Understanding Strata Corporations and the Human Rights Code

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Cleveland
Doan LLP
 
Strata
Lawyers
 
STRATA CORPORATIONS
AND THE HUMAN
RIGHTS CODE
__________
PRESENTED BY  SHAWN M. SMITH
 
The 
Human Rights Code 
is a provincial statute. Broadly
speaking its purpose is to prevent discrimination and
discriminatory practices.
 
The specific intent of the 
Code
 is set out in Section 3. It is:
 
(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;
 
THE CODE
 
Cont.
 
(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
.
 
THE CODE
 
Section 4 of the 
Code
 provides that it prevails over all
other legislation; including the 
Strata Property Act
(
SPA
).
 
Section 121 of the 
SPA
 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
 
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 
CODE
 APPLIES TO STRATA
CORPORATIONS
 
A strata corporation is considered to provide “services
which are customarily available to the public” - 
Konieczna
v. 
The Owners Strata Plan NW2489
, 2003 BCHRT 38.
 
As a result of its carrying out its statutory duties under the
SPA
,  strata corporations have been held to be providing
“management services”.
 
Williams
 v. 
Strata Council No. 768
, 2003 BCHRT 17;
The Owners, Strata Plan LMS 2900 v. Hardy
, 2016 CRTBC 1
 
THE 
CODE
 APPLIES TO STRATA
CORPORATIONS
 
Strata council members can also be liable for
breaches of the 
Code
 where compliance is dependent
on their actions - 
Kayne v. Strata Plan LMS2374
, 2004
BCHRT 62.
 
Claims against strata managers are usually dismissed
as they have no say in whether or not to grant an
accommodation – 
McDaniel v. Strata Plan LMS1657
,
2012 BCHRT 42.
 
THE CODE APPLIES TO STRATA
CORPORATIONS
 
The Charter 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). 
Strata Plan NW 499
v. 
Kirk
 2015 BCSC 1487.
 
THE CANADIAN CHARTER OF RIGHTS AND
FREEDOMS
 
Jurisdiction over the application of the 
Code
 falls
primarily to the BC Human Rights Tribunal (“BCHRT”).
 
However, the Civil Resolution Tribunal (“CRT”) also has
the ability to apply the 
Code 
in certain circumstances
.
 
One doesn’t take precedence over the other, but both
can dismiss a claim if it has been resolved in another
forum.
 
 
 
JURISDICTION OVER THE 
CODE
 
The CRT does not have jurisdiction to consider whether
there is a conflict between the 
Code
 and the SPA -
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 for that - 
Leary v. The Owners, Strata
Plan VR 1001
, 2017 BCCRT 76;
 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 is enforceable (i.e. does it contravene
the Code?) or if there has been a breach of a bylaw.
 
JURISDICTION OVER THE CODE
 
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.” -
Andrews
 v. 
Law Society of B.C.
 (1989) 1
S.R.C.143
 
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 a violation of the 
Code
.
 
If the effect of an action or decision is discriminatory,
that is enough to amount to a violation.
 
 
 
WHAT IS DISCRIMINATORY
CONDUCT?
 
Very rarely is there an actual intention on the part of a
strata corporation to discriminate.
 
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.
 
WHAT IS DISCRIMINATORY
CONDUCT?
 
Discrimination must be based on one of the
enumerated grounds or factors set out in the 
Code
:
 
“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.”
 
Must be a connection between the differential
treatment and the alleged ground of discrimination-
Smith
 v. 
Strata Corp NW2206,
 2018 BCHRT 247
 
WHAT IS DISCRIMINATORY
CONDUCT?
 
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
 
Neither the 
Code
 nor the BCHRT is responsible for “policing
every aspect of an individual’s social or council-related
activities simply because that individual lives in a strata
complex” - 
Meyer and Meyer
 v. 
Strata Corporation LMS
3080 
 
and Boies
, 2005 BCHRT 89
 
WHAT IS DISCRIMINATORY
CONDUCT?
 
Section 8(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, sexual orientation, gender identity or
expression, or age of that person or class of persons.
 
SECTION 8 – PROVISION OF ACCOMMODATION,
SERVICES AND FACILITIES
 
The very broad definition of the word “service”
captures many things which a strata corporation does
in relation to the exercise of its powers and the
fulfillment of its duties under the 
SPA
.
 
It includes such things as administering the common
property, assigning parking stalls, considering and
approving alteration requests, enforcing bylaws and
considering the need for exemptions under a bylaw.
 
SECTION 8 – PROVISION OF ACCOMMODATION,
SERVICES AND FACILITIES
 
 
Accommodation is the obligation of the strata
corporation to take steps to assist or allow a
person with a disability to participate in the
strata community and live in their home on an
equal basis with all other owners, tenants and
occupants.
 
ACCOMMODATION
 
 
What constitutes a “disability” was discussed in 
Anastacio
 
v.
Patterson Dental
, 2014 BCHRT 111:
 
Generally requires a state that is involuntary, has some
degree of permanence, and impairs a person's ability, in some
measure, to carry out the normal functions of life.
 
Normal ailments such as a cold or flu are not disabilities.
 
Medical conditions characterized by significant degree of
permanence and which substantially interfere with a person's
ability to participate fully in his or her employment and
enjoyment of life.
 
 ACCOMMODATION
 
The obligations of the strata corporation with respect to a
person with a disability are:
 
A strata corporation must accommodate a strata resident
with a disability to the point of undue hardship.
 
The accommodation process is one in which all those
involved are required to work together to find a solution that
adequately balances the competing interests.
 
Process requires a strata corporation to take positive steps
to achieve a reasonable solution.
 
 ACCOMMODATION
 
Cont.
Parties exchange alternative suggestions and
refinements as until a satisfactory resolution is
achieved or it is clear that no such resolution is
possible.
 
Strata corporation is not required to provide a
“perfect solution” from the complainant’s point of
view but, rather, to provide a reasonable
accommodation in the circumstances of the case.
 
Herbert Stengert obo others
 v. 
Strata Plan BCS2427
, 2018
BCHRT 70
 
 ACCOMMODATION
 
The duty to accommodate arises only upon the strata
corporation becoming aware that a person suffers from
a disability - 
Brown 
v. 
The Owners, Strata Plan LMS952,
2005 BCHRT 137
 
There must also be a request made for accommodation
and the request must be denied before there can be
discrimination. - 
Shakun
 v. 
Ospikia Place PG6 Council
and Pace Realty Corporation
 2009 BCHRT 121.
 
