Gillespie v. The Owners, Strata Plan VIS 6262, 2024 BCHRT 355
Date Issued: December 27, 2024
File: CS-006659
Indexed as: Gillespie v. The Owners, Strata Plan VIS 6262, 2024 BCHRT 355
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Bruce Gillespie
COMPLAINANT
AND:
The Owners, Strata Plan VIS 6262
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Andrew Robb
Agent for the Complainant: Robert Meehan
Counsel for the Respondent: Craig H. Penner
Date of Hearing: November 18 to 20, 2024
Location of Hearing: Microsoft Teams videoconference
I INTRODUCTION
[1] Bruce Gillespie filed a human rights complaint against The Owners, Strata Plan VIS 6262 [the Strata ], known as Swallows’ Landing. Mr. Gillespie and his wife, Deborah Gillespie, own a residential suite in Swallows’ Landing [the Suite ].
[2] The Strata’s bylaws prohibit air conditioning units from being attached to the exterior of residential suites, including on patios. Mr. Gillespie has a disability and his condition is aggravated by exposure to high temperatures. In 2021 he requested an exemption from the Strata’s bylaws so that he could install an exterior air conditioning unit, as a way of accommodating his disability. His complaint alleges that the bylaw adversely impacted him in connection with his disability, and the Strata failed to reasonably accommodate him. The Strata eventually granted his request for an exemption from the bylaws, and he installed the air conditioning unit in 2023, but he says the Strata is responsible for delays in the process which prevented him from having access to air conditioning in the summer of 2022. He also says the Strata’s requirement for the air conditioning unit to be removed when he and Ms. Gillespie move out of the Suite is unreasonable, and represents a failure to accommodate him to the point of undue hardship.
[3] The Strata denies discriminating. It says it acted reasonably in accommodating Mr. Gillespie’s request for an exemption from the bylaws, and it was not responsible for any delays in the process. It says the requirement for Mr. Gillespie’s air conditioning unit to be removed when he stops living in the Suite is mandatory under the Strata’s bylaws and the Strata Property Act , and is justified under the Human Rights Code .
[4] The Tribunal agreed to expedite the hearing of this complaint due to Mr. Gillespie’s health condition. All the witnesses provided their direct evidence by way of affidavit, before the hearing. These affidavits were admitted into evidence by consent of the parties, and the witnesses attended the hearing for cross-examination. I appreciate the cooperation of the parties and the witnesses, which ensured the hearing process could proceed as efficiently as possible.
[5] For the reasons set out below, I find the Strata’s conduct was justified under the Code , and I dismiss the complaint. I am satisfied that any delay in the accommodation process for which the Strata was responsible was relatively brief, and did not make the process unreasonable. The longest delay was related to a requirement for Mr. Gillespie to obtain an engineer’s report about how the air conditioning unit could be installed without creating a risk of water damage to the building. Although it appears the Strata could have given Mr. Gillespie more assistance to get this report, I find its failure to do so was not the cause of the delay in getting the report, and was not discriminatory.
[6] Mr. Gillespie says the Strata’s requirement for the air conditioning unit to be removed when he stops living in the Suite is unreasonable because without air conditioning, the temperature in the Suite reaches 30 degrees Celsius, and higher, during the summer. He makes compelling arguments about the unreasonableness of prohibiting air conditioning in the Strata. However, on the evidence before me, I find the requirement for the air conditioning unit to be removed when Mr. and Ms. Gillespie move out was not discriminatory.
II FACTS
[7] The following findings of fact are based on the evidence given by the witnesses, in their affidavits and in cross-examination during the hearing. Mr. Gillespie gave evidence on his own behalf, and led evidence from witnesses including his neighbour, Carla Robinson, and his former neighbours, Dennis Baker and Allan Reid. Two heating, ventilation, and air conditioning [ HVAC ] professionals, David Watters and Wolfgang Scheuer, also gave evidence on behalf of Mr. Gillespie. The HVAC professionals assessed the Suite before the air conditioning unit was installed, and made recommendations about how the Suite could be cooled.
[8] The Strata called one witness: Ross Nelson, a member of Strata council.
[9] I accept that all the witnesses testified honestly, to the best of their abilities. They all gave evidence that was helpful and relevant to the issues I must decide. There were no disputes about material facts. Most of the relevant events are well documented.
[10] Mr. Gillespie’s disability is known as pure autonomic failure [ PAF ]. His condition is exacerbated by exposure to high temperatures.
[11] There is no dispute that the applicable Strata bylaw prohibits exterior air conditioning units. The bylaw says:
No awning, shade, screen, air conditioning unit, antenna, satellite dish or receiver or any other appurtenance shall be hung from, placed upon or attached to the exterior of the building or a Strata Lot including without limitation the patios and decks.
a. The Suite
[12] Swallows’ Landing consists of two buildings with a courtyard between them, in Esquimalt, BC. The Suite is a two-bedroom residence on the eighth floor of one of the buildings. Mr. and Ms. Gillespie moved into the Suite in 2013, shortly after they purchased it.
[13] The Suite has an interior area of approximately 1935 square feet, including an open plan living area of approximately 1000 square feet, with high ceilings. Mr. Gillespie refers to this area as the great room. The Suite has floor-to-ceiling glass windows, and south and west exposure. The building is located near the top of a hill, and is the highest standing building in its immediate area, so there are no nearby trees or other buildings that block the sun from entering the Suite. The Suite has a large exterior patio, with no roof or cover.
[14] The Suite has no ventilation except in the bathrooms, laundry room, and at the kitchen stove. The only windows that open are small, bottom opening casements, just above floor level. They open outwards from a top hinge to a maximum angle of 45 degrees. There are three of these windows in the Suite, one of which is in the great room.
[15] With direct sunlight coming through the glass walls from the south and west, and little ventilation, it sometimes gets extremely hot in the Suite. Before air conditioning was installed, the interior temperature regularly reached 30 degrees Celsius on sunny summer days. During the extreme heat of the heat dome, in summer 2021, the temperature reached 40 degrees inside the Suite.
b. The accommodation process
[16] On November 3, 2021, Mr. Gillespie submitted his request to Strata council for permission to install an exterior air conditioning unit. He wanted to install a heat pump, which is a type of air conditioner that consists of an exterior unit, to be affixed to the Suite’s patio, connected to an interior unit that distributes cold air from near ceiling height. His request included information about the size and noise level of the heat pump, and how it would be connected into the Suite. He said in the request that he planned to hire Mr. Watters, who had previous experience working at Swallows’ Landing, to install the heat pump. The request included a brief doctor’s note, dated September 8, 2021, saying it is imperative that Mr. Gillespie avoid extreme heat, for medical reasons.
[17] This was apparently the first time the Strata had ever received a request to install an exterior air conditioning unit. Members of Strata council discussed the request by email. One member, Margaret Milne, asked Mr. Gillespie whether there were any other ways to cool the Suite, such as portable air conditioning units, which are not prohibited by the Strata’s bylaw. On November 15, 2021, Mr. Gillespie sent an email to Ms. Milne saying he had already tried other methods including blackout blinds, lined drapes, ceiling and portable fans, and window film, and they had not been effective in cooling the Suite. He had not tried portable air conditioning units in the Suite but he used one in his previous residence and found it ineffective.
