Leading Cases – Tenancy
- Section 10
- The meaning of “tenancy”
- The defence of bona fide and reasonable justification in tenancy
- What kind of behaviour affects a term or condition of tenancy?
Discrimination in tenancy premises
10 (1) A person must not
(a) deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant, or
(b) discriminate against a person or class of persons regarding a term or condition of the tenancy of the space,
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age or lawful source of income of that person or class of persons, or of any other person or class of persons.
(2) Subsection (1) does not apply in the following circumstances:
- if the space is to be occupied by another person who is to share, with the person making the representation, the use of any sleeping, bathroom or cooking facilities in the space;
- as it relates to family status or age,
- if the space is a rental unit in residential premises in which every rental unit is reserved for rental to a person who has reached 55 years of age or to 2 or more persons, at least one of whom has reached 55 years of age, or
- a rental unit in a prescribed class of residential premises;
- as it relates to physical or mental disability, if
- the space is a rental unit in residential premises,
- the rental unit and the residential premises of which the rental unit forms part,
- are designed to accommodate persons with disabilities, and
- conform to the prescribed standards, and
- the rental unit is offered for rent exclusively to a person with a disability or to 2 or more persons, at least one of whom has a physical or mental disability.
McCulloch v. British Columbia (Human Rights Tribunal), 2019 BCSC 624: There can be a tenancy even if the tenant does not pay rent or some other form of payment. Rather, there must be a sufficient connection between the discrimination and the “tenancy context”. The Tribunal can look at:
- whether the respondent had control over the complainant’s living space
- whether the conduct occurred in the complainant’s living space
- whether the complainant’s tenancy or living space was negatively affected
- any other relevant consideration.
Emard v. Synala Housing Co-operative, (1 December 1993), unreported, BCCHR: A member of a housing co-op had a tenancy relationship with the co-op. The co-op owned the premises. Occupants paid housing charges to the co-op. The co-op could expel a member who did not pay rent or occupancy charges (pp 21-22). Note, this is different than an equity housing co-op, as in Stephenson.
Stephenson v. Sooke Lake Modular Home Co-operative Association (No. 3), 2008 BCHRT 161. The Tribunal is not bound by the definition of tenancy in the Residential Tenancy Act or the Manufactured Home Park Tenancy Act.
Owning shares in an equity co-op does not create a tenancy. In this case, association members bought shares in the association. Those shares gave them exclusive use and possession of a specific site where they could put their mobile home. Members also paid a monthly fee. Members could only be expelled if they breached the association’s rules. There was no tenancy relationship between the association and its members.
Oloresisimo v. Oloresisimo-Esquivel, 2005 BCHRT 64: In most cases, a tenancy means that the tenant pays money or provides services in exchange for lodging (para. 17). In this case, Mr. Oloresisimo worked as a live-in-caregiver for the respondents. After they fired him, he lived with them for a few months “as a guest”. There was no tenancy while he was a guest.
Jackson v. Summerland Motel, 2016 BCHRT 120: Ms. Jackson stayed in a motel. There was no tenancy. The Tribunal considered that:
- the parties did not agree how long she would stay
- the room did not meet her family’s needs, and
- the price of the housing was unaffordable (see paras. 103-129).
Silver Campsites Ltd. v. James, 2013 BCCA 292: A manufactured home park discriminated against Mr. James in tenancy when it refused to rent him a mobile home pad.
Even though section 10 does not set out a defence, the Tribunal will consider whether behaviour that is prima facie discriminatory is bona fide and reasonably justified: James v. Silver Campsites Ltd, 2011 BCHRT 370 at para. 186, upheld 2013 BCCA 292; Jackson v. Summerland Motel, 2016 BCHRT 120 at para. 104.
Tenant A v. Landlord, 2007 BCHRT 321: The terms and conditions of a tenancy include the services a landlord provides to their tenants, such as maintenance, security or garbage removal (para. 12).
In a complaint about another tenant’s conduct, there must be a link between the conduct and the tenancy. There may be a link in these situations:
- If a tenant can negatively affect a term or condition of the complainant’s tenancy
- If the landlord knows about the discrimination but does not take steps to deal with it (para. 27)
Friedmann v. MacGarvie, 2012 BCCA 445: The Code forbids landlords from harassing their tenants based on protected characteristics. The Court of Appeal explained: “A female tenant is entitled to quiet enjoyment of her apartment free of sexual harassment in the same way that a female employee is entitled to a work environment free of sexual harassment” (para. 28).