). The strata corporation was held to be providing what the Tribunal referred to as “management services”. This occurred as a result of its carrying out its statutory duties under the Strata Property Act.

Very rarely will it ever be the case that there was an overt intention to discriminate. Rather the discrimination results from the implementation of a policy designed to address some other problem or issue. This is often referred to as “adverse affect” discrimination. It is only if the strata corporation can establish a bona fide and reasonable justification for its actions will it not be found to be in violation of the Code. To determine this, a number of other questions must be asked:

· Was the policy/action reasonably necessary to accomplish a legitimate purpose or goal of the strata corporation?

· Was the policy/action implemented in good faith, in the belief that it was necessary for the fulfillment of a legitimate purpose?

· Can the strata corporation show that it could not meet its goal and still accommodate the complainant without incurring undue hardship?

If the answer to any of these questions is in the negative, then the impugned action/decision will likely not be saved and will be considered to be discriminatory.

Section 8 of the Code reads as follows:

(1) A person must not, without a bona fide and reasonable justification,

a) Deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

b) Discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.

This is the source from which the vast majority of complaints against strata corporations will arise, especially given the very broad definition of the word “service” (being something of benefit provided to one person by another), the fact that the strata corporation is deemed to be providing “management services” and the numerous grounds upon which discrimination can alleged.

Where a complaint arises as a result of a disability (which most under section 8 will) the duty to accommodate the person arises on the strata corporation’s becoming aware that a person suffers from a disability (Brown v. The Owners, Strata Plan LMS952, 2005 BCHRT 137).

The following are examples of some of the complaints that arise under section 8 of the Code and how the Tribunal handled them.

Williams v. Strata Council No. 768, 2003 BCHRT 17

The strata corporation installed a door timer system that did not permit residents to “buzz” visitors in during certain nighttime hours. Residents had to physically go downstairs and admit visitors.

· Mrs. Williams had a myriad of health problems such that at the best of times let alone an emergency she would not be able to get down to the door to let people in.

· The timer was installed to address recurring break-ins.

· The Tribunal held: “In summary, I find that the Complainant suffers from a physical disability and that by installing and activating a timer on entry intercom system, the Respondent discriminated against the Complainant in regard to that physical disability in a service customarily available to the public. I find that the Respondent has not established a bona fide and reasonable justification for its conduct in installing the timer”.

Konieczna v. The Owners Strata Plan NW2489 2003 BCHRT 38

· Ms. Konieczna bought into a building that prohibited hardwood floors by way of a bylaw.

· Ms. Konieczna suffered from severe allergies such that she could not have carpet.

· The strata council refused to allow her to install hardwood flooring. Ms. Konieczna complained to the Tribunal on grounds of discrimination based on physical disability.

· The Tribunal held that: “Although the bylaw is neutral on its face, and applies equally to all residents, the Complainant is adversely affected by the bylaw because of her physical disability. The bylaw affects her health and quality of life in a way it does not for other residents who do not suffer from the Complainant’s disability. Thus, the bylaw adversely affects the Complainant by imposing on her a burden which is not imposed on other members of the public served by the Respondent”.

· Ms. Konieczna was permitted to install hardwood flooring and was awarded $3,500 in damages.

Chauhan v. Norkham Seniors Housing Cooperative Association, 2004 BCHRT 262

· Mrs. Chauhan cooked ethnic East Indian cuisine. This produced odours, which bothered the people living directly above her. They complained to the Association who in turn took steps to enforce the rules of the Association, which prohibited causing a nuisance to others.

· The Tribunal held that the actions of the Association were at times “insensitive, rule-bound and heavy-handed”.

· The Tribunal held that the cooking of food was “an expression of [Mrs. Chauhan’s] ethnicity and ancestry” and that the attempts of the Association to prevent her from cooking and threats to evict her were discriminatory.

· The Tribunal also hinted that fixing the ventilation system, which allowed odours to go from Mrs. Chauhan’s unit to the neighbours’ above, could have solved much of the problem.

· The Tribunal also indicated that the neighbours above might have a complaint against the Association if Mrs. Chauhan were to return to cooking her food and it failed to fix the ventilation given that Mrs. Mayer had health problems that made her sensitive to the smells.

