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- BC Human Rights Code
- BC Human Rights Tribunal
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Overview of the Human Rights Code
The Human Rights Code (the “Code”) is a piece of legislation that is familiar to some but not all strata corporations and some of the owners within them. However, the impact that it can have on strata corporations and the decisions they make can be profound. The obligations imposed by it can be significant in their application, even overriding bylaws.
The Code is a provincial statute. Broadly speaking its purpose is to prevent discrimination and discriminatory practices. The specific intent of the Code is laid out in section 3 and is as follows:
(a) to foster a society in which there are no impediments to full and free participation in the economic, social, political and cultural life
(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, and
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code
Section 4 of the Code provides that it prevails over all other legislation including the Strata Property Act (SPA). In fact, SPA s. 121 states that a bylaw which contravenes the Code is unenforceable. One exception to this rule is section 41(2) of the Code which permits discrimination based on age.
The Code applies to strata corporations
When prohibiting discriminatory conduct, the Code refers to the obligations of “a person”. At law a “person” includes not only an individual but also a corporation (which would capture a strata corporation) and employment related organizations (ie. a union).
The application of the Code to strata corporations was confirmed in Konieczna v. The Owners Strata Plan NW2489, 2003 BCHRT 38. In that case the British Columbia Human Rights Tribunal (BCHRT) held that “the strata corporation can be considered to provide “services which are customarily available to the public.” As a result of carrying out its statutory duties under the SPA, the strata corporation was held to be providing “management services”. This was the same finding as was reached in both Ganser v. Rosewood Estate Condominium Corp. (No. 1)(2002), 42 C.H.R.R. D/264, Williams v. Strata Council No. 768, 2003 BCHRT 17, and The Owners, Strata Plan LMS 2900 v. Hardy, 2016 CRTBC 1.
Strata corporations can be affected by the following provisions of the Code:
- S.7 – discriminatory publications (i.e. minutes)
- S.8 – accommodation, service and facility
- S.9 – purchase of property (requests made by a buyer)
- S.10 – tenancy (bylaws pertaining to tenants)
- S.11, 12 and 13 – employment (caretakers, concierges, etc)
The duties under the Code relate to owners, tenants, occupants and even prospective owners.
Strata council members can also be liable for breaches of the Code where compliance is dependent on their actions. See Kayne v. Strata Plan LMS2374, 2004 BCHRT 62. However, claims against strata managers are usually dismissed as they have no say in whether or not to grant an accommodation. See McDaniel and McDaniel v. Strata Plan LMS 1657 and others, 2012 BCHRT 42.
Does the Canadian Charter of Rights and Freedoms apply to strata corporations?
While Charter principles often generally influence the law, the Charter itself applies only to interactions between an individual and the state. It does not apply to private relationships such as that between an owner and a strata corporation – Condominium Plan No. 931 0520 v. Smith, (1999) 24 RPR (3d) 76. The underlying reasoning for this was explained in Strata Plan NW 499 v. Kirk, 2015 BCSC 1487 where the court said the following:
“Though a strata corporation is created by statute and all powers and duties derive from the statute, it is not subject to the control of government in carrying out its duties and powers. The interplay between the owners, strata bylaws and the Act is in the nature of a private agreement to use the same real property in a common purpose, which is the creation of an individual living space. Strata’s manage and maintain the common property and common assets through an executive council elected by the members to exercise the powers and perform the duties necessary to facilitate each owner’s use of space. The Strata does not act in furtherance of any government program or policy.”
Jurisdiction over the Code
Jurisdiction over the application of the Code falls primarily to the BCHRT. However, the Civil Resolution Tribunal (CRT) also has the ability to apply the Code. However, s. 114 of the Civil Resolution Tribunal Act (CRTA), which in turn references s. 46.2 of the Administrative Tribunals Act, permits the CRT to refuse to do so where it feels there is a more appropriate forum in which the Code may be applied (i.e. the BCHRT).
