Williams V Strata Plan LMS 768

Williams v.
Strata Plan LMS 768, 2003 BCHRT 17, 2003 CarswellBC 3486
2003 BCHRT 17, 2003 CarswellBC 3486, 46 C.H.R.R. D/326
2003 BCHRT 17
British Columbia Human Rights Tribunal
Williams v. Strata Plan LMS 768
2003 CarswellBC 3486, 2003 BCHRT 17, 46 C.H.R.R. D/326
In the Matter of the Human Rights Code R.S.B.C. 1996, c. 210 (as amended)
In the Matter of a complaint before the British Columbia Human Rights Tribunal
Dorothy Williams, Complainant and Plan LMS 768, Section DIVB, New Westminster Land District,
located at 9400 Cook Street, Chilliwack, BC, operating as Strata Council # 768, Respondent
Neuenfeldt Member
Heard: March 20-21, 2003

Judgment: May 7, 2003
Docket: None given.
Counsel: Judith Doulis, for Complainant

John Cameron, for Respondent
Subject: Constitutional; Human Rights

Related Abridgment Classifications
Human rights
III What constitutes discrimination
III.7 Disability
III.7.a Physical disability
III.7.a.iv Denial of public services or facilities
Human rights
VII Remedies
VII.2 Damages
VII.2.f Miscellaneous
Headnote
Human rights --- What constitutes discrimination — Handicap — Physical handicap — Denial of public services or
facilities
Human rights --- Remedies — Damages — General
Table of Authorities
Cases considered by Neuenfeldt Member:
British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (1999), 1999 CarswellBC 1907,
1999 CarswellBC 1908, (sub nom. British Columbia Government & Service Employees' Union v. Public Service
Employee Relations Commission) 99 C.L.L.C. 230-028, [1999] 10 W.W.R. 1, (sub nom. British Columbia (Public
Service Employee Relations Commission) v. B.C.G.S.E.U.) 176 D.L.R. (4th) 1, (sub nom. Public Service Employee
Relations Commission (B.C.) v. British Columbia Government & Service Employees' Union) 244 N.R. 145, 66
B.C.L.R. (3d) 253, (sub nom. Public Service Employee Relations Commission (B.C.) v. British Columbia Government
& Service Employees' Union) 127 B.C.A.C. 161, (sub nom. Public Service Employee Relations Commission (B.C.)
v. British Columbia Government & Service Employees' Union) 207 W.A.C. 161, 46 C.C.E.L. (2d) 206, 35 C.H.R.R.
D/257, (sub nom. British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.) 68 C.R.R.
Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1
Williams v. Strata Plan LMS 768, 2003 BCHRT 17, 2003 CarswellBC 3486
(2d) 1, (sub nom. British Columbia (Public Service Employee Relations Commission) v. BCGSEU) [1999] 3 S.C.R.
3, 7 B.H.R.C. 437 (S.C.C.) — considered
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), [1999]
3 S.C.R. 868, 1999 CarswellBC 2730, 1999 CarswellBC 2731, [2000] 1 W.W.R. 565, 47 M.V.R. (3d) 167, 249 N.R.
45, 70 B.C.L.R. (3d) 215, 181 D.L.R. (4th) 385, 36 C.H.R.R. D/129, 131 B.C.A.C. 280, 214 W.A.C. 280 (S.C.C.)
— considered
Ganser v. Rosewood Estates Condominium Corp. (2002), 42 C.H.R.R. D/264, 2002 CarswellAlta 1817 (Alta. Human
Rights Bd. of Inquiry) — considered
Insurance Corp. of British Columbia v. Heerspink (1982), [1982] 2 S.C.R. 145, [1983] 1 W.W.R. 137, 39 B.C.L.R. 145,
137 D.L.R. (3d) 219, 82 C.L.L.C. 17,014, [1982] I.L.R. 1-1555, 3 C.H.R.R. D/1163, 43 N.R. 168, 1982 CarswellBC
224, 1982 CarswellBC 742 (S.C.C.) — referred to
Renaud v. Central Okanagan School District No. 23 (1992), [1992] 6 W.W.R. 193, (sub nom. Central Okanagan
School District No. 23 v. Renaud) 95 D.L.R. (4th) 577, (sub nom. Renaud v. Board of Education of Central Okanagan
No. 23) 24 W.A.C. 245, (sub nom. Central Okanagan School District No. 23 v. Renaud) 92 C.L.L.C. 17,032, 141
N.R. 185, 71 B.C.L.R. (2d) 145, (sub nom. Central Okanagan School District No. 23 v. Renaud) [1992] 2 S.C.R.
970, (sub nom. Renaud v. Board of Education of Central Okanagan No. 23) 13 B.C.A.C. 245, 1992 CarswellBC 257,
16 C.H.R.R. D/425, 1992 CarswellBC 910 (S.C.C.) — considered
Statutes considered:
Court Order Interest Act, R.S.B.C. 1996, c. 79
Generally — referred to
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1980, c. H-11.7
Human Rights Code, R.S.B.C. 1996, c. 210
s. 2 — referred to
s. 8 — considered
s. 8(1) — considered
s. 8(1)(a) — considered
s. 37(2) — referred to
Strata Property Act, S.B.C. 1998, c. 43
s. 2(1)(b) — referred to
s. 22(1) — considered
Neuenfeldt Member:
I Introduction
1 Dorothy Williams, the Complainant, filed a complaint (Exhibit 1) in which she alleged that the Respondent, Plan
LMS 768, Section DIVB, New Westminster Land District, located at 9400 Cook Street, Chilliwack, BC, operating as
Strata Council #768, discriminated against her regarding an accommodation, service or facility customarily available
to the public, because of her physical disability, contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210, as
amended (the "Code").
2 More specifically, the Complainant alleges that she was discriminated against when the Respondent modified the
security system of the strata property where she resides. Because of her physical condition, she alleges that she is unable
to allow emergency medical services to enter the strata property in order to gain access to her apartment.
3 The Respondent denies that it has discriminated against the Complainant. It takes the position that it has taken
reasonable steps, in good faith, to enhance the security and safety of all the resident-owners of the strata property.
II Evidence