[18] Strata council obtained legal advice about its duty to accommodate Mr. Gillespie. On December 2, 2021, a lawyer representing the Strata wrote a letter to Mr. Gillespie. The letter said the Strata’s bylaws prohibited heat pumps, but the Strata would consider making an exemption to the bylaws to accommodate his disability. The letter referred to case law from the Human Rights Tribunal and the Civil Resolution Tribunal of BC [ CRT ], and said the Strata would approve an exemption if Mr. Gillespie provided a detailed medical opinion to support his request, and an opinion from a qualified specialist stating why one or more portable air conditioners would not be sufficient to cool the Suite. The letter went on to say that if Mr. Gillespie provided these expert opinions, and Strata council was satisfied with the explanation as to why portable air conditioners were not sufficient, then Strata council would set out further conditions including “physical requirements pertaining to the installation”. It also said the Strata would require Mr. Gillespie to agree to remove the heat pump when he and Ms. Gillespie sell, rent, or otherwise stop living in the Suite. I refer to this requirement as the “removal condition”.
[19] On February 13, 2022, Mr. Gillespie sent Strata council a medical opinion from his physician, and a report from Mr. Watters. The medical opinion said Mr. Gillespie’s condition is exacerbated by high temperatures, and he should not be exposed to an indoor living environment that is higher than reasonably comfortable, or to “moderate-extreme temperature elevation”.
[20] Mr. Watter’s report described the reasons why the Suite gets so hot, with reference to its lack of ventilation and south and west exposure. He then described different cooling options, including portable air conditioning units, which vent hot air out through windows using six-inch hoses. Mr. Watters’s report said he would not recommend portable units in the Suite. He said they are not effective at cooling rooms as large as the great room, they use water tanks which must be emptied daily and which can leak or spill, they are noisy, and they can grow mold and mildew.
[21] Mr. Watters’ report recommended a heat pump. It said heat pumps run at low sound levels, and a single unit would effectively cool the Suite. Unlike portable units there is no tank that must be emptied daily. The report said a heat pump would be easy to install on the Suite’s patio, and would connect to the interior through the Suite’s exterior “flashing”, which is there to allow a path for mechanical services.
[22] Strata council was satisfied with the medical opinion but not with Mr. Watters’ report. On February 28, 2022, Ms. Milne told Mr. Gillespie that council members questioned Mr. Watters’ criticisms of portable air conditioning units. She recommended that Mr. Gillespie consider using a portable unit, instead of the heat pump. Ms. Milne also told Mr. Gillespie that Strata council members questioned Mr. Watters’ objectivity, since Mr. Gillespie planned to hire him to install the heat pump, so he had an interest in Mr. Gillespie’s request for an exemption being approved. Council requested a second report from an independent specialist, who was familiar with portable air conditioning units.
[23] Around the same time, in late February or early March 2022, Ms. Milne reminded Mr. Gillespie that if the Strata approved his medical exemption, it would be subject to the removal condition, requiring him to remove the heat pump when he and Ms. Gillespie move out of the Suite. Mr. Gillespie told Ms. Milne he objected to the removal condition. On April 6, 2022, he filed this human rights complaint, which initially focused on the removal condition. He later filed amendments to the complaint, which describe the subsequent steps he took to get the heat pump installed, and the Strata’s response to his efforts.
[24] On April 21, 2022, after Mr. Gillespie notified Ms. Milne that he had filed a human rights complaint, she emailed him and asked for an opportunity to visit the Suite and see the area where the proposed heat pump would be set up.
[25] At some point in March or April 2022, the Strata informed Mr. Gillespie that even if his request for an exemption from the bylaws was approved, he would also need to provide an engineer’s report, to confirm the heat pump could be installed, and later removed, without water damage to the building envelope. The Strata says this was a standard requirement that would have applied to any owner who wanted to alter their suite, where the alteration involved penetrating the building envelope, especially where no similar alterations had ever been done in Swallows’ Landing. The witnesses could not recall how or when the Strata communicated the requirement for a building envelope inspection report to Mr. Gillespie, and there is no evidence about exactly when he found out about it. It must have been before April 25, 2022, because Mr. Gillespie acknowledged the requirement in an email to Ms. Milne on that date.
[26] Mr. Gillespie’s April 25, 2022 email to Ms. Milne included a report from Mr. Scheuer, in response to the Strata’s requirement for a second report from an HVAC specialist. Mr. Scheuer owned his own HVAC business from 1988 until he retired in 2018. He owns and resides in a unit in the Strata. His report said portable air conditioning units would not effectively cool the Suite because they do not have sufficient cooling capacity. It also said portable units would be inappropriate due to the limited opening range of the casement windows in the Suite, which would limit the amount of air that can be vented through the window. The report recommended an exterior air conditioning unit, such as a heat pump.
[27] When Mr. Gillespie submitted Mr. Scheuer’s report to Ms. Milne, he also told her he was trying to find an engineer to do the building envelope inspection.
[28] On May 12, 2022, Mr. Gillespie sent Ms. Milne an email with an update on his efforts to find an engineer to do the building envelope inspection. He had already spoken to one engineer but they could not do the job, and they recommended other engineering firms, including one known as RDH. Mr. Gillespie’s email said Ms. Milne had previously told him she had the name of a person with RDH, who had done work for the Strata, so he asked her for the name of her contact at RDH. Instead she referred him to a different firm the Strata had worked with, known as RJC. Neither party called Ms. Milne as a witness at the hearing, and there is no evidence before me about why she referred Mr. Gillespie to RJC instead of RDH, as he requested.
[29] Mr. Gillespie contacted RJC but they were unable to provide the report. He also contacted other engineering firms but they told him they were too busy or the job was too small. At the hearing, he said he could not recall if he had contacted RDH.
[30] On June 15, 2022, Ms. Milne emailed Mr. Gillespie and told him that Strata council had approved Mr. Scheuer’s report, and agreed to give Mr. Gillespie an exemption from the bylaw prohibiting exterior air conditioning units. But before Mr. Gillespie could install the heat pump, he would still need to obtain the building envelope inspection report. The Strata would also require Mr. and Ms. Gillespie to sign an indemnity agreement, which would include the removal condition.
[31] On July 16, 2022, Ms. Milne followed up with Mr. Gillespie and asked if he still wanted the heat pump, as she had not received a response to her June 15 email. In response, Mr. Gillespie said it had proven difficult to get the building envelope inspection report, because the engineering firms he contacted were busy with bigger jobs.
[32] After July 2022, the parties had no further communications about the heat pump until February 2023.
[33] Meanwhile, some of Mr. Gillespie’s neighbours, including Ms. Robinson, also wanted exemptions from the bylaw, so that they could install heat pumps. Mr. Gillespie worked with Ms. Robinson and another neighbour to obtain building envelope inspection reports for each of their suites. The other neighbour eventually took the lead in trying to obtain the reports, but it was not until December 2022 that they hired an engineering firm to inspect the building envelope and provide the reports. That firm was RDH.
[34] On February 28, 2023, Mr. Gillespie obtained a building envelope inspection report from RDH. It confirmed the heat pump could be installed, and later removed, without compromising the building envelope.
[35] Mr. Gillespie sent the report to Strata council. At the hearing, the witnesses could not recall how or when the Strata responded, but the parties agree that council was satisfied with the report.
[36] On May 23, 2023, Mr. and Ms. Gillespie completed and signed the indemnity agreement, which included the removal condition. Mr. Gillespie says they did not want to agree to the removal condition, because removing the heat pump would be costly and difficult, and because the heat pump was the only way to make the Suite reasonably comfortable, for anyone, during the hot summer months. Mr. Gillespie says they signed the agreement anyway because they felt they had no choice, as his health continued to deteriorate.
