It is always prudent to familiarize yourself with or learn more about our provincial human rights legislation, the Human Rights Code (the Code). The Code applies to the areas of, among others:

• services available to the public,

• purchasing or selling property, and

• tenancy.

Understanding its application is essential to ensuring compliance with your professional obligations as a REALTOR®.

The Code prohibits discrimination on the basis of personal characteristics such as age (19 or older, does not apply to buying property), ancestry, colour, criminal conviction (only applies to employment), family status (does not apply to buying property), gender expression, gender identity, marital status, mental or physical disability, place of origin, political belief (only applies to employment), race, religion, sex, sexual orientation, or source of income (only applies to tenancy). The Code also prohibits retaliatory actions against a complainant.

Complaints about alleged violations of the Code are adjudicated by the BC Human Rights Tribunal (the Tribunal) and must be filed within a year of the date of the alleged discrimination. It is not necessary to prove intent to discriminate. However, the complainant must prove the respondent was aware of the complainant’s protected personal characteristic(s).¹ If the Tribunal finds there was discrimination, it can issue a variety of orders, including:

• ordering the respondent to stop the discrimination;

• requiring the respondent to provide monetary compensation to the complainant for injury to dignity, feelings, and self-respect; and

• awarding compensation for any expenses incurred.

As a REALTOR®, you cannot deny someone services based on any of the prohibited reasons, even if acting on your clients' instructions or without intending to discriminate.

In the November 2006 Legally Speaking article, “Human Rights Code Complaint Against Licensee by Another Licensee; Minor Defect in Comparison With Larger Contract Benefit Didn’t Justify Repudiation #401,” past contributor Gerry Neely discussed a Tribunal decision in a complaint from a REALTOR^® on behalf of her buyer, who was refused a showing of a property listed for sale. The buyer’s REALTOR^® alleged that in refusing to arrange a showing, the seller’s REALTOR^® had discriminated on the prohibited reason of family status. The Tribunal found that the seller’s REALTOR^® had not discriminated on the basis of family status, and commented that the seller had an unrelated, subjective preference respecting this prospective buyer.²

The issue was resolved by removing the listing from the Multiple Listing Service® System. The Tribunal commented that if the seller’s REALTOR® had refused access for a discriminatory reason, this might have constituted a breach of the Code by the seller’s REALTOR®, even though the seller’s REALTOR® was merely acting on the seller’s instructions.

In 2017, a similar complaint was made by a buyer who used a wheelchair against a seller’s REALTOR®, who refused him access to the property.³ The denial was based on the seller’s instruction that all persons viewing the property were to remove their shoes at the door. The Tribunal found that the only reason for denying the buyer access was his use of a wheelchair, which was connected to the protected ground of disability. Again, following the sellers’ instructions was not considered a sufficient defence for the REALTOR®.

Landlords are free to choose suitable tenants for their property, but must not discriminate based on any protected grounds. Similarly, when acting as a property manager, you cannot discriminate or refuse to rent a property to a potential tenant based on any of the prohibited grounds, even if acting under the instructions of your client, the landlord.

In a 2011 case, the Tribunal found that the owner of a mobile home park had discriminated against a prospective tenant on two prohibited grounds: source of income (the tenant was collecting a disability pension) and disability (the tenant had a cognitive disability as a result of a brain injury).⁴ The Tribunal also said that while a landlord may choose not to provide a reason when rejecting a rental application, this does not protect the landlord from applying the Code. Failure to provide a reason for the rejection when a tenant requests one can lead the Tribunal to infer discrimination against a tenant who is a member of a protected group.

You must also be careful not to discriminate against an existing tenant for any of the prohibited reasons. For example, should an existing tenant experience a change in circumstances, such as developing a disability or experiencing a change in family status, the landlord has a duty to accommodate these changes and must not engage in discriminatory behaviour. Accommodations may include taking steps to modify the property (e.g., installing a wheelchair ramp or allowing a service dog in a no-pets building) up to the point of undue hardship for the landlord.

The Tribunal recently dismissed a complaint by a tenant on the basis of disability.⁵ The tenant wished to smoke marijuana for chronic pain management on the property, in breach of the no-smoking provisions of the tenancy agreement. The landlord proved he had asthma triggered by the smell of marijuana smoke. The Tribunal found the landlord had adequately attempted to accommodate the tenant’s disability by offering that the tenant could end the lease early without penalty or that the tenant could smoke marijuana on the edge of the property.

A recent complaint by a couple who had a second child while living in the respondent strata corporation, who were then fined by the strata corporation for breaching the maximum occupancy bylaw, is proceeding through the Tribunal. The strata corporation failed in its attempt to have the complaint struck as being without merit, with the Tribunal commenting that the strata corporation had not shown evidence of undue hardship resulting from having to modify the maximum occupancy bylaw. The final decision in this case has not yet been rendered. It can take four or even five years from the date a complaint is filed to receive a final decision from the Tribunal.

The Real Estate Errors and Omissions Insurance Corporation (REEOIC) provides liability insurance for real estate licensees in British Columbia, covering losses from errors, omissions, or negligent acts during professional duties. However, REEOIC does not cover licensees in discrimination claims. Should you be named as a respondent in a complaint to the Tribunal, you should get legal advice right away. You may also want to check the terms of any other insurance you have to see if such claims are covered.

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	1.	Levin v. Domus Management Ltd. and others, 2024 BCHRT 259 (CanLII).
	2.	Erdodi v. Dobson (No. 4), 2006 BCHRT 185 (CanLII).
	3.	Guirguis v. Coldwell Banker Vantage Realty and others, 2017 BCHRT 165 (CanLII).
	4.	James obo James v. Silver Campsites and another (No. 2), 2011 BCHRT 370 (CanLII).
	5.	Papalia v. Yeager and another (No. 2), 2023 BCHRT 233 (CanLII).

 

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