4 I heard evidence from the Complainant and her daughters, Hollis (Holly) Williams and Teresa Nelson. John
Cameron, acting on behalf of the Respondent, also gave evidence. No other witnesses were called for the Respondent.
5 I have reviewed and considered all of the evidence. In my reasons I refer only to that evidence which I have found
necessary in reaching my decision. Little of the evidence is in dispute.
The Strata Property - The Wellington
6 In 1993, the Complainant purchased apartment 203 in an apartment building located at 9400 Cook Street, Chilliwack,
B.C. The apartment building is known as The Wellington.
7 The Wellington is a three story building, containing 18 apartments, all of which are owner-occupied. The
Complainant's apartment is on the second floor, one apartment away from an elevator that services all three floors.
8 The Wellington is owned and operated by the Respondent, pursuant to the provisions of the Strata Property Act,
S.B.C. 1998, c. 43. As such it is governed by an elected council. At all material times, the members of the council were
Jean Scullion, president, Wally Hockaluck, Iva Dunleavy, Gordon Kingston, and Bill Thomson, all residents of The
Wellington. According to section 2(b) of the Strata Property Act, the Complainant, as the owner of a strata lot in the
strata plan, is a member of the strata corporation.
9 At all material times, the property manager for The Wellington was John Cameron. Mr. Cameron does not reside
at The Wellington. He is the property manager for a number of strata corporations in the Chilliwack area.
10 The Wellington is equipped with a combination intercom and entry system. When a visitor at the main entrance
pushes the call button for a particular apartment, the apartment resident can disengage the electronic door lock on the
main entrance door from his or her apartment. During the course of the hearing, the various witnesses described the
system as one in which visitors were "buzzed in" by residents.
11 The lobby of the building can also be entered from the building's garage through a separate access door. Entrance
to the lobby from the garage does not require a key, but egress from the lobby to the garage does.
12 The crux of the complaint is the council's decision to install a timer to override the door-opening system for
predetermined periods. A discussion about the installation of the timer was first noted in the minutes of a council meeting
on April 16, 2002 and on May 21, 2002, the council passed a resolution approving the installation. The new system was
activated on June 7, 2002.
13 The timer was to be set so that the door-opening system would be deactivated from 8:00 p.m. until 8:00 a.m. During
those hours, if a visitor rang a resident's apartment, the resident would be required to go to the lobby of the building
and open the main door from the inside.
14 Some time was spent at the hearing reviewing why the timer was installed. Mr. Cameron testified that he and the
council were concerned about the rash of home invasions in Greater Vancouver and the Fraser Valley. He noted that
there had been a forced entry into the building as well as acts of vandalism to exterior fixtures. On the occasion of the
forced entry, storage lockers in the building had been broken into and some items had been stolen. On another occasion,
mail boxes in the lobby had been rifled, but there was no indication of forced entry.
15 Mr. Cameron alleged there had been additional problems at The Wellington, but was unable to obtain confirmation
of the incidents from the police. The Complainant filed a letter (Exhibit 3, tab 37, attachment C) from the local police
detachment, dated March 11, 2003, stating that from 1996 until March of 2003, there had been one forced entry into the
building's storage lockers and one incident where mailboxes in the building had been rifled. Both incidents occurred in
2002. The author of the letter notes that there may have been other incidents not reported to the police.
16 Mr. Cameron also gave evidence that he conducted a test before the timer was installed. He randomly rang a
number of apartments from the lobby of The Wellington. Some of the residents did not respond, while some asked him
who he was. A few residents "buzzed" him in without asking who he was or what he wanted. The test confirmed his
suspicion that entry to the building could easily be gained by strangers. However, he took no steps to caution those
individuals who let him into the building without question. He also noted that as most of the residents of The Wellington
were elderly, there was a tendency for some of them to forget to close doors behind them. For example, for a time there
was a problem with the door from the garage to the lobby not being closed properly.
17 The test, as well as the other concerns noted, spurred Mr. Cameron to propose installation of a timer to the council.
He made the suggestion in an attempt to be "proactive" about building and resident security.
18 Mr. Cameron gave evidence elsewhere in the hearing that, from his own experience, security devices such as
video monitors were expensive to install and maintain. They were also subject to vandalism. Such systems required daily
maintenance. He noted that there was no one on the council willing to undertake the duties attendant on a video system,
and that there was a shortage of physically mobile residents in the building.