[37] On June 29, 2023, the heat pump was installed in the Suite.
III Issues
[38] I must decide whether the Strata contravened s. 8 of the Code , by discriminating against Mr. Gillespie regarding a service or facility customarily available to the public.
[39] Section 8(1) of the Code says:
A person must not, without a bona fide and reasonable justification
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the…physical or mental disability…of that person or class of persons.
[40] The Strata does not deny that Mr. Gillespie has a disability, which is exacerbated by high temperatures. Nor does it deny that its services, in managing Swallows’ Landing and administering its bylaws, were customarily available to eligible members of the public, including Mr. Gillespie.
[41] To prove discrimination under s. 8 of the Code , Mr. Gillespie must prove:
a. He experienced an adverse impact regarding the services provided by the Strata; and
b. His disability was a factor in the adverse impact.
Moore v. British Columbia (Education) , 2012 SCC 61 at para 33.
[42] For the reasons set out below, I find Mr. Gillespie has proven that the bylaw prohibiting air conditioning units on patios had an adverse impact on him, and his disability was a factor in the adverse impact. This means the burden shifts to the Strata to justify its conduct. To establish a bona fide justification, under s. 8 of the Code , the Strata must prove:
a. A valid purpose: it adopted the bylaw for a purpose rationally connected to the function being performed by the Strata.
b. Good faith: it adopted the bylaw in an honest and good faith belief that the bylaw was necessary to fulfil its valid purpose.
c. Reasonable necessity and accommodation: the bylaw was reasonably necessary to accomplish its purpose, and the Strata fulfilled its duty to accommodate Mr. Gillespie to the point of undue hardship.
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 [ Meiorin ]; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868 [ Grismer ] at para. 20.
IV DECISION
[43] I will first address whether the bylaw prohibiting exterior air conditioning units had an adverse impact on Mr. Gillespie, which was connected to his disability. I will then move onto whether the Strata’s conduct was justified under the Code .
a. Did the bylaw have an adverse impact on Mr. Gillespie, connected to his disability?
[44] I am satisfied that Mr. Gillespie experienced an adverse impact as a result of the Strata’s bylaw prohibiting exterior air conditioning units. His disability was a factor in this adverse impact because it made him especially vulnerable to the effects of excessive heat in the Suite.
[45] In some of its pleadings, the Strata suggested that Mr. Gillespie had not established that he cannot adequately cool the Suite except with an exterior air conditioning unit, because he has not tried portable air conditioning units, so he cannot say for sure they are inadequate. The Strata said Mr. Watters’ report left open the possibility that multiple portable air conditioning units could be sufficient to make the Suite comfortable, and Mr. Scheuer’s report did not consider the possibility of using multiple portable units. Mr. Nelson’s affidavit said Strata council had concerns about both reports, but accepted Mr. Scheuer’s report because members of council wanted Mr. Gillespie’s request for a medical exemption to move forward.
[46] At the hearing, after hearing the evidence of Mr. Watters and Mr. Scheuer, Mr. Nelson agreed that portable air conditioners were not an adequate solution for cooling the Suite. The Strata did not pursue its argument about portable air conditioners in its final submissions. I address this issue anyway, for the sake of completeness.
[47] Mr. Watters’s report did not recommend portable air conditioning units because of problems related to their performance, noise, the risk of spills or leaks, and the risk of mold or mildew. The report said their performance drops off in high temperatures and in humid conditions. The report also said portable units do not work well in rooms with ceilings heights over eight feet because their relatively small circulating fans cannot distribute cold air very far. The ceilings in the great room are nine feet high.
[48] In cross-examination, Mr. Watters said a total of three portable units might be sufficient to adequately cool the great room, but the casement windows in the Suite do not open wide enough to allow one portable unit to vent hot air, let alone multiple units. In any event, he would not recommend multiple portable units in a single room due to concerns about noise, power usage, and the volume of space required.
[49] Mr. Scheuer’s report did not recommend portable air conditioning units because they lack the capacity to adequately cool the Suite and the Suite has no suitable windows for venting. He said the limited opening range of the casement windows in the Suite would reduce the performance of portable units and lead to their premature failure.
[50] In cross-examination, Mr. Scheuer said he used to sell portable air conditioners, through his business, but he only recommended them for low ceiling rooms with areas of 400 square feet or smaller. He said they might be sufficient to cool the bedrooms in the Suite, but not the great room. He said it would take at least two portable units to have any cooling effect in the great room, but this option was not feasible due to the limited opening range of the casement windows, and because the building’s wiring would not support more than one portable unit per room—plugging in two in a single room would blow a fuse, and running one on an extension cord from another room would create a fire hazard.
[51] I accept all this evidence. The expertise of Mr. Watters and Mr. Scheuer was not challenged, at the hearing. They are not engineers but they are both experienced HVAC professionals, and they provided reasonable, understandable explanations for the conclusions in their reports. Their findings are consistent with all the evidence before me. Based on their evidence, I am satisfied that it would not have been possible to use portable air conditioning units to cool the great room, and portable units were not a reasonable solution for cooling the Suite.
[52] Since other measures were insufficient to cool the Suite to a reasonably comfortable temperature during hot weather, and Mr. Gillespie’s condition was exacerbated by living in an uncomfortably hot environment, I find the bylaw prohibiting exterior air conditioning units had an adverse impact on him, which was connected to his disability.
[53] This means the burden shifts to the Strata to prove its conduct was justified, and it reasonably accommodated Mr. Gillespie.
b. Was the Strata’s conduct justified?
[54] I begin with the first two steps of the justification analysis, under Meiorin and Grismer . At this stage, the Strata must show that it adopted the impugned bylaw for a valid purpose that was rationally connected to the Strata’s function, and it did so in a good faith belief that the bylaw was necessary for that purpose.
[55] The Strata argues, based on the evidence of Mr. Nelson, that the bylaw prohibiting exterior air conditioning units serves three purposes:
a. To preserve the character and appearance of Swallows’ Landing. Since the Strata consists of two buildings that face each other, changes made to the exterior of one building may be visible to residents in the other building.
b. To ensure the noise from air conditioners does not bother other residents. Mr. Nelson believes heat pumps can be noisy, especially if they fall into disrepair.
c. To reduce the risk of water penetrating the building envelope. Water damage has been an issue for the Strata in recent years, and the Strata wants to guard against any risk of further damage.
[56] Mr. Gillespie argues that the bylaw was only adopted for the first of these purposes. He points out that the prohibition on exterior air conditioners is in a section of the bylaws under the heading “Appearances”, and the latter two purposes listed by Mr. Nelson are not related to the appearance of Swallows’ Landing. The Strata did not address this argument, in its submissions.
[57] Mr. Nelson’s evidence was that the “Appearances” section of the bylaws has not been changed since it was originally created by the developer of Swallows’ Landing, and that he “deduced” that the prohibition also serves purposes related to noise and water damage. He testified that the Strata’s function, in this context, is to balance the interests of individual owners with those of the collective. The bylaw serves this function in terms of maintaining the appearance of the buildings, limiting the risk of noise that could disturb residents, and limiting the risk of water damage to the buildings, which could have consequences for all owners and residents.
