Dec 01, 1994

Human Rights Act - Building Scheme Restriction Discriminatory #229

Dec 01, 1994

Human Rights Act - Building Scheme Restriction Discriminatory #229

By Gerry Neely
B.A., LL.B.

A trio of companies subdivided acreage into 14 lots which included an older home. A building scheme registered by the developers provided that the use of a building for commercial purposes was limited to persons who used the building as a residence and office to carry on the professions or businesses described in the covenant.

Negotiations by a company (Co. "B") which administered group homes for physically or mentally handicapped persons to purchase the home as a group home for four disabled persons were unsuccessful. Co. "B"'s conditional offer was rejected by the developers in part because the periods of time for removal of several conditions were too long, and, in part, because they thought that the business of the group home was inconsistent with the building scheme restriction. A complaint that the developers refused to sell the property because of the physical and/or mental disabilities of the four persons, the complainants, was filed under the Human Rights Act.

The developers had no dealings with the complainants represented by Co. "B" and sound business reasons for discontinuing negotiations. The Board of Inquiry acknowledged that there was no evidence that the developers intended to discriminate and yet an Order was made requiring the developers to refrain from discriminating on the basis of physical and/or mental disability and to pay $1,500 to each of the four complainants.

Had the developers' objections been limited to their business reasons that might have been the end of this matter. However, by linking the business reasons to the building scheme restriction, the developers rejection in the words of the Board was "tainted by a discriminatory purpose". Why was the commercial business restriction held to be discriminatory?

Section 4 (a) of the Act states that no person shall deny to a person or class of persons on the basis of a prohibited ground of discrimination the opportunity to purchase a commercial unit or dwelling unit that is represented as being available for sale.

A building scheme such as this, honestly made and which applies to everyone may constitute discrimination if it has an adverse effect on a person or group of persons on the basis of a prohibited ground. The nature of the disabilities of the complainants is such that the only way they can live is in a group home. The prohibition against their purchase of a building suitable for their use has an adverse effect upon them.

Where an adverse affect occurs, the duty of was to "accommodate the individuals adversely affected to the point of undue hardship". This test is taken from several Supreme Court of Canada decisions where the hours of work requirements of a major employee conflicted with an employees religious faith. For example, a department store's policy that employees must work Friday evenings and Saturdays on a rotation basis. A Seventh Day Adventist claimed this had a discriminatory effect because of her religion. This was held to be a discriminatory practice and the employer could only support it by showing that accommodating her would have created an undue hardship.

An employer with a large employee base would find it relatively easy to find other hours of employment to accommodate the religious practices of the individual. It is not clear what the developers might have done to accommodate the group home purchase. The Board suggested they should have asked questions to determine the extent to which say increased traffic from occupants, employees and suppliers might have affected the development.

What would be a developer's position, however, if it hadn't reserved a power to modify the building scheme in respect of an unsold lot and require the consent of new owners. The answer may be found in an Ontario Human Rights decision where by-laws of a condominium corporation stated that each unit was to be occupied only as a family residence. A Board of Inquiry held the by-law to be discriminatory and ordered it to be altered to permit group homes for ex-psychiatric patients to occupy condominium units.

The decision in the BC and Ontario cases might have been different if evidence had been provided that the developers' attempt to accommodate the disabled persons would have amounted to undue hardship to the developers but, in the absence of any evidence, discrimination was found to have taken place. Property rights in the traditional sense may be changed by Section 4 and persons who believe they are affected to their detriment will need to marshall evidence to establish undue hardship.1

 1. Cartledge et al v. Havlen Properties Ltd. et al., British Columbia Council of Human Rights, Reasons for judgment November 17, 1994.

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