Martin and others v. Red Door Housing Society and others, 2024 BCHRT 171
Date Issued: May 30, 2024
File: CS-001815
Indexed as: Martin and others v. Red Door Housing Society and others, 2024 BCHRT 171
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Janna Martin, Rayne Fewings and Miah Fewings (by Janna Martin)
COMPLAINANTS
AND:
Red Door Housing Society and RJS Construction Ltd. and BC Housing
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
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Tribunal Member: |
Edward Takayanagi |
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Representative for the Complainants: |
Janna Martin |
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Counsel for the Respondent, BC Housing: Counsel for the Respondent, Red Door Housing Society: Counsel for the Respondent, RJS Construction Ltd.: |
Anne Cochrane Kirstn E. Mase Aman Oberoi |
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I INTRODUCTION
[1] These applications arise from a complaint of discrimination in the context of a tenancy relationship. Janna Martin, Rayne Fewings and Miah Fewings [together the Complainants] allege that Red Door Housing Society, RJS Construction Ltd., and BC Housing [together the Respondents] bullied and harassed them during mold remediation work to their building and failed to respond to their correspondence expressing concern about the work. They say the Respondents discriminated in the areas of service and tenancy based on physical and mental disability contrary to ss. 8 and 10 of the Human Rights Code .
[2] The Respondents deny discriminating. Each of the Respondents filed an application to dismiss the complaint under s. 27(1) of the Code. The Respondents each say there is no reasonable prospect the complaint will succeed.
[3] BC Housing argues that there is no reasonable prospect the complaint will succeed against it because there is no tenancy relationship between it and the Complainants, and it has not denied the Complainants a service customarily available to the public.
[4] Red Door argues that the Complainants have no reasonable prospect of proving an adverse impact connected to their protected characteristic. It also argues it is reasonably certain to prove it discharged its duty to accommodate the Complainants by making multiple offers to relocate the Complainants during the remediation process which the Complainants rejected.
[5] RJS argues that there is no reasonable prospect the complaint will succeed against it because it is reasonably certain to prove a defence at a hearing that its conduct was reasonably justified.
[6] For the following reasons, I allow the applications to dismiss. I am satisfied that the Complainants have no reasonable prospect of proving their allegation of discrimination against BC Housing. Regarding Red Door and RJS, even if the Complainants prove the elements of discrimination at a hearing, I am satisfied that Red Door and RJS are reasonably certain to prove their defence that it satisfied their duty to accommodate the Complainants.
[7] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[8] The following background is taken from the materials filed by the parties. I make no findings of fact.
[9] The Complainants are residents of a building managed by Red Door. Ms. Martin is the mother of the other Complainants who are minors. The Complainants all reside in the same rental unit.
[10] Red Door is a non-profit organization that manages the building where the Complainants reside. RJS is a construction company that contracted with Red Door in 2020 to perform remediation work to the building. BC Housing is a provincial crown agency that provides funding to Red Door to house low-income tenants. BC Housing has no involvement in the management or operation of the building or the Complainants’ tenancy.
[11] On or about December 11, 2019, Red Door informed the tenants of the building that the building required major renovations and upgrades. Red Door informed the tenants that the scope of the expected work included retrofitting, testing for mold, and if necessary, remediating mold. Red Door told the tenants it would be necessary to allow RJS access to individual suites to perform the work. Due to the extent and expected duration of the work, residents would need to temporarily move out of their units into other units provided by Red Door.
[12] Work began on January 7, 2020. RJS erected scaffolding outside the building and workers began attending the building to perform work.
[13] During the work to the building, the Complainants sent emails on February 18, 19, 27, March 2, and two on May 2, 2020. Each email was addressed to multiple recipients including representatives of Red Door, RJS, the Prime Minister, the Premier, various MLAs, the Minister of Housing, members of the press, and municipal offices. In the emails the Complainants ask about the scope and process of the intended remediation, request repairs because they say the building is unsafe and unsanitary and state that they will not allow access to their rental unit because they are concerned about how the work will be conducted. BC Housing was copied on these emails but did not reply to any of them.
[14] The Complainants refused to allow RJS access to their rental unit to perform work. Representatives of RJS and Red Door met with Ms. Martin on February 18, 2020, to determine why she was denying access to the rental unit and explain the nature of the work being conducted on the building.
