BC Human Rights Tribunal

Tenancy

Last updated: May 23, 2024

Page contents:

• What do I need to show to make a discrimination complaint about a tenancy?
  • Grounds of discrimination / Personal characteristics
  • Negative effect
  • Connection between negative effect and personal characteristics
• Who can be named as a respondent in a tenancy complaint?
• How can bad treatment in tenancy be justified? (Defences)
  • Justification defence: bona fide and reasonable justification (BFRJ)
  • Defence if shared bathroom, kitchen or sleeping space
  • Buildings for adults 55 and over
  • Buildings for persons with physical or mental disabilities

What do I need to show to make a discrimination complaint about tenancy?

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 / Personal characteristics
2. Negative effect
3. Connection between negative effect and personal characteristics.

1. Grounds of discrimination / Personal characteristics

2. Negative effect

3. Connection between negative effect and personal characteristics

Who can be named as a respondent in a tenancy complaint?

• The landlord. The owner of the space is responsible for the tenancy and is usually the respondent in a tenancy complaint.
• A person who exercised some authority or control over the complainant’s access to or use of the space.
  
  For example, a building manager evicts a person, or a person induces the landlord to terminate a tenancy based on a personal characteristic.

Note: Another tenant can be a respondent if they have negatively affected a term or condition of the complainant’s tenancy, including the right to quiet enjoyment of the space.

For example: Another tenant harasses a person based on their race in a way that interferes with the person’s ability to live in their space.

Note: A landlord is responsible for the discriminatory conduct of their agents and employees. The landlord would not be responsible for the actions of other tenants, but may have a duty to take action, within the landlord’s power, to address the situation.

How a landlord or other person justify their conduct regarding the tenancy? (Defences)

Justification defence: bona fide and reasonable justification (BFRJ)

If the complainant proves that the respondent’s conduct had a negative effect on them in their tenancy, and that a personal characteristic was a factor in the negative effect, they have proved their case. This is called a “prima facie case of discrimination”.

Even if a complainant proves their 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).

Section 10 of the Human Rights Code does not explicitly include a justification defence, but the Tribunal has interpreted the section to allow for it. To succeed with this defence, a respondent must prove three things:

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

In some cases, a respondent applies a defined standard that affects the complainant, such as a minimum occupancy requirement for a two-bedroom apartment. In other cases, there is no defined standard. For example, access to building is by stairs, and the complainant uses a wheelchair due to a disability.

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

For example, the purpose of an occupancy requirement might be to maximize the efficient use of a co-op’s resources.

A respondent must also show how the purpose relates to the tenancy or management of the tenancy.

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

2. The standard was adopted in good faith in the belief that it was necessary to accomplish the 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 the 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 tenancy-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 organization.

A complainant must participate in the search for accommodation.

The respondent may succeed if it proves that the complainant did not request accommodation and it did not reasonably know that the complainant may need accommodation. Note: When a landlord or other person is aware, or reasonably ought to be aware, that there may be a relationship between a negative effect and a personal characteristic, they have a duty to inquire into whether the person needs accommodation. 

The respondent may also succeed 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.

Defence if shared bathroom, kitchen or sleeping space

It is a defence to discrimination if the person renting the space shares sleeping, bathroom or cooking facilities with the tenant.

Buildings for adults 55 and over

It is a defence to discrimination (based on age or family status) if every space in the residential building is reserved for rental to:

• a person who is 55 or older or
• two or more persons, at least one of whom is 55 or older

Buildings for persons with physical or mental disabilities

It is a defence to discrimination (based on physical or mental disability), if a space in a residential building is offered for rental only to:

• a person with a disability (or two or more persons, at least one of whom has a disability, and
• the space and the building are designed to accommodate persons with disabilities and conform to any prescribed standards.