[58] I accept that all three purposes listed by Mr. Nelson have a rational connection to the function being performed by the Strata. But I am not persuaded that the Strata adopted the bylaw for any reason unrelated to the building’s appearance. Other than the text of the bylaw itself, there is no evidence before me about the reasons why the Strata adopted it. The bylaw prohibits exterior air conditioners along with awnings, screens, and satellite dishes, none of which create a risk of noise or water damage. The prohibition against exterior air conditioning units may accomplish other purposes that the Strata supports, but there is no basis on which I could find it was adopted for any reason other than maintaining and preserving the appearance of Swallows’ Landing.
[59] I accept that the Strata adopted the bylaw in a good faith belief that it was necessary to preserve the character and appearance of Swallows’ Landing. This means the Strata has established the first two steps of the Meiorin / Grismer analysis.
[60] Both parties focused their evidence and their arguments on the final step of the analysis: the issue of whether the Strata reasonably accommodated Mr. Gillespie. Mr. Gillespie argues that the Strata failed to satisfy its duty to accommodate him because it was responsible for unreasonable delays in the accommodation process. He also says the Strata’s requirement for the heat pump to be removed when he stops living in the Suite was unreasonable.
[61] I address both issues below, beginning with the delay issue, before considering the removal condition.
i. Delays in the accommodation process
[62] Mr. Gillespie says the Strata obstructed and unnecessarily delayed the accommodation process in multiple ways. He says the letter from the Strata’s lawyer, in December 2021, discouraged him from pursuing an exemption from the bylaw, and deliberately misled him into believing he was solely responsible for obtaining expert reports to support his request for an exemption. He also says it was unnecessary and unreasonable for the Strata to request a second report about why portable air conditioners would not be sufficient to cool the Suite, after he provided Mr. Watters’ report. Finally, he says the Strata should have taken responsibility for getting the building envelope inspect report from an engineer, or at least given him more assistance to get the report.
[63] In support of his arguments, Mr. Gillespie relies on Leary v. Strata Plan VR1001 , 2016 BCHRT 139. In Leary , the Tribunal considered a complaint by a person who was sensitive to second-hand smoke, who alleged her strata did not act on her complaints about smoke getting into her residence. At paras. 68 and 69 of the Leary decision, the Tribunal set out advice for stratas and residents of stratas seeking accommodation, about how to fulfill their respective responsibilities in the accommodation process. Mr. Gillespie emphasised the part of Leary that says it is the strata’s responsibility to take the lead in investigating possible solutions, and to pay for any required testing and expert reports.
[64] In my view, the advice set out in Leary should be seen as guidelines and suggestions, not rigid rules to be followed in all cases involving stratas. Every case depends on its own specific context. Leary was a decision about a strata’s alleged failure to enforce its bylaws. Parties may have different responsibilities in situations like Mr. Gillespie’s, where a resident seeks an exemption from strata bylaws, for reasons related to their disability; for example, see Lylack v. The Owners, Strata Plan Number LMS1755 and others , 2022 BCHRT 16, where a resident requested a medical exemption to a strata’s no-pets bylaw, to accommodate their disability. At para. 52 of Lylack , the Tribunal offered guidelines to parties involved in an accommodation process arising from a request for an exemption from strata bylaws. These guidelines borrowed from Leary , but notably did not include a suggestion that stratas should pay for testing or expert reports, other than medical reports.
[65] The Tribunal assesses a respondent’s response to a request for accommodation as a whole, taking a global approach and considering the entire history of the matter, rather than assessing each individual incident in isolation from the bigger picture: Buchner v. Emergency and Health Services Comm. (No. 2) , 2008 BCHRT 317 at para. 404; Klewchuk v. City of Burnaby (No. 6) , 2022 BCHRT 29 at para. 413. In this section I address each of the Strata’s actions that Mr. Gillespie says were unreasonable. I then consider whether the Strata’s response, on the whole, was reasonable. At this stage of the analysis, the burden is on the Strata to satisfy me that it met its duty to reasonably accommodate Mr. Gillespie.
1. Letter from Strata’s lawyer
[66] I do not agree with Mr. Gillespie’s argument that the letter from the Strata’s lawyer, dated December 2, 2021, was misleading or discouraged him from pursuing an exemption to the bylaw. The letter said its intent was to inform Mr. Gillespie about what he was required to do to get the medical exemption he sought, and it set out the legal basis for those requirements. It cited Leary , but notably it only quoted from paragraph 68, which lists the responsibilities of a person seeking accommodation from a strata, not from paragraph 69, which lists a strata’s responsibilities when a person seeks accommodation. Mr. Gillespie says the omission of this part of Leary from the lawyer’s letter was a deliberate attempt to mislead him about his rights and responsibilities in the accommodation process. He also objects to the tone of the letter, which he describes as intimidating.
[67] As I read it, the tone of the letter was business-like and matter of fact. Perhaps it could have been friendlier, in the circumstances, but it was not unprofessional. I understand that a letter from a lawyer can be intimidating in general. I also understand Mr. Gillespie’s frustration that the letter referred to his responsibilities in the accommodation process, as set out in Leary , but not the Strata’s responsibilities. But I am not persuaded that the letter obstructed or delayed the accommodation process. It is not uncommon for a party to seek assistance from legal counsel to communicate with another party regarding the accommodation process. I find it was reasonable for the Strata to ensure the information in the letter was conveyed to Mr. Gillespie. I accept that the purpose of the letter was to advance the accommodation process, and to provide Mr. Gillespie with Strata council’s understanding of what the next steps in the process were. It appears that the letter had that effect: it told Mr. Gillespie what information the Strata required, and he then took steps to obtain that information.
[68] I do not accept that the lawyer deliberately attempted to mislead Mr. Gillespie. Although the letter did not quote from the part of Leary that listed the Strata’s responsibilities in the accommodation process, it also did not foreclose the possibility of further discussions about who was responsible for what. In particular, it did not say that Mr. Gillespie was solely responsible for paying for the required expert opinions.
[69] Although Mr. Gillespie would have preferred that the letter include additional information or taken a different tone, I am satisfied that the letter was a reasonable and necessary step in the accommodation process.
2. Second HVAC report
[70] Mr. Gillespie says the Strata unnecessarily delayed the accommodation process when it required him to provide a second report from an HVAC specialist about why portable air conditioning units were insufficient to cool the Suite. Mr. Ross’s evidence was that Ms. Milne had researched portable air conditioners, before she told Mr. Gillespie that the first report, by Mr. Watters, was unsatisfactory. The report said portable units had a cooling capacity of up to 10,000 BTU per hour (British thermal units per hour is a measure of the cooling capacity of air conditioners), but Ms. Milne claimed to have seen units rated up to 14,000 BTU per hour. Ms. Milne also told Mr. Gillespie that Strata council was concerned about Mr. Watters’ objectivity, since Mr. Gillespie planned to hire him to install the heat pump.
[71] The Strata has not satisfied me that its requirement for a second HVAC report was necessary or appropriate in the circumstances. Mr. Gillespie’s initial request for a medical exemption to the bylaw, in November 2021, said he planned to hire Mr. Watters to install the heat pump, and the Strata never suggested this disqualified Mr. Watters from providing the information it required about portable units, until after it received his report. As Mr. Gillespie pointed out, Mr. Watters had ample experience working with Strata residents, and Ms. Milne acknowledged that he was an “excellent contractor”, in an email to other members of Strata council, shortly after Mr. Gillespie asked for permission to install a heat pump. Mr. Nelson confirmed this during the hearing, saying Mr. Watters had a “sterling” reputation at Swallows’ Landing.