 
 ACCOMMODATION
 
 
 
The person claiming a need for the accommodation on
the basis of a disability must also be prepared to
disclose the nature of their condition and have
medical evidence available to support the specific type
of accommodation they are requesting - 
Menzies
 v.
Strata Plan NW2924, 
2010 BCHRT 33
Strata corporation has a duty under PIPA to keep that
confidential (both in minutes and discussion)
 
 ACCOMMODATION
 
There must be a nexus between the disability and the
accommodation requested – 
Judd 
v. 
Strata Plan
LMS737, 
2010 BCHRT 276; 
Dandurand v Strata Plan
KAS 3558, 
2016 BCHRT 47.
 
Not always necessary to have a medical report
outlining the restrictions or limitations of a person’s
disability. Sometimes it is obvious. - 
Birchall and
Another Obo
 v 
BCS 61 Strata Corporation
, 2017 BCHRT
72.
 
 ACCOMMODATION
 
The lack of a mobility aid or the fact that other
owners with similar limitations can do a task,
does not negate the strata corporation’s duty to
accommodate. 
Accommodation is an
individualized process 
- 
Khan 
v 
Strata Plan VR
127
, 2016 BCHRT 43
 
The strata corporation’s duty to accommodate is
ongoing, even after a complaint is filed - 
Bowker v
Strata Plan NWS 2539
, 2019 BCHRT 43
 
 
 ACCOMMODATION
 
 
The burden placed on a disabled individual is an
element that will be taken into consideration when
assessing the adequacy of the steps taken by a strata
to accommodate a disabled person - 
D 
v 
The Owners,
Strata Plan VIS---- 
2017 BCCRT 68.
 
A delay in finding a reasonable accommodation or
failure on the part of a strata corporation to educate
itself or a demonstration of a reluctance to implement
the accommodation can result in a breach of the 
Code
- 
Bowker
 v 
Strata Plan NWS 2539
, 2019 BCHRT 43.
 
 
 ACCOMMODATION
 
 
Where the problem can easily be solved by the
complainant, there may be no adverse impact and
thus no duty to accomodate - 
Stephenson
 v 
Strata
Corporation VIS 141
9, 2014 BCHRT 110.
 
 ACCOMMODATION
 
The person seeking accommodation must:
 
• Advise the strata council of their disability and
provide enough information for the strata council to
understand that the person has a disability.
 
• Co-operate with the strata to provide sufficient
medical information to establish the need for
accommodation and allow the parties to understand
what options are appropriate. This may include a
medical report. 
A brief doctor’s note on a prescription
pad will probably not be comprehensive enough
.
 
LEARY
 ANALYSIS
 
Cont.
 
•Co-operate with the strata to discuss possible
solutions. The person seeking the accommodation is
not entitled to a perfect accommodation, but to one
that reasonably addresses their needs and upholds
their dignity in their housing.
 
• Co-operate with professionals or other parties who
may have to be involved to explore accommodation
solutions, including facilitating access to their unit
and answering ongoing requests for information.
 
 
 
 
LEARY
 ANALYSIS
 
The strata council must:
 
• Address requests for accommodation promptly, and
take them seriously.
• Gather enough information to understand the nature
and extent of the need for accommodation. (The strata
corporation is entitled to request medical information
that is related to the request for accommodation. It is
not entitled to any more information than is strictly
necessary for this purpose. If the strata requests
further medical reports, it should be at the strata’s
expense.)
 
 
LEARY ANALYSIS
 
Cont.
 
• Restrict access to a person’s medical information to
only those individuals who are involved in the
accommodation process and who need to understand
the underlying medical condition.
 
• Obtain expert opinions or advice where needed.
•Take the lead role in investigating possible solutions.
 
LEARY ANALYSIS
 
Cont.
 
• 
Rigorously assess whether the strata can implement
an appropriate accommodation solution.
 
• Ensure that the strata representatives working on
the accommodation are able to approach the issue
with an attitude of respect.
 
LEARY ANALYSIS
 
A strata corporation may not be found to be in violation of
the 
Code 
if it can establish a 
bona fide and reasonable
justification
 for its actions. Three 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?
 
LIMITS ON THE DUTY TO ACCOMMODATE
 
 
“The undue hardship arguments raised in this case are
somewhat unique.  Although cost is a factor that the
Tribunal can always take into account in assessing
undue hardship, here what is at issue is not a cost that
is to be borne by an employer, or a government service
provider, but, ultimately, by the individual owners of the
strata.”
 
Holowaychuk
 v 
The Owners, Strata Plan NW332,
 2008
BCHRT 274
 
UNDUE HARDSHIP
 
 
 
 
“I find that hardship is undue if  it threatens the
viability of the strata’s co-operative framework, which
I conclude is what would happen here if the strata
were required to act with leniency towards the owner
at this point.”
The Owners, Strata Plan LMS XXX v. D.B.
, 2017 BCCRT
117, CRT stated
 
 
 
 
UNDUE HARDSHIP
 
 
 
 
“In order to establish a defence of undue hardship, the
strata corporation must show that it considered all
reasonable alternatives for accommodation and that
there were none”
Bowker
 v 
Strata Plan NWS 2539
, 2019 BCHRT 43.
 
UNDUE HARDSHIP
 
The fact that when a building was built, the Building
Code
 did not require it to be accessible makes no
difference to the strata corporation’s duty to
accommodate - 
Basic
 v. 
The Owners, Strata Plan BCS
1461,
 2007 BCHRT 165.
 
The fact that the developer put a certain arrangement
in place is not an automatic defence - 
Birchall and
Another Obo
 v 
BCS 61 Strata Corporation
, 2017 BCHRT
72.
 
 
MANAGEMENT OF THE COMMON
PROPERTY
 
 
The strata corporations need not provide access in the
exact way the owner requests. It can meet its
obligation by providing a reasonable alternative -
 
D 
v
The Owners, Strata Plan VIS, 2017 BCCRT 68
.
 
It may not even need to provide the requested
accommodation if an acceptable alternative already
exists – 
Ross v. Strata Plan NW608,
 2007 BCHRT 274
 
MANAGEMENT OF THE COMMON
PROPERTY
 
In carrying out its repair and maintenance duties, the
strata corporation has a duty to do so in a timely
manner where a delay would adversely impact
someone with a disability - 
Birchall and Another Obo
 v
BCS 61 Strata Corporation
, 2017 BCHRT 72;
 Kates
 v.
Strata Plan VAS2844
, 2018 BCHRT 20; Garrow v.
Strata Plan LMS1306 (No.3),
 2012 BCHRT 4.
 
