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WHAT IS LEGAL ADVICE? "Legal advice" is a phrase that has a particular legal meaning that is not the same as used by the general public. It is reasonable to assume that most people consider "legal advice" to mean an explanation of what the law is, but legal advice is much broader than that. Legal advice starts with the facts a Strata provides to its lawyer and necessarily includes the lawyer investigating and understanding those facts, because investigation is integral to a lawyer's function. It results in advice about what the Strata should do in a particular situation, not merely a recitation of the relevant law. This remains true even when a statute requires the Strata to carry out part of the investigation itself; a lawyer conducting even a statutorily mandated investigation is still acting in a legal capacity, not stepping outside it. Legal advice is also not confined to a single exchange of information. It is a continuum that runs from the facts a Strata furnishes to seek the advice through to the Strata's own internal discussion, once the advice is received, of what it means and what to do about it. For example, a lawyer's memo to the Strata is legal advice. The Strata's own subsequent record of that memo, including in-camera minutes noting that it was received and discussing what Council should do about it, falls within the same continuum. The advice does not stop being legal advice the moment it lands in the Strata's inbox. WHO CAN PROVIDE LEGAL ADVICE? Legal advice can be provided by a professional legal advisor who is consulted in their professional capacity. It can also come from members of the lawyer's firm acting in the lawyer's place and under the lawyer's direction. Capacity, not title, is what matters. A lawyer who happens to sit on a Strata's Council, or who is asked for a personal favour rather than a professional opinion, is not providing legal advice merely because they hold a law degree. Consequently, whether a communication is legal advice turns on the capacity the advisor was acting in when it was given, not on who they are generally. WHAT IS NOT LEGAL ADVICE? Not everything a lawyer says or does is legal advice. A lawyer who is asked for business advice, or a personal favour, rather than legal advice, is not providing legal advice simply because the person asked happens to be a lawyer. Our experience is that a member of Council sometimes assumes that any conversation with a lawyer, on any topic, is automatically treated as part of the matter. It is not. Similarly, information sent to a lawyer that is not used in providing legal advice is not legal advice itself. An Owner's casual email to the Strata's lawyer asking for an unrelated personal recommendation, for example, is not part of the matter and is not legal advice, even though the recipient happens to be a lawyer. WHO IS THE CLIENT? People might think that because it is Council that communicates with the lawyer, Council is the lawyer's client. However, Council only exercises the powers of the Strata Corporation, and it is the Strata Corporation, as a distinct legal entity, that is the client. Once a Strata Plan is deposited, the *Strata Property Act* establishes the Strata Corporation, and the Strata Corporation has the power and capacity of a natural person of full capacity (s.2). It can hold property, enter contracts, and retained legal advice in its own name; the Owners are its members, but the Strata Corporation is a distinct legal entity from any of them. The powers and duties of the Strata Corporation must be exercised by Council (ss.4 and 26), and each member of Council must act honestly and in good faith with a view to the best interests of the Strata Corporation, not their own interests or those of whichever Owners elected them (s.31(a)). This means Council is the mechanism through which the Strata Corporation acts and instructs its lawyer, not a separate client with interests of its own. When a Strata has Sections, the analysis narrows rather than changes. A Section is itself a distinct legal entity, with the same powers and duties as the Strata Corporation, for any matter that relates solely to it, including the capacity to contract and hold funds in its own name (s.194(2)). On a matter within that scope, the client is the Section, not the Strata Corporation as a whole, and it is important to identify which entity is actually asking the question before a lawyer is retained. Instructions to the lawyer should come from Council by resolution, not from any individual member of Council acting alone. A member of Council who emails the lawyer with a personal view has not, on that basis, instructed the Strata's lawyer on the Strata Corporation's behalf. DOES IT MATTER IF THE PROPERTY MANAGER IS INVOLVED? It can matter if the property manager is involved. Most of our communication on a Strata's file, in practice, goes through the property manager rather than directly with a member of Council, and that is not itself a problem. What matters is what the property manager has actually been authorized to do. A property manager who is authorized by Council to instruct the lawyer, or to seek legal advice on the Strata Corporation's behalf, functions as the Strata Corporation for that purpose. A property manager who is authorized to only gather information and pass it along to the lawyer is not the client, however essential that information is to the advice the lawyer ultimately gives. The line is drawn by authority, not by usefulness. This is why delegation