A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.
This means that a complaint must include information showing:
To make a complaint of discrimination, the complainant must have a personal characteristic protected under the Human Rights Code or be seen to have one.
For example, the complainant has a disability or the respondent thinks that the complainant has a disability.
The personal characteristics protected in the purchase of property are:
The respondent’s conduct must prevent the complainant from purchasing property or have a negative effect regarding a term or condition of the purchase.
A negative effect can arise where a person is treated the same as others, but this has a negative effect on them.
For example: A strata applies a “no pets” rule to a person who has an assistance animal due to a disability.
For there to be discrimination in this kind of situation, the respondent must reasonably be aware that the complainant needs accommodation.
For example: The complainant told the respondent they need accommodation or it is clear that the complainant needs accommodation.
There is a duty to accommodate to avoid negative effect based on a personal characteristic.
Connection between negative effect and personal characteristic
Poor treatment is discrimination only if it is connected to a personal characteristic. This means that a personal characteristic must be at least a factor in the negative effect. It does not need to be the only factor or the overriding factor. A complainant does not need to show that the respondent intended to discriminate or was motivated by discrimination.
A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:
If the complainant proves that the respondent’s conduct had negative effect on them regarding the purchase of property, and that a personal characteristic was a factor in the negative effect, this is called a prima facie case of discrimination.
Even if a complainant proves a prima facie case of discrimination, a respondent may argue that there is no discrimination because its conduct was justified.
Section 9 of the Code does not explicitly include a justification defence, but the Tribunal has interpreted the section to allow for it.
To succeed with this defence, a respondent must prove three things:
Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.
It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.
For example, if a respondent relies on excessive cost, it must prove both the costs of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing the respondent cannot reasonably afford it.
A complainant must participate in the search for accommodation. The respondent may establish a justification defence if it proves that it was taking all reasonable and practical steps but the process failed because the complainant did not reasonably participate or rejected a reasonable offer of accommodation.