MANAGEMENT OF THE COMMON
PROPERTY
 
 SOME EXAMPLES
 
Menzies
 v. 
Strata Plan NW2924
 2010 BCHRT 33
 
owner complained that the vinyl windows installed as
part of the building envelope repair didn’t let enough
light in and that affected her depression;
 
Perron v. The Owners, Strata Plan NW164 - 2009 BCHRT
59
owner required a ramp for wheel chair access to the
building’s front entrance;
 
 
 
 
MANAGEMENT OF COMMON
PROPERTY
 
 
Holowaychuk
 v. 
The Owners, Strata Plan NW332
 2008
BCHRT 274
 
owner used a walker and had to navigate a small set of
stairs in the lobby in order to get to her suite
 
 
Basic
 v. 
The Owners, Strata Plan BCS 1461
 2007 BCHRT 165
 
owner was in a wheel chair and requested that the strata
corporation install automatic door openers
 
 
 
MANAGEMENT OF COMMON
PROPERTY
 
 
Ross v Strata Plan NW 608
, 2007 BCHRT 80
 
Complainant who was unsteady on his feet and  sometimes
uses a cane and sometimes uses a motorized scooter wanted
to install a gate and a pathway to his patio
 
Herbert Stengert obo Six Residents of 19673 Meadow Garden
Way v The Owners, Strata Plan BCS 2427, 2018 BCHRT 70
 
The Complainants all had physical disabilities which made
using the standard doorknob difficult for them wanted to
replace the round doorknob with a more accessible lever-style
handle.
 
 
 
 
MANAGEMENT OF COMMON
PROPERTY
 
Ireland v Fraser Campbell Property Management and
others
, 2013 BCHRT 265
The Complainant had a disability that required her to use
a medical scooter that needed to be plugged in.
 
The strata corporation assigned the Complainant a
parking spot next to an electrical plug. The strata
corporation charged $10 per month for use of the
parking spot and subsequently passed a bylaw to that
effect.
There was no charge for the use of the bicycle parking
spots.
 
MANAGEMENT OF COMMON
PROPERTY
 
D v The Owners, Strata Plan VIS 2017 BCCRT 68
 
The 72 year old complainant had mobility issues. The
assigned LCP parking space was closest to the back
entrance which was accessed by  going up a ramp, along a
brief walkway, and then through a door which opened out.
In response to the owner’s difficulties re access, the strata
installed an automatic door opener on the front entry;
The BCHRT held that the strata had taken adequate steps
to accommodate the applicant particularly since the
walking distance to the front entry not a significant burden
as she was able to regularly walk to her vehicle and around
the block.
 
MANAGEMENT OF COMMON
PROPERTY
 
Birchall and Another Obo v BCS 61 Strata Corporation, 2017
BCHRT 72
 
Complainants wrote to the Respondent requesting new
parking stalls on the grounds of  a physical handicap.
 
The requests were denied by the strata on the basis it has no
jurisdiction to force the strata lot owners to exchange parking
stall and that there were only ever three handicap parking
stalls .
 
BCHRT found that the Parking Stall Lease scheme enables
discriminatory policies as it enabled an impediment.
Respondent failed to take the necessary steps to address.
 
MANAGEMENT OF COMMON
PROPERTY
 
Kates v. Strata Plan VAS2844, 2018 BCHRT 20
 
This complaint involved mold in the Complainant’s strata
lot and the strata’s failure to repair a water ingress issue.
Complainant claimed a significant health impact the mold
has on her and seeking to have the issue remediated.
Strata considered the remediation of mold by the
contractor completed and claimed all necessary
remediation steps were taken and no further actions are
required. Full remediation too expensive.
Strata was not able to demonstrate that it had taken all
possible measures and considered all available options to
address problem.
 
 
MANAGEMENT OF COMMON
PROPERTY
 
 
The strata corporation has a duty to undertake an
honest and thorough assessment of the request -
Seymour v Strata Plan VIS 2551 (No. 2), 
2018 BCHRT
186.
 
Owner making a request has an obligation to provide
information about the proposed alteration to allow
proper assessment the of request -
Testar
 v. 
The Owners,
Strata Plan VR 1097, 
2009 BCHRT 41; 
Calderoni
 v.
Strata Council Plan K6
,
 
2009 BCHRT 10.
 
 
ALTERATION REQUESTS
 
 
 
Concerns about the impact of the alteration on the
building are a legitimate factor to consider - 
Dennis
Susko v The Owners Strata Plan LMS 2226, 
2018
BCCRT 249.
 
Where an accommodation is warranted and there are
no alternative options, the request must be approved
regardless of any prohibition in the bylaws -
 Shannon
v. 
 The Owners, Strata Plan KAS1613 (No. 2), 
2009
BCHRT 438.
 
ALTERATION REQUESTS
 
Shannon 
 v. 
 The Owners, Strata Plan KAS1613 (No. 2) 
2009
BCHRT 438
 
owner suffered from chronic obstructive pulmonary disease
and required his strata lot to be kept cool. Although he had
air conditioning he sought permission to install a sunscreen
on the exterior of the strata lot.
 
the strata council refused on the grounds that the screen was
not permitted by the bylaws.
 
Tribunal held there was discrimination based on the adverse
effect that denying the request had on the owner.
 
while the standard of no screens was reasonable, the strata
still had a duty to accommodate him.  It failed to show there
were any reasonable alternatives.
 
 
ALTERATION REQUESTS
 
 
Seymour v Strata Plan VIS 2551 (No. 2), 2018 BCHRT 186
The Complainant is 72 years old with end stage Chronic
Obstructive Pulmonary Disease and required constant
use of an oxygen tank and has limited mobility.
The Complainant wanted to build a walk-in show and a
toilet at a comfortable height to improve his safety and
accommodate his mobility.
Request was denied because the Complainant did not
provide certain information  the strata corporation
thought necessary to assess the request;
 
ALTERATION REQUESTS
 
 
Epp v. Strata Plan VR 2692
 2009 BCHRT 97
 
owner wanted to enclose balcony in order to store dialysis
supplies.
 
although there were other enclosed balconies, the strata
council refused the request but offered alternate storage
elsewhere in the building. Owner refused that option.
 
Dennis Susko v The Owners Strata Plan LMS 2226 2018 BCCRT
249
 
Applicant wished to install a skylight as the lack of sunlight
impacted his mood, but failed to provide the strata with any
medical evidence and did not explain why skylight was
necessary rather than going outside periodically
 
ALTERATION REQUESTS
 
 
Testar
 v. 
The Owners, Strata Plan VR 1097 
2009 BCHRT 41
 
owner requested permission to install a chair lift on the
common property hillside
 
Calderoni v. Strata Council Plan K6 - 2009 BCHRT 10
 
owner wanted to convert a ground floor storage area into
a bedroom for her to sleep in.
 
In both cases owners refused to provide information
necessary to assess request.
 