to a property manager should be explicit about whether it includes the authority to instruct the lawyer. It is important for Council to specify, in the delegation itself, whether instructing counsel is included, because a Strata that delegates day-to-day administration to a property manager without addressing legal instructions specifically risks confusion about whose direction the lawyer is meant to follow. We have written about the risks Council takes on when it delegates its authority generally in another article, and the same reasoning applies here: delegation is not a way for Council to escape responsibility for how the file is instructed. STRATA COMMUNITIES MUST BE THOUGHTFUL ABOUT ACCESS TO LEGAL ADVICE Legal advice is a continuum that starts with the facts a Strata provides to its lawyer and continues through to what is done with the advice once it is received, and it can properly come from a lawyer or from members of the lawyer's firm acting under the lawyer's direction. However, none of that is useful if there is confusion about who the client actually is. The client is the Strata Corporation, or, if the subject matter relates solely to it, a Section — not Council as a body distinct from the Strata Corporation, and not any individual member of Council or Owner. Instructions should come from Council by resolution, and delegation to a property manager should be explicit about whether it includes instructing the lawyer. Keeping that straight is what allows a robust and resilient Strata Community to get, and to rely on, legal advice when it actually needs it.

WHO IS A DEVELOPER OF A STRATA? The Strata Property Act has a broad definition of a Developer. A single Strata can have multiple Developers and a Developer includes: The person that owns the land when the strata plan is deposited. Any person that acquires all the strata lots from the person that owned the land when the strata plan was deposited. Any person who acquires more than 50% of the strata lots from the person that owned the land when the strata plan was deposited. Any person who acquires more than 50% of the strata lots from a person that acquired all the strata lots from the person that owned the land when the strata plan was deposited. The clear intention is that everyone who is materially involved in the development of the Strata is a Developer. This is likely to prevent a ‘genuine’ Developer from avoiding its obligations or accountability for not meeting its obligations by transferring the strata lots to someone else. However, it is also important to recognize that it is common for a company to be created to be a Developer and then, once all the strata lots are sold, to dissolve that company. Therefore, a subsequent purchaser who believes that a Developer did not meet its obligations may have no Developer to sue to recover their damages. This problem of a ‘temporary company’ is addressed in part through the Disclosure Statement that needs to be provided to potential purchasers in most situations. The Disclosure Statement needs to state the nature and experience of the developer. DOES A DEVELOPER OWE A DUTY TO THE STRATA EVEN IF IT AFFECTS THEIR PROFITS? The Developer of a Strata has a “duty to protect the interests of all unit owners present and prospective as well as the interests of the strata corporation…The developer is not permitted to put its own interest in conflict with theirs” (The Owners, Strata Plan 1229 v Trivantor Investments International Limited, 1995 CanLII 1753, para. 9). This creates a natural tension, because a Developer creates a Strata for a genuine and appropriate desire to make a business profit but must put the interests of the Strata ahead of their interest in a profit. The Strata Property Act creates a series of obligations on a Developer that are intended to make it clear to a potential purchaser if a Developer has not met its obligation to the Strata and imposes fines when a Developer fails to meet its obligations. These obligations include: Calling the first AGM and the obligations at the first AGM. Creating an interim budget. Retaining and producing of documents. Establishing an Initial Contingency Reserve Fund. WHAT POWER DOES A DEVELOPER HAVE REGARDING STRATA MANAGEMENT? The Developer is required to exercise the powers and perform the duties of a council until a council is elected. However, the Developer does not need to have a council or hold or conduct council meetings. The Developer is also permitted to make decisions for the Strata even when the Developer has a personal interest in a contract or matter that is the subject of that decision. The reason a Developer can act without a council or holding council meetings is because a Strata is created when the strata plan is deposited and before any strata lots are sold to an Owner. Therefore, there is no one else that would be on the Council. The reason a Developer can enter into contracts on behalf of the Strata even though the Developer has a personal interest in the contract is because often a Strata is created before the construction or operation of the Strata is completed. However, this creates two possible significant problems. The first is that there is no clear ‘break’ for the Developer between their duties before the creation of the Strata and after the creation of the Strata. This can be a problem because before the creation of the Strata, the Developer has no obligation to care about the interests of the Strata. Prior to the creation of the Strata, the Developer has essentially unconstrained freedom to do whatever