[72] Mr. Watters’ report contained all the information about portable air conditioning units that was requested in the letter from the Strata’s lawyer. Ms. Milne suggested some of this information was inaccurate, when she spoke to Mr. Gillespie in February 2022, but in cross-examination Mr. Watters provided reasonable explanations for the alleged inaccuracies. He said the BTU rating of a portable unit does not necessarily reflect its actual cooling capacity because these units become less efficient in suboptimal conditions. Considering the high humidity in Esquimalt and the small window openings in the Suite, a portable unit would not provide as much cooling capacity in the Suite as its BTU rating might suggest. He also testified that to adequately cool the great room would require a cooling capacity of well over 14,000 BTU’s per hour, which a portable unit could not provide even in optimal conditions.
[73] I agree with Mr. Gillespie’s argument that the Strata could have obtained this information by simply asking follow-up questions about Mr. Watters’ report, instead of requiring a second report from an independent expert.
[74] I also agree with Mr. Gillespie’s argument that the Strata could have sent a representative to see the Suite, in order to satisfy itself that portable air conditioning units would not be an appropriate solution. Ms. Milne asked for an opportunity to see the Suite on April 21, 2022, and it appears she visited it shortly after that, but that was several weeks after Strata council decided to require a second report about why portable units were not appropriate. Based on the evidence I heard about how portable units work—by venting hot air out windows, through six-inch hoses—it should have been obvious to any person familiar with them, as Ms. Milne claimed to be, that they would not be a reasonable solution for the Suite, due to the small size and limited opening range of the casement windows.
[75] For these reasons, I am not satisfied that it was reasonable for the Strata to reject Mr. Watters’ report and require a second report from an independent HVAC specialist. However, this does not necessarily mean the Strata failed to satisfy its duty to accommodate. The requirement for a second report was just one element of the accommodation process. Even if the Strata had accepted Mr. Watters’ report, it would not necessarily have meant Mr. Gillespie could have gotten a heat pump installed any sooner, as Mr. Gillespie was able to obtain a second HVAC report—from Mr. Scheuer—relatively quickly after the Strata told him a second report would be required.
3. Building envelope inspection report
[76] The longest delay in the process that led to Mr. Gillespie getting a heat pump arose from the Strata’s requirement for a building envelope inspection report from an engineer. The Strata advised Mr. Gillespie about this requirement sometime in March or April 2022. Mr. Gillespie did not obtain the report until February 2023.
[77] As I understand his argument, Mr. Gillespie says the Strata should have given him more assistance to get the report, or it should have obtained the report itself, since the excessive heat affected other suites in Swallows’ Landing, not just the Suite. But he did not suggest that it was unreasonable for the Strata to require a building envelope inspection report. Nor did he deny that this was consistent with the Strata’s normal practice when residents proposed alterations to their suite.
[78] In any event, I am satisfied that it was reasonable for the Strata to require a building envelope inspection report, to confirm the heat pump would not create a risk of water damage. There had never been an exterior air conditioning unit installed at Swallows’ Landing, before Mr. Gillespie’s request for an exemption from the bylaws, so the Strata had no way to know whether it could be done without risking damage to the building. The Strata had recently dealt with water damage, so it is understandable that this was a concern. Strata council was doing its due diligence by ensuring the heat pump could be installed without causing any damage to the building envelope.
[79] Mr. Gillespie took reasonable steps to try to get the building envelope inspection report himself. He started contacting engineering firms by early May 2022. I accept his evidence that all the firms he contacted told him they were too busy or otherwise unable to accept such a small job.
[80] Mr. Gillespie says the Strata should have assisted him by referring him to the Strata’s contacts at the RDH engineering firm, or by contracting directly with RDH to provide the building envelope inspection report. He suggests that if the Strata had done so, then the report would have been obtained sooner, and he would have been able to install a heat pump before the summer of 2022. He relies on the part of Leary that says that when faced with requests for accommodation, stratas should take the lead role in investigating possible solutions and should obtain—and pay for—expert reports where needed: Leary at para. 69.
[81] For the following reasons, I find that even though the Strata did not take the lead in obtaining the building envelope inspection report, and did not offer to pay for the report, this does not mean the Strata failed to satisfy its duty to accommodate Mr. Gillespie. On the evidence before me, I find the Strata would not have been able to obtain the report any sooner than Mr. Gillespie did, even if it had tried. I accept that the Strata’s approach, in requesting the report from Mr. Gillespie, was a standard part of the Strata’s response to requests by owners to alter their suites. I also note there is no evidence before me that Mr. Gillespie ever asked the Strata to obtain the report itself, or to help pay for it, until after he obtained the report.
[82] I understand Mr. Gillespie’s argument to be that the fact that RDH eventually provided the report suggests that it could have done so sooner, if Strata council had asked RDH to do so. The Strata says there is no reason to believe RDH could have provided the report in the spring or summer of 2022, even if the Strata had asked RDH to do it. The Strata argues that since the other engineering firms Mr. Gillespie contacted at that time were too busy to provide the report, it is likely that RDH was also unable to do it. Mr. Nelson testified that the Strata sometimes has a hard time finding engineering firms to do small jobs, just like Mr. Gillespie did.
[83] Mr. Gillespie asked Ms. Milne for the name of an engineer at RDH in May 2022, because he knew the Strata had worked with RDH in the past, but instead she gave him contact information for a different firm, known as RJC. Mr. Gillespie called RJC, but they were unable to do the job. Ms. Milne did not give evidence at the hearing, and it is not clear why she did not assist Mr. Gillespie to contact RDH, as he requested. On the other hand, Mr. Gillespie knew of RDH, and he knew its engineers had worked for the Strata before, so he could have tried cold-calling them, as he did with other firms. But at the hearing he said he did not recall whether he contacted RDH.
[84] It is not clear, on the evidence before me, how the report was eventually obtained from RDH. Mr. Gillespie and Ms. Robinson each testified that another neighbour, who also wanted to install a heat pump in his unit, took the lead in getting the report. This other neighbour, who did not give evidence at the hearing, was on Strata council at the time. This could suggest that members of Strata council were in a better position than other residents to leverage the Strata’s contacts to hire an engineering firm. However, without evidence from the neighbour who was on Strata council, and without any evidence about the process that led to RDH accepting the job, I find it would be speculative to draw any conclusions about whether RDH could have done the job sooner if the Strata had requested it, or if Ms. Milne had assisted Mr. Gillespie to contact RDH. I also note that it took at least two months for RDH to provide the report, after it was retained to do so in December 2022.
[85] In cross-examination, Mr. Gillespie admitted that he might have been able to get the building envelope inspection report sooner if he had been willing to pay more for it. This is consistent with the fact that when RDH finally provided the report, it had been retained to inspect three separate suites in the Strata, so it was paid more than it would have been paid for inspecting just one suite. However, I find it would be speculative to conclude that the report could have been obtained sooner if Mr. Gillespie—or the Strata—had been willing to pay more for it. The evidence before me is that the firms that Mr. Gillespie contacted, in May and June of 2022, turned down the job because it was too small, and they were too busy, not because Mr. Gillespie was unwilling to pay more.
[86] I agree with Mr. Gillespie’s argument that the Strata could have offered him more assistance to obtain the building envelope inspection report, by contacting RDH on his behalf. But even if it had done so, on the evidence before me, I find this would not have resulted in getting the report in time to install the heat pump before or during the summer of 2022.
