Discrimination and the Human Rights Tribunal

Here are some comments about discrimination and the role of the Human Rights Tribunal. It is my respectful view that more and more cases are being taken to the Human Rights Tribunal because strata councils are acting arbitrarily, that is, not taking extenuating circumstances into account when they make their decision. Nor are Councils acting reasonably and with discretion, in accordance with the law.

The Human Rights Tribunal enforces the Human Rights Code. The Tribunal is an independent quasi-judicial body and is responsible for dealing with complaints made under the Human Rights Code. The Tribunal operates like a court, but less formally.

The Tribunal has determined that a strata corporation’s actions, including the enforcement of bylaws, are governed by Section 8 of the Human Rights Code, which relates to discrimination in accommodation, service and facility. The Code provides:

8(1) a person must not, without a bona fide and reasonable justification, deny to a person or class of persons any accommodation, service or facility customarily available to the public, or 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, relation, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.

The Tribunal has concluded that there is a public relationship between the strata corporation and the owners and that the strata corporation provides a variety of services to the owners. As a consequence, the Human Rights Tribunal has applied Section 8 of the Human Rights Code to the activities within a strata corporation.

The Tribunal has considered a number of cases involving strata corporations. The cases clearly establish that the bylaws and decisions of a strata corporation will be subject to the scrutiny of the Tribunal if an owner can establish discrimination on any grounds set out above. Again, a Tribunal has very wide powers and in a few cases the Tribunal has said in pet restricted strata, an owner could keep a pet for therapeutic purposes.

Strata corporations must take complaints of discrimination seriously and where discrimination is occurring, the strata corporation must be willing to work with the owner to accommodate his or her needs. The cases have also established that the strata corporation must accommodate the complainant to the point of undue hardship.

The Supreme Court of Canada examined the facts of discrimination by a corporation, which should have made an accommodation to an employee. In this instance “accommodation” means making an exception to the rule because of extenuating circumstances. See: the Merion case: (1999) 3 SCR 3. The Supreme Court of Canada at page 26 of the judgment:

“Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit.” And further: “…accommodation is assimilationist. Its goal is to try to make “different” people fit into existing systems.”

Strata councils need only exercise common decency and common sense to do their job properly. They do all owners—including a sole aggrieved owner—a grave disservice by not following this course of action.

Duty to Accommodate and Factors that are assessed to determine the undue hardship threshold:

The ‘duty to accommodate’ is a legal requirement arising out of human rights legislation and case law in Canada. Although “duty to accommodate” is not found in the BC Human Rights Code, a series of Supreme Court of Canada decisions confirm the duty exists and applies to all provincially regulated employers and service providers. Where a barrier exists, or a policy or practice has adverse consequences on an individual in a protected group, the law says that the service provider should reasonably accommodate that individual’s difference provided they can do so without incurring undue hardship or without sacrificing a bona fide or good faith requirement. Discrimination may result from an outright refusal to provide service, or it may result from the imposition of unreasonable or unnecessary requirements based on criteria such as customer or staff preferences. Factors considered in determining undue hardship include:

1. Financial cost that hurts the viability of the service, program or institution.

To be considered an undue hardship, the financial cost of an accommodation must amount to a substantial part of the institution’s overall budget. The larger the institution, the less likely it is that the financial cost of accommodation will amount to undue hardship. The financial cost of individual accommodation rarely reaches the point of undue hardship.

2. Size and resources of the service provider:

The larger the institution and its resource base the more it is expected that viable options would be considered.

3. Health and safety concerns.

The service provider will not only have to reliably identify and measure the risks to health and safety, but they must also determine who bears the risk. Risk that is limited to the person being accommodated often does not amount to an undue hardship, whereas risk to other persons may, but the threshold is high. Safety and health risks that contravene legally required occupational health and safety and workers’ compensation requirements might be considered an undue hardship.

4. Significant interference with the rights of others.

An accommodation should not interfere significantly with the rights of others or discrimination against them. The objections of others must be based on well-grounded concerns that show the rights of others will be affected. Mere customer or staff preference will not meet the threshold test.

Applying the Human Rights Test to Standards / Policies / Rules:

In certain areas, the law recognizes a limitation on individual rights if the reasons for the limitation are reasonable and justifiable. Discrimination against, or exclusion of, a person or select groups of people may be allowed in some cases.

To determine if discrimination is reasonable and justifiable from a human rights perspective, explore the answers to questions such as these:

1. Is the service provider applying a standard or policy?

2. Does the standard or policy discriminate on the basis of any of the protected grounds?

If so, apply the following criteria to help determine if the standard is reasonable and justifiable:

1. Is the policy, or standard rationally connected to its objective?

What is the purpose of the policy or standard—safety, efficiency, other?

Is the policy or standard a logical way to meet that purpose?

2. Was the policy or standard adopted with an honest and good faith belief that it was necessary to accomplish its service-related purpose?

What were the circumstances surrounding the adoption of the policy or standard?

When was the policy or standard created, by whom, and why?

What other considerations were included in the development of the policy or standard?

3. Is the policy rule or standard reasonably necessary for the service provider to accomplish its purpose?

Is the policy based on facts or unsupported assumptions?

Does the policy treat some groups of persons more harshly than others?

What evidence exists?

Has the policy been designed to minimize its discriminatory effect?

Has the service provider considered alternatives, such as individual assessment?

Would accommodating an individual’s need amount to undue hardship or, what hardship would result from alternative standards?

The BC Human Rights Code recognizes that all persons are equal in dignity, rights and responsibilities, regardless of race, colour, ancestry, place of origin, age, sex, physical or mental disability, sexual orientation, religion, marital or family status.

Accommodation is an equality concept that seeks to build inclusive environments that respect the differences and the rights of a diverse society.

Accommodation seeks to eliminate barriers, standards, requirements, practices, policies and rules that adversely affect people on the basis of one or more of the above listed grounds. As a process, accommodation seeks to resolve conflicts by balancing the rights and interests of a diverse society. For example, where a workplace rule may conflict with an individual’s religious requirements, a modification, or an adjustment to that rule may be required in order to balance the individual’s right to uphold their religious beliefs against an employers’ right to a productive workforce. Alternatively, where the capabilities of a person are restricted due to a disability, a reasonable accommodation, such as the purchase of an assistive device, or the restructuring of certain components of their job, may be required in order to allow the disabled person to apply their skills and abilities on a level playing field while still participating in the workforce.

The goal of accommodating differences is to enable the full and equitable participation of all members in society.

What is the Duty to Accommodate?

The ‘duty to accommodate’ is a legal requirement arising out of human rights legislation and case law in Canada. Although “duty to accommodate” is not found in the BC Human Rights Code, a series of Supreme Court of Canada decisions confirm the duty exists and applies to all provincially regulated employers and corporations, such as strata corporations. Where a barrier exists, or a policy or practice has adverse consequences on an individual in a protected group, the law says that the employer should reasonably accommodate that individual’s difference provided they can do so, without incurring undue hardship, or without sacrificing a bona fide or good faith requirement of the job.

Undue Hardship

Courts have determined that accommodation efforts must go to the point of undue hardship. While ‘hardship’ on its own infers a degree of effort is required, the threshold as to undue hardship is actually quite high. However, once an employer reaches that point, their legal duty to accommodate may be discharged. Factors that are used by the courts to assess the threshold include: financial costs; health and safety risks; and size and flexibility of the workplace.

While a successful resolution to an accommodation request will vary greatly from one employer to another, more than mere inconvenience or disruption is expected in all situations.