Complaint alleging strata corporation’s refusal to grant hardship exemption from its rental-restriction bylaw allowed to proceed to hearing

24 March 2017

By Kevin Zakreski

In a recent decision, the BC Human Rights Tribunal has allowed a complaint of discrimination in the area of accommodation, service, or facility on the basis of ancestry, mental disability, or physical disability contrary to section 8 of the Human Rights Code to proceed to a hearing. Talbot v Strata Plan LMS 1351, 2017 BCHRT 69, is something of a sequel to an earlier tribunal decision in the same dispute. The earlier Talbot decision, which largely concerned smoking, had noted in passing a request the complainant made for permission to rent her strata lot due to hardship. This tribunal decision dealt with the hardship request. It can be seen to serve as a reminder to strata corporations that, in addition to the demands of section 144 of the Strata Property Act, human-rights considerations may also come into play on a hardship application.

The complainant owned a strata lot in the respondent strata corporation. In July 2015, she was “physically assaulted by her immediate neighbour.” She claimed that the assault had exacerbated her underlying physical and mental disabilities.

The complainant decided to remove herself from the neighbour. She sought to rent out her strata lot. As the strata corporation had a rental-restriction bylaw, she asked for an exemption from it on the basis of hardship. This request was denied, which led to a deepening dispute between the complainant and the strata corporation:

The Strata acknowledges that Ms. Talbot has applied repeatedly for hardship exemptions, but says that “despite repeated request from the Strata Corporation; and six letters from legal counsel, the Complainant has never provided any financial documentation, and despite asking for hearings before council, which have been duly arranged, she has never actually attended a hearing.”

Ultimately, the strata corporation took the position that “[t]he simpler option would be therefore for [the complainant] to sell and move.” The complainant rejected this advice, filing “this complaint alleging that the refusal by the Strata to grant her hardship exemption constitutes discrimination on the basis of ancestry, and physical and mental disability.” The strata corporation applied to the tribunal under section 27 (1) (c) of the Human Rights Code to dismiss the complaint because there was no reasonable prospect it would succeed.

The tribunal began its analysis by stating some general principles regarding applications to dismiss a complaint under section 27 (1) (c). The purpose of the provision is to allow “the Tribunal to dismiss complaints that do not warrant the time and expense of a hearing.” Accordingly, “the threshold for [the complainant] is low: she need not establish a prima facie case at this stage but must only show that her complaint is not speculation or conjecture.” The process, as the tribunal noted, is as follows:

To succeed at a hearing, Ms. Talbot must prove that: she has the protected characteristic of ancestry, mental disability or physical disability; the Strata’s conduct caused an adverse impact with respect to accommodation, service or facility; and her ancestry, mental disability or physical disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), at para. 33.

The analysis under s. 27(1)(c) considers whether—after an assessment of the evidence and submissions of the parties—the Respondents have shown that there is no reasonable prospect that Ms. Talbot could succeed in establishing discrimination at a hearing of her complaint.

There was no issue between the parties on the first prong (“the Strata does not contest that Ms. Talbot has the protected grounds of ancestry, physical or mental disability”) or the second prong (“the Strata does not contest that, as a result of its refusal to grant Ms. Talbot an exemption to the rental bylaw, she has had to continue living beside the problematic neighbour and that it has resulted in an exacerbation of her disabilities”) of the test. Where the parties differed was “with regard to nexus”—that is, the third prong of the test. On this point, the strata corporation argued:

“The behaviour of the neighbour is not in any way related to the behaviour of the Strata Corporation nor to any decision made by the Strata council. The Strata has not been accused of any crimes, nor have any of the council members. The events regarding the Complainant and her near neighbour, are, as far as this human rights complaint are concerned, completely unrelated.”

The Strata argues further that “there is no evidence to explain why the Complainant does not simply sell her unit and move, and why that is a hardship to her, but renting her unit would not be.” Similarly, it says that Ms. Talbot has not provided medical evidence “to substantiate the allegations of physical disabilities that describe how the right to rent a strata unit would obviate the physical or mental conditions alleged.”

The tribunal rejected these arguments. In doing so, it made some comments on the interplay between section 144 of the Strata Property Act and section 8 of the Human Rights Code:

The Strata also appears to be arguing a non-discriminatory explanation for its decision to reject Ms. Talbot’s hardship application on the grounds that such applications hinge on financial considerations. Pointing neither to case law nor referencing any of the documents provided, the Strata says that hardship applications “are based almost exclusively on financial considerations. [Ms. Talbot] has provided no financial information upon which the strata council could make a decision.”

The test for hardship is set out in the case of Als v. Strata Corporation NW 1067, [2002] B.C.J. No. 145 [2002 BCSC 134]. The Als case puts it to applicants seeking to benefit from a hardship exemption to show “hardness of fate or circumstance; severe toil; suffering; or extreme privation” as a result of the rental restriction bylaws. In the meantime, the Strata Property Act does not define hardship in its s. 144 exemption, though it does say that a strata corporation “must not unreasonably refuse to grant an exemption.”

The Strata has not persuaded me that it is reasonably certain it would establish that it could not have granted a hardship exemption in any event. Based on the materials before me, it appears that the Strata may have been within its legal authority under the Strata Property Act to grant the application on the basis advanced by Ms. Talbot.

This is not an application under the Strata Property Act to assess whether the Strata’s refusal was, contrary to its obligation under s. 144, unreasonable. Rather, in the context of the application before the Tribunal to dismiss Ms. Talbot’s complaint, I must determine whether there is no reasonable prospect that Ms. Talbot could succeed in establishing a nexus between her protected characteristics and the adverse impact she has experienced as a result of the Strata’s refusal to permit her to rent her unit.

While Ms. Talbot has brought her complaint out of the realm of conjecture, the Strata has not persuaded me that there is no reasonable prospect that Ms. Talbot’s complaint could succeed.

In the result, “[t]he application to dismiss the complaint under s. 27(1)(c) of the Code is denied.”

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