BC Human Rights Tribunal allows complaint based on language of strata meetings to proceed
December 14, 2017
BY Kevin Zakreski
Wellington Court is a strata property consisting of 54 residential strata lots located in Richmond. A majority of “the owners at Wellington Court are of Asian descent,” and “a significant number of the owners are Mandarin speakers as their first language with some having a limited facility in English.”
The complainant “filed a complaint on his own behalf and on behalf of the owners of [other strata lots in Wellington Court] alleging that other owners of Wellington Court Strata units discriminated against them in the provision of a service, facility or accommodation on the basis of race contrary to s. 8 of the [Human Rights Code]. The basis of the complaint is that by conducting Strata meetings and corresponding among council members between Strata meetings in Mandarin rather than in English, and by an abusive use of proxies to vote at Strata meetings, these other owners discriminated against the non-Mandarin speaking owners. . . .”
In Kargut obo others v Strata Plan BCS 802, 2017 BCHRT 269, the BC Human Rights Tribunal gave its decision on an application by the strata corporation to dismiss the complaint under section 27 of the code. The tribunal dismissed the portion of the complaint concerning proxies. But it allowed the claims based on language to proceed. The tribunal also sounded this note of caution regarding the significance of its decision:
This decision will be of interest and perhaps concern to all of the owners. In that regard, I want to be clear. This is not a decision that this Complaint will succeed. Rather it is that on a preliminary basis, and on the basis of the information before me, I am unable to determine that it has no reasonable prospect of success.
Regarding the use of proxies, the tribunal concluded:
In my view, the allegation does not on its face allege facts that, if established, could be a violation of the Code. Proxies are permitted by the Strata Property Act and by the bylaws. Any owner is free to solicit proxies without regard to a protected category under the Code.
The issue appears to be that one or some owners solicit proxies to support a particular slate. Let’s assume, without finding, that those people are soliciting proxies so that they can vote in Mandarin speakers or persons who are of Chinese descent.
While doing so may be offensive, the individuals seeking the proxies are not providing an accommodation, service or facility generally available to the public. The Strata, for its part, is offering a service, facility or accommodation to its public—the owners—but it is not discriminating in allowing for proxies, which are available to any owner for any reason. Anyone is able to solicit proxies and to vote those proxies as they desire, or as directed by the strata lot owner providing the proxy.
But, when it came to the language of strata meetings, the tribunal decided:
A stated purpose of the Code, to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political, and cultural life of this province, is engaged.
A situation where owners who do not speak a foreign language, but speak one of Canada’s official languages and the lingua franca of this province, are precluded from full participation in the governance of their homes, is not likely to be found to eliminate barriers, but to erect them. Where that distinction is based on what may be appear to be racial or ethnic divisions, the situation may be found to violate the Code.
Complaints of this nature are usually brought by or on behalf of minority or marginalized groups. Whether a group has experienced historical discrimination may be relevant to the question of whether conduct amounts to discrimination. However, where it occurs, discrimination by the minority against members of the majority group is no more acceptable just because that group has obtained a majority in a particular enclave. Within the universe of the Strata, the Kargut group may well be a minority.
Finally, the tribunal ended its reasons by expressing the hope that the parties find a mediated solution to their dispute:
I strongly urge the parties to give serious consideration to resolving this matter through mediation. . . .
As noted above, that a majority of owners are Mandarin speakers is not an answer to this complaint. Wellington Court is not, and cannot be, a closed community open only to people of one ethnic group. Any owner is free to sell their unit to anyone and anyone is entitled to purchase a unit. That buyer in turn is entitled to meaningfully participate in the Strata’s governance.
By the same token, a majority of the owners are Mandarin speakers, although it may be only a few who do not have a facility with English. In those circumstances, it may be unlikely that the complainant group could obtain a remedy, even if wholly successful, that provides for all Strata Council meetings to be conducted in English only. The Strata may be under an obligation to provide reasonable accommodation to the Mandarin speakers.
For people of good faith, there may be a solution here that does not require the time and expense of a full Tribunal hearing with the potential for a deterioration in relationships between neighbours afterwards, regardless of the outcome. It is important to remember that the owners will remain neighbours after this is all over . . . .