19 In my view, there was insufficient evidence to determine that The Wellington was subjected to an inordinate number
of incidents of vandalism and theft before June 7, 2002. However, the evidence does establish that when the council
installed the timer, on the advice of Mr. Cameron, it did so solely to enhance building security.
20 Few, if any residents, outside the council had advance notice of the installation of the lock-timer or of Mr. Cameron's
immediate security concerns. There was evidence of a breakdown in communication between Mr. Cameron and Ms.
Scullion as to which of them was to notify the residents of the plan.
21 As a result of the council's decision, as of June 7, 2002, residents of The Wellington would no longer be able to
"buzz in" visitors between 8:00 p.m. and 8:00 a.m. They were required to go to the main entrance of the building to
admit the visitor.
22 The council, through the evidence and representations of Mr. Cameron, has made it clear that it is not willing
to remove or disconnect the timer.
Dorothy Williams
23 Dorothy Williams is 80 years of age and has a number of health problems. In a letter dated June 24, 2002, her
family physician, Dr. Norman Todd (Exhibit 4, attachment A) states:
My patient Mrs. Dorothy Williams has congestive heart failure, advanced arthritis, macular degeneration and
hepatitis C. Due to her conditions and recent urgent medical needs it would be physically unrealistic for her to be
mobile in a [sic] emergency situation. Any delay in time for her access to medical assistance could result in a critical
situation.
24 In a further letter dated March 12, 2003, (Exhibit 4, attachment B) Dr. Todd elaborates on the Complainant's
health difficulties. He notes that the Complainant had been in heart failure a number of times over the past eight years.
When she is in acute failure she becomes weak and short of breath, sometimes requiring hospitalization. Her condition
during an episode of heart failure would prevent her from walking up and down stairs to allow the emergency medical
staff to enter the building. Her failing eyesight also adds to her difficulties in negotiating stairways. Finally, her arthritic
condition, which has caused deformity of her joints, makes mobility difficult.
25 The Complainant has required hospitalization on an emergency basis for heart problems on two relatively recent
occasions, once in December, 2001, and again in February, 2002. On both occasions the Complainant experienced
extreme weakness and shortness of breath. She testified that she has learned to recognize when she is having heart
problems. Both incidents required several days of hospitalization and weeks of recovery. The first incident occurred at her
daughter's home while the second occurred at her apartment at The Wellington. After both incidents the Complainant
convalesced at the home of her daughter.
26 As a result of her health problems, the Complainant, her doctor and her family made arrangements for her to
receive homecare visits. As well, the Complainant subscribes to a medical alert service. If the Complainant experiences
a medical problem, she activates a "panic button" pendant or one of two other call buttons in her apartment. She is
immediately contacted by the service, which confirms the problem. In turn, the service contacts a predetermined list of
medical services or individuals. Beside the ambulance service and the Complainant's daughter, the list includes another
resident of the building, Mrs. Weims. Mrs. Weims is the mother-in-law of the Complainant's daughter, Ms. Williams.
27 When asked if she was willing to put the name of another resident on the list the Complainant replied that she
was not. She did not want to rely on more people than already listed. Ms. Williams stated in her evidence that if her
mother had a medical emergency, time would be of the essence. The persons listed with the medical alert system could
not always be relied upon to be at home.
28 In June of 2002, at the time the door timer was installed at The Wellington, the Complainant was receiving homecare
visits three times a day. The homecare workers assisted the Complainant with her meals and medications. Her arthritis
and sight problems made it difficult for her to cope with these tasks on her own.
Events after the Timer Installation
29 The Complainant found out about the installation of the timer and the implementation of the new access policy
on Friday, June 7, 2002.
30 The Complainant spoke to one of the council members about the change and also contacted her daughter, Ms.
Williams. Ms. Williams in turn contacted members of the council, explaining that there were access issues that needed to
be addressed. One of the council members said he would let the Complainant's homecare workers into the building for
the last visit at 10:00 p.m., but Ms. Williams learned that this individual was about to go away for a holiday. Ms. Williams
also spoke to the council president, Ms. Scullion, on June 9, 2002, explaining the concern about emergency access.
31 The timer did not function properly for several days after the installation. Instead of deactivating the door opening
system overnight, it deactivated it for 24 hours a day. This happened over the weekend of June 8 and 9, 2002. As well,
Ms. Nelson, the Complainant's other daughter, gave evidence that the system malfunctioned on June 25, 2002. She called
