A family of six a landlord called "way too big" to rent a three-bedroom, two-bathroom house in Victoria is taking its case to the B.C. Human Rights Tribunal.

The mother, Robbin Abernathy, filed the complaint on the basis of discrimination against family status.

The landlord applied to have the case dismissed.

Based on guidelines published by the province's Residential Tenancy Branch (RTB), he believed it was his right to restrict how many people could rent his property.

But the tribunal recently rejected the landlord's dismissal application, allowing the case to proceed.

Advocates on both sides of the issue say the case is indicative of a tight rental market and of unclear rules in the Residential Tenancy Act.

'Squishing in' better than the alternative

According to the tribunal member's decision, last April Abernathy expressed interest in renting the house for her family, which includes four children under the age of eight.

It says the landlord, John Stevenson, replied to her inquiry the same day.

"Sorry, but that is way too big of a family for the house," Stevenson wrote.

Abernathy replied, explaining the family was already living in a three-bedroom home, with only one bathroom, and the children were young enough to share rooms comfortably.

Victoria currently has a rental vacancy rate of less than one per cent. (Paul Sakuma/Associated Press)

However, their current landlord was taking over the home for his own use, the decision says.

"Unfortunately, the market is so bad we just need a place to go, so squishing in is better than the alternative," Abernathy said.

But the landlord said he wasn't interested in renting to them, according to the decision.

"More people means more wear and tear on the house and it is a fairly new house in excellent condition, and I would like to keep it that way," Stevenson replied.

Conflicting rules

The landlord was basing his decision on a guide published by the RTB which states: "A landlord usually cannot refuse to rent to people because they have children, but can limit the number of people living in a rental unit."

However, the rules published in the act itself differ — and are somewhat conflicting.

The act does not include the number of people as one of the provisions to set up a tenancy agreement. But it does say landlords can give notice to end a tenancy if "there are an unreasonable number of occupants in a rental unit."

"In this particular case, the landlord denied the unit before a tenancy agreement was in place, therefore the Act would not apply in this situation," the Housing Ministry said in a written statement.

The landlord in the Human Rights Tribunal case based his decision not to rent his property to the family on a guide published by the Residential Tenancy Branch. (CBC)

The province also clarified the act itself prevails over the guide and said it's reviewing it to make sure it's in compliance with the Human Rights Code.

The CEO of Landlord B.C., David Hutniak, said the rules are clear in his view.

"You don't discriminate against families. That's just not something that our industry does," Hutniak said.

The reason why the number of tenants is included in the section on ending a tenancy, Hutniak says, is to protect landlords from situations where several new tenants move into a unit after a lease is set up.

"You want to ensure that your asset isn't excessively damaged," he said.

Picking 'the best candidate'

Lorna Armstrong, a tenant advocate with the Tenants Resource Advocacy Centre, agrees the rules around the number of tenants are a grey area but generally clear in practice.

Armstrong says landlords and tenants agree to the number of residents in a unit when the lease is set up, and it's up to each party to decide what's acceptable or not.

Some tenant advocates say the rental housing market is so tight that families are getting pushed out on to the streets as landlords priortize other tenants. (Grant Linton/CBC News)

She also said landlords clearly can't discriminate against families. All the same, she says, it has long been difficult for those with children to find a place to rent — especially in today's tight rental market.

"Because there's a housing shortage, you have dozens of applicants," she said.

"So, landlords don't have to tell anyone with children, 'dream on, you're not getting it.' They just get to pick the best candidate and they really never put themselves in a position of being accused of discrimination."

Guidelines recommended

Hutniak said it might make sense for the province to provide guidelines on how many people can live in different sized units.

But Armstrong believes that should be a personal decision. Growing up disadvantaged in rural Alberta, she shared a room with her parents until she was six and then with her brother.

She says the housing crunch in B.C. may be a good time to reconsider how much space people need to live in.

"Maybe the whole point is to change our attitudes about families and how we live. Why does everybody have to have such a big footprint?"