[15] At the meeting of February 18, 2020, Ms. Martin raised concerns about possible mold in her unit and the health risks associated with it. Red Door and RJS explained the mold remediation process to Ms. Martin. They explained that they needed access to her rental unit to test for the presence of mold and if mold was confirmed they would remedy the mold issue. They explained that the work was expected to take between three to five days, and during that time the Complainants would be temporarily relocated to a furnished unit while the remediation occurred.
[16] On February 27, 2020, Red Door offered to move the Complainants temporarily into another unit while work was performed on the rental unit. Red Door also told the Complainants Red Door would assist with the relocation. The Complainants did not accept the offer.
[17] On March 5, 2020, the Complainants filed a complaint against Red Door with the Residential Tenancy Branch (RTB) seeking an order that Red Door perform emergency repairs to abate the mold in their unit. On June 15, 2020, during the RTB hearing, the parties agreed to settle their dispute. The parties agreed that the Complainants would move into another unit, at a date and time to be agreed upon, so that remediation work in the rental unit could proceed. Red Door agreed that it would assist the Complainants to move any personal items, and protect larger items left in the rental unit while the abatement work occurred. The terms of settlement were recorded in an order of the RTB.
[18] Red Door wrote to the Complainants on August 4, 10, 13, 2020, July 26, 2021, and August 2, 2021, regarding the agreement reached by the parties at the RTB hearing, seeking to temporarily relocate the Complainants and perform the remediation work to the rental unit. The Complainants did not respond.
[19] On August 4, 2021, Red Door sent the Complainants a with prejudice settlement offer, offering to permanently move the Complainants into a new rental unit in another building. The Complainants did not accept this offer.
[20] As at the time of this application, based on the materials before the Tribunal, I understand that the Complainants have not permitted RJS access to their rental unit and remediation work has not been done on the unit.
III DECISION
[21] I consider each Respondents’ application to dismiss under s. 27(1)(c). I will first set out the applicable principles and apply these principles to each Respondent in turn.
[22] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[23] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[24] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[25] To prove their complaint at a hearing, the Complainants will have to prove that they each have a characteristic protected by the Code, they were adversely impacted in service or tenancy, and their protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[26] If the Complainants succeed in establishing their case, the burden shifts to the respondents to prove it made reasonable attempts to accommodate or could not accommodate without incurring undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20; Alexander v. PAL Vancouver (No. 4), 2006 BCHRT 461 at para. 44.
[27] A complainant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 [Renaud] at 994-995. If a complainant rejects a reasonable proposal, the respondent’s duty to accommodate is discharged: Renaud. The standard for accommodation is reasonableness, not perfection: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425.
[28] For the purposes of their applications, the Respondents do not appear to dispute that the Complainants each have the protected characteristic of a mental or physical disability. The Respondents say there is no reasonable prospect the Complainants could prove they were adversely impacted or that their protected characteristic was a factor in any alleged adverse impact. Red Door and RJS additionally argue that the complaint has no reasonable prospect of success against them because they are reasonably certain to prove a defence at a hearing: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
A. BC Housing
[29] The Complainants allege BC Housing discriminated because it “failed to answer any of [Ms. Martin’s] emails or my advocates [sic] emails in regards to this ongoing situation.”
[30] BC Housing argues that the complaint has no reasonable prospect of succeeding against it because: (1) BC Housing is not directly or indirectly involved in managing the Complainants’ tenancy or the remediation work and there is no tenancy relationship between BC Housing and the Complainants; (2) not responding to emails is not an adverse impact in a service customarily available to the public; (3) there is no nexus between BC Housing not responding to emails sent by Ms. Martin or her advocate and the Complainants’ protected characteristics.
[31] BC Housing submits, and the Complainants do not dispute, that there is no tenancy relationship between the Complainants and BC Housing. Therefore, BC Housing submits there is no reasonable prospect of the Complainants establishing that s. 10 of the Code applies to the complaint. Based on the materials before me I agree. While the Complainants submit that BC Housing has an operating agreement with Red Door, there is no evidence that BC Housing is involved in the tenancy or has influence on any term or condition of the tenancy at issue in this complaint. This complaint is therefore more appropriately dealt with under s. 8 of the Code.
