A recent British Columbia Human Rights Tribunal decision dismissed a complaint by a disabled woman who was barred from renting out part of her residence by her Strata Council.
A unit owner in a strata property had a number of disabilities which precluded her from working full time.
In February 2018, she began renting out her second bedroom through Airbnb in order to supplement her income. In April 2018, another owner complained that this practice violated the Strata’s bylaws. In response, the Strata Council issued a reminder to owners that they were not permitted to rent out their units, including through Airbnb.
The Strata Council discussed the issue again at a meeting on April 30, 2018. The majority of owners present at that meeting were opposed to changing the bylaws which prohibit rentals, including short term rentals through Airbnb.
On July 31, 2018, the owner wrote to the Strata Council to request an exemption from the rental bylaw on the basis of financial hardship. She explained that, because of her disabilities, she was unable to work more than part-time or to live with a roommate. She had very little money left over at the end of every month, which put her at risk of losing her housing and having to leave her community. In support of her request, she provided a letter from her psychiatrist, who said that allowing the owner to rent out her bedroom through Airbnb would benefit her mental health.
On August 15, 2018, the Strata Council denied the owner’s hardship application on the basis that she had not demonstrated financial hardship. The Strata Council also noted the “near unanimous opposition” to allowing Airbnb to operate in the building, such that allowing the owner’s request would “not be in the best interest of the building”.
On November 7, 2018, the owner filed a human rights complaint with the British Columbia Human Rights Tribunal. The basis of her complaint was that, in denying her hardship application, the Strata discriminated against her on the basis of her disabilities. As a remedy, she sought an order that she be allowed to have short-term rentals in her strata unit.
Human Rights Tribunal Decision
The Tribunal began by explaining that s. 27(1)(c) of the British Columbia Human Rights Code (the “Code”) grants the Tribunal discretion to dismiss complaints that do not warrant the time and expense of a hearing. A hearing is not warranted where there is no reasonable prospect that a Tribunal member hearing the complaint could make the findings of fact necessary to find discrimination.
The Tribunal accepted the evidence that the owner had disabilities which precluded her from working full time and which impeded her ability to earn an income. It also accepted that she had limited financial means, and her quality of life would be improved with a greater income to ensure she could stay in her home and comfortably meet her basic needs.
However, the Tribunal found that the owner had no reasonable prospect of proving that the adverse impact she described arose in connection with a service customarily provided by the Strata, stating:
“The Code regulates three main spheres of social activity: employment, housing, and services. Within those spheres, it aims to identify and eradicate barriers to full and free participation. This is an ambitious purpose, but it is not unlimited. The Code does not purport to regulate or remove all barriers to equitable participation in society, even if they arise from protected characteristics like a disability. Rather, only those barriers arising within an area of life regulated by the Code are subject to scrutiny. […]
In this case, the barrier that [the owner] faces stems from her inability to work full time or otherwise achieve financial security. It is not rooted in any service customarily provided by the Strata. Put a different way, it is not her disability which requires her to rent out a second bedroom through Airbnb.”
While the Tribunal accepted that the owner’s disability was a factor in her financial circumstances, it found that it was an issue too far removed from the services which a Strata customarily provides its owners. The Tribunal stated that human rights law requires the Strata to provide its services equitably to all owners, but does not impose an obligation on the Strata to amend or waive its bylaws to help the owner earn a sustainable income.
As a result, the Tribunal found that the owner had no reasonable prospect of proving that the Strata discriminated against her in connection with its services and dismissed her complaint.
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