THE DEATH OF ‘NO’ - The Quiet Erosion of Bylaw Enforcement and the Transfer of The Burden of Accommodating Mental Health Disorders to Strata Corporations - A commentary by Justin Hanson
- Justin Hanson
- May 23
- 14 min read
Background
British Columbia strata corporations operate at the intersection of private governance and public law obligations. While Strata Property Act requires strata corporation to enforce bylaws for the collective benefit of the community, they are simultaneously bound by the quasi-constitutional requirements of the British Columbia Human Rights Code.
Where a bylaw enforcement issue engages a protected ground—most commonly disability—the strata corporation must consider whether accommodation is required before it proceeds with enforcement.
This dual mandate has, in recent years, produced a growing body of disputes between owners that strata corporations have great difficult in dealing with. What was once a relatively structured and separate enforcement regime has evolved into a highly discretionary and often uncertain balancing exercise.
The result is a jurisprudential tension—if not outright conflict—between the duty to enforce and the duty to accommodate. This tension has been allowed to develop without sufficient structure, and that the law now requires a return to clear analytical separation and bright-line boundaries between these two duties.
The Foundations of the Duty to Accommodate
It bears repeating that the duty to accommodate is not triggered in every case. It arises only when the strata corporation becomes aware—actually or constructively—that a resident suffers from a disability engaging the protections of the Human Rights Code. As confirmed in cases such as Brown v. The Owners, Strata Plan LMS952 and Menzies v. Strata Plan NW2924, this requires more than a mere assertion from the applicant.
The applicant must provide sufficient medical evidence establishing:
the existence and nature of the disability; and
a clear nexus between that disability and the accommodation sought.
This evidentiary threshold is critical. Without it, the duty to accommodate does not arise. Yet, in practice, the entitlement threshold is often blurry—particularly where (as is often the case) strata corporations are presented with vague or skeletal medical notes that fall short of the standard articulated in Menzies and later cases.
Once properly triggered, however, the duty to accommodate becomes active and demanding. As articulated in Leary v. Strata Plan VR1001, the accommodation process is a shared, iterative, and evidence-driven exercise requiring participation from both the applicant and the strata corporation. The applicant must provide meaningful medical disclosure and engage in solution-building; the strata must investigate, obtain expert input where necessary, and actively explore reasonable accommodations.
Once an applicant has demonstrated a need for accommodation, the strata corporation must accommodate the applicant. It does not have a choice. That said, a strata corporation’s duty to accommodate is not unlimited. There is however, a reasonable limit on a Strata Corporation’s duty to accommodate. A strata corporation may refuse to accommodate an individual if such accommodation would cause undue hardship to the Strata Corporation or its individual owners. Factors considered in assessing undue hardship include financial cost, health and safety concerns, and the impact on other owners and the functioning of the strata. This is the point at which doing more to accommodate the owner’s disability would be unrealistic or unreasonable. As reaffirmed in Herbert Stengert obo others v. Strata Plan BCS2427, the strata corporation is required to take positive steps toward a reasonable solution—not to guarantee the outcome preferred by the applicant. Simply put, the standard for accommodation by a strata corporation is reasonableness, not perfection.
Accommodation has taken many different forms in strata corporations in British Columbia including:
An exemption from the bylaws to allow an owner who was allergic to latex in carpets to install hard surface flooring, see Konieczna v. The Owners Strata Plan NW2489.
An exemption allowing an emotional service animal contrary to a pet restriction bylaws, see UL obo SL v. Strata Plan LMS 4555.
An exemption to a smoking prohibition bylaw allow a resident to smoke in their strata lot or on a balcony where they have a disability that would prevent them from leaving the building to smoke – Dandurand v. Strata Plan KAS3558.
The construction of a wheelchair ramp to the front entry of the Strata at a cost of $63,000, see Holowaychuk v The Owners, Strata Plan NW332.
A requirement that meetings be held in English and Mandarin, see Kargut obo Others v Strata Plan BCS 802.
