Reference: Children – Prohibitions Against Residing in a Building #144

By Gerry Neely
B.A. LL.B.

The tight rental market in Victoria and the lower mainland has made it difficult for families with children to find accommodation, particularly since a number of condominiums and apartment buildings prevent children from residing in them. This has led to a demand for amendments to the Human Rights Act of British Columbia, to prevent discrimination with respect to a tenancy because of age.

Section 5(1) of the Act states that no person shall discriminate with respect to a term or condition of a tenancy, because of race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, or sex. No reference is made to age although age is mentioned in other sections dealing with discrimination in employment advertisements, in employment, and discrimination by unions and associations.

Those who seek the amendment contend that the Provincial Legislation is discriminatory, and that this is a breach of an individual's rights under the Canadian Charter of Rights and Freedoms to the equal protection and equal benefit of the law without discrimination because of age.

The Human Rights Act treats the rights of children and adults differently with respect to accommodation. On the face of it, this would appear to be discriminatory and therefore in breach of the child's constitutional rights. This question of whether differentiation and discrimination are synonymous was discussed in a British Columbia Court of Appeal decision where the Court said that all legislation classifies or differentiates. "Indeed, in order to ensure equal protection and equal benefits, it may be necessary for the legislature to treat groups and individuals differently."

The conclusion reached by the Court was that legislation can differentiate without being discriminatory if the legislation is fair and reasonable.

The unfairness and unreasonableness of Section 5(1) was raised several years ago in a case where a child was born to a couple who had been residing in an apartment which had a tenancy agreement prohibiting children from residing in the building. Notice to Vacate was given to the couple.

The young couple's lawyer contended that the Human Rights Act was unfair and unreasonable because it discriminated against children who were "stereotyped socially as undesirable neighbours." The argument against stated that there are a number of natural classifications of rental accommodations because people who enjoy different environments seek accommodation to meet and suit their needs. Examples of residential developments for senior citizens, or for adults only, and for families only, were given. Other reasons were cited as to why a particular apartment building may not be suitable for children: its location on a busy road, or its distance from schools would be considerations against children residing in the building.

The Judge held that it was not unreasonable or unfair that a landlord should be free to provide accommodation to meet the needs of different groups in society who enjoyed different kinds of habitations. The Petition was denied and the validity of the Human Rights Act was upheld. The case was not appealed.¹

The Province of Manitoba has legislation which prevents discrimination because of age with respect to tenancies.

1.

Hsuan v. Mah, 7 BCLR (2d) p. 21.

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