ALTERATION REQUESTS
 
Vamburkar-Dixit v Brown and Others, 2004 BCHRT 161
 
Wanted to alter one bedroom into two bedrooms so the
Complainants’ son could live in the strata lot.
 
Strata by-law prohibits more than two people residing in
one bedroom unit. Strata refused permission.
 
The Complainants alleged discrimination on family
status.
 
ALTERATION REQUESTS
 
The Standard Bylaws under the Strata Property Act
(
SPA
) permit the following pets:
(a) a reasonable number of fish or other small
aquarium animals;
(b) a reasonable number of small caged
mammals;
(c) up to 2 caged birds;
(d) one dog or one cat.
 
Strata corporations can amend those bylaws to allow
more pets, fewer pets or no pets.
 
PETS
 
Despite a prohibition, under certain circumstances,
owners, tenants and occupants can have a pet where
that pet is needed for medical reasons.
 
Medical exemptions arise in one of two ways:
under the Guide Dog and Service Dog Act (
GDSA
)
under the Human Rights Code (the “
Code
”).
Non medical exemptions arise only if the bylaw itself
permits a discretionary exemption. Strata councils
cannot  waive compliance with a bylaw.
 
PETS
 
S.123(1.01) of the 
SPA
 recognizes the exemption under the
GDSA
. It provides:
 
A bylaw that prohibits a pet or other animal or that
restricts the access of a pet or other animal to a strata lot
or common property does not apply to
 
  
(a) a guide dog or service dog, or
 
  
(b) a dog that is a member of a retired
  
guide or service dog team if the person who is
  
a member of the team is an owner, tenant or
  
occupant.
 
PETS
 
In order to qualify for an exemption under the 
GDSA
,
the dog must be certified by the Province, not the
various organizations which purport to “certify”
therapy and service dogs.
 
A dog need not be certified in any way in order to
qualify as an assistance animal under the Code -
Devine v. David Burr Ltd. and others (No. 2)
,
 
2010
BCHRT 37.
 
PETS
 
An owner requesting an accommodation must
establish a nexus (or direct connection) between their
disability and the requested accommodation – see
Judd v. Strata Plan LMS737
, 2010 BCHRT 276.
 
A positive bond between the owner and the pet is not
enough to prove a nexus- 
N.K. v. The Owners, Strata
Plan LMS YYYY
, 2018 BCCRT 108.
 
PETS
 
Another way of looking at the nexus is to ask if 
not
having the pet :
 
could put the individual at significant risk of a
relapse - 
BH obo CH v. Creekside Estates Strata
KAS1707 and another
, 2016 BCHRT 100
 
would likely lead to adverse consequences in terms
of the owner’s medical condition an exemption is
warranted - 
UL obo SL v. Strata Plan LMS 4555 and
others
, 2014 BCHRT 66
 
PETS
 
An exemption is not carte blanche to have whatever type of
pet an owner wants.
 
In 
N.K. v. The Owners, Strata Plan LMS YYYY
, 2018 BCCRT
108 the tenant had a therapy dog that exceeded the 25lbs
permitted under the bylaw.
 
The CRT rejected NK’s request for an exemption on the
basis that there was “
no evidence…. that the tenant could
not obtain beneficial pet therapy by having a pet… that
complies with the strata’s bylaws [and that] keeping a dog
that exceeds 25 pounds in the strata is not necessary to
accommodate the tenant’s disability.”
 
PETS
 
Strata corporations owe a duty under s.9 of the 
Code
 to
consider requests from purchasers for an accommodation.
They don’t have to be an owner.
 
Jones
 v. 
The Owners, Strata Plan 1571 and others
 2008 BCHRT
200
complainant wanted to purchase in the strata corporation but
it had a no pet bylaw
council refused to grant an exception because the dog was not
a registered assistance/guide dog
the BCHRT held that the complainant had been discriminated
against. The strata corporation, knowing that the dog was
necessary to help the complainant cope with his disability,
should have approved an exception to the bylaw
 
PETS
 
 
The Owners, Strata Plan XX 1234 v D.N. and P.J. 2019
BCCRT 284
 
This dispute concerns the height of the service dog of
D.N. and P.J. and the strata lot they live in.
 
The respondents acquired the dog as a puppy, and the
puppy grew to 22 inches tall in the shoulder.
 
 Unless the owners could register it as Guide Dog it would
have to be removed.
 
PETS
 
The 
Code
 is often engaged in situations where an
owner is affected by second hand smoke.
 
Where that owner has a disability which is negatively
impacted by the second hand smoke, a duty on the
part of the strata corporation to protect that owner
from the smoke can arise.
 
The owner must establish a nexus between their
disability and the effect of the second hand smoke on
that disability - 
Leary
 v. 
Strata Plan VR1001
, 2016
BCHRT 139
 
SMOKING
 
 
Where there is a nexus, there is a duty to
accommodate and take steps to prevent the smoke
affecting the owner – 
Buttnor
 v. 
Strata Plan VIS 5339,
2011 BCHRT 309
 
Mere exposure to second hand smoke is not enough to
engage the 
Code
. There must be evidence that it
negatively impacts a person’s medical condition –
Beckett 
v. 
Strata Plan NW2603,
 2016 BCHRT 27.
 
SMOKING
 
 
The absence of a bylaw prohibiting smoking does not relieve the
strata corporation from its obligations - 
Kabatoff
 v. 
Strata Corp
NW 2767, 
2009 BCHRT 344
 
In that case
:
 
complainant was extremely allergic to second hand smoke.
 
strata corporation has no bylaw prohibiting smoking and took
the position that it could not force a neighbouring owner to
stop smoking.
 
the Tribunal refused to dismiss the complainant based on the
strata corporation arguably had a duty to accommodate that
disability. (Does that duty include having to pass a no-
smoking bylaw ?)
 
 
SMOKING
 
 
Bowker v Strata Plan NWS 2539, 2019 BCHRT 43
 
The Complainant bought a strata lot that did not a
smoking prohibition bylaw.
 
Complainant has pulmonary fibrosis and the symptoms
tended to worsen when she was exposed to fumes and
toxin or chemicals in the air, including cigarette smoke.
 
Respondent failed to take appropriate actions in a timely
manner. Respondent also failed to enforce its own
nuisance by-law
 
 
SMOKING
 
A duty to accommodate can also arise where an owner
needs to smoke or vape for medical reasons
 
An accommodation can also take the form of allowing
someone to smoke.
 
Where the bylaws prohibit smoking, an owner has no right
to smoke marijuana for medical reasons unless that is the
only way they can consume it -  
The Owners, Strata Plan
LMS 2900 
v 
Matthew Hardy,
 2016 BCCRT1
 
May be required to allow an owner to smoke in their strata
lot or on a balcony where they have a disability that would
prevent them from leaving the building to smoke –
Dandurand
 v. 
Strata Plan KAS3558,
 2016 BCHRT 47.
 