[32] Under s. 8 a person must not, without reasonable justification, deny a service customarily available to the public. BC Housing says, and the Complainants concede that, BC Housing does not get involved in tenant-landlord conflicts. Nevertheless, the Complainants argue that BC Housing and other government agencies should have reached out to them and formulated a remediation plan tailored to their specific needs. I understand the Complainants to be arguing that BC Housing, as a Crown corporation, had a general duty to respond to emails from members of the public seeking assistance and to intercede on behalf of vulnerable tenants.
[33] It is undisputed that BC Housing does not intercede in conflicts between landlords and tenants for properties they do not manage. It is also undisputed that BC Housing does not involve itself in formulating remediation plans for buildings they do not manage.
[34] The circumstances here are similar to Union of BC Indian Chiefs v. Provincial Health Servies Authority and others , 2022 BCHRT 99, where the complainant argued that a public body which oversees public policy and provides funding to organizations is liable for discrimination arising out of services provided by its partner organizations. The Tribunal dismissed the complaint as against the Health Authority, reasoning that funding and oversight without playing a direct role in the services was not sufficient to establish a violation of the Code.
[35] I apply the same reasoning and find there is no reasonable prospect of the Complainants establishing that they were adversely affected by being denied a service customarily available to the public in light of the undisputed evidence that BC Housing does not intercede in landlord-tenant disputes nor formulate remediation plans. Based on the materials before me I find the allegation that the Complainants were denied a service customarily available to the public has not been taken out of the realm of conjecture. Accordingly, I dismiss the complaint against BC Housing under s. 27(1)(c).
B. Red Door Housing
[36] The Complainants allege that Red Door discriminated in tenancy because they allowed remediation work to be conducted on the building in a way that disrupted their enjoyment of the rental unit and exacerbated their physical and mental disabilities. Specifically, they say the erection of scaffolding, issuing notices, and the presence of workers with attendant noise caused them significant distress and discomfort.
[37] It is not disputed that the Complainants each have a mental or physical disability. I understand the Complainants allege that the ongoing remediation work worsened the symptoms of their disabilities.
[38] I understand Red Door to be arguing that there is no reasonable prospect the complaint will succeed against them because the Complainants’ allegation that their mental or physical disabilities were adversely affected by the remediation work is not supported by the evidence.
[39] I do not agree. There are two brief doctor’s notes dated February 28, 2020, that state that two of the Complainants reported worsening symptoms of anxiety and depression which developed because people are walking around the building for construction. While more evidence may be required at a hearing to establish a connection between the adverse impact and the protected characteristics, for the purpose of this application, I am prepared to assume without deciding that the Complainants have taken this element of the complaint out of the realm of conjecture.
[40] I next turn to Red Door’s justification defense. Red Door says, it is reasonably certain to establish a defense at a hearing because the remediation work was necessary to maintain the building and it reasonably accommodated the Complainants by offering them temporary alternate accommodations while work is done to their rental unit.
[41] I infer from the application that Red Door is arguing they adopted a standard, namely, performing remediation work to all units in the building, in good faith. They say the nature of the work, and the layout of the rental building required workers to attend on-site, erect scaffolding, and a certain level of noise is inescapable. They say they met with Ms. Martin to discuss her specific concerns about the scope of work, offered to move the Complainants into various other units temporarily, offered to permanently move the Complainants to another unit, and offered to assist any moves by transporting items from the rental suite to alternate accommodations.
[42] They further say the parties entered a binding settlement agreement at the RTB hearing where the Complainants agreed they would temporarily move into another unit so that Red Door could arrange for the mold inspection and abatement to be conducted. They say they attempted to satisfy the terms of settlement by following up to schedule a time for the temporary move but received no reply from the Complainants. Red Door says they offered the Complainant different temporary units, offered a permanent move to another unit, asked the Complainants what concerns they had about the move and could not have done anything else reasonable or practical to avoid the negative impact on the Complainants.
[43] For the following reasons, I am satisfied Red Door is reasonably certain to prove it discharged its duty to accommodate the Complainants.
