What Poor Treatment is Discrimination Regarding a Strata’s Services?
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:
- The complainant has a personal characteristic (or is perceived to have a characteristic) protected under the Code.
- The respondent’s conduct had a negative effect on the complainant regarding the service.
- The personal characteristic is a factor in the negative effect.
Personal characteristics that are protected from discrimination in a strata’s services
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:
Negative effect regarding a strata’s services
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.
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 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:
- The respondent identifies the personal characteristic.
For example: A respondent uses insults based on a personal characteristic, or gives the characteristic as a reason for the negative treatment.
- The respondent’s actions affect the complainant because of a personal characteristic.
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.
- The circumstances show the personal characteristic is a factor. (The facts support a “reasonable inference”.) For example:
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.
Who can be named as a respondent?
- The strata. The strata is responsible for the services it provides and is usually the respondent in a strata services complaint.
- A person who is responsible for the discrimination.
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.
How can poor treatment in a strata’s services be justified? (Defences)
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:
- Justification defence (bona fide and reasonable justification)
- Public decency defence
Justification defence: bona fide and reasonable justification
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:
- There is a legitimate business-related purpose for the respondent’s conduct
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.
- The respondent adopted the standard acted in good faith, believing the standard or conduct is necessary to achieving its purpose
This means that the respondent adopted the standard or acted to accomplish its purpose, and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.
- The respondent’s standard or conduct is reasonably necessary to its service-related purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship
This means that the respondent fulfilled its duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect.
This includes proving:
- What the respondent did to explore options to find a reasonable result
- Why further steps were not reasonable or practical (would result in undue hardship)
- The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate strata-related purpose or incurring undue hardship
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.
Public decency defence
It is a defence to a prima facie case of sex discrimination if the discrimination relates to the maintenance of “public decency”.