Montgomery-Caplette v. Goldy Kang Real Estate Group and others, 2024 BCHRT 172
Date Issued: May 31, 2024
File: CS-006474
Indexed as: Montgomery-Caplette v. Goldy Kang Real Estate Group and others, 2024 BCHRT 172
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:
Heather Montgomery-Caplette
COMPLAINANT
AND:
Goldy Kang Real Estate Group and Golden Ventures Ltd. and Amanpreet Singh
RESPONDENTS
REASONS FOR DECISION
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Tribunal Member: |
Sonya Pighin |
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Counsel for the Complainant: |
Meredith Shaw and Alison Moore |
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Counsel for the Respondents: |
Aleksandra Mihailovic and Alejandra Henao |
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Date of Hearing: |
June 19 – 23, 2023 |
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Location of Hearing: |
Microsoft Teams Videoconference |
I INTRODUCTION
[1] Heather Montgomery-Caplette [Ms. Montgomery], filed a complaint alleging that, contrary to s. 10 of the Human Rights Code , Goldy Kang Real Estate Group, Golden Ventures Ltd., and Amanpreet Singh each discriminated against her regarding the terms and conditions of her tenancy, and in their denial to either continue her tenancy or offer her a new tenancy after she and her former common-law spouse, K.C., separated. Ms. Montgomery alleges that each of these Respondents discriminated against her based on her sex as a person who is female, her marital status as a person who is separated from her spouse, her lawful source of income which she describes as Persons with Disabilities and Canada Pension Plan benefits [Benefits], and her mental disabilities, which she describes as severe anxiety, depression, and Post Traumatic Stress Disorder [PTSD]. I note that Ms. Montgomery also raised issues about how the Respondents conduct has affected her children. However, her children are not parties to the complaint, so I do not consider whether the Respondents discriminated against her children.
[2] Ms. Montgomery also filed a retaliation complaint alleging that, contrary to s. 43 of the Code, the Respondents retaliated against her after they knew she planned to file a complaint with the Tribunal. In brief, she says they intimidated her and withheld rights and benefits from her.
[3] The Respondents deny discriminating and provide their own versions of events regarding each of Ms. Montgomery’s allegations.
[4] The Tribunal conducted a hybrid hearing of the complaint and retaliation complaint. Between June 19 and 23, 2023, the parties gave their evidence via Microsoft Teams. Between August 4 and September 15, 2023, they provided the Tribunal with written closing submissions. I wish to acknowledge their patience in waiting for this decision, which has taken much longer than normal for me to write.
[5] I have considered all the parties’ written submissions and evidence. However, I only refer to those parts that are necessary to explain this decision. For the reasons that follow, I dismiss Ms. Montgomery’s complaint.
II BACKGROUND
[6] As a matter of background, I provide a summary of Ms. Montgomery’s occupation of the two rental suites that her complaint relates to, and her relationships to Mr. Singh and his older brother Jaspal Singh, who is also known as Goldy Kang. Mr. Kang is the sole owner of Golden Ventures Ltd.
[7] On September 5, 2020, K.C. signed an agreement with Golden Ventures Ltd. to occupy the upstairs suite of a house. That same month, K.C., Ms. Montgomery and her two children moved into the upstairs suite.
[8] On February 1, 2021, Ms. Montgomery signed an agreement with Golden Ventures Ltd. to occupy a downstairs suite that connects to the upstairs suite by a door and stairwell. After signing that agreement, she and her children moved from the upstairs suite into the downstairs suite for a short period before moving back upstairs . At some point, during the summer of 2021, K.C. and Ms. Montgomery removed the door that separates the two suites. From that time forward they treated the two suites as one home. On August 31, 2021, K.C. and Ms. Montgomery each signed new tenancy agreements with Golden Ventures Ltd. regarding their respective suites. They continued to reside together in both suites, treating them as one home.
