Strata Age Bylaws and Human Rights Legislation in Alberta and British ColumbiaMarshall v. Strata Plan No. NW 2584, 1996 CanLII 8500 (BC SC)
Strata Age Bylaws and Human Rights Legislation inAlberta and British Columbia
In November 2017, the Alberta government introduced Bill 23 to amend the Alberta Human Rights Act (AHRA) and prohibit age discrimination in condominiums and rentals. On January 1st, 2018, the amendments came into force. By contrast, British Columbia’s Human Rights Code (HRC) permits statutorily sanctioned or required age discrimination. In October 2009, British Columbia amended its Strata Property Act (SPA) to allow strata corporations to pass age restriction bylaws. These differences in the permissibility of age discrimination in Alberta and British Columbia suggest divergent policy goals. However, these differences are also a result of opposing approaches to the shared issue of age discrimination. Where AHRA maintains exclusive control over age discrimination issues through prohibitive drafting, the permissive drafting of the HRC empowers other statutes, such as the SPA, to address these issues. The provisions in both AHRA and the HRC that protect vulnerable age groups illustrate the effect of the different drafting styles: the amended AHRA provides specific exemptions from a general prohibition on age discrimination, and the HRC stipulates specific prohibitions on age discrimination within a expressly permissive legislative scheme.
Although much of the media attention surrounding Alberta’s recent amendment focused on its impact on child-free adults-only buildings,the amendment itself was driven by a court ordergranted after elder advocates, concerned about discrimination against the elderly in housing, applied (unopposed) for a declaration that the omission of age as a protected ground in AHRA was unconstitutional.The legislative discussion of the 2017 AHRA amendment is expansive; the almost 2-hour discussion offers insight into the policy reasons behind Bill 23.Broadly, the government acknowledged that changes to AHRA affecting age restriction bylaws necessarily balance the capacity to safeguard 55+communities with the need to ensure family access to housing and the desire to protect the real estate investments of those who have relied on age bylaws. In contrast, the Hansard record from the 2009 amendment of British Columbia’s SPA broadly allowing age discrimination in strata is silent on the reasons underlying that particular amendment.
Before Bill 8, British Columbia courts largely upheld the validity and enforceability of age restriction bylaws in strata at common law.The decisions regarding strata age restriction bylaws show sensitivity to issues relating to seniors housing and deference to legislative intent when such bylaws are challenged as a breach of the HRC. In Marshall v. Strata Plan No. NW2584 and later Drummond v. Strata Plan NW2654,the courts highlighted that HRC exemptions expressly permitting units for those aged 55 years and older communicate legislative recognition of “the legitimacy of retirement communities . . . [as well as] a policy choice to permit . . .differentiation, based upon age, to exclude younger tenants.” However, this exemption is only present for tenancies – age is entirely absent as a protected ground in purchase of property. Furthermore, legislative recognition of the legitimacy of retirement communities has been used to justify age bylaws lower than 55 – while the decision in Marshall concerned a 55+ age restriction, the decision in Drummond concerned a 19+ age restriction.
The courts in Marshall and Drummond also emphasized that the discrepancy created by the presence of age and family status as protected grounds in section 10 (discrimination in residential tenancies), and their absence in section 9 (purchase of property) of the HRC indicate a legislative choice to permit age and family status discrimination in the context of strata housing. Additionally, both found this discrepancy inferred “the right of a Strata Corporation to impose such restrictions generally”such that the HRC did not apply to the age restriction bylaws at issue.
