Vancouver couple fined by strata for having babies, violating occupancy limits in unit

A B.C. couple was repeatedly fined by their strata for violating occupancy limits after the births of their children, according to a complaint filed with the human rights tribunal.

The strata lost a bid to have the case dismissed earlier this month with the tribunal finding – in part – that there is a public interest in resolving cases like these where people allege limits on occupancy amount to discrimination based on family status.

"Our province is facing a housing crisis against the backdrop of many such maximum occupancy policies. A hearing on this complaint will assist stratas and their owners alike in navigating this crisis by highlighting the human rights considerations that arise in circumstances such as these," the Dec. 1 decision by the B.C. Human Rights Tribunal says.

THE BYLAW FINES

Christina James and Matt Rowland had their first child in 2017 while living in a unit at Fairview Village in Vancouver. In November of that year, approximately three months after the birth, the strata sent the family a letter saying they were violating the bylaws.

"Council is under an obligation to apply the bylaws equitably, so regrettably, we must inform you that you are not in compliance with the bylaws," reads the letter, which was quoted in the tribunal's decision.

"Council understands that this may be difficult for you, and therefore council is giving you 12 months notice to comply with the bylaws."

The strata told the tribunal that the bylaws lay out the number of people who can live in a unit, depending on its size. The suite was constructed as a one-bedroom which meant the occupancy limit was two people, the tribunal was told. The couple told the tribunal that they understood the letter to be telling them they had to leave their home since there was no way to comply with the bylaw after they had a baby.

"The complainants say that the only financially viable option for them was to sell or rent the unit. They could not afford to leave the unit and let it sit empty," the decision says.

In December of 2018, the strata informed the family that a fine of $50 per month would be levied until they came into compliance with the bylaw. Six months later, the couple had a second child.

Twenty-three days after that child was born, the strata sent a letter saying the council was aware there were now four people living there, reiterating that constituted a bylaw breach.

"Council believe they have given you sufficient time to take action,” that letter said.

In July of 2019, the family responded by saying they had been unable to leave the unit thus far because of several months-long repairs that made it unsuitable to rent or sell.

"We continue meeting with real estate, rental and legal agents to consider our options given Vancouver’s housing crisis," their response to the strata said.

The strata responded by saying council had voted to increase the fine to $200 and to impose it every seven days.

Later that year the family moved out of the unit, having found a place to rent.

After they left, they filed the complaint with the tribunal alleging discrimination based on family status – asking for an order that the strata cease and desist from similar conduct in the future and seeking damages for expenses incurred as well as injury to dignity, feelings and self respect.

Ultimately, they sold the unit in 2021.

STRATA'S APPLICATION TO DISMISS

The strata argued the complaint should be dismissed because the family had moved out and sold their unit, and because all of the fines had been reversed. The decision does not indicate the total of the fines imposed.

Tribunal member Robin Dean rejected this argument, saying there was no evidence that the alleged discrimination had been "resolved or remedied."

Reversing the fines, Dean said, did not address the impact of the alleged discrimination.

"The complainants’ submissions speak to how Fairview Village’s actions caused the complainants anxiety, uncertainty, and stress. Fairview Village has not addressed these alleged impacts on the complainants," the decision says.

"Neither has it addressed the alleged expenses that the complainants have incurred, including expenses related to renting an accommodation that was more expensive than their mortgage had been."

The strata also said that the case should be dismissed because its actions did not contravene the Human Rights Code and did not have an "adverse impact" on the family – which is the two-part test for a finding of discrimination.

For the complaint to proceed, Dean noted, the couple only had to demonstrate that their allegations – if proven – could meet this test.

"The complainants say the reason they suffered the alleged adverse impacts was because they had children, which increased the number of occupants in the unit. Family status includes having a baby," the decision said.

"They say that but for the birth of their children, they would not have been in breach of (the) bylaw."

Dean agreed with this, finding that the adverse impacts alleged included having to leave their home as well as the stress caused by having to find another place to live. Further, Dean found that there was not enough evidence to show that the strata had tried to work with the family to come up with a solution that would potentially allow them to stay in their home.

The strata also said it was bound to enforce its bylaws strictly and equally on all owners. But Dean said a rigid, blanket policy risks running afoul of the Human Rights Code.

"Enforcing bylaws equally can result in discrimination, and stratas must be careful not to strictly enforce a bylaw in a way that might have a discriminatory effect," the decision said.

"In the housing context, the protection from discrimination based on family status exists precisely to protect families, and others who may be screened out of tight housing markets, from being unjustifiably excluded from safe and secure housing."

Finally, the tribunal rejected the strata's claim that the family had made their complaint in bad faith or for an improper purpose.

Dismissing the strata's application means the complaint will proceed to a hearing.