canada real-estate discrimination human-rights
Legal challenges against age-restricted housing
<p>It’s fairly common when looking for real estate to see “adults only,” “seniors only,” or “55+” restrictions for strata/condominium properties. I would expect this to be a cut and dried case of discrimination – one can imagine a “whites-only” townhouse complex (rightfully) going down like a lead balloon.</p>
<p>In BC, this discrimination is explicitly allowed in the <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/98043_07#section123.1" rel="nofollow noreferrer"><em>Strata Property Act</em></a>:</p>
<blockquote>
<p>The strata corporation may pass a bylaw that requires one or more persons residing in a strata lot to have reached a specified age that is not less than 55 years.</p>
</blockquote>
<p>Has this kind of discrimination been tested in court or by a human rights tribunal before? Is it likely any such challenge would succeed?</p>
<p>(I’m specifically thinking about British Columbia but I expect any Canadian jurisdiction would be similar.)</p>

<p>The B.C. Human Rights Code exempts age restrictions for 55+ in relation to tenancy. See <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01" rel="nofollow noreferrer">Human Rights Code</a>, s. 10. The subsection prohibiting discrimination in tenancy on the basis of age &quot;does not apply&quot;:</p>
<blockquote>
<p>if the space is a rental unit in residential premises in which every rental unit is reserved for rental to a person who has reached 55 years of age or to 2 or more persons, at least one of whom has reached 55 years of age</p>
</blockquote>
<p>Further, as to condominium bylaws, in 2022, the Province enacted <a href="https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/3rd-session/bills/third-reading/gov44-3" rel="nofollow noreferrer">Bill 44, the <em>Building and Strata Statutes Amendment Act</em></a>, which makes any strata age restriction below the age of 55 <strong>invalid</strong> (which you have quoted a portion of).</p>
<h3>Human Rights Tribunal</h3>
<p>The Human Rights Tribunal can only provide remedies for claims arising under the Human Rights Code. Given that the Human Rights Code does not provide a basis for discrimination claims in tenancy when the age of distinction is 55+, any valid strata by-law relating to age of residents will by definition fall outside of the scope of a Human Rights Code complaint.</p>
<p>And even when the <em>Strata Property Act</em> allowed all sorts of age restrictions, the BC Human Rights Code does not provide a remedy when the distinction is authorized by another act (see s. 41(2); <em>Hallonquist v. Strata Plan NW307 and another</em>, <a href="https://www.canlii.org/en/bc/bchrt/doc/2014/2014bchrt117/2014bchrt117.html" rel="nofollow noreferrer">2014 BCHRT 117</a>):</p>
<blockquote>
<p>Nothing in this Code prohibits a distinction on the basis of age if that distinction is permitted or required by any Act or regulation.</p>
</blockquote>
<h3>Constitutional challenge in a court</h3>
<p>You also ask about a challenge in a court. I assume you consider that the challenge would be based on s. 15(1) of the <em>Charter</em> (equality rights).</p>
<p>There are three potential targets of the challenge:</p>
<ol>
<li>the strata by-law that restricts residency to people aged 55+;</li>
<li>the provincial statute prohibiting strata by-laws from imposing any age restriction unless it is an age restriction based on an age not less than 55 years;</li>
<li>the carve-out in the Human Rights Code for tenancy restrictions for ages 55+</li>
</ol>
<p>The <em>Charter</em> challenge to the strata by-law itself would face the barrier that a British Columbia court has held that stratas are not &quot;government&quot; for the purpose of the <em>Charter</em>, so are not subject to <em>Charter</em> challenges: <a href="https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1487/2015bcsc1487.html" rel="nofollow noreferrer"><em>Strata Plan NW 499 v. Kirk</em>, 2015 BCSC 1487</a>.</p>
<p><sup>I have quickly added this final portion in response to a clarification of the question, but there is more to say. I will return to explain the law relating to partially ameliorative legislation.</sup></p>