The decisions in Marshall and Drummond preceded the HRC amendment to include age as a protected ground in section 8 (discrimination in accommodation, service, and facility) in 2008. In 2005, prior to the amendment, two strata lot owners challenged the validity of their strata’s 55+ age bylaw on the basis that section 8 prohibited discrimination on the basis of family status. The couple contended that requiring their minor child to vacate the premises constituted a contravention of this prohibition.The British Columbia Human Rights Tribunal (BCHRT) dismissed the complaint on the basis that the age restriction did not contravene the age provisions of the HRC and did not discuss at length whether it contravened the family status provisions. Furthermore, the BCHRT held that the child’s age, not her relationship with her parents, triggered the bylaw and that “[allowing] a discrimination claim under [section] 8, on the basis of family status, would defeat [legislature’s intention] to permit the creation of retirement communities by means of age restrictions” via the age discrimination exemptions of sections 9 and 10.
Following the 2008 amendment,owners seeking relief from age-restriction bylaws via HRC prohibitions on discrimination on the basis of family status have similarly failed to gain traction. In a challenge against the co-op’s 16+ age restriction in Stephenson v. Sooke Lake Modular Home Co-operative Association, the BCHRT took the view that the definition for discrimination on the basis of family status arising from Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society – “serious interference with a substantial parental or other family duty or obligation”– “had no application outside of the employment context.” In Perry v. Strata #49 Council, the BCHRT found that adverse treatment as a result of strata age bylaws in family contexts did not constitute a sufficient connection between family status and the adverse treatment to establish a prima facie case of discrimination in a challenge to a 45+ age bylaw.In Hallonquist v. Strata Plan NW307, a challenge to the strata’s 19+ age bylaw on the basis of discrimination against family status, the BCHRT found that section 8 did not apply to the age bylaw as it related “solely to occupancy and not to any management services provided by the Strata,” and alternatively, if it did apply, the exemption in section 41(2) of the HRC would apply to permit the [age] restriction.In short, the BCHRT has declined to interpret section 8 protections for family status as providing “an additional prohibition on discrimination in relation to an age-related rule in a place of residence”
The interpretation and application of “family status” in Perry, Ryan and Hallonquist as well as the test from Campbell River for prima facie discrimination on the basis of family status appears narrow in comparison with the general connection test for other protected groundsand in light of the Federal Court of Appeal’s 2014 instruction to interpret“family status” broadly and purposively in the context of human rights legislation.Although Canada (Attorney General) v. Johnstone  deals with family status in the context of discrimination in employment, not housing, under the Canadian Human Rights Act,the FCA’s affirmation of the tribunal’s finding that “the freedom to choose to become a parent is so vital that it should not be constrained by the fear of discriminatory consequences [and that] [a]s a society, Canada should recognize this fundamental freedom and support that choice wherever possible”suggests an application outside of the employment context, contrary to the BCHRT’s decision in Stephenson.
However, British Columbia has shown awareness as to the impact strata age bylaws that restrict occupancy may have on families and young individuals seeking housing. In 2007, British Columbia attempted to include family status in section 9 of the HRC (discrimination in purchase of property) among the protected grounds. The Bill’s sponsor sought to expand legislative amendments made in 1998 to prevent family status discrimination against renters and protect tenants from being evicted because they had children to owners or purchasers of condos and co-ops, citing hardships borne by owners and purchasers who had children in contravention of strata bylaws. The bill did not reach a second reading.
Given the provisions of British Columbia’s HRC and SPA that allow broad discrimination on the basis of age, and absent clear legislative direction that these permissions apply only to 55+ communities, as in AHRA, the courts are unlikely to expand the interpretation of other protected grounds to strike down strata age bylaws. As evident from the debate in Alberta, change that affects age discrimination in housing will require weighing the interests of those who seek communities of adult or older residents for personal and financial reasons with the interests of younger individuals and families seeking access to affordable and varied housing. In this regard, it is important to note the difficulty of assessing the impact of age bylaws without statistical data. In particular, data on the number of strata with age restrictions, the types of age restrictions most prevalent in housing stock, and the number of individuals whose housing decisions have been adversely influenced by strata age bylaws would provide insight beyond speculation as to the full impact of age bylaws on the broader population.
 Bill 23, Alberta Human Rights Amendment Act, 3rd Sess, 29th Leg, Alberta, 2007.