Construction of a trolley system to allow disabled owners to access their sea front home at over $135,000, see Testar v. The Owners, Strata Plan VR 1097.
Putting up a resident in a hotel during an elevator repair, see Garrow v. Strata Plan LMS-1306 (No. 3).
The BC Human Rights Tribunal seems to have taken the position that if a strata corporation can afford to pay for the required accommodation from its contingency reserve fund, then doing so does not amount to a financial hardship.
Little to no issue is taken with a strata corporation’s duty to accommodate when physical changes need to be made to the building, and most strata corporations seem to accept the financial burden of accommodation with relative grace. Where the issue arises is when accommodating one resident directly and substantially impacts other owners.
The Expanding Scope of Accommodation: Pets, Cost, and Disruption
The case law demonstrates that the forms of accommodation is far wider than simply making changes to the building.
In Jones v. Strata Plan 1571, a strata corporation was required to permit a large assistance dog notwithstanding a strict pet bylaw, even in the context of a prospective purchaser. Accommodation may also extend to controversial or competing uses of property.
In Dandurand v. Strata Plan KAS 3558, the Tribunal recognized the potential for a duty to accommodate a smoker who smoked as a form of medical treatment.
In Konieczna v. Strata Plan NW 2489, the Tribunal dealt with a bylaw that required wall-to-wall carpeting. When Mrs. Konieczna purchased her unit, hardwood floors were permitted, if written permission of the Strata Council was received. Mrs. Konieczna had actually applied for and received approval to install hardwood floors while such approval was still permitted by the Strata bylaws. Unfortunately, she failed to carry out her renovations as planned and the strata corporation adopted a bylaw that required wall to wall carpeting. In the intervening period, Mrs. Konieczna had developed asthma and severe allergies to latex which is found in all commercially available carpet. Further, mold and dust in carpeting aggravated her asthma. Mrs. Kozieczna provided detailed medical information and reports to the Strata Corporation detailing her allergies and asthma when she reapplied for permission to replace the carpet with hard surface flooring. The Strata Corporation accepted and did not contest the medical evidence but the strata council did not provide an exemption but rather put the exemption to a vote of the owners. The strata corporation’s owners refused to grant an exemption to the hardwood floors bylaw. The Tribunal found that the Strata Corporation had exhibited a high degree of inflexibility and had failed to accommodate Mrs. Konieczna. The Tribunal ordered that Mrs. Konieczna be allowed to install hardwood flooring at her expense.
Taken together, these cases illustrate a clear trajectory: the duty to accommodate is robust, intrusive, and increasingly capable of overriding otherwise valid bylaws.
The Countervailing Duty to Enforce
Set against the duty to accommodate is the strata corporation’s statutory duty to enforce its bylaws. This duty is not discretionary. It is grounded in the governance structure of the Strata Property Act and is essential to maintaining order, fairness, and predictability within the strata community.
Councils have a duty to enforce the bylaws. The Civil Resolution Tribunal (“CRT”) has repeatedly confirmed this duty, see Link et al v. The Owners, Strata Plan KAS 828, where it said:
48. Once it has been determined that a bylaw contravention has occurred, council does not have the discretion to choose not to enforce a bylaw…. Enforcement of bylaws is mandatory, as set out in section 26 of the SPA.
Nor can a Council refuse to address a complaint or take the position that the complaints are an issue between two owners. If the Council takes such a position, doing so may be significantly unfair to the complaining owner –see Fairburn et al v. The Owners, Strata Plan LMS1107; Strata Plan LMS3259 v. Sze Holding Inc.
Accordingly, a Strata Corporation must take action to investigate an alleged bylaw contravention and enforce the bylaws if a contravention is found, see Tran v. The Owners, Strata Plan VIS 6828.
Failure to enforce bylaws can expose a strata corporation to claims of significant unfairness from affected residents, undermine the rule of law within the development, and erode the legitimate expectations of other owners. In this sense, enforcement of bylaws is not merely administrative—it is foundational to communal living situations.
