Legal challenges against age-restricted housing

Question

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.

In BC, this discrimination is explicitly allowed in the Strata Property Act:

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.

Has this kind of discrimination been tested in court or by a human rights tribunal before? Is it likely any such challenge would succeed?

(I’m specifically thinking about British Columbia but I expect any Canadian jurisdiction would be similar.)

Answer 1

The B.C. Human Rights Code exempts age restrictions for 55+ in relation to tenancy. See Human Rights Code, s. 10. The subsection prohibiting discrimination in tenancy on the basis of age "does not apply":

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

Further, as to condominium bylaws, in 2022, the Province enacted Bill 44, the Building and Strata Statutes Amendment Act, which makes any strata age restriction below the age of 55 invalid (which you have quoted a portion of).

Human Rights Tribunal

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.

And even when the Strata Property Act 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); Hallonquist v. Strata Plan NW307 and another, 2014 BCHRT 117):

Nothing in this Code prohibits a distinction on the basis of age if that distinction is permitted or required by any Act or regulation.

Constitutional challenge in a court

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 Charter (equality rights).

There are three potential targets of the challenge:

1. the strata by-law that restricts residency to people aged 55+;
2. 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;
3. the carve-out in the Human Rights Code for tenancy restrictions for ages 55+

The Charter challenge to the strata by-law itself would face the barrier that a British Columbia court has held that stratas are not "government" for the purpose of the Charter, so are not subject to Charter challenges: Strata Plan NW 499 v. Kirk, 2015 BCSC 1487.

^{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.}