Our co-ownership is composed of more than 350 apartments and a significant percentage of these are owned by co-owners who rent to tenants of Muslim faith. Our indoor and outdoor pool regulations are clear: only the wearing of swimsuits and swimming caps are allowed. But in our outdoor pool, we have women who wear the burkini. Question: Since we are not a public swimming pool, can we deny women who wear the burkini access to the pool?
Answer: The declaration of co-ownership cannot impose any restrictions on the rights of the co-owners, except those justified by the destination of the immovable, its characteristics or its situation. It is not permitted, by a clause of the declaration of co-ownership, to prohibit access to the pool to certain occupants of the building (e.g. tenants). Moreover, the burkini cannot be banned solely because of its religious aspect. However, health and safety reasons may justify a ban on dressed swimming, due to the risks associated with swimming, lifesaving and pool water quality.
However, there are burkinis – contraction of the words burqa and bikini – made of the same material as classic one- or two-piece swimsuits. It is usually a mixture of elastane (lycra) and polyamide (nylon). It is designed for the aquatic environment and developed to comply with swimming pool hygiene standards. Therefore, the only difference with a classic swimsuit is the amount of fabric. The burkini covers the entire body, including the head: it therefore also serves as a swimming cap. In this regard, it should be remembered that professional swimmers use full swimsuits and that the burkini can comply (under certain conditions) with the safety standards of the Lifesaving Society of Quebec, which has included the burkini on its list of completely safe swimwear.
As the burkini meets these requirements, the quality of the bathing water should not be affected and it should be accepted in your pool. Otherwise, a Muslim woman's refusal to swim in a burkini in your pool may be characterized by discrimination based on religion and gender. In this regard, it should be noted that the Charter of Human Rights provides that every person is the holder of fundamental freedoms such as freedom of religion and that no one may, in a legal act, stipulate a clause involving discrimination.
