Strata Alert: Civil Resolutions Tribunal issues an injunction against an owner with mental illness

Strata Alert: Civil Resolutions Tribunal issues an injunction against an owner with mental illness

 
Paul G. Mendes, Partner
Phone:  604-685-4894
Email:  pgm@lmlaw.ca

 

The Owners, Strata Plan LMSXXXX v. DB, 2017 BCCRT 117

Strata councils and strata managers must occasionally deal with owners who are mentally ill.  The BC Human Rights Code prohibits discrimination on the basis of a disability, and therefore, stratas must take the Human Rights Code into account when enforcing their bylaws against mentally ill owners and tenants. Once an owner establishes that he or she has a disability, the onus shifts to the strata to accommodate that owner’s disability unless doing so would impose an “undue hardship” on the strata corporation.

But how does a strata accommodate the mental disability of an owner who is disruptive and abusive to the other owners?

In this case it was undisputed that the owner had a mental disability.  The evidence showed that the owner’s mental illness had caused her to have “episodes of outbursts from time to time” and that she is “loud, noisy or irrational due to her mental illness and other factors”.  The owner relied on her diagnosed mental illness as a mitigating factor and asked the CRT for leniency particularly with respect to the $3000 in fines that the strata had imposed on the owner for her behaviour.

The Tribunal Member observed that although the Human Rights Code requires a strata to accommodate a person’s disability, it would be unreasonable to require the strata to accommodate this owner’s mental disability.  The Tribunal member wrote as follows in the decision:

“[W]hile I acknowledge the owner has a mental disability that causes her to have loud outbursts, I find her disability… did not outweigh the owner’s right to quiet enjoyment of their property. I am satisfied that the owner’s conduct has significantly disrupted the lives of the other owners in the strata. It would be unreasonable to require those other owners to continue living with that conduct.”

Although the strata’s bylaws and its bylaw enforcement procedure was having an adverse impact on the owner’s disability, the Tribunal Member concluded that the strata had a “bona fide and reasonable justification” for enforcing its bylaws against this owner and that there was no reasonable way for the strata to accommodate her disability. In this case, the “adverse impact” of the bylaws was that the owner’s behaviour had actually worsened once the strata started enforcing its bylaws.

In the end, the Tribunal Member granted the strata corporation an injunction type order requiring the owner to comply with the bylaws and ordering her to pay fines totaling $2000 plus $225 to reimburse the strata for its CRT fees. If the owner refuses to comply with the injunction order, the strata will still have the option of going to the BC Supreme Court to obtain an “eviction” order.

This case will be helpful to stratas dealing with disruptive owners who also have mental illness. It had previously been an open question as to whether an owner’s mental disability could limit the strata’s bylaw enforcement efforts against an abusive or disruptive owner. The answer from this case seems to be no, provided that there is no reasonable way to accommodate the owner’s mental disability.

WHAT WE DO:  Lesperance Mendes advises strata corporations on all aspects of bylaw enforcement including owner and tenant “evictions” from stratas.  If you need help with a bylaw enforcement issue, contact Paul G. Mendes, partner, at 604-685-4894 by email at pgm@lmlaw.ca.

 

THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on without independent legal advice.