By Laura Track
This article was originally published in the Winter 2018 issue of Landlord BC’s magazine called The Key.
Robbin Abernathy is the mother in a family of six. Like many families in BC, she has struggled to find appropriate rental housing for her family.
Mr. Stevenson advertised a three bedroom, two bathroom property for rent. Ms. Abernathy sent Mr. Stevenson an email expressing interest in the unit. In her email, she said she was looking for a place for a family of six, which included four children between the ages of one and eight years old. She explained that the family’s current landlord was evicting them because he needed the property for his own use. She also noted that the family had a cat and two guinea pigs.
Mr. Stevenson responded later the same day, saying “Sorry but that is way too big of a family for the house.”
In response, Ms. Abernathy explained that the family was currently living in even smaller quarters: a three bedroom, one bathroom house. She wrote: “The kids are still little enough for two to a bedroom comfortably. Unfortunately right now the market is so bad we just need a place to go, so squishing in is better than the alternative. We are good tenants and have really stellar references if you think we could make it work. We’re out and about often and not at home anyway! :)”
Mr. Stevenson replied: “Sorry but I am just not interested.” He explained that more people meant more wear and tear on the house. He told her it was a fairly new house in excellent condition, and he would like to keep it that way.
Ms. Abernathy and her family eventually found somewhere else to live, but it was challenging. Ms. Abernathy said that during the two months they were looking, they had six landlords refuse to rent to them because they had children. The rent at the place they moved into was more than $500 per month more than Mr. Stevenson’s place would have been.
Ms. Abernathy filed a complaint with the BC Human Rights Tribunal alleging that Mr. Stevenson had discriminated by denying her and her family tenancy on the basis of their family status.
Family status” protections in human rights legislation include discrimination on the basis of who is in your family or who you’re related to.
“Family status” protections in human rights legislation include discrimination on the basis of who is in your family or who you’re related to (e.g., an employer denying someone a job because the employer does not like the applicant’s spouse) or having a particular kind of family (e.g., a landlord refusing to rent to someone because she is a single mother). It also includes the size and composition of a family.
Mr. Stevenson applied to have Ms. Abernathy’s human rights complaint dismissed. An application to dismiss allows a respondent in a human rights case to have the complaint thrown out before it goes to a hearing.
Mr. Stevenson explained: “I refused to rent to Ms. Abernathy based on the size of her family being way too large for my small rental house, and not because of her having children”. He argued that the Human Rights Code does not protect against discrimination based on the size of a family. He said that he would have been happy to rent to a family of four, but six people was simply too many. He pointed to Ms. Abernathy’s own admission that the family would have had to “squish” into the unit as evidence that it was too small to meet their needs.
However, his application to have the complaint dismissed without a hearing was unsuccessful.
The tenancy provisions of the Human Rights Code exist to protect families and others who may be screened out of tight housing markets from being unjustifiably excluded from safe and secure housing. As the Tribunal stated in another tenancy discrimination case, the law reflects the Legislature’s assessment that it is “appropriate, indeed urgent, to protect families and their children in their access to reasonable living accommodation.”
Residential Tenancy Guide
In denying the application to dismiss, the Tribunal looked at a guide published by the Residential Tenancy Branch called “A Guide for Landlords and Tenants in British Columbia”. Under the heading “Discrimination”, the RTB Guide stated: “A landlord usually cannot refuse to rent to people because they have children, but can limit the number of people living in a rental unit”. This statement is also repeated in another Residential Tenancy Branch publication.
The Tribunal expressed concerns about the RTB Guide:
“It is unfortunate that the RTB Guide has set out a blanket rule that landlords can limit the number of people living in a rental unit. This blanket rule does not accurately account for the fact that, under human rights law, a landlord will have to justify an occupancy rule that adversely affects people because of their family status.”
To justify a maximum occupancy policy that adversely affects families, a landlord will have to show that they adopted the policy in good faith, for reasons related to the maintenance and use of the unit. They will have to prove that the policy is not applied arbitrarily, and that it is a reasonably necessary restriction that cannot be modified without the landlord incurring undue hardship.
In a case called Cha v. Hollyburn Estates Ltd., the Tribunal reasoned that maximum occupancy policies could be justified based on considerations such as inadequate hot and cold water supply or insufficient parking spaces. Other considerations could include whether municipal bylaws set out space restrictions in rental units, or other legitimate health and safety considerations apply. However, as with all justifications under human rights law, the landlord will be required to bring sufficient evidence before the Tribunal to justify the exclusion of a protected group.
In this case, Mr. Stevenson’s only explanation for the exclusion was found in his email to Ms. Abernathy, in which he expressed a concern about “wear and tear” on the house. His original rental ad did not reference a maximum occupancy limit, which could mean that Mr. Stevenson only decided to impose the rule after he received Ms. Abernathy’s application. There was no evidence to suggest that the house could not accommodate Ms. Abernathy’s family. Mr. Stevenson relied on Ms. Abernathy’s statement that her family would have to ‘squish’, but the Tribunal held that this fell far short of proving that the exclusion was justified. The point that Ms. Abernathy was making with that statement was that her family was happy to ‘squish’ and in fact was used to it. But a preference that families not ‘squish’ is not a justification under human rights law.
The Tribunal denied Mr. Stevenson’s application to dismiss the complaint, and allowed the complaint to proceed. No final decision has been issued, which may mean that the parties have resolved the dispute through a settlement.
Vancouver’s rental vacancy rate is less than 1%. Other municipalities do not fare much better. Families are increasingly desperate to find suitable housing they can afford and that meets their needs. This case is an important reminder of landlords’ obligations under human rights law in this challenging rental market.
This post summarizes the BC Human Rights Tribunal’s decision in a case called Abernathy v. Stevenson, 2017 BCHRT 239.
 Fakhoury v. Las Brisas Ltd. (1987), 8 CHRR D/4028 (Ont. Bd. Inq).
;2005 BCHRT 409.