SMOKING/MARIJUANA
 
The 
Access to Cannabis for Medical Purposes
provisions of the 
Cannabis Regulation 
permit persons
who require marijuana for medical reasons to grow
more than the permitted 4 plants.
 
Under the Code, strata corporations have an obligation
to accommodate that activity to the point of undue
hardship.
 
Reasonable restrictions and conditions can be
imposed since accommodation is a joint activity.
 
MARIJUANA
 
A strata corporation can pass a bylaw which restricts the
age of persons who can live in in a strata lot.
 
S.123(1.1) of the 
SPA
 :
 
Without limiting a strata corporation’s power to pass
 
any other bylaws, a strata corporation may pass a
 
bylaw that restricts the age of persons who may
 
reside in a strata lot.
 
S.41(2) of the 
Code
 specifically exempts such bylaws from
the effect of the 
Code
. It provides:
 
Nothing in this 
Code
 prohibits a distinction on the
 
basis of age if that distinction is permitted or
 
required by any Act or regulation.
 
AGE
 
S.121 of the 
SPA
 provides that a bylaw cannot restrict
the ability of an owner to sell or otherwise deal with
title to their strata lot.
 
A bylaw which specifically refers to the age of an
owner would run afoul of s.121 and be unenforceable.
 
The fact that an age restriction bylaw may practically
prevent certain persons (i.e. those under the specified
age) from purchasing a strata lot does not mean it
runs afoul of s.121 - 
Marshall
 v. 
Strata Plan No. NW
2584
, 1996 CanLII 8500 (BCSC)
 
AGE
 
 
 
Anyone residing in a strata lot at the time an age
restriction bylaw is passed is exempt from the bylaw –
s.123(2) 
SPA
.
 
Exemption applies to individuals and not the strata lot.
 
The exemption does not apply to children born after
the bylaw is passed - 
Hallonquist
 v. 
Strata Plan NW307
and another,
 2014 BCHRT 117.
 
AGE
 
 
Bylaw restricting the age of occupants to 55 years and
older was not discriminatory. The reason the strata
asked the 16 year old daughter to move was because
of her age, not the fact that she was part of a family.
 
Ryan
 v. 
Strata Plan VIS 3537,
 
2005
 
BCHRT 559
 
AGE
 
K.M. v The Owners, Strata Plan ABC XXXX, 2018 BCCRT 29
 
The Complainant wanted to rent out a portion of her
strata lot because living with other people is good for her
mental health. However, bylaws prohibited it.
 
The Complainant argued by restricting who she can live
with is a discrimination based on disability as her mental
health benefited from having someone else living with
her.
Claim was dismissed as doctor failed to mention the
severity of complainant’s disability if the accommodation
was denied
 
OTHER SITUATIONS
 
Smith v BV Administration and White Rock Baptist Village
Strata Plan NW 2847
, 2009 BCHRT 79 and 
Morris v. Strata
Plan NW 3388 
2008 BCHRT 33
both strata corporations were oriented toward retirees of
a certain religious background.
 
the allegations centered around certain religious
practices such as opening meetings in prayer. In 
Morris
the allegation was unfair treatment because she was not
Mennonite and was divorced.
 
neither case made it to the hearing stage.
 
OTHER SITUATIONS
 
Kargut obo Others v Strata Plan BCS 802
, 2017 BCHRT 269
 
Complaint filed alleging discrimination by the strata for
conducting the strata meetings in Mandarin.
 
Complainants also alleged that these same Mandarin
speaking owners abused the use of proxies to
discriminate against owners that are non-mandarin
speaking.
 
Neither the 
SPA
 or the bylaws specified in what language
the meeting must be held or the minutes kept.
 
OTHER SITUATIONS
 
Cont.
Kargut obo Others v Strata Plan BCS 802
, 2017 BCHRT 269
 
While discrimination on the basis of language not
prohibited,  it may actually be discrimination on the basis
of place of origin.
 
Dismissal application denied. Tribunal implied that a
interpreter should be brought in to strata meetings, and
meeting minutes should be translated into English
 
 
OTHER SITUATIONS
 
Where activities of another owner are negatively impacting
a disability, the strata corporation has a duty under the
Code
 to fully investigate the allegations, determine if their
has been a breach of the bylaws and then take appropriate
steps to address that breach - 
Weitzel 
v 
Strata Plan NW
2536
, 2019 BCHRT 17.
 
When there has been no change in behaviour, strata
corporations cannot rely solely on the imposition fines to
say that it has met its duty under the 
Code
 - 
Pope 
v 
The
Owners, Strata Plan VIS30, 
2017 BCHRT 45.
 
 
BYLAW ENFORCEMENT
 
Enforcing a bylaw such that it restricts a cultural
practice (such as cooking certain ethnic foods) can
amount to discrimination under the 
Code
Chauhan
 v.
Norkam Seniors Housing Cooperative Association,
2004 BCHRT 242.
 
A bylaw which prevents a person from carrying out
religious practices can also be discriminatory –
Syndicate Northcrest
 v. 
Amselem,
 2004 SCC
 
A 
refusal to enforce a bylaw on the basis of a duty to
accommodate must be accompanied by evidence of
the disability and how it requires not enforcing the
bylaw - 
Weinrauch et al 
v. 
The Owners, Strata Plan NW
3119 et al,
 2019 BCCRT 257.
 
 
BYLAW ENFORCEMENT
 
 
Possible duty to a mentally ill tenant to not enforce
the bylaws against them when their behaviour is a
result of the disability - 
Lazore and MacLaren 
v. 
Strata
Plan 2527 and others,
 2008 BCHRT 212.
 
Obligation of a part of the strata corporation to
discuss a possible accommodation with a person with
a mental disability before taking enforcement steps  -
M and another
 v. 
Strata Plan LMS2768 and others,
2010 BCHRT 198.
 
BYLAW ENFORCEMENT
 
 
Where the conduct becomes unbearable, undue
hardship is reached, no longer any duty to tolerate
minor to moderate breaches - 
The Owners, Strata Plan
LMS XXX v. D.B.
, 2017 BCCRT 117.
 
Passage of a bylaw to address and constrain the
behaviour of a particular person with a mental
disability may amount to a breach of the 
Code
 - 
Erdodi
v. 
Strata Plan LMS 1991 and others
, 2004 BCHRT 335.
 