they believe will generate the most profit or meet their business goals and the Strata Property Act does not apply. However, after the creation of the Strata, the Developer loses that span of freedom and must act as required by the Strata Property Act. It is easy to imagine a situation where a Developer has difficulty understanding that this transition has occurred, particularly when there is no requirement to hold meetings or make minutes of decision. The second is that there is no transparency for Owners regarding what decisions were made by the Developer or when those decisions were made. Without the requirement to have council meeting there is no formalized decision-making process that is recorded as a record of the Strata. This can create a situation where after the Developer is no longer involved with the Strata, the Owners and Council are unable to understand why certain decisions were made by the Developer. A DEVELOPER SHOULD BE AWARE THAT THEY ARE BUILDING A STRATA COMMUNITY The Developer has a significant impact on the viability and time it can take to develop a Strata Community. The Disclosure Statement includes statements that can set the expectations of Owners. The Developer must protect the interests of future Owners and that should create the conditions for a smooth handover to the first Council. However, the fact that a Developer does not need to hold Council meetings or produce minutes can make it difficult for Owners to understand the decisions made by the Developer after the Developer is no longer involved with the Strata.

IS THERE A DIFFERENCE BETWEEN ATTENDING AND SPEAKING AT A COUNCIL MEETING? Every Strata must have a Strata Council that exercise the powers of the Strata through Council Meetings. Many owners are interested in what happens during council meetings and occasionally ask whether they have the right to attend or participate in council discussions. This may be more important to Owners when a Council has delegated a significant amount of its authority and will be receiving updates from those people. These are two different questions. The first is whether owners may attend council meetings as observers. The second is whether they have the right to actively participate in council discussions and decision-making. Understanding the distinction helps set appropriate expectations for both owners and council members. IS THERE A RIGHT TO ATTEND A COUNCIL MEETING? The Strata Property Act does not specifically address whether Owners may attend council meetings as observers. Instead, the matter is governed by the Strata's bylaws. Therefore, strictly speaking Owners do not have a right to attend council meetings. The Standard Bylaws permit owners to attend council meetings as observers but exclude attendance during certain portions of meetings, including bylaw contravention hearings, rental restriction exemption hearings, and matters where privacy concerns would be unreasonably affected. The Morley Hanson Model Bylaws contain similar provisions but expand the list of exceptions to include human resource matters, issues involving solicitor-client privilege, adjudicative decisions, and other matters involving privacy concerns. The balance that these two forms of bylaws attempt to achieve is providing Owner's with transparency while protecting confidential and sensitive information. DOES ATTENDING A COUNCIL MEETING MEAN AN OWNER HAS THE RIGHT TO PARTICIPATE? Attending a council meeting as an observer does not automatically give an Owner the right to participate in the discussion. Council meetings are meetings of the elected council, and Council Members are responsible for conducting the business of the Strata. While Councils may choose to invite comments or hear from owners on particular matters, Owners should generally expect that their role is to observe rather than actively participate. There may be situations where Council believes Owner input would be beneficial. For example, Owners may have information regarding a maintenance project, a community initiative, or another issue under consideration. At the same time, Council may decide that active participation would interfere with the efficient conduct of the meeting or make it difficult to complete the agenda. WHEN SHOULD COUNCIL ALLOW PARTICIPATION? Every Strata Community is different, and there is no single approach that works for every council meeting. The Morley Hanson Model Bylaws include the ability for the Chair of the Council Meeting to determine whether an observer can participate. Council may wish to consider allowing owner participation when: Additional information would assist decision-making. Community feedback would be valuable. The issue affects a significant portion of the ownership. Brief discussion could help avoid misunderstandings. At the same time, Council should ensure that owner participation does not prevent Council from efficiently conducting its business or compromise confidential matters. Clear expectations regarding attendance and participation can help meetings remain productive while encouraging owner engagement. TRANSPARENCY SUPPORTS OWNER'S ATTENDING COUNCIL MEETINGS WHILE EFFICIENCY SUPPORTS OWNER'S NOT PARTICIPATING Owners and Council Members should understand that attending a council meeting and participating in a council meeting are different concepts. While bylaws often permit owners to attend as observers, active participation is generally at the discretion of council and should be managed in a way that balances transparency, owner engagement, and effective governance.