[44] The search for accommodation is a multi-party inquiry, where a complainant has a duty to assist in securing an appropriate accommodation. The undisputed evidence before me is that Red Door engaged in a cooperative process from the outset by meeting with tenants of the building about the details, scope, and timeframe of the remediation work. The evidence before me is that Red Door subsequently continued its consultation process by meeting with Ms. Martin, providing information in response to her concerns about the work and the presence of workers in the building, addressing concerns about the accreditation and qualifications of the companies they use, and diligently offering alternatives. Red Door is reasonably certain to prove at a hearing that it engaged with the Complainants throughout the remediation process and attempted to address their concerns.
[45] The Complainants’ response submissions focus on their belief that their rental unit contained mold that has gone unabated. They restate the allegations in their complaint that the ongoing construction work in the building caused them discomfort. I understand them to be arguing that Red Door ought to have created a remediation plan at the outset that addressed their needs before starting the project. While they say the plan to relocate tenants did not take into consideration their mental and physical disabilities, they have not explained what they believed was missing in Red Door’s various offers to relocate them to temporary accommodations. The Complainants have also not explained why they believe the agreement they reached at the RTB hearing to be inadequate to address their concerns, nor why they entered the agreement if they believed the terms did not resolve their issues.
[46] The main point of the Complainants’ argument appears to be that they have refused to allow Red Door to perform mold abatement in their unit because they do not trust Red Door to properly address the issue. There is no evidence or arguments before me of what the Complainants say would have been an appropriate alternative to the offers made by Red Door.
[47] Based on the entirety of the materials I am persuaded that it is reasonably certain Red Door would establish it met its duty to accommodate by making the multiple proposals to the Complainants, most recently in a with prejudice offer of August 4, 2021 to relocate them to another unit, while the Complainants failed to meaningfully participate in the process. I therefore dismiss the complaint as against Red Door under s.27(1)(c).
C. RJS Construction
[48] The Complainants allege RJS discriminated against them because their presence on the property and the noise they made during work to the building interfered with their enjoyment of the rental unit and exacerbated their physical and mental disabilities.
[49] RJS does not dispute it performed remediation work to the building but says that if in doing so they caused an adverse impact to the Complainants connected to their mental or physical disability, there is a reasonable justification. Specifically, they say the work could not be conducted without workers being present at the building, posting notices to tenants to inform them of the work, requesting access to units to perform work, and making some noise and conversation associated with the work.
[50] For the following reasons, I am persuaded based on the materials before me that RJS is reasonably certain to prove that their presence on the property, noises, and issuing notices are a reasonably justified requirement of conducting the remediation work on the property.
[51] RJS submits, and it is not disputed that, inspecting for and remediating mold in a building is a project that by its nature requires workers to physically attend on site.
[52] It is also undisputed that in order to inspect for mold and remediate mold in rental units RJS needed to request occupants provide them with access. RJS has provided photographs of the notices they posted on the Complainants’ rental unit door requesting access on certain dates, detailing the reasons they are requesting access, and contact information if they require additional information or want to reschedule work. The materials support RJS’ position that they issued notices solely related to the work on the building.
[53] Finally, it is not disputed that inspecting for and remediating mold involves major work including removing fixtures, opening walls, drilling, and hammering. RJS submits the scope of the work on the building requires a team of workers who must be able to communicate and coordinate with one another. The materials before me, including the allegations of the specific comments made by RJS employees, suggest that the nature of the noises and comments pertained to the project and its progress.
[54] While the Complainants’ say that the presence of RJS on the property caused them stress, most of their submissions appear to deal with their position that mold has been left untreated in their rental unit and it is causing them physical harm. The Complainants say there was no plan in place to accommodate individual needs during the remediation work but there is nothing in the materials before me to assist in understanding what they believe was deficient or what should have been included in the planning.
[55] On the materials before me, I cannot say that the complaint has a reasonable prospect of success because I am persuaded that RJS is reasonably certain to prove a defence showing their conduct was reasonably justified. Accordingly, I dismiss the complaint as against RJS under s. 27(1)(c).
IV CONCLUSION
[56] The applications to dismiss are granted. I dismiss the complaint under s. 27(1)(c) of the Code.
Edward Takayanagi
Tribunal Member
Human Rights Tribunal