BC Human Rights Tribunal

Strata

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Last updated: May 24, 2024

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What do I need to show to make a discrimination complaint about a strata’s services?

A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.

This means that a complaint must include information showing:

1. Grounds of discrimination / Protected characteristics
2. Negative effect
3. Connection between negative effect and personal characteristics.

Grounds of discrimination / Personal characteristics

To make a complaint of discrimination, the complainant must have a personal characteristic protected under the Human Rights Code.  The personal characteristic is also called the “ground of discrimination”.

A person is protected if they have the personal characteristic or if they are seen to have one. For example, the ground of disability applies if someone has a disability, or the respondent thinks that they have a disability.

The personal characteristics protected in a strata’s services, facilities, and accommodations are:

• Indigenous Identity
• Race
• Colour
• Ancestry
• Place of Origin
• Religion
• Marital Status
• Family Status
• Physical Disability
• Mental Disability
• Sex
• Sexual Orientation
• Gender Identity or Expression
• Age

2. Negative effect

3. Connection between negative effect and personal characteristics

Who can be named as a respondent?

• The strata. The strata is responsible for the services it provides and is usually the respondent in a strata services complaint.
• A person who is responsible for the discrimination.

For example, a complaint may name a person who made the decision to deny the complainant a service based on a personal characteristic, or who influenced a decision.

A complaint would not name a person who applied a discriminatory policy as part of their job, or who delivered a letter denying the service.

How can poor treatment in a strata’s services be justified? (Defences)

There is one main defence to discrimination regarding a strata’s services, where the respondent proves their conduct was justified. There are also some specific defences.

Justification defence: bona fide and reasonable justification

If a complainant proves that the respondent’s conduct had a negative effect on them regarding a strata’s services, and that a personal characteristic was a factor in the negative effect, this is called a prima facie case of discrimination.

Even if a complainant proves a prima facie case, a respondent may argue that there is no discrimination because its conduct was justified (i.e., based on a bona fide and reasonable justification or BFRJ). To succeed with this argument, a respondent must prove three things:

1. There is a legitimate business-related purpose for the respondent’s conduct

The respondent must identify the (non-discriminatory) purpose underlying its standard or conduct.

In some cases, a respondent applies a defined standard or requirement that affects the complainant, such as passing a test to get a service.

In other cases, there is no defined standard.

For example, access to a common area is by stairs, and the complainant uses a wheelchair due to a disability. Stair-only access may be based on construction before building codes required accessibility.

The respondent must also show how the purpose relates to the service or facility it provides.

In many cases, the complainant may not dispute that the respondent’s conduct is based on a legitimate, strata-related purpose.

2. The respondent adopted the standard acted in good faith, believing the standard or conduct is necessary to achieving its purpose

This means that the respondent adopted the standard or acted to accomplish its purpose and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.

3. The respondent’s standard or conduct is reasonably necessary to its service-related purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship

This means that the respondent fulfilled its duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect.

This includes proving:

• What the respondent did to explore options to find a reasonable result
• Why further steps were not reasonable or practical (would result in undue hardship)
• The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate strata-related purpose or incurring undue hardship

Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) relevant to the accommodation request.

It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.

For example, if a respondent relies on excessive cost, it must prove both the costs of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing the respondent cannot reasonably afford it.

Factors a respondent may rely on to establish undue hardship include financial cost and the size of the respondent’s operation. A complainant must participate in the search for accommodation. The respondent may establish a justification defence (BFRJ) if it proves that it was taking all reasonable and practical steps, but the process failed because the complainant did not reasonably participate or rejected a reasonable offer of accommodation.

Public decency defence

It is a defence to a case of sex discrimination if the discrimination relates to the maintenance of “public decency”.