Can condo corporations put up “Christmas” decorations on common elements?

We’re fast approaching that most wonderful time of the year, with cheers of joy and good wishes… for most.  You see, the holiday spirit is not universally shared by all.

To help you get into the holiday spirit (should you be so inclined but in no way obligated to), we decided to revisit this 2021 post on whether Christmas decorations on condo common elements are discriminatory.  [But fear not.  This is not our yearly holiday post.  That one will come later in December.]

Facts of this case: Santa Claus is coming to town

In December 2017, decorations were put up in the common areas of a Toronto condo building, including white lights on evergreen hedges outside of the building and on an artificial plant in the common room. Red poinsettias were also displayed in the lobby and the board sent around a solicitation for owners to contribute to a “Thank you fund” for staff “as the holiday season is fast approaching”. The invitation included images of candy canes and a mouse (or a teddy bear) in a Santa hat.

One of the owners took umbrage to it all and argued that the trees, lights, poinsettias, candy canes and the Santa hat were evocative of Christmas and that, as such, they were Christian religious symbols.

While this owner conceded that there were some acknowledgement of other religious holidays over the course of the year (including Hanukkah, Eid-ul-Fitr, and Holi), she claimed that none were given the same prominence, with a Christmas notice being left up for 8 [of the 12] days of Christmas.  As a non-Christian, she felt like a second-class citizen and brought an application to the Human Rights Tribunal, alleging discrimination on the basis of creed.

For those interested, the decision contains a long history of Christmas past, present and yet to come, showing how, in the eyes of this owner, this corporation went from being non-denominational with no Christmas trees or “Happy Holidays” signs in 1993 to the current situation with candy canes and a mouse (or teddy bear) in a Santa hat.  This was not a St.Paul-on-his-way-to-Damascus kind of conversion, but more like a slippery slope.

This owner objected to lights being placed on “Christmas trees” (the coniferous kind) or even on evergreen shrubbery but not to those same lights being placed on the bare branches of deciduous trees. The former being a Christian religious symbol but the latter simply brightening up the front of the building. She objected to red poinsettias but accepted the less “Christmassy” yellow ones. The “Christmas Holiday Fund” gathering donations for staff was problematic, but the “Staff Thank You Fund” was acceptable.

The Legal Test: He is checking his list twice

The Human Rights Code provides that all are entitled to equal treatment and cannot be discriminated under a prohibited ground (such as creed).  For there to be discrimination, one must demonstrate that they suffer a disadvantage or adverse impact.

This decision provides a detailed analysis  of all of the moving parts of a Human Rights claim, even though most cases referred to pertained to employment situations.

Decision: Secret Santa

The Human Rights Tribunal cautioned that Christmas was now as much a secular holiday as it was religious. As such, decorations could be evocative of Christmas without being Christian religious symbols. So ultimately, the question would turn on whether any of the above displays of joy was festive or whether they were religious.

The Tribunal concluded that, absent “expert evidence” [I’m not making this up], it was not prepared to rule on whether lights, evergreen bushes, red poinsettias, candy canes and Santa hats (whether on mice or bears) were, in fact, Christian religious symbols. Rumour has it that the Corporation did try to  subpoenae the man in the red suit as an expert witness but he was busy spready joy around the globe.  

Ironically, in the Jones case referred to in this decision, an employee had refused to display red poinsettias based on his religious belief not because they were Christian symbols but rather because they were too pagan and against his Jehovah’s Witness’ beliefs. 

On the question of the prominence given to Christmas, this owner was of the view that the Corporation had to pick between acknowledging no religious holidays whatsoever, or providing equal recognition and inclusion of every religious holiday. [I’ve counted 56 holidays in November and December alone; 57 if you include Sol Invictus, the  celebration of being unconquered by superstitious spiritual beliefs – although it is unclear to me what greetings or symbols are traditionally exchanged between the proponents of this celebration. Presumably none.]

The owner also complained that a sign wishing all residents a “Happy Holiday weekend” assumed that everyone was, in fact, celebrating a religious event that weekend [and presumably that everyone wanted such weekend to be a happy one].

The Tribunal did not agree with either of these complaints. There was no evidence that a single request to acknowledge a different holiday had been rejected and, whether we like it or not, it was opened to anyone, regardless of creed, to enjoy (or not) the statutory holiday weekend in question.

How to stay on the “nice list”?

So where does that leave us? How can you avoid upsetting your local condo Grinch?

The lobby and landscape around the building are common elements and are for all to enjoy.  While there is nothing wrong with some decorations around the christmas holidays (I’ve remove the capital letters), a little restraint and inclusiveness may go a long way if you are going to deck the halls.

There is likely nothing wrong with some festive lighting, poinsettias (I won’t discriminate on colour) and some tinsel.  In some corporations, it may also be acceptable to display a full blown Christmas tree.

Just don’t sour the eggnog.  Be inclusive and respectful of others views and adapt to the situation (and traditions) in place at your condo. Consider also acknowledging other festive holidays/celebrations.

To the chagrin of my traditional heart, you may want to steer away from ostentatiously displaying baby Jesus, Mary, or the Three Wise men. As for the star of Bethlehem, you may need to save that for Halley’s Comet’s next passage in 2062.

So there you have it folks. Let there be peace on earth and joy to the world in this year’s celebration of … the winter equinox.