However, the emergence of human rights considerations has significantly complicated this obligation. As the case law now makes clear, enforcement action taken without regard to the alleged contravener’s disability may itself constitute discrimination. Conversely, failure to enforce may prejudice other residents. The strata corporation is thus placed in an untenable position: act, and risk discrimination by failing to accommodate; or refrain, and risk claims for a breach of its duty to enforce.
Where the Duties Collide: Nuisance and Undue Hardship
In BC, a strata bylaw is not enforceable to the extent that it contravenes the Human Rights Code Even a seemingly neutral bylaw can be discriminatory if it has “an adverse effect on a resident because of their disability.”
The conflict between enforcement and accommodation is most acute in cases involving nuisance, unreasonable noise, and unreasonable interference caused by, or arsing out of disability.
The mental health crisis in British Columbia is not just playing out on our streets, in our hospitals, schools, courts and other public institutions, it is also having a significant impact on strata corporations.
Strata property managers and strata lawyers are dealing ever greater numbers of residents who have significant mental health challenges. Those mental health challenges run the range from incapacity due to old age, hoarding, intellectual disability, paranoia, obsessive behavior, all the way to extreme substance abuse or threatening or violent outbursts.
Strata corporations are seeing an increasing number of people with mental health challenges being abandoned (for lack of a better word) in strata corporations.
The stories tend to follow one of two paths:
Aging in place – A longtime resident undergoes a long slow decline into incapacity, and has no-one to help.
Warehousing of a disabled relative – Parents, siblings, aunts, uncles, grandparents purchase a strata lot and leave their disabled relative there to fend on their own, relying on the council and neighbors to keep an eye on and assist the disabled relative.
Aging in place without assistance – Strata corporations dealing with this tend to experience hoarding situations and their associated pests and smells, unsafe conditions within strata lots, malfunctioning and dangerous appliances, mold, small fires, water escapes, minor accidents – such as driving into garage gates or other vehicles, urination in hallways ect. These situations tend to be damaging and tend to directly affect other owners either by damage to their strata lots or possessions.
Warehousing of a disabled relative – Mental health challenges in these situations tend to manifest negatively as screaming, stomping, shouting, wailing, obsessive behavior, constantly moving furniture, getting locked out of the Strata Corporation, getting locked out of their unit, getting locked in. Not sleeping at night, only during the days. Sleeping in hallways, sleeping in common rooms, banging on neighbors' doors. Being abusive towards council members or other owners. Racism. Public exposure. Paranoia. Drug use in the common areas. Police calls.
Strata corporations have a positive duty to ensure that the above behaviours do not negatively impact other residents, but that damaging behaviour is often caused by mental health issues or disabilities.
More and more, Councils are losing their ability to effectively govern their community and are instead becoming a reluctant referee in a no-win match: on one side, a resident whose disability demands accommodation; on the other, a neighbour whose patience—and right to quiet enjoyment—has long since expired and who now bombards the Council with complaint letters.
Enforce the bylaws, and the strata risks a human rights complaint; hold off, and it invites allegations of significant unfairness from the increasingly aggrieved complainant.
Meanwhile, the disruptions continue, the emails multiply, and council members begin to wonder whether they’re running a strata or moderating an endless dispute resolution forum. Somewhere between compassion and compliance, the strata is expected to draw a line—but not too firmly, not too quickly, and certainly not without being prepared to defend it from attacks from both directions.
There was a time—not that long ago—when the law drew a relatively clear, common-sense line: while accommodation was required, other residents were not expected to live with ongoing nuisance simply because it had a medical explanation. Disability might explain the conduct, but it did not excuse its impact. Lately, however, that bright line has started to look more like a suggestion than a rule. Recent decisions have softened the edges, emphasizing process, patience, and “creative solutions,” often at the expense of timely enforcement. The result? Strata councils now find themselves parsing degrees of disruption—when is noise just noise, and when is it “significant” enough to act?—while neighbours are left wondering how much inconvenience they are expected to absorb in the name of accommodation. What was once a boundary has become a balancing act, and in that shift, clarity has quietly given way to uncertainty.