 Human Rights Code, RSBC 1996, c 210 s 41(2), as amended by Human Rights Code (Mandatory Retirement Elimination) Amendment Act, 2007 SBC, c 21, s 41(2) [effective January 1,2008] ([n]othing in this Code prohibits a distinction on the basis of age if that distinction is permitted or required by any Act or regulation).
 Bill 8, Strata Property Amendment Act, 1st Sess, 39th Parl, British Columbia, 2009, cl 18 (assented to 29 October 2009) SBC 1998, c 43, s 123(1.1) ([w]ithout limiting a strata corporation's power to pass any other bylaws, a strata corporation may pass a bylaw that restricts the age of persons who may reside in a strata lot).
 Alberta Human Rights Act,RSA 2000, c A-25.5, ss 4.1, 4.2(2).
 Supra note 2, ss. 8(1),10(2)(b), 41(2)
 Dean Bennett, “Alberta moves to ban adults-only apartments,condominiums”, Canadian Press (1 November 2017), online: <https://globalnews.ca/news/3838093/alberta-moves-to-ban-age-discrimination-in-apartments-condominiums/>.
 Ruth Maria Adria v Attorney General of Alberta, Court File No 1603 05013, Consent Order filed 13 January 2017.
 Jennifer Koshan “Alberta Agrees to Amend Human Rights Legislation to Expand Prohibitions Against Age Discrimination” (7 February 2017), online:ABlawg, https://ablawg.ca/wp-content/uploads/2017/02/Blog_JK_AHRA_Age.pdf
 Alberta, Legislative Assembly, Hansard, 29th Leg, 3rd Sess (8 November 2017) at 1805-1815.
 Ibid at 1809.
 British Columbia, Legislative Assembly, Hansard, 39th Leg, 1st Sess, No 4:2 (6 October 2009) at 1008.
 See Marshall v. Strata Plan No. NW2584, 1996 CanLII 8500, 27 BCLR (3d) 70 (BCSC) B.C.J. No. 1716, [Marshall]; Drummond v. Strata Plan NW2654, 2004 BCSC 1405, 34 BCLR (4th) 359 [Drummond].
 Ibid, Marshall at para 23; Drummond at para. 28.
 Supra note 2, s 9
 Ibid, Marshall at para 24; Drummond at para. 28.
 Ibid, Drummond at para. 28.
 Human Rights Code (Mandatory Retirement Elimination) Amendment Act, 2007 SBC, c 21, s 8 [effective January 1, 2008].
 Ryan and Ryan v. Strata PlanVIS 353, 2005 BCHRT 559 [Ryan].
 Ibid at paras. 11-14
 Ibid at para. 14.
 Supra note 21.
 Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society 2004 BCCA 260, B.C.J. No. 922 [Campbell River]at para. 39.
 Stephenson v. Sooke Lake Modular Home Co-operative Association, 2007 BCHRT 341 [Stephenson] at para. 37.
 Perry v. Strata #49 Council,2014 BCHRT 7 at para. 13 [Perry].
 Hallonquist v. Strata Plan NW307 and another, 2014 BCHRT 117 [Hallonquist].
 Ibid at paras. 16, 18.
 Ibid at para. 16. See also Stephenson v. Sooke Lake Modular Home Co-operative Association (No. 3),2008 BCHRT 161 at para. 39.
 Supra note 23 at para. 11.
 Canada (Attorney General) v. Johnstone, 2014 FCA 110, 372 DLR (4th) 730 at paras. 61-67.
 RSC, 1985, c. H-6
 Ibid at para. 21.
 Supra note 28.
 Bill M 208, Human Rights Code Amendment Act, 3rd Sess, 38th Parl, British Columbia, 2007 (first reading 15 March 2007).
 British Columbia, Legislative Assembly, Hansard, 3rd Sess, 38th Parl, Vol 16 No 9 (15 March 2007) at 6304(Hon L Mayencourt).