[87] Even if I found the Strata’s failure to assist Mr. Gillespie delayed getting the heat pump installed, that would not necessarily be relevant to the Strata’s accommodation process. By June 2022, the Strata had decided that Mr. Gillespie was entitled to a medical exemption from the bylaw, based on the information from his physician and the reports about the inadequacy of portable air conditioning units. The requirement for a building envelope inspection report was not connected to the accommodation process in the sense that it would have applied to any Strata owner who wanted to make alterations to their suite that involved penetrating the building envelope.
[88] There is no evidence before me suggesting the services the Strata provides include obtaining engineering reports about individual suites, when residents request permission to make alterations. In her evidence, Ms. Robinson pointed out that other Strata residents were interested in installing heat pumps, at the time when Mr. Gillespie was going through the Strata’s accommodation process, so it would have made sense for the Strata to get an engineering report that could have been helpful to these other residents, in addition to Mr. Gillespie. I agree that it would have been reasonable for the Strata to take such a proactive approach. But I am not persuaded that it had an obligation to do so, under the Code .
4. The accommodation process as a whole
[89] Mr. Gillespie argues that the accommodation process was unreasonable because it took too long, and put all the responsibility for obtaining relevant information on him. Approximately 20 months passed between his initial request for a medical exemption, in November 2021, and the date when the heat pump was installed, in June 2023. Mr. Gillespie says this was an unreasonable amount of time for him to wait. In this section I consider to what extent the Strata was responsible for delays during this 20-month period.
[90] The Strata acted promptly upon receiving Mr. Gillespie’s initial request for a medical exemption. The letter from the Strata’s lawyer, which was the Strata’s formal response to his request, was dated less than a month after the date of the request. It was certainly reasonable for the Strata to seek legal advice about its obligations in response to Mr. Gillespie’s request. I find the Strata acted with reasonable haste in getting that advice and instructing its lawyer to communicate its requirements to Mr. Gillespie.
[91] It took approximately two months for Mr. Gillespie to obtain the expert opinions required by the letter from the Strata’s lawyer. While some of this delay was inevitable, as Mr. Gillespie could not have obtained those opinions immediately, there is evidence that he could have acted more promptly. The letter from the lawyer was dated December 2, 2021, but at the hearing Mr. Gillespie said he may not have asked his doctor for the required medical opinion until after Christmas, and by that time the doctor was on vacation for a few weeks. Based on this evidence, it appears that he could have provided the medical opinion several weeks sooner, if he had acted more promptly.
[92] After the Strata received the medical opinion, and Mr. Watters’ report, it acted reasonably promptly in giving Mr. Gillespie its response within about two weeks. However, the Strata’s decision not to accept Mr. Watters’ report created a delay while Mr. Gillespie worked on obtaining a second HVAC report. It appears this took approximately eight weeks, between February 28, 2022, the date when Ms. Milne told Mr. Gillespie that a second report would be required, and April 24, 2022, the date of Mr. Scheuer’s report. I find the Strata bears most of the responsibility for this delay, since it was unreasonable for the Strata to reject Mr. Watters’ report.
[93] The longest delay in the process of getting the heat pump, as I already described, was the time it took to get the building envelope inspection report. It appears the requirement for this report was the main reason Mr. Gillespie could not get the heat pump installed by summer 2022. I find that neither party was responsible for this part of the delay. It was reasonable for the Strata to require the report, as it would have required a similar one for any alteration to a suite that involved penetrating the building envelope. And on the evidence before me, I am satisfied that the Strata could not have obtained the report any sooner than Mr. Gillespie did.
[94] The final delay in the process of getting Mr. Gillespie’s heat pump installed was the time between the Strata’s acceptance of the building envelope inspection report and the date when Mr. Gillespie signed the indemnity agreement required by the Strata. Although the exact date when the Strata accepted the building envelope inspection report is not clear, the parties agree it was shortly after the date when the report was completed, which was February 28, 2023. Mr. Gillespie signed the indemnity agreement on May 23, 2023. He says he did not sign it sooner because he did not want to agree to the removal condition, which was included in the indemnity agreement. He eventually signed it because he felt he had no choice, due to his deteriorating health condition.
[95] I accept that Mr. Gillespie was concerned about the removal condition, which I address below, but he knew he could not install the heat pump until he signed the indemnity agreement. I find the Strata is not responsible for this period of delay, after it accepted the building envelope inspection report.
[96] In summary, I find that for the most part, the delays in getting the heat pump installed were not attributable to the Strata. Even if some of the Strata’s actions were unreasonable, such as its decision to reject Mr. Watters’ report and require a second HVAC report, or Ms. Milne’s failure to assist Mr. Gillespie to contact RDH, I find these actions were not a significant factor in the delay in getting the heat pump. In particular, on the evidence before me, I am satisfied that it would not have been possible to get the building envelope inspection report in time to install the heat pump before summer 2022, even if the Strata had provided more assistance.
[97] The Strata’s accommodation process was not perfect, as there was some unnecessary delay for which the Strata was responsible. But the Tribunal measures a respondent’s accommodation process against a standard of reasonableness, not perfection: Klewchuk at para. 425. Considering the matter as a whole, I find this delay does not make the Strata’s accommodation process unreasonable.
ii. The removal condition
[98] I now turn to the removal condition, and whether the Strata’s inclusion of this condition in the indemnity agreement that Mr. Gillespie had to sign, in order to install the heat pump, leads to the conclusion that the Strata did not satisfy the duty to accommodate. This requires me to determine whether the removal condition was reasonable.
[99] The duty to accommodate a person with a disability requires stratas, and other service-providers to whom the Code applies, to take all reasonable and practical steps to remove disability-related barriers. There “may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate”: Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 122. The requirement for reasonable accommodation is satisfied if the Strata “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Meiorin at para. 38.
[100] The complainant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection: Central Okanagan School Dist. No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 994-95.
[101] The Strata’s main argument is that the removal condition was consistent with its statutory obligations under the Strata Property Act, in particular the requirement that it must enforce its bylaws. On this point the Strata relies on a decision of the CRT, Ottens et al v. The Owners, Strata Plan LMS 2785 et al , 2019 BCCRT 997, where the CRT considered a situation similar to Mr. Gillespie’s, where a strata allowed a medical exemption to a bylaw prohibiting exterior air conditioning units. But in Ottens , the strata agreed to delete a removal condition from an indemnity agreement signed by the person with a medical exemption, as Mr. Gillespie wants the Strata to do in his case. The CRT found the strata had no authority to do this, and ordered the reinstatement of the removal condition. The Strata says the Ottens decision supports its argument that that the removal condition was a reasonable solution in Mr. Gillespie’s case. I discuss the Ottens decision further below.
[102] Mr. Gillespie says the removal condition was not a reasonable solution, for a number of reasons. First, he says it was unreasonable because removing the heat pump would reduce the value of the Suite, and deprive him of the benefit of the increased value of the Suite on resale, if he could sell the Suite with the heat pump. Second, he says it was unreasonable because anyone living in the Suite after him would benefit from the heat pump, given the excessive heat in the Suite, regardless of whether they have a disability. Additionally, he argues the cost of removing the heat pump, which he estimates at about $4000, means the requirement was unreasonable.
[103] For the following reasons, I am not persuaded by these arguments, and I find the removal condition was reasonable in the specific circumstances of this case.