Examples of the Bright Line Approach
In Young v. Saanich Police Department, the BC Supreme Court recognized that accommodation has limits. In Young the court held that a service provider (which includes strata corporations) was not required to accommodate behavior that causes a nuisance or hazard to other residents. In that case the Court found that Mr. Young's marihuana smoking constituted an undue hardship. For many years the Young case stood for the proposition that where accommodating one individual would deprive others of the reasonable enjoyment of their property, undue hardship was reached.
Similarly, in The Owners, Strata Plan LMS XXX v. D.B., the strata corporation claimed that the respondent owner D.B. had repeatedly failed to comply with the strata’s noise and nuisance bylaws. The owner had a disability that caused her to have loud outbursts, the strata argued that it could not reasonably accommodate those loud outbursts given the history and the serious negative impact the owner’s conduct has had on the other owners. The CRT considered the extent that the strata must reasonably accommodate the owner’s undisputed disability. The CRT held that the owners disability in the circumstances did not outweigh the other residents’ right to quiet enjoyment of their property. The Tribunal was satisfied that the owner’s conduct had significantly disrupted the lives of the other owners in the strata and that it would be unreasonable to require those other owners to continue living with that conduct.
Unfortunately for strata corporation’s the bright line drawn Young and DB is not so clear anymore, as another line of cases is becoming ascendant. There is an older line of BC HRT cases that indicate that a strata corporation might owe a duty to a mentally ill resident to not enforce the bylaws against them when their behaviour is a result of the disability - Lazore and MacLaren v. Strata Plan 2527 and others. In the case of an owner or tenant with a mental disability there is an obligation of the part of the strata corporation to discuss a possible accommodation with that person before taking enforcement steps - M and another v. Strata Plan LMS2768
More recently, in Duddy v. The Owners, Strata Plan BCS 1162, the Tribunal took the analysis further, holding that a strata corporation must first attempt accommodation and mitigation before proceeding to enforcement, stating that while those who reside in a strata corporation are entitled to quiet enjoyment of their homes, their right to quiet enjoyment must be balanced against a disabled person’s right to live in a strata corporation and be accommodated to the extent possible.
It is here that the doctrinal confusion becomes most apparent. The requirement to “attempt accommodation first” risks transforming enforcement from a statutory duty into a last resort, contingent on a potentially lengthy and uncertain accommodation process.
The impact of this subtle shifting of the burden of accommodation from the community as a whole to the residents affected by the nuisance or interference arising out of the disability is evident in the CRT’s decision in Strydom v The Owners, Strata Plan LMS 666.
In Strydom v. The Owners, Strata Plan LMS 666, the Civil Resolution Tribunal dismissed a complaint by owner Etienne Strydom, who alleged that the strata corporation had failed to enforce its bylaws against neighbouring occupants whose alleged hoarding created odours and raised concerns about health and fire risk. The strata council maintained that it had investigated the complaints, engaged with the neighbours, and was satisfied that no ongoing bylaw breaches existed after steps were taken to address clutter.
The Tribunal accepted that the strata corporation took a measured, incremental, and ultimately accommodating approach (despite the lack of any formal request for accommodation) to the alleged hoarding and odour complaints. Rather than immediately escalating to strict enforcement, the strata investigated repeatedly, engaged with the neighbours, sought input from the fire department, conducted multiple internal inspections, and even obtained a professional hoarding assessment. It adopted what the Tribunal described as a “compassionate” and “long-term” strategy, influenced in part by advice about how to deal with hoarding behaviour, relying on warnings, offers of assistance, and gradual escalation rather than immediate sanctions. Although the Tribunal found this approach to be generally reasonable, it acknowledged that the strata was too slow to act decisively in relation to potential fire hazards, noting that the safety concerns should have prompted more assertive enforcement earlier, even if no actual harm ultimately resulted.
