A condo unit owner in British Columbia filed a complaint (Rutherford v. Strata Plan VS 170, 2019 BCHRT 227) with the Human Rights Tribunal (the “Tribunal”) alleging that her strata corporation discriminated against her on the basis of her disability when it refused to allow her to rent the second bedroom of her unit on a short-term basis.
The unit owner has a number of disabilities that preclude her from working full-time. In order to supplement her income, she started renting her second bedroom using Airbnb. (By renting her second bedroom for 10 days a month she could increase her income by $700 per month.) This was contrary to the corporation’s by-laws, which prohibited any rentals of the units, including short-term rentals. The by-laws also prohibited owners from carrying out any business activities that would noticeably increase non-resident traffic.
The owner’s request for an exemption from the by-laws on the basis of financial hardship was refused. There was no interest from the other owners to amend the by-laws to allow rental of the units. The corporation noted that there was “near unanimous opposition” to allowing Airbnb rentals.
The owner took the position that she should be exempted from the by-laws on the basis of financial hardship, which resulted from the fact that due to her disabilities she was unable to work full-time. In support of her position the owner provided a letter from her psychiatrist, who said that without the ability to rent her second bedroom on a short-term basis, she would face increased stress and deterioration of her mental health.
The Tribunal noted that as the corporation is responsible for managing and maintaining the common property and assets of the corporation for the benefit of the owners, it must provide these services to all owners without discrimination. In order for the owner’s human rights complaint to succeed the onus was on the owner to prove that she has been adversely impacted in respect of a service offered by the corporation and that her disability was a factor in that adverse impact.
While the Tribunal accepted that the owner’s disabilities precluded her from working full-time and impeded her ability to earn an income, and acknowledged that the owner was suffering from financial hardship, it determined that it was the owner’s financial circumstances, rather than her disability, that required her to rent out her second bedroom and thus, there was no discrimination by the corporation. The Tribunal distinguished the owner’s “circumstances from cases where, for example, a person needs to live with a pet because of their disabilities but are precluded from doing so because of strata by-laws, or where a person with a disability is precluded by the by-laws from renting out a portion of their unit to a 24-hour caregiver. . . . I accept that her disability is a factor in those circumstances, but this step is too removed from the services which a strata customarily provides its owners.”
Although condominium corporations have a statutory duty to comply and enforce compliance with the condominium governing documents, human rights legislation takes precedence over the governing documents. In order to accommodate an individual with a disability, a corporation may be required to exempt that individual from a particular rule. This does not, however, preclude the corporation from enforcing the rule against others. In the British Columbia case, the owner was not exempted from complying with the rental prohibition as there was no direct connection between the disability and the request for the exemption.
Previously published by The Lawyer’s Daily, a division of LexisNexis Canada
