Strata Corporations have been busy defending human rights complaints. In one of the latest decisions to be released, a strata corporation was faced with an owner's request to turn the steps in the building's lobby into a ramp to make the building more accessible to owners with mobility issues.

In the recent decision of Mahoney v. The Owners, Strata Plan #NW332, Baywest Management Corporation and Scott Poniuck, 2008 BCHRT 274, Ms. Holowaychuk was a 91 year old woman, who developed mobility problems over the years. By the time of the human rights complaint, she relied on a walker and found stairs difficult to navigate. The lobby of Strata Plan NW 332, also known as The Heritage, contained a small flight of three stairs between the front door and the elevator. The only way to avoid these stairs was to enter The Heritage through the parking garage. The Heritage was a 35 year old building which, at the time of construction, did not require wheelchair accessibility. Ms. Holowaychuk had been an owner at The Heritage for 30 years.

For about two years prior to launching her complaint, Ms. Holowaychuk had voiced her concerns about the stairs and the need for a ramp to accommodate not only persons with walkers, but also residents with canes, shopping carts, mothers with strollers, delivery personnel, and persons who require wheelchairs. The first time she raised this issue, she attended a Council Meeting and followed up her presentation with a letter to Council. This issue was raised again at the next Annual General Meeting ("AGM"), where, on a show of hands, the majority of the owners were in favour of installing a ramp. The owners directed the Council to research the expense. At the following AGM, the owners failed to pass a 3/4 vote resolution to allow the Council to spend up to $30,000 to install a ramp.

Several months later, Ms. Holowaychuk again wrote to the Council, demanding the installation of a ramp, particularly given that she had recently injured herself on the stairs. She gave the Council one month to respond. As is typical with most strata corporations, the Council did not deal with correspondence until the next Council Meeting, which in this case, was the date of Ms. Holowaychuk's deadline for the Council to respond. At that Council Meeting, the property manager was directed to investigate the options available and the costs to make the lobby accessible. Unfortunately, the Council did not direct the property manager to write to Ms. Holowaychuk as to the steps being taken. This problem was further exacerbated by the fact that the Council did not meet over the summer months, and did not write to Ms. Holowaychuk until after she had sustained a further fall in the lobby a couple of months later. Hearing nothing from the Strata Corporation, Ms. Mahoney filed the human rights complaint on behalf of her mother.

Meanwhile, the property manager's investigations were not particularly successful. He contacted five contractors, but only one provided a quote. Many of the contractors wanted architectural drawings before providing a quote. As a result, he obtained the Council's instructions to send a letter to Ms. Holowaychuk advising her that the ramp issue would be discussed at the next AGM. At that AGM, the owners voted on a resolution to spend up to $3,000 to hire an architect to prepare drawings for the ramp. While the majority did vote in favour of the resolution, it failed to pass. Following the AGM, Ms. Holowaychuk fell again. Approximately six months later, the property manager was able to obtain estimates for various accessibility options, including the installation of a ramp.

Here, Ms. Holowaychuk faced a situation where the Council appeared willing to install a ramp, but was prevented from doing so because the owners voted down resolutions to raise funds to pay for the installation. The Heritage had a history of having difficulty raising funds by way of special levy as many of the owners were on a fixed income.

At the end of the day, the Tribunal dismissed the case against the property manager given that his role was to take instructions from the Council. On the facts of the case, any violation of the Human Rights Code was a violation by the Strata Corporation and not by the property manager. There was no evidence that indicated that the property manager engaged in conduct outside that of a typical strata manager in a similar situation. Accordingly, the property manager was not responsible for the discrimination.

The most interesting part of this case is the issue of undue hardship. If you recall from prior STRATAgies articles regarding human rights complains, once discrimination is established, the strata corporation must accommodate the owner to the point of undue hardship. Here, Ms. Holowaychuk was able to establish discrimination. In response, the Strata Corporation argued that undue hardship would result if it was forced to install a ramp. The only evidence of undue hardship put forward by the Strata Corporation was the estimate of the costs involved and the fact that the owners had voted down the resolutions to proceed. However, no owners testified to show that a special levy would be a hardship to them. In fact, there was no evidence that a special levy was required at all. The Heritage had $95,000 in its contingency reserve fund ("CRF") and there was no indication that the funds were allocated for another project. In addition, the majority of owners voted in favour of the 3/4 vote resolutions to raise funds, indicating that a majority of owners did not find that the costs of installing a ramp would constitute undue hardship.

With respect to the Strata Corporation, the Tribunal ordered the Strata Corporation to obtain architectural drawings and the necessary permits from the city. The Strata Corporation would then need to put the ramp installation contract to tender. If, following bidding, the costs were equal to or less than the estimate obtained by the property manager, the Strata Corporation was directed to proceed with the installation of the ramp. However, if the city refused to grant a building permit or the costs proved to be greater than the estimate obtained by the property manager, the parties were to proceed to mediation to try to come up with an alternate solution. If no agreement was reached, the Tribunal Member retained jurisdiction to hear argument and evidence, if necessary, on the issue of the appropriate remedy.

So, what can strata corporations take from this case? First, communication between the Council and the owner who is making a request for accommodation must be open and frequent.

One of the main reasons Ms. Holowaychuk filed her complaint was that she felt that the Council had completely ignored her request even though the Council was taking steps. Those steps were not however apparent to Ms. Holowaychuk. Perhaps if she had known what the Council was doing, the parties could have worked together to find an appropriate accommodation. Second, property managers can breathe a sigh of relief. Although a property manager may be named in the complaint, they will not be held responsible for discrimination in these types of cases unless their actions go beyond the scope of their duties or fall outside of the conduct of the average property manager. The Tribunal's reasons reassure property managers that they will typically not be held at fault when a strata corporation violates the Code. Finally, we have learned that the Tribunal may very well consider financial constraints in the remedy, but that a strata corporation will have to provide very specific evidence at the Tribunal hearing to prove undue hardship. For example, in this case, if several owners had testified that they could not afford a special levy above a certain amount without causing them undue hardship, the result might have been a different one. In addition, where the CRF holds sufficient funds to pay for the necessary accommodation, a strata corporation may not be able to argue "undue hardship" unless it can demonstrate that the funds are allocated for other expenses. Strata corporations should consider these lessons when dealing with their own potential human rights claims.

Veronica Franco

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