This means that a complaint must include information showing:
To have a complaint regarding services, 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 services, facilities, and accommodations are:
To make a complaint, the respondent’s conduct must have a negative effect on complainant’s access to or use of a service provided by a strata.
Examples are a negative effect on a strata owner regarding an intercom system, access to the building, or a rule about flooring, balconies, or window coverings
The Code prohibits harassment based on a personal characteristic that negatively affects the complainant’s access to or use of the service, facility or accommodation.
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 owner who uses a wheelchair for a disability cannot access a common area because there is no ramp.
There is a duty to accommodate to avoid a negative effect based on a personal characteristic.
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 that they need accommodation or it is clear that the complainant needs accommodation.
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 most important factor. A complainant does not need to show that the respondent meant 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:
For example: A respondent uses insults based on a personal characteristic, or gives the characteristic as a reason for the negative treatment.
For example: The complainant uses a wheelchair due to a disability and cannot access a facility because the only access is by stairs.
Note: This is enough to file a complaint. However, if the respondent justifies its action by showing it acted in good faith and took all reasonable and practical steps to avoid the negative effect, then there is no discrimination.
A strata denies a service after the council learns the complainant is gay.
A strata places conditions on an owner’s access to a common area that are not placed on others who do not share the same characteristic.
NOTE: This is enough to file a complaint. However, the respondent may have an explanation. At a hearing, the complainant must prove the personal characteristic was a factor in the negative effect.
For example, a complaint may name a person who made the decision to deny the complainant a service based on a personal characteristic, or who influenced a decision.
A complaint would not name a person who applied a discriminatory policy as part of their job, or who delivered a letter denying the service.
There is one main defence to discrimination regarding a strata’s services, where the respondent proves their conduct was justified. There are also some specific defences. Learn more:
If a complainant proves that the respondent’s conduct had a negative effect on them regarding a strata’s services, 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, a respondent may argue that there is no discrimination because its conduct was justified (i.e, based on a bona fide and reasonable justification or BFRJ). To succeed with this argument, a respondent must prove three things:
The respondent must identify the (non-discriminatory) purpose underlying its standard or conduct.
In some cases, a respondent applies a defined standard or requirement that affects the complainant, such as passing a test to get a service.
In other cases, there is no defined standard.
For example, access to a common area is by stairs, and the complainant uses a wheelchair due to a disability. Stair-only access may be based on construction before building codes required accessibility.
The respondent must also show how the purpose relates to the service or facility it provides.
In many cases, the complainant may not dispute that the respondent’s conduct is based on a legitimate, strata-related purpose.
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.
Factors a respondent may rely on to establish undue hardship include financial cost and the size of the respondent’s operation.
A complainant must participate in the search for accommodation. The respondent may establish a justification defence (BFRJ) 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.
It is a defence to a prima facie case of sex discrimination if the discrimination relates to the maintenance of “public decency”.