The Law Blog

Living in a strata means accepting a certain amount of collective decision-making. Strata corporations can adopt bylaws governing matters such as pets, parking, noise, renovations and the use of common property. Owners and residents are generally expected to comply with those bylaws.

But a strata bylaw is not necessarily the final word.

In British Columbia, strata corporations are also subject to the Human Rights Code. This can require a strata corporation to make exceptions to its bylaws or otherwise accommodate an owner or resident where a protected personal characteristic is involved.

Understanding where strata law ends and human rights obligations begin is important for both strata councils and residents.

The Human Rights Code Applies to Strata Corporations

The BC Human Rights Code prohibits discrimination in relation to certain services and facilities on the basis of protected personal characteristics. These include, among others, physical and mental disability, race, religion, family status, sex, sexual orientation, gender identity or expression, marital status and age.

The Strata Property Act expressly recognizes the importance of these protections. Section 121 provides that a strata bylaw is not enforceable to the extent that it contravenes the Human Rights Code or another enactment or law.

This means that simply pointing to a validly passed strata bylaw may not be enough to resolve a dispute.

A bylaw that appears neutral and applies equally to everyone can still have a discriminatory effect on a particular resident.

Disability Accommodation Is a Common Strata Issue

Many human rights issues in strata properties involve physical or mental disabilities.

Consider a strata with a bylaw prohibiting pets. An owner who simply wants a dog would ordinarily be expected to comply with the bylaw. However, the situation may be very different if an owner requires an assistance animal because of a disability.

Similarly, a strata may have rules governing parking spaces. If an owner develops a mobility disability and requires a parking space closer to the building entrance, simply insisting that the existing parking arrangement applies equally to everyone may not adequately address the strata's human rights obligations.

Accessibility modifications can raise similar issues. A resident may require a ramp, automatic door opener or another modification to access common property.

In these situations, the question is no longer simply, "What does the bylaw say?" The strata must also consider whether accommodation is required under human rights law.

What Is the Duty to Accommodate?

The duty to accommodate generally requires a strata corporation to take reasonable and practical steps to address a disadvantage connected to a protected characteristic.

Importantly, accommodation does not necessarily mean giving the resident exactly what they request. The objective is to find a reasonable solution that addresses the person's needs.

The process usually requires cooperation from both sides.

A resident requesting accommodation should provide sufficient information to establish the need for accommodation. In a disability case, this may include appropriate medical information concerning the person's limitations and the accommodation required. That does not necessarily mean the strata is entitled to demand a person's complete medical history or detailed diagnosis.

The strata council, in turn, should genuinely consider the request, investigate reasonable alternatives and avoid automatically rejecting it simply because it conflicts with an existing bylaw or rule.

How Far Does a Strata Have to Go?

The duty to accommodate is substantial, but it is not unlimited.

Generally, accommodation is required to the point of undue hardship.

Whether a proposed accommodation would cause undue hardship depends on the circumstances. Cost can be relevant, but simply saying that an accommodation is expensive will not necessarily be enough. Evidence may be required concerning the actual cost and the strata corporation's ability to absorb it.

Other practical considerations may also be relevant depending on the particular accommodation requested.

For strata councils, the important point is that "our bylaws don't allow it" is generally not an adequate human rights analysis. The council should investigate the request and determine whether a reasonable accommodation is available.

Human Rights Issues Go Beyond Disability

Although disability accommodation is particularly common, human rights issues in strata communities can arise in other contexts.

For example, a strata's rules or decisions could potentially adversely affect a resident because of family status or religion. Harassment connected to a protected characteristic can also engage the Human Rights Code.

Even seemingly routine enforcement decisions should therefore be approached carefully where council knows that a protected characteristic may be involved.

A strata council should also be cautious about treating every request for accommodation as an attempt to avoid the bylaws. A resident asking for an exception because of a disability, for example, is raising a fundamentally different issue from an owner who simply disagrees with the rule.

Strata Councils Should Focus on the Process

Good process can prevent many human rights disputes from escalating.

When an accommodation request is received, council should document the request, determine what additional information is reasonably required, consider possible accommodations and communicate with the resident.

Council minutes and correspondence should demonstrate that the request was actually considered rather than summarily dismissed.

Confidentiality is also important. Medical information and other sensitive information provided as part of an accommodation request should be handled carefully and disclosed only as necessary.

Strata councils should consider obtaining legal advice before denying a significant accommodation request, particularly where the decision may lead to enforcement proceedings or a complaint to the BC Human Rights Tribunal.

What Should an Owner or Resident Do?

Residents seeking accommodation should generally make their request clearly and preferably in writing. Explain that accommodation is being requested because of a protected characteristic and provide reasonable supporting information where necessary.

If a strata refuses the request, obtaining legal advice early can help determine whether the issue is properly characterized as a strata dispute, a human rights matter, or potentially both.

Likewise, strata councils faced with difficult accommodation requests should seek advice before imposing fines or taking enforcement action.

Need Advice About a Strata or Human Rights Issue?

The intersection between strata law and human rights law can be complicated. A bylaw that is otherwise valid may not be enforceable in a particular situation, and both strata corporations and residents have responsibilities during the accommodation process.

If you are a strata owner, resident or strata council dealing with a human rights or accommodation issue, Peak Law can help you understand your rights, obligations and options.

Contact Peak Law to discuss your BC strata law matter and determine the appropriate next steps.