BYLAW ENFORCEMENT
 
Section 43 of the 
Code:
 
“a person may not evict, discharge, suspend, expel,
intimidate, coerce, impose any pecuniary or other
penalty on, deny a right or benefit to or otherwise
discriminate against a person because that person
complains or is named in a complaint, gives evidence
or otherwise assists in a complaint or other
proceeding under this 
Code
 
 
 
RETALIATION
 
To establish a complaint under s. 43, the complainant must show
that:
 
a previous complaint has been made under the 
Code
 and that
respondent was aware of the complaint;
 
the respondent engaged in or threatened to engage in retaliatory
conduct; and
 
a reasonable complainant would have perceived that the
respondent intended to retaliate against the applicant.
 
Birchill 
v 
BCS 61Strata Corporation and another, 
2018 BCHRT 29
(Owner accused Complainant of faking disability
).
 
Enforcing a bylaw where there has in fact been a breach is not
retaliatory - 
Tenant X
 v 
Rosegate Strata Corporation NW 2402
,
2015 BCHRT 162
 
 
 
 
RETALIATION
 
A person must bring claim within one year of the alleged
contravention or within one year of the last alleged
instance of the contravention – s. 22 
Code
 
A late complaint may be accepted if:
 
(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 - 
Khan
 v 
Strata Plan VR 127
, 2016 BCHRT 43.
 
 
BCHRT PROCESS
 
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.
 
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.
 
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
.
 
BCHRT PROCESS
 
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;
 
BCHRT PROCESS
 
Cont.
 
(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;
 
BCHRT PROCESS
 
If the BCHRT finds a breach of the 
Code
, then s.37(2) sets
out the remedies that are available:
 
  
(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
,
 
BCHRT PROCESS
 
Cont.
 
(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
 
BCHRT PROCESS
 
Cont.
 
(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, BCHRT
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
;
 
BCHRT PROCESS
 
Cont.
 
(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.
 
BCHRT PROCESS
 
An order of the BCHRT can be filed in the BC Supreme
Court and enforced as an order to that court, meaning
that a failure to comply can lead to a finding of
contempt - s.30 of the 
Code
 
Settlement agreements are also enforced through the
Supreme Court - 
Siebring v. Strata Plan NW 2275
,
2016 BCHRT 94.
 
 
 
BCHRT PROCESS
 
 
 
A party 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.
 
BCHRT PROCESS
 
 
 
 
 
QUESTIONS
 
HUMAN RIGHTS
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The Human Rights Code aims to prevent discrimination, promote equality, and provide redress for those discriminated against. It prevails over other legislation, including the Strata Property Act. Strata corporations are subject to various provisions of the Code, impacting areas such as publications, accommodation, employment, and more. Breaches of the Code within strata corporations can lead to liability for both the corporation and its members.


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  1. STRATA CORPORATIONS AND THE HUMAN RIGHTS CODE __________ Cleveland Doan LLP Strata Lawyers PRESENTED BY SHAWN M. SMITH

  2. THE CODE The Human Rights Code is a provincial statute. Broadly speaking its purpose is to prevent discrimination and discriminatory practices. The specific intent of the Code is set out in Section 3. It is: (a) to impediments to full and free participation in the economic, social, political and cultural life; foster a society in which there are no (b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

  3. THE CODE Cont. (c) to Code; prevent discrimination prohibited by this (d) to identify and eliminate persistent patterns of inequality associated prohibited by this Code; and with discrimination (e) to provide a means of redress for those persons who are discriminated against contrary to this Code.

  4. THE CODE Section 4 of the Code provides that it prevails over all other legislation; including the Strata Property Act (SPA). Section 121 of the SPA 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.

  5. THE CODE APPLIES TO STRATA CORPORATIONS 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);

  6. THE CODE APPLIES TO STRATA CORPORATIONS A strata corporation is considered to provide services which are customarily available to the public - Konieczna v. The Owners Strata Plan NW2489, 2003 BCHRT 38. As a result of its carrying out its statutory duties under the SPA, strata corporations have been held to be providing management services . Williams v. Strata Council No. 768, 2003 BCHRT 17; The Owners, Strata Plan LMS 2900 v. Hardy, 2016 CRTBC 1

  7. THE CODE APPLIES TO STRATA CORPORATIONS Strata breaches of the Code where compliance is dependent on their actions - Kayne v. Strata Plan LMS2374, 2004 BCHRT 62. council members can also be liable for Claims against strata managers are usually dismissed as they have no say in whether or not to grant an accommodation McDaniel v. Strata Plan LMS1657, 2012 BCHRT 42.

  8. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS The Charter 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). Strata Plan NW 499 v. Kirk 2015 BCSC 1487.

  9. JURISDICTION OVER THE CODE Jurisdiction over the application of the Code falls primarily to the BC Human Rights Tribunal ( BCHRT ). However, the Civil Resolution Tribunal ( CRT ) also has the ability to apply the Code in certain circumstances. One doesn t take precedence over the other, but both can dismiss a claim if it has been resolved in another forum.

  10. JURISDICTION OVER THE CODE The CRT does not have jurisdiction to consider whether there is a conflict between the Code and the SPA -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 for that - Leary v. The Owners, Strata Plan VR 1001, 2017 BCCRT 76; 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 is enforceable (i.e. does it contravene the Code?) or if there has been a breach of a bylaw.

  11. WHAT IS DISCRIMINATORY CONDUCT? Discrimination has been defined as: a distinction, whether intentional or not but based on grounds relating personal individual or group, which has the effect of imposing burdens, obligations, or individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available society. -Andrews v. Law Society of B.C. (1989) 1 S.R.C.143 characteristics of the disadvantages on such to other members of

  12. 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 a violation of the Code. If the effect of an action or decision is discriminatory, that is enough to amount to a violation.

  13. WHAT IS DISCRIMINATORY CONDUCT? Very rarely is there an actual intention on the part of a strata corporation to discriminate. The implementation of a policy designed to address some other problem or issue. This is referred to as ( adverse affect discrimination). discrimination usually results from the 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.

  14. WHAT IS DISCRIMINATORY CONDUCT? Discrimination enumerated grounds or factors set out in the Code: must be based on one of the race, marital disability, sex, sexual orientation, gender identity or expression, or age of that person. colour, status, ancestry, family place status, of physical origin, religion, mental or Must treatment and the alleged ground of discrimination- Smith v. Strata Corp NW2206, 2018 BCHRT 247 be a connection between the differential

  15. WHAT IS DISCRIMINATORY CONDUCT? 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 Neither the Code nor the BCHRT is responsible for policing every aspect of an individual s social or council-related activities simply because that individual lives in a strata complex - Meyer and Meyer v. Strata Corporation LMS 3080 and Boies, 2005 BCHRT 89

  16. SECTION 8 PROVISION OF ACCOMMODATION, SERVICES AND FACILITIES Section 8(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) 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, sexual orientation, expression, or age of that person or class of persons. discriminate against a person or class of persons gender identity or

  17. SECTION 8 PROVISION OF ACCOMMODATION, SERVICES AND FACILITIES The captures many things which a strata corporation does in relation to the exercise of its powers and the fulfillment of its duties under the SPA. very broad definition of the word service It includes such things as administering the common property, assigning parking stalls, considering and approving alteration requests, enforcing bylaws and considering the need for exemptions under a bylaw.