WHAT IS A W.A.T.N.A.? When negotiating you should not agree to anything that is worse than just acting unilaterally. This is why you must understand what you can do without the agreement of the other person. This understanding is sometimes referred to as the “Worst Alternative to a Negotiated Agreement” or “WATNA.” If you accurately identify and understand your WATNA it is a very useful tool to evaluate whether your agreement to a compromise or agreement is reasonable. In the simplest sense, if an offer is less beneficial than your WATNA, you should not accept it. A negotiation requires the consent of all the involved people. Before and during a negotiation, it is important to know why you are willing to negotiate. A meaningful resolution through negotiation involves everyone identifying their important interests and not being stuck in the trap of trying to achieve a specific position. HOW DO I DETERMINE WHAT MY W.A.T.N.A. IS? In the reality of a negotiation, determining your WATNA is more of a planning tool than an objective truth. There are assumptions built into every WATNA and, if those assumptions are inaccurate, an offer may in fact be better or worse than the WATNA. The steps to determine your WATNA: Identify the core of what you are trying to accomplish. Identify what the law permits you to do without the consent of the other person. Identify what the chance is to successfully do what the law permits without the consent, or the active opposition, of the other person. Identify the costs are of doing what the law permits if there is no support from the other person. An example of determining your WATNA: Here is an example of the determination of a WATNA, from the perspective of a strata lot owner that is requesting permission from a Strata Corporation to alter the common property to make a penetration in the building envelope to install a heat pump. What is the core that they are trying to accomplish: They are trying to heat and cool the strata lot so that it is comfortable year-round and can adapt to the warmest temperature and the coldest temperature. What does the law permit without consent: The law does not permit the making of a penetration in the building envelope, but it does permit the owner to use a heater and fans and, without a bylaw to the contrary, it does allow the use of an air conditioner that can be used through an open window. What are the chances of success acting without consent: The chance of successfully using a heater and an air conditioner are high because the Strata likely will not care about this decision and has no legal basis to oppose it. What are the costs of acting without consent: The costs may be significant both in money (having to purchase two or more appliances and pay the electric costs because of the inefficiency) and in convenience (having to store the appliances when not in use, having to install and uninstall the air conditioner). Therefore, an owner that is negotiating with a Strata for permission to alter the common property should be able to assess any compromise or assessment by comparison to their WATNA. For example, if the Strata is only willing to permit the alteration on conditions that limit the times during which a heat pump could be used and that prevents the strata lot from being comfortable year-round, an owner should consider using appliances. Another example, is if the Strata will permit the alteration only in exchange for a significant payment that would make it cheaper to purchase and store appliances, an owner should consider using appliances. WHAT IS THE RISK OF NOT CONSIDERING YOUR W.A.T.N.A.? Without properly considering your WATNA, you will be at a disadvantage during a negotiation. Your WATNA allows you to understand whether a compromise is in your best interest and the process of considering your WATNA provides you with a tool to consider alternatives during the process of negotiation. It is important to consider that your WATNA may change and evolve over time as you think of more possible alternatives or you develop a better understanding of what the law permits.

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.

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.