Levesque v. Moodie and Kicking Horse Village Mobile Home Park (No. 2) 2005 BCHRT 120

· A young boy residing in the Park was not permitted by it to keep his dog because park rules prohibited it.

· The boy’s mother complained that he needed the dog for medical reasons but produced no evidence of that fact.

· The Tribunal dismissed the complaint but left open the door to a complaint of discrimination on the basis of a disability where the proper evidence is brought.

Section 10 of the Code provides that:

(1) A person must not:

(a) Deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant, or

(b) Discriminate against a person or class of persons regarding a term or condition of the tenancy of the space, because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or lawful source of income of that person or class of persons, or of any other person or class of persons.

(2) Subsection (1) does not apply in the following circumstances:

(b) As it relates to family status or age,

(i) If the space is a rental unit in a residential premises in which every rental unit is reserved for rental to a person who has reached 55 years of age or to 2 or more persons, at least one of whom has reached 55 years of age, or

(ii) A rental unit in a prescribed class of residential premises;

The provisions of Section 10(2)(b)(i) become of great significance if the strata corporation permits rentals, either through a bylaw or hardships under section 144 of the Strata Property Act. If an age restriction bylaw has been passed and it uses an age other than 55 years, the bylaw, although enforceable against an owner, would not be against a tenant.

The issue of whether a bylaw restricting persons under the age of 19 from occupying a strata lot was discrimination on the basis of family status was canvassed in the Drummond case. The court relied on an Ontario case, York Condominium Corp No. 216 v. Borsodi (1993), 42 OR (2d) 99 which held that it wasn’t (although there are cases to the contrary in Ontario).

In Ryan and Ryan v. Strata Plan VIS 3537, 2005 BCHRT 559 dismissed an application to overturn an age restriction bylaw as it applied to an owner on the basis of family status.

One area of particular concern to the writer is the fact that strata council members are at risk of being named personally in a complaint even when clearly acting in their capacity as a council member. In Kayne v. The Owners Strata Plan LMS 2374, 2004 BCHRT 62 the Tribunal held:

Arguably, if the Tribunal finds that the Owners contravened the Code, it can impose remedies on the Owners and order damages. The Owners assert that they have assets, so Mr.Kayne will not have a “hollow” judgment. However, if Mr. Kayne’s allegations regarding the proposed respondents were proved, the purposes of the Code would be better achieved if they were parties to the complaint. The situation of Strata Council members is not different from that of officers or directors of corporations. Many complaints are filed with the Tribunal that name a corporate respondent and also officers or directors of the corporation. This is because, under the Code, “persons” must not contravene the requirements of the Code. If individuals were able to hide behind a corporate veil, the purpose of the Code would be thwarted. In my view, the potential of personal liability is an important factor that serves to ensure compliance with the Code.

This means that council members may end up being personally liable to pay monetary damages to a successful complainant. This may make owners reluctant to serve on council. Strata corporations may wish to introduce a bylaw, which indemnifies council members in such an instance as Officers’, and Directors’ Liability coverage may not apply.

However, the Code and the Tribunal should not be viewed as an option for owners who are merely frustrated with how the strata corporation is carrying out its duties. For example, in Meyer and Meyer v. Strata Corporation LMS 3080 and Boies, 2005 BCHRT 89, where the complaints revolved around how a general meeting was conducted, the Tribunal held that: “neither the Code nor the Tribunal is responsible for policing every aspect of an individual’s social or council-related activities simply because that individual lives in a strata complex”. In Sabados and Sabados v. KAS 2567 and others, 2006 BCHRT 24 the Tribunal held that it “is not empowered to enforce neighbourliness, politeness or courtesy”. Complaints of this nature are simply an abuse of process.

In the final analysis, strata corporations (and especially strata councils) should take the provisions of the Code into account when designing policies or passing bylaws. The impact of any adverse effect should be minimized whenever possible. Where it can’t be minimized, then a bona fide and reasonable justification should be identified to support the decision.

Shawn M. Smith is an associate lawyer with the law firm of Cleveland & Doan located in White Rock and may be reached at 536-5002. He practices primarily in the area of strata property law. He is Honourary Legal Counsel for the Pacific Condominium Association and frequently lectures to its members. This article is intended for information purposes only and nothing contained in it should be viewed as the provision of legal advice.