Ms. Scullion to notify her of the problem. However, when Mr. Scullion answered, he refused to call Ms. Scullion to the
phone, shouted at Ms. Nelson to stop harassing his wife, and hung up.
32 In any event, the council and building manager took steps to correct the flaws in the timer system. Eventually it
was adjusted properly and the Complainant could unlock the main entrance door for her homecare worker up to 10:30
p.m. from her apartment.
33 Shortly after June 7, 2002, the Complainant and her daughters concluded that the new security policy could present
a serious problem if the Complainant had a medical emergency. She would not be able to open the front door of The
Wellington from her apartment to allow emergency medical services into the building when the remote door release
system was deactivated. She would need to leave her apartment, go to the front entrance of The Wellington, and open the
door herself. It was her contention, supported by the medical evidence presented, that she would find this task extremely
difficult to perform while in the midst of a medical crisis. She and her daughters are concerned that any delay in receiving
medical attention could prove extremely harmful to her.
34 The Complainant also argues that curtailment of access by visitors generally is an infringement of her rights. The
Respondent, through Mr. Cameron, agreed that as a result of the decision to install the door lock timer, any resident of
The Wellington with a physical disability faced restrictions in their ability to admit visitors. Elsewhere in the hearing he
took the position that strata owners gave up some of their rights in return for the benefits of living in a strata corporation.
35 On June 9, 2002, Ms. Williams distributed a letter to all the residents of The Wellington about her concerns. The
letter (Exhibit 5, page 1) states that the Complainant and her family wanted the entry system to revert to what it was
prior to June 7, 2002.
36 On June 10, 2002, Ms. Williams wrote the president of the council and the other council members (Exhibit 5, page
2). In the letter she states that three security companies were willing to give free estimates and suggestions for alternate
security arrangements. She notes that one company suggested a video monitoring system be installed in The Wellington.
37 On June 16, 2002, Ms. Williams wrote a second letter to the residents of The Wellington (Exhibit 5, page 3). In
somewhat inflammatory language she set out her family's concerns and possible means to resolve the problems with the
new security arrangements.
38 Ms. Williams testified that she attempted to give the local ambulance service a key to The Wellington. She stated
she was told by the service that its policy was not to take keys. She was also told that the service would not break through
the entrance door of The Wellington if it was locked.
39 Mr. Cameron testified that he had been a member of the volunteer fire department for many years and had never
had to break into an apartment building. In his opinion, if the ambulance service needed to get into the building in an
emergency, the attendants would push the buttons for the various apartments until they were admitted.
40 The council minutes for June 18, 2002 (Exhibit 2, tab 5) indicate the council was aware of the Complainant's
concerns about the new lock system. Under the heading "New Business", the minutes state:
A letter was received from Holly Williams regarding the installation of the door timer. Council discussed the letter
and directed the Manager to reply to the letter indicating that it was for the common good of the strata and would
stand for now. The time for the lock to go into operation was changed to 10:30 pm to allow Mrs. Williams [sic]
night nurse access.
41 Mr. Cameron, who was at the council meeting, confirmed that it decided not to alter its decision. Elsewhere in his
evidence, he stated that he and the council did not believe it was their "right" to investigate options for the Complainant.
42 On or about June 18, 2002, Mr. Cameron wrote a letter to Ms. Williams on behalf of the Respondent (Exhibit 2,
tab 7). The body of the letter is reproduced here in its entirety.
At the regular Council meeting held on June 18 th , the Council spent considerable time discussing both your written
request and the verbal conversations that you have held with various members of Council.
Council feels it has already made a significant concession to your mother by extending the evening time for 10:30
p.m. so that her daily medication can be delivered without her having to go downstairs to admit the health care
worker.
Council is also concerned that your mother has not availed herself of the opportunity to have a key placed in the
lock box that is administered by Council.
I have checked with the Medic Alert Co. and learned that in addition to the ambulance, three additional emergency
numbers can be called if an emergency is required. Surely there are other owners in the building who would assist
if you were not available.
The decision of Council to have the time lock in operation from 10:30 pm to 7:00 am. [sic] stands.
I trust you can appreciate the well being and the security of all owners must be a first priority.
Yours truly,
John Cameron
Property Manager