  18. ACCOMMODATION Accommodation is the obligation of the strata corporation to take steps to assist or allow a person with a disability to participate in the strata community and live in their home on an equal basis with all other owners, tenants and occupants.

  19. ACCOMMODATION What constitutes a disability was discussed in Anastacio v. Patterson Dental, 2014 BCHRT 111: Generally requires a state that is involuntary, has some degree of permanence, and impairs a person's ability, in some measure, to carry out the normal functions of life. Normal ailments such as a cold or flu are not disabilities. Medical conditions characterized by significant degree of permanence and which substantially interfere with a person's ability to participate fully in his or her employment and enjoyment of life.

  20. ACCOMMODATION The obligations of the strata corporation with respect to a person with a disability are: A strata corporation must accommodate a strata resident with a disability to the point of undue hardship. The accommodation involved are required to work together to find a solution that adequately balances the competing interests. process is one in which all those Process requires a strata corporation to take positive steps to achieve a reasonable solution.

  21. ACCOMMODATION Cont. Parties refinements as until a satisfactory resolution is achieved or it is clear that no such resolution is possible. exchange alternative suggestions and Strata perfect solution from the complainant s point of view but, rather, to accommodation in the circumstances of the case. corporation is not required to provide a provide a reasonable Herbert Stengert obo others v. Strata Plan BCS2427, 2018 BCHRT 70

  22. ACCOMMODATION The duty to accommodate arises only upon the strata corporation becoming aware that a person suffers from a disability - Brown v. The Owners, Strata Plan LMS952, 2005 BCHRT 137 There must also be a request made for accommodation and the request must be denied before there can be discrimination. - Shakun v. Ospikia Place PG6 Council and Pace Realty Corporation 2009 BCHRT 121.

  23. ACCOMMODATION The person claiming a need for the accommodation on the basis of a disability must also be prepared to disclose the nature of their medical evidence available to support the specific type of accommodation they are requesting - Menzies v. Strata Plan NW2924, 2010 BCHRT 33 condition and have Strata corporation has a duty under PIPA to keep that confidential (both in minutes and discussion)

  24. ACCOMMODATION There must be a nexus between the disability and the accommodation requested LMS737, 2010 BCHRT 276; Dandurand v Strata Plan KAS 3558, 2016 BCHRT 47. Judd v. Strata Plan Not outlining the restrictions or limitations of a person s disability. Sometimes it is obvious. - Birchall and Another Obo v BCS 61 Strata Corporation, 2017 BCHRT 72. always necessary to have a medical report

  25. ACCOMMODATION The lack of a mobility aid or the fact that other owners with similar limitations can do a task, does not negate the strata corporation s duty to accommodate. Accommodation individualized process - Khan v Strata Plan VR 127, 2016 BCHRT 43 is an The strata corporation s duty to accommodate is ongoing, even after a complaint is filed - Bowker v Strata Plan NWS 2539, 2019 BCHRT 43

  26. ACCOMMODATION The burden placed on a disabled individual is an element that will be taken into consideration when assessing the adequacy of the steps taken by a strata to accommodate a disabled person - D v The Owners, Strata Plan VIS---- 2017 BCCRT 68. A delay in finding a reasonable accommodation or failure on the part of a strata corporation to educate itself or a demonstration of a reluctance to implement the accommodation can result in a breach of the Code - Bowker v Strata Plan NWS 2539, 2019 BCHRT 43.

  27. ACCOMMODATION Where the problem can easily be solved by the complainant, there may be no adverse impact and thus no duty to accomodate - Stephenson v Strata Corporation VIS 1419, 2014 BCHRT 110.

  28. LEARY ANALYSIS The person seeking accommodation must: The person seeking accommodation must: Advise the strata council of their disability and provide enough information for the strata council to understand that the person has a disability. Co-operate with the strata to provide sufficient medical information to accommodation and allow the parties to understand what options are appropriate. This may include a medical report. A brief doctor s note on a prescription pad will probably not be comprehensive enough. establish the need for

  29. LEARY ANALYSIS Cont. Co-operate solutions. The person seeking the accommodation is not entitled to a perfect accommodation, but to one that reasonably addresses their needs and upholds their dignity in their housing. with the strata to discuss possible Co-operate with professionals or other parties who may have to be involved to explore accommodation solutions, including facilitating access to their unit and answering ongoing requests for information.

  30. LEARY ANALYSIS The strata council must: The strata council must: Address requests for accommodation promptly, and take them seriously. Gather enough information to understand the nature and extent of the need for accommodation. (The strata corporation is entitled to request medical information that is related to the request for accommodation. It is not entitled to any more information than is strictly necessary for this purpose. If the strata requests further medical reports, it should be at the strata s expense.)

  31. LEARY ANALYSIS Cont. Restrict access to a person s medical information to only those individuals who accommodation process and who need to understand the underlying medical condition. are involved in the Obtain expert opinions or advice where needed. Take the lead role in investigating possible solutions.

  32. LEARY ANALYSIS Cont. Rigorously assess whether the strata can implement an appropriate accommodation solution. Ensure that the strata representatives working on the accommodation are able to approach the issue with an attitude of respect.

  33. LIMITS ON THE DUTY TO ACCOMMODATE A strata corporation may not be found to be in violation of the Code if it can establish a bona fide and reasonable justification for its actions. Three questions must be asked: Was the policy/action 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 complainant without incurring undue hardship? reasonably necessary to still accommodate the

  34. UNDUE HARDSHIP The undue hardship arguments raised in this case are somewhat unique. Although cost is a factor that the Tribunal can always take into account in assessing undue hardship, here what is at issue is not a cost that is to be borne by an employer, or a government service provider, but, ultimately, by the individual owners of the strata. Holowaychuk v The Owners, Strata Plan NW332, 2008 BCHRT 274

  35. UNDUE HARDSHIP I find that hardship is undue if viability of the strata s co-operative framework, which I conclude is what would happen here if the strata were required to act with leniency towards the owner at this point. The Owners, Strata Plan LMS XXX v. D.B., 2017 BCCRT 117, CRT stated it threatens the

  36. UNDUE HARDSHIP In order to establish a defence of undue hardship, the strata corporation must show that it considered all reasonable alternatives for accommodation and that there were none Bowker v Strata Plan NWS 2539, 2019 BCHRT 43.