"If you think that hiring professionals is expensive, try hiring amateurs." -- Red Adair. WHY DOES THE DIFFERENCE BETWEEN AN EMPLOYEE AND AN INDEPENDENT CONTRACTOR MATTER? The distinction between an employee and an independent contractor is critically important for strata corporations because the legal, financial, and administrative consequences are very different. Strata corporations often hire caretakers, cleaners, gardeners, bookkeepers, building managers, concierge staff, maintenance workers, and other service providers. In many cases, strata councils assume that if the person has been called a “contractor,” submits invoices, or has signed a contractor agreement, the issue is settled. It is not. The law looks at the substance of the relationship, not just the label placed on it. A person may be described as an independent contractor in a written agreement, but still be found to be an employee if the actual working relationship has the characteristics of employment. The BC Employment Standards Branch expressly warns that the Employment Standards Act applies to employees regardless of whether they are full-time, part-time, temporary, or casually employed, and the Province provides specific guidance on the employee-versus-independent-contractor distinction. This distinction matters because employees are entitled to statutory protections, including minimum employment standards, vacation pay, statutory holiday pay, overtime where applicable, and termination notice or pay in lieu of notice. They may also be entitled to common law reasonable notice. Independent contractors, by contrast, are generally operating their own business and are not entitled to those same employment protections. WHAT IS THE BASIC DIFFERENCE BETWEEN AN EMPLOYEE AND AN INDEPENDENT CONTRACTOR? An employee is generally someone who works within the strata corporation’s organization and is subject to the strata corporation’s direction and control. The strata corporation decides what work is done, how it is done, when it is done, and often provides the tools, equipment, workspace, and structure through which the work is performed. An independent contractor is generally someone who is carrying on business for themselves. They offer services to the strata corporation as a separate business, control how the work is performed, provide their own tools or equipment, may work for other clients, may hire helpers, and may bear the risk of profit or loss. CRA guidance similarly focuses on whether the worker has a real opportunity for profit and risk of loss, including the ability to negotiate pricing, accept work from more than one payer, incur expenses, and manage those expenses to maximize net earnings. In practical strata terms, the distinction often comes down to this: An employee works for the strata corporation. An independent contractor provides services to the strata corporation. That difference may seem small, but legally it is enormous. HOW DOES ONE DETERMINE IF A PERSON IS A CONTRACTOR OR AN EMPLOYEE? The leading Canadian test for distinguishing between employees and independent contractors is commonly referred to as the Wiebe Door test, from Wiebe Door Services Ltd. v. M.N.R. The test does not turn on one single factor. Instead, it considers the whole relationship between the parties, including control, ownership of tools, chance of profit, risk of loss, and integration into the payer’s business. The main factors are: Control – Who controls how, when, and where the work is done? Ownership of tools – Who supplies the tools, equipment, materials, uniform, phone, vehicle, or workspace? Chance of profit – Can the worker make more money by managing the work efficiently, hiring others, or taking on other clients? Risk of loss – Can the worker lose money if the job is underpriced, takes too long, requires rework, or involves unexpected costs? Integration – Is the worker operating as part of the strata corporation’s organization, or are they operating an independent business that provides services to the strata corporation? None of these factors is decisive on its own. The legal question is whether, looking at the total relationship, the person is truly in business for themselves or is instead working as part of the strata corporation’s operations. HOW DOES CONTROL AFFECT THE ANALYSIS? Control is often the most important factor in the strata context. If the strata corporation or strata council tells the worker exactly what hours to work, what tasks to perform each day, how to perform them, what order to do them in, where to be, what to wear, and how to interact with residents, that looks more like employment. By contrast, if the strata corporation hires a cleaning company to clean the common areas twice per week, and the company decides which staff to send, what equipment to use, how to complete the work, and how to manage its own schedule within the contract requirements, that looks more like an independent contractor relationship. This does not mean that a strata corporation cannot set standards for contractors. A strata corporation can require contractors to perform work safely, comply with bylaws, meet contractual specifications, maintain insurance, and complete work by a deadline. The problem arises when the strata corporation moves from setting the desired result to controlling the day-to-day manner in which the worker performs the work. WHY DO TOOLS, EQUIPMENT, AND BUSINESS RISK MATTER? A true independent contractor usually brings something more than labour. They often bring tools, equipment, insurance, business systems, employees or subcontractors, expertise, and the risk that comes with running a business. For example, a landscaping contractor who provides its own truck, tools, insurance, employees, WorkSafeBC coverage, and invoices multiple clients is more likely to be an independent contractor. A resident who is paid monthly to do gardening, uses the strata’s tools, works only for the strata, follows council’s daily instructions, and has