DOES THE HUMAN RIGHTS CODE APPLY TO FAMILY STATUS IN A STRATA?

The most significant limits on occupancy restriction bylaws arise from the Human Rights Code, particularly the protection against discrimination based on family status.

Historically, many Stratas treated occupancy limits as neutral rules that applied to everyone. A bylaw limiting a one-bedroom unit to two occupants, or limiting a strata lot to a fixed number of residents per bedroom, appeared to apply equally to all residents.

However, recent case law has confirmed that a neutral rule may still be discriminatory if it has an adverse impact on families because of their size or composition.

This is now the central issue in occupancy restriction cases. The question is not only whether the bylaw is properly drafted. The question is whether enforcing the bylaw would improperly interfere with a protected family relationship.

DOES FAMILY STATUS INCLUDE FAMILY SIZE?

Recent decisions from the Human Rights Tribunal and the Civil Resolution Tribunal have confirmed that family status includes the size of a family.

This is particularly important for families with children. A bylaw that limits the number of people who may reside in a strata lot may disproportionately affect larger families. If enforcement would require a family to move, separate, or face ongoing fines because of the number of family members living together, even a seemingly neutral bylaw may create an adverse impact and discrimination connected to family status.

The Civil Resolution Tribunal has recently held that family status under the Human Rights Code included both the size and composition of the family. The CRT found that the family in question had established a prima facie case of discrimination because the enforcement of the bylaw resulted in fines and created the prospect that the family would have to either break up or leave the strata lot.

This does not mean that all occupancy restrictions are unenforceable. However, it does mean that Stratas must be extremely cautious when enforcing occupancy limits against larger families.

DOES FAMILY STATUS ALSO INCLUDES FAMILY COMPOSITION?

Family status is not limited to the number of people in a household. It also includes the composition and nature of the family relationship.

This issue arises where Stratas adopt bylaws that restrict occupancy to a “single family” or define “family” narrowly by reference to spouses, children, parents, grandparents, or relatives by blood, marriage, or adoption.

Recent decisions from the BC Human Rights Tribunal and Civil Resolution Tribunal have taken a broader approach to what may constitute a family relationship. The Tribunals have repeatedly held that people not related by blood or marriage could be considered as living in a family-like relationship based on companionship, emotional support, shared meals, activities, and a commitment to living together as a supportive unit, and would be considered a family for the purpose of a Strata’s occupancy bylaws.

The practical effect is that Stratas should be careful about enforcing bylaws based on narrow or traditional definitions about what constitutes a family.

CAN EQUAL ENFORCEMENT OF AN OCCUPANCY RESTRICTION BYLAW BE DISCRIMINATORY?

A common mistake is to assume that a bylaw cannot be discriminatory if it applies equally to everyone.  That is not the law.

A bylaw may apply equally on its face but have a discriminatory effect in practice. For example, a two-person occupancy limit may apply to all one-bedroom strata lots, but it may disproportionately affect a couple with children, a multi-generational family, or a family-like household that does not fit within a narrow definition of family.

The Human Rights Code requires Stratas to consider the actual impact of enforcement. If enforcement adversely affects residents because of family status, the Strata may have a duty to accommodate unless doing so would cause undue hardship.

There is a tension point between the Human Rights Code prevention of discrimination on the basis of family status and the Building Code’s suggested limits on the number of occupants that may reside in a bed room.  That tension remains unresolved.

HOW DO EXEMPTION CLAUSES WORK IN OCCUPANCY RESTRICTIONS?

Many occupancy restriction bylaws contain exemption provisions allowing a strata council to permit more residents in a strata lot than the bylaw allows in certain circumstances.

An exemption clause in an occupancy restriction bylaw must be applied reasonably and in good faith. If a family applies for an exemption, the Strata must meaningfully consider the request. It cannot reject the request automatically or rely only on generalized concerns about crowding, wear and tear, or the fact that the bylaw exists.

In general, an exemption clause should not be included in a bylaw. The Strata Property Act states that a bylaw is unenforceable to the extent that it contravenes the Human Rights Code. Therefore, there is no discretion to provide an exemption, it exists as a matter of law. A bylaw that indicates compliance with the Human Rights Code is up to the discretion of the Members of Council has the potential to cause tension and conflict. We have written about the Duty to Accommodate, Restricting Occupancy by Bylaw and the General Limits on Bylaws in other articles.

WHAT ARE THE PRACTICAL IMPLICATIONS FOR STRATA CORPORATIONS?

The limits on occupancy restrictions mean that Stratas should be cautious when enforcing bylaws against:

• Larger families.

• Multi-generational households.

• Residents who provide care, companionship, or emotional support to each other.

• Non-traditional family units.

• Households that do not fit within traditional definitions of family.

This does not mean that a Strata must permit unlimited occupancy. It means the Strata must assess whether the specific enforcement action would discriminate on the basis of family status.

Occupancy restrictions may be easier to justify where the Strata is addressing:

• Unsafe overcrowding.

• Commercial or quasi-commercial occupancy.

• Boarding-house or rooming-house arrangements.

• Short-term rental style occupancy.

• Serious pressure on building systems.

• Demonstrable impacts on common property or other residents.

THE HUMAN RIGHTS CODE PROTECTS FAMILY STATUS AND APPLIES TO STRATA BYLAWS

The main limits on occupancy restriction bylaws arise from family status protections under the Human Rights Code.

Family status may include both the size of a family and the composition of a family. This means that Stratas must be careful when enforcing occupancy limits against larger families, families with children, multi-generational households, or non-traditional family-like arrangements.

A bylaw may still be valid, but if enforcing it would require a family to separate, move, or face ongoing fines because of the size or nature of the family relationship, the Strata must consider whether enforcement would be discriminatory.

The practical lesson is that occupancy restrictions can no longer be treated as blunt instruments. They must be applied carefully, flexibly, and with proper regard to the Human Rights Code.