1. The value of the Suite
[104] I begin by addressing Mr. Gillespie’s argument that removing the heat pump will decrease the value of the Suite and make the Suite harder to sell.
[105] The parties agree that the Suite has an assessed value of over $1.8 million, and there is currently no mortgage on it. Mr. Gillespie believes the sale price of the Suite would be approximately 10% less if the heat pump is removed, as compared with if the heat pump remains. He did not provide any expert evidence to back up this claim.
[106] The Strata does not dispute that if the Suite was listed for sale, it would attract a higher price with a heat pump than without. However, the Strata says this does not mean the removal condition will reduce the Suite’s value. It says, and I accept, that the value of the Suite, if the heat pump is removed, would be the same as it would be if Mr. Gillespie was not entitled to a medical exemption to the bylaw, in which case the heat pump would never have been installed in the first place.
[107] I am not satisfied, on the evidence before me, that the impact of the removal condition on the resale value of the Suite makes the removal condition unreasonable. In reaching this conclusion I consider the purpose of the duty to accommodate. In the context of this case, that purpose is to ensure that Mr. Gillespie is treated equitably, and not disadvantaged for reasons related to his disability. This purpose is accomplished by ensuring he has access to air conditioning while he resides in the Suite. But this does not require the Strata to permanently exempt the Suite from the bylaw. Doing so would make the Suite more valuable and more desirable to potential buyers than similar suites in the Strata, which do not have air conditioning. This would be unfair to other Strata owners, who do not have disabilities and are therefore not entitled to exemptions from the bylaw. The purposes of the Code are not to be used to ensure that people with disabilities have an advantage over others: Hall v. B.C. (Ministry of Environment) (No. 5) , 2009 BCHRT 389 at para. 174. On this basis, I find the removal condition represents a reasonable balance between Mr. Gillespie’s interests and those of other Strata owners.
[108] I note that Mr. Gillespie argued that the value of the Suite will decrease because real estate laws will require him to disclose the reports by Mr. Watters and Mr. Scheuer to potential buyers, and this will make the Suite harder to sell because those reports explain how uncomfortable the Suite gets during hot weather. I make no finding about whether Mr. Gillespie must disclose the reports by Mr. Watters and Mr. Scheuer to any potential buyers, as he suggests. Even if he is required to do so, I am not satisfied that the reports will affect the value of the Suite. In my view the value of the Suite is more likely to be affected by the aspects of the Suite’s design that cause it to become excessively hot (such as its south and west exposure, floor to ceiling windows, and limited ventilation) rather than the existence of reports about that excessive heat.
2. The benefit of the heat pump for future owners
[109] Next Mr. Gillespie argues that the removal condition was an unreasonable solution to his need for accommodation, because anyone living in the Suite after him would benefit from the heat pump, regardless of whether they have a disability.
[110] While I accept that the heat pump would be beneficial to future owners of the Suite, this does not lead me to conclude that the removal condition was an unreasonable solution under the Code .
[111] In reaching this conclusion I consider the individualized nature of the duty to accommodate and the accommodation process: Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 17. The Supreme Court of Canada has said the “importance of the individualized nature of the accommodation process cannot be minimized”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 22. The scope of the duty to accommodate varies with, among other things, the specific needs of the individual seeking accommodation.
[112] As I understand it, Mr. Gillespie’s argument in this regard focuses on the needs of future residents of the Suite. This appears to go beyond the considerations relevant to the duty to accommodate, which focus principally on the disability-related needs of the person seeking accommodation. The issue before me is not whether the Strata’s prohibition against exterior air conditioning is reasonable, but whether the Strata discriminated against Mr. Gillespie.
[113] Even though the heat pump would be beneficial to future owners of the Suite, this argument does not satisfy me that the Strata’s proposed solution was unreasonable, in the context of the Strata’s duty to accommodate Mr. Gillespie.
3. The cost of removing the heat pump
[114] I now turn to Mr. Gillespie’s argument that the removal condition is unreasonable because heat pumps are not easily removed, and he will have to pay about $4000 to restore the Suite to its pre-heat pump condition, when he and Ms. Gillespie stop living in the Suite. The restoration work will involve removing the hardware associated with the heat pump and repairing and repainting the walls and ceiling of the Suite.
[115] I accept that the Gillespies will eventually incur this cost, if the bylaw is not changed. Mr. Gillespie did not provide any documentary evidence or quotes from contractors to support his estimate that these expenses will amount to $4000, but the Strata did not question his estimate, and I accept it as the approximate value of the work that will need to be done to remove the heat pump.
[116] If the bylaw is not changed, Mr. Gillespie will incur this cost when he and Ms. Gillespie move out of the Suite, if they sell or rent it out. His evidence was that they have no plans to rent it out. But at some point it will be sold.
[117] I am not satisfied that in the circumstances of this case, requiring Mr. Gillespie to cover the cost of removal makes the removal condition unreasonable. Considering that Mr. Gillespie owns the Suite, the relatively high value of the Suite, and the fact that there is currently no mortgage on it, I find it is reasonable for the Strata to require Mr. Gillespie to be responsible for the cost of removing the heat pump. Mr. Gillespie does not suggest that the fact that he and Ms. Gillespie will eventually have to pay this cost was a barrier to getting the heat pump. I find that it was not.
[118] In other circumstances, for example if there was evidence showing that Mr. Gillespie could not afford the cost of removing the heat pump, I might have reached a different conclusion. If the cost of removal was prohibitive and created a barrier to Mr. Gillespie getting the heat pump, then it might not have been reasonable for the Strata to impose the removal condition. But on the evidence before me, that is not the case.
4. The Ottens decision
[119] Next I address the Ottens decision, which is the primary basis for the Strata’s argument about why the inclusion of the removal condition in the indemnity agreement was a reasonable solution to Mr. Gillespie’s need for accommodation.
[120] In Ottens , the applicable strata bylaws prohibited exterior air conditioning units, and the strata gave medical exemptions to some residents, allowing them to install air conditioning to accommodate their disabilities. But in Ottens the strata did what Mr. Gillespie wants the Strata to do in his case: after initially requiring residents to sign an indemnity agreement with a clause requiring them to remove the air conditioners when they moved out of the strata, it later agreed to delete the removal clause. This meant the homes where air conditioners had been installed, based on residents’ medical exemptions, could keep the air conditioners even after the residents with medical conditions moved out.
[121] The applicants in Ottens were two strata owners who opposed the use of exterior air conditioners in the strata. They argued that the strata should not have allowed any medical exemptions, because other cooling methods, such as portable air conditioning units, would have been sufficient to accommodate the residents with disabilities. They asked the CRT to order that all residents who installed exterior air conditioners be required to remove them immediately. The CRT had to decide whether the strata acted reasonably in allowing the medical exemptions.
[122] The CRT was not persuaded by the applicants’ argument about portable air conditioners; it found the strata acted reasonably by exempting residents with disabilities from the bylaw prohibiting exterior air conditioning, as a form of accommodation. On this basis, the CRT declined to order the residents who had installed exterior air conditioning units to remove them immediately. However, the CRT went on to find the strata had no authority to delete the removal clause from the indemnity agreements, unless the bylaw prohibiting exterior air conditioners was changed. The strata had the authority to forego enforcing the bylaw, to accommodate residents with disabilities and comply with its obligations under the Code , but that authority ended when the residents requiring accommodation stopped living there: Ottens at para. 55. The CRT cited s. 26 of the Strata Property Act , which requires a strata council to enforce strata bylaws, and found the strata did not have authority to grant a permanent exemption to the bylaw prohibiting exterior air conditioners, unless the bylaw was changed. The CRT ordered the strata to require the removal of exterior air conditioners when the residents with disabilities moved out: Ottens at para. 64. In effect, this reinstated the removal clause.
