Human rights and duties
Purchase of property
Last updated: May 24, 2024
Page contents
- What do I need to show to make a discrimination complaint about the purchase of property?
- Who can be named as a respondent in a purchase of property complaint?
- How can poor treatment regarding the purchase of property be justified? (Defence)
What do I need to show to make a discrimination complaint about the purchase of property?
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:
- Grounds of discrimination / Personal characteristics
- Negative effect
- Connection between negative effect and personal characteristics
1. Grounds of discrimination / Personal characteristics
To make a complaint of discrimination, the complainant must have a personal characteristic protected under the Human Rights Code. The personal characteristic is also called the “ground of discrimination”.
A person is protected if they have the personal characteristic or if they are seen to have one. For example, the ground of disability applies if someone has a disability, or the respondent thinks that they have a disability.
The personal characteristics protected in the purchase of property are:
- Indigenous identity
- Race
- Colour
- Ancestry
- Place of Origin
- Religion
- Marital Status
- Physical Disability
- Mental Disability
- Sex
- Sexual Orientation
- Gender Identity or Expression
2. Negative effect
The respondent’s conduct must have a negative effect on the complainant regarding the purchase of property. A negative effect is also called an “adverse impact”.
A negative effect regarding the purchase of property can include:
- Refusing to sell to the complainant
- A term or condition of the purchase causing a negative effect
A negative effect can arise even if someone is treated the same as others.
For example: A strata applies a “no pets” rule to a person who has an assistance animal due to a disability.
Note: You should tell the seller about the negative effect based on a personal characteristic. There is a duty to accommodate to avoid a negative effect based on a personal characteristic.
3. Connection between negative effect and personal characteristics
A negative effect 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 complaint may show a connection in different ways. For example:
1. Information showing the respondent considered the personal characteristic. However, a complainant does not need to show that the respondent meant to discriminate or was motivated by discrimination.
2. Information showing a rule or term or condition of the purchase affected the complainant based on their personal characteristic.
3. Information showing a rule or term of condition of purchase affects a group of people more than others based on their personal characteristic.
A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:
- • The seller says they do not want to sell to a person of the complainant’s ancestry.
- The seller refuses to sell after learning of the buyer’s religion.
- A strata rule would prevent a person with a disability from buying a condo.
Who can be named as a respondent in a purchase of property complaint?
- The person selling the land is usually the respondent in a purchase of property complaint.
- A person responsible for the discrimination could be named.
For example: A person who made the decision to deny the chance to buy a house based on the complainant’s colour. - A person who only delivered the news about the decision to deny the purchase would not normally be named.
How can a seller or other person justify their conduct regarding the purchase of property? (Defence)
If the complainant proves that the respondent’s conduct had a negative effect on them regarding the purchase of property, and that a personal characteristic was a factor in the negative effect, they have proved their case. This is called a “prima facie case of discrimination”.
Even if a complainant proves their case, 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:
1. There is a legitimate purpose for the respondent’s conduct
In some cases, a respondent applies a defined standard that affects the complainant, such as a strata rule regarding animals that negatively affects a person who is blind and has an assistance dog. In other cases, there is no defined standard, but the respondent’s conduct has a negative impact.
The respondent must identify the (non-discriminatory) purpose for its standard or conduct that relates to its function (for example, management of a strata). In many cases, the complainant may not dispute that the respondent’s conduct is based on a legitimate purpose.
2. The standard was adopted in good faith in the belief that it was necessary to accomplish the 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.
3. The respondent’s standard or conduct is reasonably necessary to the 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 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) relevant to the accommodation request.
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 succeed if it proves that the complainant did not request accommodation and it did not reasonably know that the complainant may need accommodation. Note: When a seller or other person is aware, or reasonably ought to be aware, that there may be a relationship between a negative effect and a personal characteristic, they have a duty to inquire into whether the person needs accommodation.
The respondent may also succeed 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.