43 The letter raises four issues. First, it acknowledges that the Complainant has medical concerns requiring unfettered
access to her apartment. Second, it chides the Complainant for not agreeing to place a key in a lock-box accessible to
the council. Third, it suggests it is up to the Complainant to find a second resident in the building willing to be a contact
for the medical alert system previously described. Fourth, it confirms that security of the premises is the council's first
priority.
44 In regard to the second issue, Mr. Cameron gave evidence that residents were encouraged by the council to place
a key for their apartments in a lock-box accessible to the council. He went on to explain that the purpose of the lock-
box key was to allow the council to enter an apartment in case of apparent emergencies. For example, if a resident had
not been seen for an extended period of time, or there appeared to be a water leak, two members of the council would
use the lock-box key to enter the apartment in question. Mr. Cameron conceded at the hearing that these arrangements
would not assist the Complainant if she required immediate attention due to a medical emergency.
45 In regard to the third issue, Mr. Cameron indicated that there were individuals in the building who would be willing
to assist the Complainant by being listed as medical alert contacts. However, he declined to name them. It was his view
that it was up to the Complainant to seek out the residents willing to assist her. Later in the hearing he agreed that no
one in the building was under any obligation to assist the Complainant in an emergency. He also acknowledged that
many residents of the building were infirm, hard of hearing, or forgetful.
46 In regard to the fourth issue, Mr. Cameron repeated at the hearing that the Respondent had to take steps to deal
with the criminal element that exists in Chilliwack.
47 The evidence of the Complainant and her daughters was that they were unwilling to rely on other residents to
intervene in a medical emergency. Almost all of The Wellington residents are elderly and many have health concerns of
their own. The only physically mobile residents identified at the hearing were members of the council in dispute with
the Complainant.
48 The Complainant filed a Complaint (Exhibit 1) with the BC Human Rights Commission (the "Commission") on
June 24, 2002. A few days earlier, the Complainant had also initiated arbitration proceedings, pursuant to the Strata
Property Act, in an attempt to resolve the dispute. These proceedings were put in abeyance in the fall of 2002 by the
Complainant, one day before the arbitration was to be conducted. The evidence at the hearing indicated that there had
been some difficulty in identifying a mutually acceptable arbitrator. The evidence for the Complainant also indicated
that costs for the arbitration had escalated beyond the Complainant's modest means. In the end, she was responsible for
the arbitration costs of $1305.00 (Exhibit 2, tab 17).
49 The Respondent filed a Respondent Reply Form to the Complaint with the Commission on July 26, 2002 (Exhibit
2, tab 11). In it, Mr. Cameron, on behalf of the Respondent, states that the Complainant "...has refused to take any
alternative steps that are open to protect her well being."
50 Ms. Williams replied to the Respondent Reply Form by letter dated September 16, 2002 (Exhibit 2, tab 14). In
it she lists 12 alternative steps taken by the Complainant and her daughters to address the problem. There was some
dispute at the hearing as to the usefulness of some of the contacts made. Suffice it to say that the Complainant's daughters
clearly took a keen personal interest in what they saw as a serious problem. They contacted a number of individuals and
organizations in an attempt to address what they saw as an untenable situation.
51 Ms. Williams, using a proxy from her mother, attempted to speak to the matter at a council meeting on October 8,
2002, but was not allowed to do so. Mr. Cameron, who was at the meeting, advised the attendees that while the matter
was being handled through arbitration, discussion would be inappropriate.
52 At the hearing, the Complainant described her feelings as a result of the council's reaction to her requests to modify
the security system. She stated that she had lived for many years in strata properties and had never experienced such
difficulties with her neighbours. The incident caused her worry and concern. It also caused distress to her daughters.
It was clear from the evidence of the witnesses that the Complainant's relations with her neighbours had been severely
strained. Because of the door timer policy, when not feeling well she often stays with her daughters rather than at her
apartment. For his part, Mr. Cameron expressed the wish that relationships at The Wellington could return to what
they were before the problem arose.
53 The financial circumstances of the Respondent were reviewed at the hearing. Its financial statement for August 31,
2002 (Exhibit 2, tab 25) indicates that it has a contingency reserve fund of over $19,000. Mr. Cameron noted that these
funds were earmarked for replacement of The Wellington's roof.
III. Analysis
54 The Complainant relies on section 8 of the Code, which states:
8. (1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the
public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility
customarily available to the public, because of the race, colour, ancestry, place of origin, religion, marital status,
family status, physical or mental disability, sex or sexual orientation of that person or class of persons.
Issue 1: Credibility
55 As noted earlier, little of the evidence presented was in dispute. The Complainant and her daughters were generally
credible witnesses, as was Mr. Cameron. Credibility is not an issue.
Issue 2: Adverse Inference
56 Counsel for the Complainant asked that I draw an adverse inference because none of the members of the council
appeared as witnesses. Mr. Cameron gave evidence on behalf of the Respondent and represented its interests at the
hearing. The Respondent was under no obligation to call any particular witnesses. The Complainant was not put at a
serious disadvantage by the Respondent's presentation of its case. Finally, such a finding would not have had any impact
on my decision. I do not draw the adverse inference requested.
Issue 3: Does the complaint suffer from a physical disability?
57 I start from the premise that the Code must be applied in a broad, liberal and purposive manner: Insurance Corp.
of British Columbia v. Heerspink (1982), 3 C.H.R.R. D/1163 (S.C.C.).
58 The evidence indicates that the Complainant suffers from several severe medical problems that limit her mobility
and increase her risk of suffering a health crisis. The Respondent did not contest this evidence. I find that as a result of
these medical problems the Complainant has a physical disability.
Issue 4: Is the entry and intercom system provided to the residents of The Wellington an accommodation, service or facility
customarily available to the public?
59 In my view, this complaint is analogous to that considered in Ganser v. Rosewood Estates Condominium Corp.
(2002), 42 C.H.R.R. D/264 (Alta. Human Rights Bd. of Inquiry), a decision of an Alberta Human Rights Panel. In
Ganser , the complainant was also elderly and required the services of a number of caregivers. She could not drive a car
and did not have a driver's licence. However, a bylaw of her condominium corporation stipulated that only residents
with driver's licences were to be allocated a private parking stall in the condominium complex. As a result of the bylaw,
Ms. Ganser was denied a dedicated parking space that her caregivers could utilize.
60 The Alberta Human Rights, Citizenship and Multiculturalism Act [R.S.A. 1980, c. H-11.7], contains language that
closely parallels section 8(1) of the Code. That section states:
No person shall
(a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily
available to the public, or
(b) discriminate against any person or class of person with respect to any goods, services, accommodation or
facilities that are customarily available to the public.
61 The Alberta Human Rights Panel found that there is a public relationship between a condominium corporation
and condominium owners, in that the corporation provided a variety of services to those owners. One such service was
provision of parking facilities (paragraph 71).
62 I find an identical relationship exists in the case before me. The Respondent provides a variety of services to the
Complainant as one of the owners of the strata property. Owners of a strata property are a subset of the general public
referred to in section 8(a) of the Code. One such service is the provision of an intercom and entry system.
Issue 5: Has the Complainant established a prima facie case of discrimination?
63 A prima facie case is established if, assuming all of the Complainant's evidence is true, and without further evidence,
it supports an inference that the conduct was discriminatory.
64 The Complainant says that requiring a person with disabilities to personally admit visitors, including emergency
medical services, to the strata property constitutes differential treatment on the basis of a physical disability, and that
this treatment imposes burdens on persons with disabilities that are not imposed on others.
65 The Respondent did not address the issue of a prima facie case. Rather, it took the position that it installed the
timer on the entry system to enhance building security for the good of all the residents, and that the Complainant should
avail herself of various means of accommodating the change. It conceded that installation of the lock timer restricted
the ability of residents with physical disabilities to admit visitors.
66 I find that the Complainant has discharged the burden on her for establishing a prima facie case. Accordingly,
the burden shifts to the Respondent to establish a bona fide and reasonable justification (BFRJ) for the prima facie
discriminatory treatment.
Issue 6: Has the Respondent established a bona fide and reasonable justification?
67 In reaching a determination under this heading, I must consider the factors set out in British Columbia (Public
Service Employee Relations Commission) v. B.C.G.E.U., [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 (S.C.C.) ("Meiorin").
Was the change in policy implemented by the Respondent reasonably necessary to accomplish the legitimate purpose of
enhancing building security? Was the change in policy implemented in good faith, in the belief that it was necessary for
the fulfilment of a legitimate purpose? Can the Respondent show that it could not meet its goal of enhancing building