The CRT does not have jurisdiction to consider whether there is a conflict between the Code and the SPA. See The Owners, Strata Plan K 669 v. 1104456 B.C. Ltd., 2018 BCCRT 553. Nor can it deal with claims of discrimination and award damages as in Leary v. The Owners, Strata Plan VR 1001, 2017 BCCRT 76 and Campbell et al v. The Owners, Strata Plan BCS 2742, 2019 BCCRT 111. The CRT will generally apply the Code to address whether a bylaw contravenes it and thus whether it is enforceable under it. Where an owner feels there has been discriminatory conduct on the part of the strata corporation, they must apply to the BCHRT for relief.
What is discriminatory conduct?
Section 2 of the Code provides that there does not need to be any intention to discriminate in order for there to be in violation of the Code. If the effect of an action or decision is discriminatory, that is enough to amount to a violation.
Discrimination has been defined as “a distinction, whether intentional or not but based on grounds relating personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. See Andrews v. Law Society of B.C., 1989 CanLII 2 (SCC), [1989] 1 SCR 143.
The difficulty for strata councils and strata corporations when dealing with issues that may give rise to a complaint under the Code is that they have to balance the interests of a diverse group of people. Very rarely would it ever be the case that there was an actual intention on the part of a strata corporation to discriminate against a particular person or group of persons. Rather the discrimination usually results from the implementation of a policy designed to address some other problem or issue. This is referred to as “adverse affect” discrimination. A common example of this is a bylaw which prohibits pets. While the bylaw applies to all owners equally, it negatively impacts a person who needs a therapy or assistance dog.
Not every instance where an owner is treated differently will amount to discrimination under the Code. In order for there to be discrimination it must be based on one of the enumerated grounds or factors set out in the Code. Those factors are the “race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person.” There must also be a connection between the differential treatment and the alleged ground of discrimination. See Smith and Smith v. Strata Corporation NW2206 and others, 2008 BCHRT 247. Simply because a person has a disability, is of certain sexual orientation, or is from a country outside of Canada does not mean that a denial of their request amounts to discrimination or a breach of the Code. See Choi and another v. Behrend and others, 2013 BCHRT 23 and Rao v. The Owners, Strata Plan NW 53 and Stewart, 2009 BCHRT 166.
A person alleging discrimination must show that:
- They have a characteristic protected from discrimination
- That they have experienced an adverse impact in a protected area, and
- That the protected characteristic was a factor in the adverse impact
As a result, the Code and the BCHRT cannot be used by owners as means to force their strata corporation to agree with their point of view or treat them in a particular way. 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 BCHRT 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 short, the BCHRT is not there to tell people to be nice to each other. However, harassment based on a protected ground is discrimination within the meaning of the Code. See Finnamore v. Strata Plan NW 3153, 2018 BCHRT 26. In Finnamore the BCHRT said the following:
[25] However, not every negative comment or single incident that is connected to a prohibited characteristic will be discriminatory harassment contrary to the Code. It is certainly undesirable for people to treat each other rudely, disrespectfully, or inappropriately. However, it is not the Tribunal’s purpose to adjudicate disputes other than where a person’s protected characteristic, actual or perceived, has presented as a barrier in their ability to fully, and with dignity, access an area of life protected by the Code. In performing this function, the Tribunal is cognizant that the disputes brought to it arise between human beings, with all the imperfection that entails. Not every failure to be kind or respectful requires state intervention. This includes failures with discriminatory overtones – and therefore highlights a distinction between comments that may be “discriminatory” in the everyday sense of that word, and comments that amount to discrimination, within the meaning and scope of human rights legislation: Brito v. Affordable Housing Societies, 2017 BCHRT No. 270, at para. 41.