From Mr. Strydom’s perspective, however, the strata’s cautious approach translated into prolonged frustration, uncertainty, and a perceived lack of responsiveness. The evidence showed repeated complaints over many months, coupled with inconsistent messaging from the strata—denying the existence of odours to Mr. Strydom while simultaneously raising odour concerns with the neighbours. This disconnect understandably eroded confidence in the strata’s handling of the issue. While the Tribunal ultimately concluded that the objective evidence did not establish an ongoing bylaw breach—particularly given the absence of corroborated odour complaints and the findings of inspections and expert review—it implicitly recognized that the delay, inconsistency, and extended accommodation period had a real impact on Mr. Strydom. Nonetheless, those impacts did not rise to the level of unreasonableness or significant unfairness sufficient to justify intervention.
The Problem: Conflation of Duties
The emerging jurisprudence reflects a growing tendency to conflate the duty to enforce with the duty to accommodate. Rather than treating them as distinct legal obligations with separate analytical frameworks, recent decisions often merge them into a single balancing exercise.
Taken together, Strydom and Duddy suggest that the modern strata playbook now includes a quiet but meaningful expectation that neighbours must, at least for a time, grin and bear it while accommodation runs its course. In Strydom v. The Owners, Strata Plan LMS 666, the Tribunal blessed a slow, compassionate, and somewhat inconsistent approach to alleged hoarding and odours—even while acknowledging that enforcement could have been more assertive—effectively signalling that delay in the name of sensitivity is not, in itself, fatal. Pair that with Duddy v. The Owners, Strata Plan BCS 1162, where the Tribunal emphasized the need to attempt accommodation before enforcing noise bylaws, and the message becomes harder to ignore: disruption may have to be tolerated while the process unfolds. The difficulty, of course, is that this creeping tolerance standard seems to overlook a fundamental point—while strata corporations have a duty to accommodate, individual residents do not. Yet in practice, those residents are the ones absorbing the noise, the odours, and the uncertainty, all while being told—implicitly if not explicitly—that patience is now part of strata living.
This approach is problematic for several reasons:
It undermines predictability, leaving strata corporations uncertain as to when enforcement is permissible.
It encourages delay, as enforcement is postponed pending open-ended accommodation efforts.
It risks unfairness to other residents, whose rights are subordinated without clear limits.
Perhaps most concerning, it shifts the analysis away from principled legal tests toward ad hoc, fact-specific balancing act.
A Call for Bright-Line Separation
What is required is not further balancing, but clarity.
The law must reassert that the duty to enforce and the duty to accommodate are separate obligations, not interchangeable considerations. At a minimum, the following bright lines should be recognized:
Trigger First, Then Accommodate
The duty to accommodate arises only upon sufficient medical evidence establishing disability and nexus. Absent that threshold, enforcement should proceed as normal.
Defined Accommodation Phase
Once triggered, the accommodation process must be time-bound, evidence-driven, and focused on reasonable—not perfect—solutions.
Clear Endpoint: Undue Hardship
Where accommodation results in significant disruption, nuisance, or impact to others, the strata corporation must be entitled—indeed required—to return to enforcement.
Reinstatement of Enforcement Authority
Enforcement is not discretionary once accommodation has been exhausted. It is a statutory obligation that must be carried out to preserve the integrity of the strata.
Conclusion
The current trajectory of the law reflects an understandable but ultimately unsustainable effort to reconcile competing rights within the strata context. In doing so, it has blurred the line between accommodation and enforcement, leaving strata corporations in a state of uncertainty and exposure.
The solution is not to diminish the importance of accommodation, but to properly situate it within a structured legal framework—one that respects both the rights of individuals with disabilities and the collective rights of the strata community.
It is time to restore analytical discipline, re-establish clear boundaries, and recognize that while accommodation and enforcement must coexist, they must not be allowed to collapse into one another.
