A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.
This means that a complaint must include information showing:
- The complainant has a personal characteristic (or is perceived to have a characteristic) protected under the Code.
- The respondent’s conduct had a negative effect on the complainant regarding the purchase of property.
- The personal characteristic is a factor in the negative effect.
Personal characteristics that are protected from discrimination regarding the purchase of property
To make a complaint of discrimination, the complainant must have a personal characteristic protected under the Human Rights Code or be seen to have one.
For example, the complainant has a disability or the respondent thinks that the complainant has a disability.
The personal characteristics protected in the purchase of property are:
Negative effect regarding the purchase of property
The respondent’s conduct must prevent the complainant from purchasing property or have a negative effect regarding a term or condition of the purchase.
A negative effect can arise where a person is treated the same as others, but this has a negative effect on them.
For example: A strata applies a “no pets” rule to a person who has an assistance animal due to a disability.
For there to be discrimination in this kind of situation, the respondent must reasonably be aware that the complainant needs accommodation.
For example: The complainant told the respondent they need accommodation or it is clear that the complainant needs accommodation.
There is a duty to accommodate to avoid negative effect based on a personal characteristic.
Connection between negative effect and personal characteristic
Poor treatment is discrimination only if it is connected to a personal characteristic. This means that a personal characteristic must be at least a factor in the negative effect. It does not need to be the only factor or the overriding factor. A complainant does not need to show that the respondent intended to discriminate or was motivated by discrimination.
A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:
- The respondent identifies the personal characteristic.
For example: The seller says they don’t want to sell to a person of the complainant’s ancestry.
- The respondent’s actions affect the complainant because of a personal characteristic.
For example: A strata rule would prevent a person with a disability from buying a condo.
Note: this is enough to file a complaint. However, if the respondent justifies its action by showing it acted in good faith and took all reasonable steps to avoid the negative effect, then there is no discrimination.
- The circumstances show the ground is a factor. (The facts support a “reasonable inference”.)
For example: The seller refuses to sell after learning of the buyer’s religion.
Note: This is enough to file a complaint. However, the respondent may have an explanation. At a hearing, the complainant must prove the personal characteristic was a factor in the negative effect.
Who can be named as a respondent in a purchase of property complaint?
- The person selling the land is usually the respondent in a purchase of property.
- A person responsible for the discrimination could be named.
For example: A person who made the decision to deny the chance to buy a house based on the complainant’s colour.
- A person who only delivered the news about the decision to deny the purchase would not normally be named.
How can poor treatment regarding the purchase of property be justified? (Defence)
If the complainant proves that the respondent’s conduct had negative effect on them regarding the purchase of property, and that a personal characteristic was a factor in the negative effect, this is called a prima facie case of discrimination.
Even if a complainant proves a prima facie case of discrimination, a respondent may argue that there is no discrimination because its conduct was justified.
Section 9 of the Code does not explicitly include a justification defence, but the Tribunal has interpreted the section to allow for it.
To succeed with this defence, a respondent must prove three things:
- There is a legitimate purpose for the respondent’s conduct
In some cases, a respondent applies a defined standard that affects the complainant, such as a strata rule regarding animals that negatively affects a person who is blind and has an assistance dog. In other cases, there is no defined standard, but the respondent’s conduct has negative impact.
The respondent must identify the (non-discriminatory) purpose for its standard or conduct that relates to its function (for example, management of a strata). In many cases, the complainant may not dispute that the respondent’s conduct is based on a legitimate purpose.
- The standard was adopted in good faith in the belief that it was necessary to accomplish the purpose
This means that the respondent adopted the standard or acted to accomplish its purpose, and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.
- The respondent’s standard or conduct is reasonably necessary to the purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship
This means that the respondent fulfilled its duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect.
This includes proving:
- What the respondent did to explore options to find a reasonable result
- Why further steps were not reasonable or practical (would result in undue hardship)
- The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate purpose or incurring undue hardship
Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.
It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.
For example, if a respondent relies on excessive cost, it must prove both the costs of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing the respondent cannot reasonably afford it.
A complainant must participate in the search for accommodation. The respondent may establish a justification defence if it proves that it was taking all reasonable and practical steps but the process failed because the complainant did not reasonably participate or rejected a reasonable offer of accommodation.