ARE CONDOMINIUM RULES LIMITING OCCUPANCY TO SENIORS LEGAL IN QUEBEC?

Article 1053 of the Quebec Civil Code requires that the "destination" of the private portion of the condominium be defined. It is common for the destination to limit the use and enjoyment of condominium units to residential or commercial purposes or sometimes, the units on the ground floor could be commercial and the upper floors exclusively residential. What is unusual however is a residential condominium that is limited to seniors e.g. 55 years and older. Would such a destination of a condominium contravene the Quebec Charter of Rights and Freedoms, CQLR c C-12 which guarantees individuals from discrimination based on "...age except as provided by law." 10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. 1975, c. 6, s. 10; 1977, c. 6, s. 1; 1978, c. 7, s. 112; 1980, c. 11, s. 34; 1982, c. 61, s. 3; 2016, c. 19, s. 11. 14. The prohibitions contemplated in sections 12 and 13 do not apply to the person who leases a room situated in a dwelling if the lessor or his family resides in such dwelling, leases only one room and does not advertise the room for lease by a notice or any other public means of solicitation. 1975, c. 6, s. 14. Some age discrimination is common and specifically authorized by law, e.g. : right to collect government pension, consume alcoholic beverages, driving licenses, right to vote, mandatory retirement age, calculating insurance premiums, income tax benefits. RPA's (Résidences pour personnes âgées) limit the right to occupy rental properties to seniors and must be certified by the Ministère de l'Emploi et de la Solidarité sociale (Regulation respecting the certification of private seniors' residences, S-4.2, r. 0.01). It would be difficult to imagine that a residential condominium where each unit is presumably owned privately could be considered or certified as an RPA. I have not found any case law in Quebec that has considered this issue. An interesting discussion of the issue can be found in a complaint made to the Newfoundland and Labrador Human Rights Commission, Zachary Bill v. Allandale Place Condominium Corporation ("APCC"), file #11623, Decision date 2020-11-04. On 2011-08-04. APCC amended its bylaws to restrict occupancy of its condominium units to individuals who have reached 55 years of age, or two or more persons at least one of whom has reached the age of 55 years. The restriction was grandfathered so as to exempt occupants at the date that the amendment came into effect. Mr. Bill, who was younger than 55, contracted to purchase a condominium unit but did not proceed after he was informed that his occupancy would be contrary to the APCC By-laws. After unsuccessfully trying to get the By-law repealed, he filed a complaint with the Human Rights Commission alleging discrimination based upon his age. The applicable section of the Human Rights Act is as follows: Right to occupy commercial and dwelling units 12. (1) A person, directly or indirectly, alone or with another, by himself or herself, or by the interposition of another, shall not, on the basis of a prohibited ground of discrimination, (a) deny to a person or class of persons occupancy of a commercial unit or a self-contained dwelling unit; or (b) discriminate against a person or class of persons with respect to a term or condition of occupancy of a commercial unit or a self-contained dwelling unit. Reference: Human Rights Act, 2010 SNL2010 c. H-13.1 s. 12(1). Mr. Bill argued that there were no exceptions or statutory provisions that exempted condominium units and so the By-laws were discriminatory. APCC argued that federal and provincial governments have come to recognize seniors as a vulnerable population to which age discrimination should be accepted. It also relied on a statutory exemption in the Act for rental units (s. 12 (4). (4) Subsection (1) as it relates to age and family status, does not apply to the renting or leasing, the offering for rent or lease, or the advertising for rent or lease of a commercial unit or selfcontained dwelling unit, where the unit is a rental unit in premises in which every rental unit is reserved for rental to a person who has reached the age of 55 years, or to 2 or more persons, at least one of whom has reached the age of 55. Reference: Human Rights Act, 2010 SNL2010 c. H-13.1 s. 12. The Adjudicator had to determine if Mr. Bill established a prima facie case of discrimination and if so, determine whether the APCC Bylaws were justified by a statutory exemption. The Adjudicator considered that contravention of the Act does not require an intention to discriminate. Discrimination occurs when the conduct or in this case, the Bylaws, result in adverse consequences or a disadvantage. He found that Mr. Bill established a prima facie case of discrimination. Was there a statutory exemption that excused the discrimination? APCC argued that the exemption for lease or rental of dwellings should be widely interpreted and applied to condominiums and that making a distinction between ownership of condominium units and the rental of a dwelling unit is arbitrary. The Adjudicator's approach was to determine if the words of the statute were clear and unambiguous. If so, then that was the end of the matter. In other cases, the Human Rights legislation must be given a broad interpretation keeping in mind that its very purpose is to curtail discriminatory practices such as on the basis of age. He then looked at other Canadian jurisdictions, including Quebec, to see if his interpretation would be inconsistent with interpretations of similar human rights legislation in other Canadian jurisdictions. In Quebec, he found that human rights legislation provides protection from age discrimination. He found no specific provision related to occupancy, and no specific exemption related to occupancy by persons aged 55 and over analogous to our section 12(4). In Alberta, he found that there was a separate and specific exemption for minimum age for occupancy of a condominium. The Adjudicator found that the exemption in the Human Rights Act was limited to rental properties and did not apply to condominium units and so found the complaint well founded. In the United States, residential developments limited to seniors are not exceptional. Such developments often set up homeowner associations that provide community services to seniors such as a community center/game room, tennis/pickle ball courts, swimming pools etc. Considering our aging population, it would not be surprising to see Quebec as well as other Canadian jurisdictions follow Alberta's lead and modify their human rights legislation to allow condominiums reserved exclusively for seniors.