Tribunal Dismisses Complaint Against Strata for Discrimination in Addressing Noisy Neighbour Situation

annoyed stressed woman covering her ears, looking up loud noise upstairs

In his reasons issued on June 16, 2020, BC Human Rights Tribunal Member Paul Singh dismissed a complaint against a strata for allegedly failing to enforce a noise bylaw against the complainant’s neighbours because of her sex and marital status. The complaint was made under section 8 of the BC Human Rights Code, as strata councils are considered to be providers of accommodation, services, or facilities customarily available to the public.

The complainant owns a condo in a strata. She alleged that the residents in the unit above hers were too loud. According to the Tribunal, several actions were taken by the strata and neighbours in an effort to address the complainant’s concerns. The strata:

  • sent caution notices to the upstairs neighbours,
  • conducted noise inspections,
  • tried to arrange a mediation and other voluntary dispute resolution processes between the neighbours and the complainant,
  • included a note in strata council meeting minutes to keep residents aware of the noise issue,
  • sent out “good neighbour” noise notices to all unit owners in the building,
  • sent a letter to the upstairs neighbours suggesting a change of flooring,
  • adopted a bylaw regarding installation of underlay for new flooring to reduce noise, and
  • retained an engineer to determine whether any structural deficiencies existed between the units.

The upstairs neighbours apparently changed their flooring and started wearing slippers.

The Complainant argued that all of these measures were inadequate.

She alleged that her sex and marital status were a factor in the strata’s failure to adequately address her noise concerns. She thought this was the case because of an exchange she had in the building’s parkade with a strata council member who said something to the effect of “you shouldn’t have to put up with that because you are a single woman.” She said that aside from the discrimination which should be inferred from the comment in the parkade, there was no other explanation for why the strata “did nothing” over three years.

The Tribunal held that there was no reasonable prospect of the complainant succeeding in showing a nexus between her sex or marital status and any adverse impact she experienced from the noise in her unit. It held as follows at paragraph 59 of the decision:

The Respondents do not specifically deny that the Comment was made to Ms. Dolinsky. However, the Comment, even if made, cannot reasonably be seen as anything other than an offhand remark made during a brief, casual conversation. A Strata Council member telling Ms. Dolinsky that she should not have to put up with noise issues because she was a “single woman” is simply not sufficient to establish discrimination under the Code given all the steps the Strata had taken through the years to help address and ameliorate Ms. Dolinsky’s noise concerns.

The Tribunal also held the following at paragraph 62:

…it is not the Tribunal’s role to assess the merits of a strata’s management decisions for its building, including the process for investigating and enforcing bylaws, so long
as those decisions are not used as a pretext for discrimination. What concerns the Tribunal is only whether a characteristic protected by the Code was a factor in these decisions: Li v. Options Community Services and others, 2020 BCHRT 104 at para. 84.

Complaint About Hair Salon's Alleged Refusal to Provide Hair Cut to Transgender Woman Dismissed

In reasons for decision regarding X v Hot Mess Hair Salon (No 2), 2020 BCHRT 42, the BC Human Rights Tribunal dismissed a complaint against Hot Mess Hair Salon for allegedly refusing to provide a transgender woman hair style and cut services.

When complaint X inquired on a hair stylist’s Facebook page about pricing for a style and cut, the stylist replied that she only does women’s hair. When the complainant stated “actually I’m a girl ha, ha (it happens a lot lol)” and then went on to ask about availability, she received no answer. It appeared to her that the stylist blocked her from Facebook.

X then searched for the stylist on the internet and found that she worked for Hot Mess. X contacted Hot Mess to express her frustration, the owner apologized, assured her that she had not been blocked (she said the stylist’s Facebook page had been “locked”), and offered her a free hair style and cut. The stylist did the same. X refused and filed the Human Rights Complaint.

Ultimately, the tribunal dismissed the complaint, finding that X did not establish a connection between her gender identity and her inability to schedule a hairstyling appointment. It stated the following:

[32] In order for the complaint to succeed it would be necessary for the Tribunal to draw the inference that her gender was at least a factor in her being prevented from making an appointment to have her hair styled and cut. I am unable to draw such an inference for the following reasons.

[33] I have the evidence of X that she is satisfied that the stylist was not actually locked out of Facebook. Unfortunately, her reasons for reaching that conclusion are not supported by any expert evidence with respect to the use of Facebook or Instagram. Combine that with apparent efforts by the stylist to have a conversation with X and to book her in for a style and cut and then an attempt by Ms. Simpson to do the same, and I am not in a position to conclude that the events of March 5 were precipitated by X’s gender. It is just as probable that they were precipitated by the stylist’s expressed inability to respond to X via Facebook.

Complaint About Hair Salon’s Alleged Refusal to Provide Hair Cut to Transgender Woman Dismissed

In reasons for decision regarding X v Hot Mess Hair Salon (No 2), 2020 BCHRT 42, the BC Human Rights Tribunal dismissed a complaint against Hot Mess Hair Salon for allegedly refusing to provide a transgender woman hair style and cut services.

When complaint X inquired on a hair stylist’s Facebook page about pricing for a style and cut, the stylist replied that she only does women’s hair. When the complainant stated “actually I’m a girl ha, ha (it happens a lot lol)” and then went on to ask about availability, she received no answer. It appeared to her that the stylist blocked her from Facebook.

X then searched for the stylist on the internet and found that she worked for Hot Mess. X contacted Hot Mess to express her frustration, the owner apologized, assured her that she had not been blocked (she said the stylist’s Facebook page had been “locked”), and offered her a free hair style and cut. The stylist did the same. X refused and filed the Human Rights Complaint.

Ultimately, the tribunal dismissed the complaint, finding that X did not establish a connection between her gender identity and her inability to schedule a hairstyling appointment. It stated the following:

[32] In order for the complaint to succeed it would be necessary for the Tribunal to draw the inference that her gender was at least a factor in her being prevented from making an appointment to have her hair styled and cut. I am unable to draw such an inference for the following reasons.

[33] I have the evidence of X that she is satisfied that the stylist was not actually locked out of Facebook. Unfortunately, her reasons for reaching that conclusion are not supported by any expert evidence with respect to the use of Facebook or Instagram. Combine that with apparent efforts by the stylist to have a conversation with X and to book her in for a style and cut and then an attempt by Ms. Simpson to do the same, and I am not in a position to conclude that the events of March 5 were precipitated by X’s gender. It is just as probable that they were precipitated by the stylist’s expressed inability to respond to X via Facebook.