[26] In the analysis of whether negative comments made between residents while interacting on a strata corporation’s common property rise to a level of harassment that adversely affects a person residing in a strata complex, the context is critical. Where conduct occurs during a single incident, or does not otherwise amount to a pattern of conduct, the Tribunal will consider all of the circumstances to determine whether it violates the Code: Hadzic v. Pizza Hut Canada (c.o.b. Pizza Hut), [1999] B.C.H.R.T.D. No. 44 at paras. 32-33; Pardo v. School District No. 43, 2003 BCHRT 71 (CanLII). Those circumstances include “the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against”: Pardo at para. 12.
The BC Human Rights Tribunal process
Filing a complaint
An owner who believes that the strata corporation has breached the Code and their rights under it can file a complaint with the BCHRT. However, under s. 22 of the Code they must do so within one year of the alleged contravention or within one year of the last alleged instance of the contravention. A late complaint may be accepted if the tribunal member determines that
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay
A failure to accommodate a disability is an ongoing contravention. See Khan v. Strata Plan VR127, 2016 BCHRT 43.
Settlement discussions
At the time the complaint is filed the parties are given an opportunity to participate in settlement discussions with the assistance of a tribunal member. Often a compromise can be reached. However, the strata council’s ability to settle is often constrained by the provisions of the SPA. Settlements may have to be made subject to the approval of the owners given their terms. A failure of the owners to approve accommodation arrived at as part of a settlement does not relieve the strata corporation of its obligations under the Code.
A person, such as another owner, who might be affected by an order can apply under Rule 13(3) to be an intervener and make arguments at the hearing.
Application to dismiss the complaint
The Code also permits the respondent to a complaint to apply to dismiss the complaint before it proceeds to a hearing. Under s. 27 of the Code a complaint can be dismissed if:
(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not
(i) benefit the person, group or class alleged to have been discriminated against, or
(ii) further the purposes of this Code;
(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;
The most common ground upon which an application to dismiss is made is that the complaint no reasonable prospect of success. Under that provision, the analysis does not require factual findings but merely the assessment on the evidence submitted by the parties in order to determine that the aspects of the complaint rise above conjecture. The process is focused on the likelihood that facts supporting the complaint could be determined after a full hearing of the evidence. The burden is on the respondent to disprove one or more of the 3 elements of a discrimination claim or to establish it had a reasonable and bona fide justification for its actions.
Hearing and tribunal decision
If a complaint is not dismissed at the preliminary stage, it will proceed to a hearing where it is either dismissed or upheld based on a full assessment of the evidence and a balance of probability standard.
If the BCHRT finds a breach of the Code, then s. 37(2) sets out the remedies that are available:
(2) if the member or panel determines that the complaint is justified, the member or panel
(a) must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention,
(b) may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code,
(c) may order the person that contravened this Code to do one or both of the following:
(i) take steps, specified in the order, to ameliorate the effects of the discriminatory practice;
(ii) adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups if the evidence at the hearing indicates the person has engaged in a pattern or practice that contravenes this Code, and
(d) if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:
(i) make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code;
(ii) compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention;
(iii) pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.
Injury to dignity
Awards for “injury to dignity” have ranged as high as $12,000 in the strata corporation context, although they are typically in the $5,000 – $7,500 range.
As a general rule, a successful party is not entitled to costs. However, the BCHRT can award costs against a party to a complaint who has engaged in improper conduct during the course of the complaint.
Enforcing a HRT order
An order of the BCHRT can be filed in the BC Supreme Court and enforced as an order to that court. Meaning a failure to comply can lead to a finding of contempt. Settlement agreements are also enforced through the Supreme Court under s. 30 of the Code. See Siebring v. Strata Plan NW 2275, 2016 BCHRT 94.
Judicial review of a tribunal decision
A party who is dissatisfied with a decision of the BCHRT can bring an application for judicial review within 60 days of the date of the decision. The standard of review for legal issues is correctness (was the law applied properly) and reasonableness for factual issues.
Acknowledgments
This article contains excerpts from Strata Corporations and the Human Rights Code by Shawn M. Smith. The information is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is a lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP.
Member-only resources
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- Strata corporations and the Human Rights Code (27-page article by Shawn M. Smith, Cleveland Doan LLP)