[123] In light of Ottens , the Strata says Mr. Gillespie’s request to delete the removal condition from his indemnity agreement leaves the Strata between a rock and a hard place: its denial of the request led Mr. Gillespie to file this human rights complaint, but if it had agreed to the request it would risk breaching its statutory obligations under the Strata Property Act . The Strata says this could leave it open to liability if another owner took legal action against it, as the applicants did in Ottens .
[124] Mr. Gillespie argues that I should disregard Ottens because it was decided before the full effects of climate change began to be observed in BC, and particularly before the heat dome of summer 2021. He does not take issue with the legal analysis in Ottens, but he says the decision is outdated in light of the warming climate, and the fact that many people will die during periods of extreme heat, if they do not have access to air conditioning in their residences.
[125] Mr. Gillespie makes compelling points about the necessity of air conditioning in a warming climate, and the unreasonableness of prohibiting air conditioning when no other methods can effectively cool a residence. But the decision in Ottens was not based on a finding that air conditioning was unnecessary; it was based on the requirement in the Strata Property Act for strata councils to enforce their bylaws, unless doing so would contravene the Code .
[126] Despite Mr. Gillespie’s arguments, I am not persuaded that Ottens is outdated, or that it was wrongly decided. Although it is not binding on me, it is a persuasive authority for finding that the Strata must enforce its bylaws, including the prohibition against exterior air conditioning units, unless doing so would violate its duty to accommodate Mr. Gillespie under the Code . I find that Ottens supports the Strata’s argument that the inclusion of the removal condition was reasonable in the context of its existing bylaws and its obligations under the Strata Property Act .
5. Previous decisions by the Human Rights Tribunal
[127] Mr. Gillespie relies on previous decisions by the Human Rights Tribunal, in which he says the Tribunal ordered stratas to allow alterations to complainants’ residences, and did not require the complainants to remove those alterations when they moved out: Bond and Bond v. The Owners, Strata Plan NW 2671 , 2024 BCHRT 21 at para. 179; Shannon v. The Owners, Strata Plan KAS 1613 (No. 2) , 2009 BCHRT 438 at para. 219; Konieczna v. The Owners Strata Plan NW2489 , 2003 BCHRT 38 at para. 67. For the following reasons, I do not agree that these cases support Mr. Gillespie’s position or lead to the conclusion that the removal condition was unreasonable.
[128] In Bond , the strata initially denied the complainants’ request to install a heat pump, which they needed due to their disabilities. The strata’s bylaws did not prohibit exterior air conditioning units or heat pumps, but they gave strata council authority to put conditions on alterations that could penetrate the building envelope. The Tribunal ordered the strata to allow the complainants to install a heat pump, subject to reasonable conditions related to noise, aesthetic concerns, proper installation, and liability for maintenance and repairs. Since the strata’s bylaws did not prohibit heat pumps, the Tribunal did not need to consider whether a removal condition would have been reasonable in the circumstances.
[129] In Konieczna , the Tribunal ordered the strata to permit the complainant to install hardwood flooring, despite a bylaw requiring carpeting, to accommodate her disabilities. It made this order conditional upon the complainant signing an indemnity agreement. The parties had consented to the order and the condition, including the terms of the indemnity agreement. But the Tribunal did not describe the contents of the indemnity agreement, so it is not clear whether the complainant was required to remove the hardwood flooring when she moved out. In any event, since the parties consented to the order, the Tribunal did not need to consider whether a removal condition would have been reasonable.
[130] In Shannon , the complainant installed a “solar screen” on the front window of his home, to reduce the interior temperature, without the strata’s permission. This was contrary to a bylaw prohibiting changes to the exterior of homes without prior written consent from strata council. The strata’s bylaws permitted air conditioning, but exposure to air conditioning aggravated the complainant’s disabilities, hence his need for the solar screen. The Tribunal found the strata’s withholding of permission to install the solar screen was discriminatory, and ordered the strata to cease its discrimination and refrain from committing similar discrimination. In effect this meant the strata had to permit the complainant to keep the solar screen.
[131] In Shannon , unlike Mr. Gillespie’s case, subsequent residents of the property might not want to keep the alteration installed by the complainant. The solar screen was beneficial due to the specific nature of the complainant’s disability, in contrast to air conditioning in the Suite, which would be beneficial for anyone living there. In any event, the Tribunal’s remedial order in Shannon was a general direction for the strata not to commit similar discrimination in the future. Although this order did not explicitly address whether the complainant had to remove the solar screen when he moved out, it would only apply to residents who required the same accommodation as the complainant. As I read the decision, it was implicit in the Tribunal’s order that permission to keep the solar screen only applied to the complainant, not subsequent residents of the same home.
[132] In all these cases, there was no suggestion that the stratas would have to allow subsequent residents of the complainants’ homes to benefit from accommodations to which the complainants were entitled under the Code . On this basis I find they do not support Mr. Gillespie’s position that the removal condition was unreasonable in his case.
[133] In the specific circumstances of Mr. Gillespie’s human rights complaint, I am satisfied that the removal condition was reasonable. In reaching this conclusion, I considered the Strata’s obligation to enforce its bylaws, as set out in Ottens . I also considered Mr. Gillespie’s individual circumstances, including the relatively high value of the Suite, even without a heat pump, and the fact that deleting the removal condition would give him an advantage over owners of similar suites in the Strata, in terms of the Suite’s value and desirability to potential buyers, when it is sold.
[134] For all these reasons, I find the Strata has established that it fulfilled its duty to reasonably accommodate Mr. Gillespie. This means its conduct was justified under s. 8 of the Code .
V CONCLUSION
[135] By the end of the hearing, it was not disputed that there is no way to ensure the Suite’s interior temperature remains in a reasonable range during hot summer weather, except by using an exterior air conditioning unit. It appears that several other suites in Swallows’ Landing have similar heat issues in the summer, with interior temperatures regularly surpassing 30 degrees Celsius. And yet, in response to a question about whether a less restrictive bylaw could have accomplished the Strata’s purposes, Mr. Nelson said that, to his knowledge, Strata council had never considered this possibility. He said the bylaw prohibiting exterior air conditioners was originally put in place by the developer of Swallows’ Landing, and while some residents have shown an interest in changing it, it has not been changed, so it must be followed.
[136] I agree with Mr. Gillespie and the authorities he refers to, which say a blanket ban on air conditioning, in residential settings, may not be a human rights-informed approach. Such bans may have a disproportionate impact on groups that are marginalised due to their Code -protected characteristics, such as their age or disabilities. Prohibiting exterior air conditioning units, where there is no other way to adequately cool a residence, may be dangerous to members of these groups. I invite the Strata to consider whether, going forward, an amendment to the bylaw would be appropriate.
[137] However, in the circumstances of this case, the Strata reasonably accommodated Mr. Gillespie. Under the analysis that I am required to apply, this means the Strata’s conduct was justified under the Code , and it did not discriminate against Mr. Gillespie.
[138] The complaint is dismissed.
Andrew Robb
Tribunal Member
Human Rights Tribunal