no real business risk is more likely to be an employee. The same issue arises with caretakers and building managers. A “contract caretaker” who works fixed hours, lives on site, reports directly to council, performs whatever tasks council assigns, uses strata equipment, cannot send a substitute, and does not provide services to others may be an employee even if the written agreement calls them a contractor. WHAT ARE THE WARNING SIGNS THAT A “CONTRACTOR” MAY ACTUALLY BE AN EMPLOYEE? A strata corporation should be cautious where the worker: Works only for the strata corporation. Has worked for the strata corporation for many years. Is paid hourly or by regular salary-like payments. Has fixed hours set by council. Is supervised closely by council or a property manager. Uses the strata corporation’s tools, equipment, supplies, or workspace. Cannot hire helpers or send a substitute. Has no real chance of profit or risk of loss. Does not advertise services to the public. Does not carry insurance. Does not have a business licence, GST number, or other business indicia. Performs ongoing operational duties that are central to the strata’s daily functioning. The more of these factors that exist, the greater the risk that the worker is an employee. DOES A WRITTEN AGREEMENT SOLVE THE PROBLEM? A written agreement is important, but it is not enough by itself. A contract that says “independent contractor” will help only if the actual relationship is consistent with independent contractor status. For example, a written contractor agreement will not prevent an employment finding if the strata corporation controls the worker like an employee, requires fixed hours, provides all equipment, prohibits work for others, and integrates the person into the strata’s daily operations. The written agreement should match the practical reality of the relationship. If the strata wants an independent contractor, the relationship should be structured and managed that way from the beginning. WHY IS MISCLASSIFICATION A PROBLEM FOR STRATA CORPORATIONS? Misclassification occurs when a strata corporation treats a worker as an independent contractor when, legally, the worker is actually an employee. This can create significant exposure. If the person is later found to be an employee, the strata corporation may face claims for: Unpaid vacation pay. Statutory holiday pay. Overtime or minimum wage compliance issues. Termination pay under the Employment Standards Act. Common law reasonable notice. Payroll remittances, CPP, EI, and tax-related consequences. WorkSafeBC registration, premium, or clearance issues. Administrative time, legal fees, and owner conflict. For strata corporations, the risk is often worse because these relationships can continue for years. By the time the relationship ends, the potential liability may be much larger than anyone expected. CONCLUSION ON EMPLOYEES, INDEPENDENT CONTRACTORS, AND STRATA CORPORATIONS The distinction between an employee and an independent contractor is not determined by what the strata corporation calls the person. It is determined by the actual relationship between the parties. The Wiebe Door test looks at control, ownership of tools, chance of profit, risk of loss, and integration to determine whether the worker is truly operating an independent business or is instead working as part of the strata corporation’s organization. For strata corporations, this distinction matters because employees come with statutory and common law rights. If a person is misclassified as a contractor, the strata corporation may face claims for employment standards entitlements, termination pay, common law reasonable notice, tax and payroll consequences, WorkSafeBC issues, and legal costs.

HOW CAN AN OWNER GET A COPY OF THE REGISTERED STRATA PLAN? The easiest way to obtain a copy of a Strata Plan from the Land Title and Survey Authority of British Columbia (LTSA) is using the myLTSA online system. A valid LTSA account is required, and fees apply to order and download a title. WHY WOULD A PERSON WANT A COPY OF THE STRATA PLAN? A Strata Plan is a core document for understand the ownership of property in a Strata. A strata plan shows the layout of strata lots, common property, limited common property, and unit boundaries. It may also include the unit entitlement of strata lots and the interest an owner has upon the cancellation of the Strata (depending on when the strata plan was filed). It is important for Owners and members of the Council to have convenient and reliable access to the official Strata Plan. We have worked with many Stratas and Owners that were working on an 'assumption' that some property was either common property or limited common property based on historical statements and agreement, when at law the property was not designated as they believed. In particular, it is important for Owners of Strata Lots in newer Stratas to carefully review the Strata Plan to ensure that it accurately reflects what the developer stated would occur in the Disclosure Statement filed under the Real Estate Development Marketing Act. WHAT ARE THE STEPS TO GET THE STRATA PLAN FROM THE LTSA? Log in to myLTSA account using your credentials. Navigate to Plan Search by clicking on the “Searches” tab in the top menu and selecting “Plan Search”. In the search options, select “Land Title District” and enter the Strata Plan Number using numbers only (for example, enter 100, not VIS100). If you are unsure how to find the Strata Plan Number, refer to our article on how to retrieve the PID or legal description to a property. Click “Search” and a list of registered plans matching that number will be displayed. Locate the correct Strata Plan by scrolling through the list to find the correct strata plan and confirm the plan details (land title district and plan type). View the Strata Plan by selecting the strata plan to open it. Download or Print a copy of the strata plan as required and remember that the Strata Plan is usually several pages long.

