BC Human Rights Code, Section 8: Strata Corporation and Unintentional Discrimination of Physically Handicapped Resident #393

By Gerry Neely
B.A. LL.B.

Tribunal decisions made under the British Columbia Human Rights Code reveal a dramatic increase in complaints based on prohibited grounds of discrimination, from 61 in 2000 to 457 in 2004 and 591 in 2005.

Some of these complaints were made against strata corporations by physically handicapped persons under s. 8 of the Code. This section prohibits discriminatory conduct that would deny to a physically or mentally handicapped person an “accommodation, service or facility that is available to the public.”

Some complaints could’ve been avoided if the councils were aware that a bylaw, rule or regulation, intended to apply to all strata residents, may discriminate because it has an adverse effect on a physically handicapped person. In that event, a strata council’s duty is to accommodate the needs of the handicapped person to the point where doing more would result in undue hardship, “whether that hardship takes the form of impossibility, serious risk or excessive cost.”

The cases that follow in this and the next Legally Speaking column provide some guidance, if not certainty, for complaints involving s. 8 of the Human Rights Code.

A strata corporation had a typical intercom and entry system that enabled a resident to “buzz in” a visitor. Amid home invasion concerns in Greater Vancouver and Fraser Valley, the strata corporation had experienced one forced entry leading to theft from and damage to storage lockers. Although the forced entry might’ve occurred during the day, for security reasons, the strata council approved the installation of a lock timer that deactivated the system between 8 pm and 8 am. A visitor could still ring the unit, but the resident would have to go to the lobby to let in the visitor.

A doctor for a resident whose heart problems had required ambulance and hospitalization gave evidence that she’d be unable to walk to the lobby to let in emergency help, and any delay could be critical. She had home care ending at 10 pm. The strata council agreed to delay the timer for her to 10:30 pm and suggested she find someone in the building to phone to let in emergency assistance. She wasn’t prepared to rely on other residents, most of whom were elderly and had their own health problems.

That was the extent of the accommodation the strata council would make. Because the time of the forced entry was unknown, the Human Rights Tribunal questioned whether the timer installation would’ve prevented this incident and concluded removal of the timer wouldn’t expose residents to an unacceptable risk. The timer could be removed easily and inexpensively. The strata council didn’t provide sufficient evidence as to the cost of accommodating the resident’s needs and whether it would be prohibitively expensive.

The tribunal held that the provision of the intercom and entry system by the strata corporation to the resident was a service that created a public relationship between them. The strata corporation was ordered to remove the timer and pay $1,500 to the resident to compensate her for “injury to dignity, feelings and self respect.”¹

(to be continued in Legally Speaking 394)

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