security and still accommodate the Complainant without incurring undue hardship?
68 In regard to the first question, I find that the change in policy implemented by the Respondent was reasonably
necessary to accomplish the legitimate purpose of enhancing building security. Building security is a valid concern for
the Respondent. That the decision was made largely in reaction to anecdotal concerns does not, in my view, detract from
the legitimate purpose.
69 In regard to the second question, I find that the change in policy was implemented in good faith, in the belief that
it was necessary for the fulfilment of a legitimate purpose. There was no evidence to the contrary.
70 In regard to the third question, the Respondent has failed to also show that it could not meet its goal of enhancing
building security and still accommodate the Complainant without incurring undue hardship. As stated by the Supreme
Court of Canada in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights)
(1999), 36 C.H.R.R. D/129 (S.C.C.) , ("Grismer"), at paragraph 30, the critical issue is whether the Respondent's non-
accommodating standard was reasonably necessary to the achievement of reasonable building security.
71 In order to prove that the standard is "reasonably necessary", the Respondent bears the burden of demonstrating
that the standard incorporates every possible accommodation to the point of undue hardship, whether that hardship
takes the form of impossibility, serious risk or excessive cost. (Grismer, para. 32)
72 In Renaud v. Central Okanagan School District No. 23 (1992), 16 C.H.R.R. D/425 (S.C.C.)(at paras. 43 to 44), the
Supreme Court of Canada held that the search for accommodation is shared by the parties. Along with the Respondent,
there is also a duty on the Complainant to assist in securing an appropriate accommodation. To facilitate the search for
an accommodation, the Complainant must do her part. Concomitant with a search for reasonable accommodation is a
duty to facilitate the search for such an accommodation. In determining whether the duty of accommodation has been
fulfilled the conduct of the Complainant must be considered.
73 This does not mean that, in addition to bringing to the attention of the Respondent the facts relating to
discrimination, the Complainant has a duty to originate a solution. While she may be in a position to make suggestions,
the Respondent is in the best position to determine how the Complainant can be accommodated without undue
interference in the operation of the strata property.
74 The Complainant has, through Ms. Williams, made several suggestions for exploring the accommodation of her
needs and the safety concerns of the strata corporation as determined by the council. The council rejected them all with
only the most cursory consideration. In the end it simply refused to consider any alteration of its decision to install the
lock timer.
75 On the facts of this case, the Respondent has shown itself to be unwilling to investigate in any meaningful way what
it might do to address the Complainant's legitimate concerns. The Respondent's suggestion that the Complainant seek
out and rely completely on good Samaritans within the strata corporation is in my view wholly inadequate as a form of
accommodation. Asking neighbours who might agree to perform this service is demeaning to the Complainant who is
entitled to live in her home independently without the need to rely on the help of others.
76 One of the considerations in assessing undue hardship is the issue of safety. Would accommodation of the
Complainant create an unacceptable risk to the other resident-owners of The Wellington? The evidence did not disclose
the time of day when the past incidents of break-in and theft occurred. They may have happened between the hours
of 10:30 p.m. and 8:00 a.m. or between the hours of 8:00 a.m. and 10:30 p.m. It is not at all clear that the new policy,
had it been in place earlier, would have done anything to prevent these incidents. I am also of the view that, for the
same reasons, the fear of a home invasion is no better addressed by the policy. Overall, I have no substantial basis on
which to conclude that accommodation of the Complainant would subject the other owner-residents of The Wellington
to unacceptable risk.
77 Cost to the Respondent is another factor to assess in considering whether accommodation would impose undue
hardship. The cost of reverting to the old system, by disconnecting or removing the lock-timer, would likely be negligible.
The Respondent gave evidence that the cost of a video monitoring system could be substantial. The potential cost for
modifying the current intercom-entry system to accommodate the Complainant's needs while meeting the safety concerns
of the Respondent is unknown. In any event, the Respondent has presented insufficient evidence on which I can conclude
that the cost of accommodation would be prohibitive or that the Respondent is without financial means to address the
problem.
78 In summary, I find that the Complainant suffers from a physical disability and that by installing and activating
a timer on entry intercom system, the Respondent discriminated against the Complainant in regard to that physical
disability in a service customarily available to the public. I find that the Respondent has not established a bona fide and
