By Laura Track
Here at the BC Human Rights Clinic, we see many human rights complaints involving stratas. They are among the most difficult cases to deal with and resolve. They can pit neighbour against neighbour, involve massive amounts of stress and acrimony, and cause the deterioration of relationships between people who must live together in a shared space.
One of the greatest barriers we see to the resolution of human rights disputes involving stratas is the fact that many stratas, and the strata councils that govern them, are unaware of their obligations under BC’s Human Rights Code.
In fact, stratas have a duty to protect and uphold the rights of their members under section 8 of the Code. This law requires stratas to avoid discriminating on the basis of a list of protected characteristics that includes disability, age, marital and family status, sexual orientation, gender identity and expression, and other prohibited grounds.
By far the most common are complaints involving owners with disabilities. The BC Human Rights Tribunal has issued a decision requiring a strata to take steps to build a ramp to accommodate residents with mobility limitations, for example, and to address second-hand smoke affecting residents with asthma and allergies exacerbated by smoke. In every case, the strata has a duty to accommodate residents with disabilities to the point of undue hardship.
The search for an appropriate accommodation for a person with a disability has to involve both the strata council and the person who needs the accommodation. A person with a disability may have to disclose relevant medical information about their needs, and should facilitate efforts to provide the necessary accommodation by allowing reasonable access to their suite, for example. People are not necessarily entitled to a “perfect” accommodation, but they are entitled to a timely, reasonable response that respects their dignity.
Sometimes, a reasonable accommodation requires changes to common strata property or the imposition of a special levy to fund upgrades or repairs. These steps can have an impact on other strata residents, and may prove unpopular. They may not receive the necessary approval by the strata members at a vote, meaning the strata’s efforts at providing reasonable accommodation can be thwarted by the will of other owners.
Stratas should understand that a vote against a reasonable accommodation is not the end of the story. A strata cannot rely on a vote of its membership to deny an accommodation. In fact, that Tribunal may order that the accommodation be implemented, notwithstanding a vote against it.
Moreover, stratas cannot just leave the accommodation decision up to an uninformed group of residents who do not understand and appreciate the strata’s duties under human rights law. In a recent case, the Tribunal reminded stratas that “the strata council has an integral role to play in removing [barriers to accommodation] through the thoughtful management of how such accommodation needs are brought to the owners as a whole for required votes as well as individual owners of units who may feel put upon.” In other words, a strata should educate itself about its legal duties to accommodate owners with disabilities (and other protected characteristics), and take steps to educate other owners as well.
There is no doubt that it can be challenging for strata councils to address requests for accommodation. Strata councils are made up of volunteers doing what is often a thankless task. However, as service providers covered by the Human Rights Code, they have an important role to play in removing barriers that may affect their owners with disabilities. This includes taking a serious and rigorous approach to complaints involving people with disabilities and other characteristics protected by the Code.
In a case called Leary, the Tribunal provided helpful guidance for stratas dealing with accommodation requests. According to the Tribunal, the strata council must:
- Address requests for accommodation promptly, and take them seriously. A strata should consider how it will process accommodation requests on a timely basis, including between council meetings. For example, the strata council should ensure that someone is responsible for receiving such requests and promptly beginning the accommodation process.
- Gather enough information to understand the nature and extent of the need for accommodation. The strata 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.
- 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. The strata council should keep medical information confidential from the general membership of the strata.
- Obtain expert opinions or advice where needed. The strata should pay for any tests or expert reports.
- Take the lead role in investigating possible solutions. Co-operate with the person seeking accommodation to constructively explore those solutions.
- Rigorously assess whether the strata can implement an appropriate accommodation solution. In doing so, the strata may have to consider the financial cost and competing needs of other strata members. In some circumstances, a solution may not be possible without the strata suffering an undue hardship. In that case, the strata council should document the hardship and test its conclusion to ensure there is no other possible solution.
- Recognize that the strata cannot, through its membership, contract out of the Human Rights Code. This means that a strata cannot rely on a vote of its membership to deny an accommodation.
- Ensure that the strata representatives working on the accommodation are able to approach the issue with an attitude of respect. Members of a strata council whose behaviour risks undermining genuine efforts at co-operation and conciliation may need to be removed from the process.
The process of accommodation can be an enriching and productive experience in which participants can take satisfaction in removing barriers that may be preventing people from feeling safe and healthy in their home. It is an exercise that is at the heart of the Code’s goal of achieving equality and inclusion.
| See, for example, Mahoney obo Holowaychuk v. The Owners, Strata Plan #NW332 and others, 2008 BCHRT 274.
 Bowker v. Strata Plan NWS 2539, 2019 BCHRT 43, para 54.
 Leary v. Strata Plan VR1001, 2016 BCHRT 139.