IS A BYLAW RESTRICTING OCCUPANCY VALID? The enforceability of an occupancy restriction often depends on the circumstances. We have another article describing the general limit to the power of bylaws. In the contect of an occupancy restriction, the Strata must be able to show why enforcement is reasonable in the particular circumstances. Given the existing case law, enforcement of an occupancy restriction bylaw is likely only going to be permitted where the bylaw is reasonable and being used to take enforcement steps against a commercial, or quasi commercial form of occupancy. When enforcing an occupancy restriction bylaw against a family unit, the Strata must also be able to show why granting an exemption (if the bylaw allows it, or a human rights based exemption is sought) would cause undue hardship. CAN A STRATA USE GENERAL OR LOGICAL ASSUMPTIONS AS JUSTIFICATION FOR ENFORCING AN OCCUPANCY RESTRICTION BYLAW? A Strata cannot usually justify enforcement an occupancy restriction bylaw by relying only on assumptions. It may seem obvious that five occupants will create more wear and tear than two occupants. It may also seem logical that more residents will place more pressure on common property, parking, garbage facilities, elevators, plumbing, or other building systems. However, recent decisions from the Civil Resolution Tribunal and Human Rights Tribunal show that common sense assumptions about the number of residents in a unit do not make the occupancy restriction bylaw enforceable in all cases. The Civil Resolution Tribunals has accepted that more occupants may logically create more use. However, it found there was no evidence showing that allowing five people to occupy the strata lot, rather than two, would create anything more than a trivial impact to other residents or the Strata as a whole. Where the enforcement of an occupancy restriction bylaw bumps up against a family size, or family composition argument the Strata must be prepared to prove that allowing the exemption to the bylaw would cause or has caused undue hardship. The Tribunals will not accept generalized concerns about family size or composition as creating undue hardship. We have articles addressing the duty to accommodate Owners based on the Human Rights Code. WHAT EVIDENCE IS RELEVANT TO ENFORCE OCCUPANCY RESTRICTION BYLAWS? Where a family status issue is raised, the Strata should obtain enough information and evidence to understand the nature of the claimed familial relationship and the impact of enforcement. Depending on the circumstances, this may include information about: The number of occupants. The relationship between the occupants. Whether children are involved. Whether the household operates as a family or family-like unit. Whether the residents share meals, expenses, caregiving, companionship, or emotional support. Whether the arrangement is intended to be stable or temporary. Whether enforcement would require the household to separate or move. Whether the relationship is actually an economic relationship akin to boarding or rooming. The Strata should be careful not to demand excessive or intrusive personal information when enforcing an occupancy restriction bylaw. The goal is not to pry into private family life. The goal is to obtain enough information to assess whether the Human Rights Code is engaged and whether accommodation is required. WHEN CAN A STRATA CLAIM UNDUE HARDSHIP IN A FAMILY STATUS CASE? If a prima facie case of discrimination on the basis of family status is established by a resident, the Strata must show that its conduct in enforcing the bylaw is justified unless it is wiling to grant an exemption. In the face of established discrimination on the basis of family status, continuing to enforce the bylaw may only be done where granting the exemption would demonstrably result in undue hardship. Undue hardship is a high standard. It is not established merely because accommodation is inconvenient, unpopular, or somewhat costly. The relevant considerations may include financial cost, health and safety risks, impact on other owners, and the practical feasibility of the accommodation. In the occupancy restriction context, undue hardship may require evidence that allowing the non-conforming household to remain would cause a significant and demonstrable problem, such as a safety risk, building capacity issue, serious interference with other residents, or substantial strain on common property or services. It is not enough to say that the bylaw would be undermined if an exemption were granted. WHAT EVIDENCE WOULD SUPPORT A CLAIM OF UNDUE HARDSHIP? The type of evidence required to prove that a Strata would