reasonable justification for its conduct in installing the timer. I conclude that the complaint is justified.
IV. Remedy
79 The Respondent argued that the decision to install the lock timer was done in good faith in order to improve
building security, and that there is no personal liability incurred by members of the council for such acts. In support of
this argument, the Respondent referred me to section 22(1) of the Strata Property Act, which is as follows.
A council member who acts honestly and in good faith is not personally liable because of anything done or omitted
in the exercise or intended exercise of any power or the performance or intended performance of any duty of the
council.
80 I find that the council members acted in good faith when they decided to install the lock timer. The council members
are not personally liable for the decision. However, to paraphrase section 2 of the Code, discrimination in contravention
of the Code does not require an intention to contravene the Code. The liability for the infringement of the Code must
be borne by the Respondent.
81 I now turn to the question of remedy. The Complainant seeks compensation for the expenses she incurred by
the Complainant in the arbitration process. The Complainant began the arbitration process because of a decision made
by the Respondent. When the matter was brought to its attention, the Respondent refused to reconsider its decision.
However, it was the Complainant's decision to stop the arbitration process in order to reduce costs. It is not known what
the outcome of the arbitration process might have been. The Complainant may or may not have been successful. In my
view, while she should bear some responsibility for starting and then halting the arbitration process, those costs should
not be borne entirely by her. I am of the view that the Respondent should compensate the Complainant in the amount
of one half of the cost of the arbitration process. The cost to the Complainant was $1305. It is appropriate that the
Respondent pay the Complainant the amount of $652.50, plus interest accrued since the date the Complainant incurred
the debt, December 10, 2002 according to the Court Order Interest Act, R.S.B.C 1996, as amended.
82 In regard to compensation for injury to dignity, feelings and self-respect, I note that awards under this heading are
not meant to be punitive but compensatory. In deciding on the amount to award, I note that the Complainant is elderly
and vulnerable, and that the discrimination has caused the Complainant anxiety and worry and has put the Complainant
in some degree of physical jeopardy. I also note that while the Respondent has exhibited a degree of inflexibility, it has
not acted in an aggressive manner, nor has it shown utter indifference to the Complainant's concerns. Considering all
the aspects of this complaint, I am of the view that $1,500 is an appropriate amount for the Respondent to pay to the
Complainant under this heading.
83 In the event that the Respondent decides to pay for this award from a special levy of the residents, it would be
inappropriate for the Complainant to be the subject of any special levy of members of the strata corporation for payment
of the monetary award.
V. Order
84 Pursuant to the provisions of s. 37 (2) of the Code;
a) I order the Respondent to cease the contravention and to refrain from committing the same or a similar
contravention;
b) I declare that the conduct complained of is discrimination contrary to the Code;
c) I order the Respondent to disconnect the lock timer at The Wellington and return the operation of the intercom
and entry system to what it was prior to June 7, 2002;
d) (i) I order the Respondent to compensate the Complainant for one half of the expenses she incurred in pursuing
arbitration of the dispute, $625.50, plus interest accrued since the date the Complainant incurred the debt, December
10, 2002, according to the Court Order Interest Act, R.S.B.C. 1996 as amended;
(ii) I order that the pay to the Complainant $1,500 to compensate the Complainant for injury to dignity, feelings
and self respect;
(iii) Supplemental to the orders for payment to the Complainant, I also order that she not be the subject of any
special levy of members of the strata corporation for payment of the monetary award.
85 I make no order as to special training for the members of the council. I am confident that this or similar breaches
of the Code will not be repeated by the current members.
End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights
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Williams v.

Williams v. Strata Plan LMS 768

2003 CarswellBC 3486, 2003 BCHRT 17, 46 C.H.R.R. D/326

Heard: March 20-21, 2003

Counsel: Judith Doulis, for Complainant

Subject: Constitutional; Human Rights

The Strata Property - The Wellington

Events after the Timer Installation

54 The Complainant relies on section 8 of the Code, which states:

Issue 2: Adverse Inference

Issue 3: Does the complaint suffer from a physical disability?

Issue 5: Has the Complainant established a prima facie case of discrimination?

84 Pursuant to the provisions of s. 37 (2) of the Code;

b) I declare that the conduct complained of is discrimination contrary to the Code;

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