Part 35 published on 01/09/11
Pool rules contravened Human Rights Code
These two condominiums share common recreational facilities, including an indoor swimming pool and an outdoor swimming pool. The rules of the complex prohibited children under two years of age, and persons in diapers, from entering either of the two pools. The rules also prohibited children under the age of 16 from using the pools except during specified hours. [Amendments to these rules were considered but rejected by the owners of the condominiums.]
The Tribunal held that these rules contravened the Human Rights Code’s provision against discrimination on the basis of family status, and ordered the condominium corporations to repeal or revise the rules. The Tribunal said:
- The respondents (the condominium corporations) bear the burden of that (sic) these prohibitions and/or restrictions are reasonable and bona fide and lifting them would impose an undue hardship on them. The evidence they marshal to address this burden must not be “impressionistic” or “speculative”. Hardship is measured only after the respondents have made efforts to minimize the risk to health and safety.
- While the respondents do not explicitly acknowledge it, their overall goal with respect to their pools appears to be reasonable health and safety. That is, they operate on the principle that some risk is acceptable. As noted above, the risk caused by allowing children in diapers to use the pools is extremely low and, therefore, well within the range of acceptable risk.
The concern about children under 16 being allowed to use the pool at all times was that their boisterous play might disrupt other activities such as aquatics classes or lane swimming. The Tribunal said:
At any rate, it is not clear why the pools could not be restricted to these activities at certain hours without restricting the use by age. A child under the age of 16, for example, may be interested in participating in lane swimming.
As it stands now, the outdoor pool can only be used by children between the hours of 12 – 4 on weekdays. Children’s hours for the indoor pool are 1 – 5 on weekdays. A parent who worked during these hours would not be able to swim with their child because of this restriction. Similarly, a child in school would not be able to use the pool for most or all of these hours. Indeed, these hours seemed designed to minimize access to the pools by children.
In the absence of any evidence of undue hardship, I find that the rules concerning children’s hours are not reasonable and bona fide.
The decision also included the following general words of guidance:
By way of guidance, the respondents can, in good faith, create rules restricting persons with communicable diseases from entering the pools. If necessary, they can also, in good faith, restrict pool use by activity where such restrictions are reasonable and bona fide. However, requirements on the basis of age… are inherently problematic.
The applicant was the mother of a 10-month old daughter. The Tribunal awarded her compensation of $10,000, payable by the condominium corporations.