suffer undue hardship if an oversized family was allowed to remain will depend on the reason for the bylaw and the facts of the case. Relevant evidence may include: Building code or fire safety requirements (this may be key). Occupancy load limits. Expert reports from engineers, building consultants, fire safety professionals, or other specialists. Evidence of plumbing, electrical, elevator, ventilation, or mechanical capacity limits. Evidence of actual overcrowding and poor conditions within the strata lot. Evidence of complaints from other residents. Evidence of significantly increased maintenance or repair costs. Evidence of insurance, safety, or regulatory concerns. Evidence that the strata lot is being used as a boarding house, rooming house, or commercial accommodation. Evidence that the requested exemption would create a real and substantial burden on the strata community. The stronger the human rights impact, the stronger the evidence will likely need to be to establish undue hardship. WHAT ARE THE PRACTICAL CONSIDERATIONS WHEN EVALUATING A BYLAW THAT RESTRICTS OCCUPANCY OF A STRATA LOT? Occupancy restriction bylaws may still be valid and enforceable, but enforcement now requires care, evidence, and a proper human rights analysis. The most important practical points are: Do not enforce an occupancy restriction automatically. Consider whether family status or another protected ground is engaged. Ask for relevant information, but do not overreach when doing so. Consider exemptions in good faith. Gather evidence of actual impact or risk. Do not rely only on generalized concerns. Document the decision-making process. Ensure the response is reasonable, proportionate, and evidence-based. STRATAS MUST BE CAUTIOUS WHEN TRYING TO LIMIT THE NUMBER OF OCCUPANTS IN A STRATA LOT. A Strata may have legitimate reasons for limiting occupancy, but those reasons must be supported by facts where enforcement affects family status or another protected ground. Where discrimination is established, the Strata must show not enforcing the bylaw would result in undue hardship. Undue hardship may require evidence that allowing the household to remain would cause a real problem, such as a safety risk, building capacity issue, serious interference with other residents, or substantial strain on common property or services, general concerns about crowding, wear and tear, or fairness are insufficient.

DOES A DUPLEX OR SMALL STRATA NEED A STRATA COUNCIL? In 2025 the BC Supreme Court confirmed that even if there are only two strata lot owners that a Strata must have a Council and there must be council meetings. That case involved a Strata that had three residential strata lots. Two of the strata lots were owned by a company that rented those strata lots to tenants and the third strata lot was owned by a person that lived in the strata lot. The Strata had never elected a Council and therefore the powers and duties of the Strata were never exercised by the Council. The court stated that the reason no Council had been elected was because the company believed that as the owner of the majority of the strata lots it had the legal authority to make all the decisions without involving the other owner. The court stated that even if it was true that the corporate owner could pass resolution that only required a majority vote that was not true for a resolution requiring a ¾ majority. We note that for a duplex, no Owner can pass a majority vote and essentially every resolution requires unanimous agreement. Importantly, the court confirmed that annual general meetings and council meetings were required for several reasons including: Every Owner is entitled to be provided with information about decisions. Every Owner is entitled to communicate their preferences regarding a decision. Every Owner is entitled to information about decisions. A Strata requires an “operating and functional…democracy”. There is a lot of excellent commentary in that court decision, 0899148 B.C. Ltd. v. Ching (2025 BCSC 1694). However, what we want to emphasize is that the processes required by the Strata Property Act may seem overly formal or a burden for a small Strata but they are essential to an operating and functional democracy. We have experience with several small Stratas where the Owners did not believe it was necessary to have the formalities of a Strata until something went wrong and they realized that the Strata Community was not as robust and resilient as they had expected. A Strata Community is most useful when there are compromises that must be made and when reasonable people can disagree but it should be built and maintained before conflicts arise.