Monday, May 6, 2013

Condominium Complexes are Private; a Defense Against the creeping expansion of the Alberta Human Rights Commission

The distinction in law between "public" and "private" is a dynamic thing.  It is among many other legal concepts open to interpretation and some would say manipulation.  Where the line is drawn is significant for many reasons least of all the extent to which government can impose itself on the ordinary and private lives of our country's denizens.

Even if one does not critique the history and political philosophy of human rights legislation the incessant expansion of Human Rights Commissions in Canada is worthy of comment.  Particularly in this regard, it is important for those in condominium communities in Alberta to recognize that the Alberta Human Rights Commission (the "Commission") and many who support the shrinking of any societal space considered historically to be "private" hold the view that condominium corporations are bound by the Alberta Human Rights Act (the "AHRA").  The position articulated by the Commission is, notwithstanding the absence of any Court of Queen's Bench authority which supports the Commission's position, that section 4 of the AHRA applies to condominium corporations and prohibits discrimination against any person or class of person in respect of "accommodation or facilities" that are "customarily available to the public".

This position of the Commission is without support in law in Alberta; in this regard reference should be made to Condominium Plan No. 931 0520 v. Smith and the more recent Condominium Plan No. 9910225 v. Davis, both Court of Queen's Bench decisions.  Notwithstanding this clear enunciation of the law, an academic lawyer at the University of Calgary, Jennifer Koshan, has recently suggested that these decisions are wrongly decided.  The basis upon which Ms Koshan asserts this position is imaginative but is unfortunately illogical and lacks grounding in reality.  Ms Koshan's argument is based on a 1993 decision of the Supreme Court of Canada (the "SCC") in University of British Columbia v. Berg.  
Without wallowing in the details, the facts in Berg dealt with the failure of a student to receive a rating sheet and key from the University.  The SCC indicated that the focus of their legal inquiry at pages 373-74 would be in respect of the scope of the terms  "accommodations, services or facilities" and "public" (my emphasis):

"The courts below assumed, and the School conceded, that the key and rating sheet were "services" within the meaning of the Act.  The real issue between the parties was whether such services were, on the correct interpretation of s. 3 and the evidence, customarily available to the public.  This in turn entails two inquiries:  first, whether the student body of a university (or a faculty within the university) is the "public", and if so, second, whether the services in this case were, as a matter of law and fact, customarily available to that public."

The SCC concluded that the term public means more than its ordinary meaning.  The unusual conclusion made by the SCC in Berg is found at page 383:

"Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public.  Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service.  Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public."

The idead of "a public" (rather than "the public") within a "private" setting and the application of the principal of "eligibility criteria" in this regard may make sense in context of large institutions like universities, insurance companies and financial institutions frequented by many persons in society.  However, this principal of "a public" and the application of "eligibility criteria" cannot be applied to all circumstances; curiously the SCC was silent on the issue of limitation.  Moreover, and I suggest critical in this regard, the SCC's conclusion and Ms. Koshan's reliance on this conclusion from the Berg decision overlooks the limitations based on ordinary meaning which had been determined by the SCC in respect of the scope of these same terms in the Gay Alliance Toward Equality v. Vancouver Sun decision.    With all due respect, this earlier decision does not strain the ordinary meaning of these terms.  It is worthy to note that this case was referred to by the SCC in the Berg decision; the SCC quoted from the Gay Alliance case at page 374:

"After briefly discussing the nature of freedom of the press in Canada, Martland J. wrote (at pp. 454-55):

In my opinion the general purpose of s. 3 was to prevent discrimination against individuals or groups of individuals in respect of the provision of certain things available generally to the public.  The items dealt with are similar to those covered by legislation in the United States, both federal and state.  "Accommodation" refers to such matters as accommodation in hotels, inns and motels.  "Service" refers to such matters as restaurants, bars, taverns, service stations, public transportation and public utilities.  "Facility" refers to such matters as public parks and recreational facilities.  These are all items "customarily available to the public".  It is matters such as these which have been dealt with in American case law on the subject of civil rights."

The SCC had also earlier in the decision at page 366 made reference to an important comment in the decision of the Honourable Justice Legg of the British Columbia Court of Appeal and which was subject of the Appeal to the SCC (my emphasis):

"Legg J.A. assumed, in his decision for the court, that the provision of a rating sheet or a key to the building was an "accommodation, service or facility", noting that the word "service" was to be interpreted broadly, he did not agree that it constituted a service "customarily available to the public" within the meaning of s. 3 of the Act.  In reaching that conclusion, he referred to decisions of this Court stating that human rights legislation should be interpreted so as to advance the broad policy consideration underlying it, but he also argued that this did not mean that the ordinary meaning of words should be strained."

I suggest, with all due respect, that the decision of the SCC does "strain" the ordinary meaning of these terms.  Ms. Koshan is now attempting to suggest that the AHRA should apply to a private condominium communities based on the unusual principal of "eligibility criteria".  Universities are facilities created by statute and funded partly via public funds.  All students with sufficiently high grades and the financial wherewithal may attend at a university.  Perhaps in this context the determination of the SCC that the failure to provide a rating form and a key was discriminatory.  However, condominium corporations are created by registration of a Plan of Subdivision at the Land Titles Office and are simply a means of dividing a parcel of land into smaller parcels all which are capable of being owned privately.  There is nothing public about a condominium corporation.  Only invitees are permitted to come onto either the common property or any particular unit.  It embraces incredulity to suggest that a condominium corporation in this regard is anything remotely like a university or in any manner is public.  Moreover, a condominium corporation does not provide services nor accommodation or facilities.

Those who support the shrinking of societal spaces historically considered to be "private" will suggest that the availability for sale of a condominium units in a particular condominium project is the "eligibility criteria" and upon units being purchased the owners in a condominium become the "public" which the AHRA would apply to.  This is nonsense and illogical.  This faulty logic is revealed by applying the "eligibility criteria" to single detached residences on individual lots.  It is nonsensical to suggest that once an owner purchases a single detached residence they now belong to the "public".  Moving across the continuum it is also nonsensical to apply this to bare land condominiums with single detached residences on it.  It is equally as nonsensical to apply the principal of "eligibility criteria" to duplexes and townhouses not part of condominium projects; by extension this should also make it nonsensical to duplexes and townhouses in condominium complexes.  Though novel and imaginative the application of the principal of "eligibility criteria" to condominiums fails by reductio ad absurdum.   Regardless of the unusual and in some ways illogical conclusion of the SCC in Berg it is suggested that the AHRA will continue to not apply to condominium corporations in Alberta.