  37. MANAGEMENT OF THE COMMON PROPERTY The fact that when a building was built, the Building Code did not require it to be accessible makes no difference to the strata accommodate - Basic v. The Owners, Strata Plan BCS 1461, 2007 BCHRT 165. corporation s duty to The fact that the developer put a certain arrangement in place is not an automatic defence - Birchall and Another Obo v BCS 61 Strata Corporation, 2017 BCHRT 72.

  38. MANAGEMENT OF THE COMMON PROPERTY The strata corporations need not provide access in the exact way the owner requests. obligation by providing a reasonable alternative - D v The Owners, Strata Plan VIS, 2017 BCCRT 68. It can meet its It accommodation if an acceptable alternative already exists Ross v. Strata Plan NW608, 2007 BCHRT 274 may not even need to provide the requested

  39. MANAGEMENT OF THE COMMON PROPERTY In carrying out its repair and maintenance duties, the strata corporation has a duty to do so in a timely manner where a delay someone with a disability - Birchall and Another Obo v BCS 61 Strata Corporation, 2017 BCHRT 72; Kates v. Strata Plan VAS2844, 2018 BCHRT 20; Garrow v. Strata Plan LMS1306 (No.3), 2012 BCHRT 4. would adversely impact

  40. MANAGEMENT OF COMMON PROPERTY SOME EXAMPLES Menzies v. Strata Plan NW2924 2010 BCHRT 33 owner complained that the vinyl windows installed as part of the building envelope repair didn t let enough light in and that affected her depression; Perron v. The Owners, Strata Plan NW164 - 2009 BCHRT 59 owner required a ramp for wheel chair access to the building s front entrance;

  41. MANAGEMENT OF COMMON PROPERTY Holowaychuk v. The Owners, Strata Plan NW332 2008 BCHRT 274 owner used a walker and had to navigate a small set of stairs in the lobby in order to get to her suite Basic v. The Owners, Strata Plan BCS 1461 2007 BCHRT 165 owner was in a wheel chair and requested that the strata corporation install automatic door openers

  42. MANAGEMENT OF COMMON PROPERTY Ross v Strata Plan NW 608, 2007 BCHRT 80 Complainant who was unsteady on his feet and uses a cane and sometimes uses a motorized scooter wanted to install a gate and a pathway to his patio sometimes Herbert Stengert obo Six Residents of 19673 Meadow Garden Way v The Owners, Strata Plan BCS 2427, 2018 BCHRT 70 The Complainants all had physical disabilities which made using the standard doorknob difficult for them wanted to replace the round doorknob with a more accessible lever-style handle.

  43. MANAGEMENT OF COMMON PROPERTY Ireland v Fraser Campbell Property Management and others, 2013 BCHRT 265 The Complainant had a disability that required her to use a medical scooter that needed to be plugged in. The strata corporation assigned parking spot next to an corporation charged $10 per month for use of the parking spot and subsequently passed a bylaw to that effect. There was no charge for the use of the bicycle parking spots. the Complainant plug. The a electrical strata

  44. MANAGEMENT OF COMMON PROPERTY D v The Owners, Strata Plan VIS 2017 BCCRT 68 The 72 year old complainant had mobility issues. The assigned LCP parking space entrance which was accessed by going up a ramp, along a brief walkway, and then through a door which opened out. In response to the owner s difficulties re access, the strata installed an automatic door opener on the front entry; The BCHRT held that the strata had taken adequate steps to accommodate the applicant walking distance to the front entry not a significant burden as she was able to regularly walk to her vehicle and around the block. was closest to the back particularly since the

  45. MANAGEMENT OF COMMON PROPERTY Birchall and Another Obo v BCS 61 Strata Corporation, 2017 BCHRT 72 Complainants parking stalls on the grounds of a physical handicap. wrote to the Respondent requesting new The requests were denied by the strata on the basis it has no jurisdiction to force the strata lot owners to exchange parking stall and that there were only ever three handicap parking stalls . BCHRT found that the Parking Stall Lease scheme enables discriminatory policies as Respondent failed to take the necessary steps to address. it enabled an impediment.

  46. MANAGEMENT OF COMMON PROPERTY Kates v. Strata Plan VAS2844, 2018 BCHRT 20 This complaint involved mold in the Complainant s strata lot and the strata s failure to repair a water ingress issue. Complainant claimed a significant health impact the mold has on her and seeking to have the issue remediated. Strata considered the remediation contractor completed and remediation steps were taken and no further actions are required. Full remediation too expensive. Strata was not able to demonstrate that it had taken all possible measures and considered all available options to address problem. of mold all by the claimed necessary

  47. ALTERATION REQUESTS The strata corporation has a duty to undertake an honest and thorough assessment Seymour v Strata Plan VIS 2551 (No. 2), 2018 BCHRT 186. of the request - Owner making a request has an obligation to provide information about the proposed alteration to allow proper assessment the of request -Testar v. The Owners, Strata Plan VR 1097, 2009 BCHRT 41; Calderoni v. Strata Council Plan K6, 2009 BCHRT 10.

  48. ALTERATION REQUESTS Concerns about the impact of the alteration on the building are a legitimate factor to consider - Dennis Susko v The Owners Strata Plan LMS 2226, 2018 BCCRT 249. Where an accommodation is warranted and there are no alternative options, the request must be approved regardless of any prohibition in the bylaws - Shannon v. The Owners, Strata Plan KAS1613 (No. 2), 2009 BCHRT 438.

  49. ALTERATION REQUESTS Shannon v. The Owners, Strata Plan KAS1613 (No. 2) 2009 BCHRT 438 owner suffered from chronic obstructive pulmonary disease and required his strata lot to be kept cool. Although he had air conditioning he sought permission to install a sunscreen on the exterior of the strata lot. the strata council refused on the grounds that the screen was not permitted by the bylaws. Tribunal held there was discrimination based on the adverse effect that denying the request had on the owner. while the standard of no screens was reasonable, the strata still had a duty to accommodate him. It failed to show there were any reasonable alternatives.

  50. ALTERATION REQUESTS Seymour v Strata Plan VIS 2551 (No. 2), 2018 BCHRT 186 The Complainant is 72 years old with end stage Chronic Obstructive Pulmonary Disease and required constant use of an oxygen tank and has limited mobility. The Complainant wanted to build a walk-in show and a toilet at a comfortable height to improve his safety and accommodate his mobility. Request was denied because the Complainant did not provide certain information thought necessary to assess the request; the strata corporation

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