[9] On February 17, 2022, K.C. and Ms. Montgomery separated and K.C. moved out of their home. Two days later, on February 19, 2022, Mr. Singh delivered a 10-day Notice to End Tenancy to K.C. regarding the upstairs suite, and to Ms. Montgomery regarding the downstairs suite. Both notices were based on unpaid rent and utility payments that were due on February 1, 2022. Prior to February 19, 2022, Mr. Singh was both K.C. and Ms. Montgomery’s contact person regarding tenancy issues. After February 19, 2022, Mr. Kang became Ms. Montgomery’s contact person regarding tenancy issues.
[10] Ms. Montgomery disputed both notices before the Residential Tenancy Board, while she and her children continued to occupy both suites. In early June 2022, Ms. Montgomery and Global Ventures Ltd. reached an agreement regarding her possession of the two suites, and on June 30, 2022, she and her children moved out, giving possession of the two suites back to Global Ventures Ltd.
[11] Between February 19 and June 30, 2022, parallel to the Residential Tenancy Board proceedings, Mr. Kang sought possession of the two suites from Ms. Montgomery both directly and through other legal proceedings. In doing so, he and his representatives had various interactions with her, which make up most of the complaint and the retaliation complaint. The remainder of the complaint focuses on interactions between Ms. Montgomery, Mr. Kang and his representatives regarding her requests for repairs prior to February 19, 2022.
[12] Before moving on, I wish to acknowledge that February 2022 and the months that followed were very difficult times for Ms. Montgomery. On February 17, 2022, she separated from K.C. under circumstances that left her feeling frightened for her personal safety. Nobody should have to experience the circumstances she described to the Tribunal around her separation, and I hope she never has to experience those circumstances again. The notices to end tenancy could not have come at a worse time for Ms. Montgomery. They left her in fear about having a home for her family to live in. She was stressed out, anxious, and worried about what would happen to her and her children. This combination of stressors in Ms. Mongomery-Caplette’s life would have been difficult for any person to deal with. She did the best she could to move her life forward when everything felt like it was falling apart. She did everything she could to keep herself and her children safe, with a roof over their heads.
III PROVING DISCRIMINAtiON UNDER S. 10 of the CODE
[13] I now turn to what Ms. Montgomery must prove to establish that the Respondents discriminated against her. Section 10 of the Code states, in part, that:
10(1) A person must not
(a) deny to a person … the right to occupy, as a tenant, a space that is represented as being available for occupancy by a tenant, or
(b) discriminate against a person … regarding a term or condition of the tenancy of the space,
because of the … marital status … mental disability, sex … or lawful source of income of that person …
[14] To prove discrimination under s. 10 of the Code, Ms. Montgomery must establish the complainant’s case, which means she must prove that:
a. She is a person with protected characteristics under s.10 of the Code;
b. She experienced an adverse impact regarding either a term or condition of her tenancy, or the Respondents denying her the right to occupy, as a tenant, a space that is available for tenancy; and
c. Her protected characteristic was a factor in the adverse impact she experienced: Code, at s. 10; Moore v. BC (Education), 2012 SCC 61at para. 33.
[15] Other sections of the Code set out statutory defences to discrimination: See Code at ss. 8 and 13. However, s. 10 of the Code does not. The parties made arguments about whether there is a justification defence available to the Respondents. However, it has not been necessary for me to consider those arguments to reach this decision, so I do not address them.
IV ISSUES
[16] Next, I turn to the issues before me. The parties are not in dispute over whether Ms. Montgomery has protected characteristics under s. 10 of the Code. They are also not in dispute over whether Golden Ventures Ltd. was Ms. Montgomery’s landlord regarding the downstairs suite. Regardless, I will address how she has established these facts.
[17] The parties are in dispute over whether Golden Ventures Ltd. was Ms. Montgomery’s landlord regarding the upstairs suite, and whether the Goldy Kang Real Estate Group and Mr. Singh were in a tenancy relationship with her. As such, I must determine whether they were.
[18] The parties are also in dispute over whether Ms. Montgomery’s allegations about the Respondents’ conduct toward her are true, which means they are in dispute over whether she has proven that she experienced an adverse impact regarding either a term or condition of her tenancy or the Respondents denying her the tenancy of a space that is available for tenancy. In particular, they are in dispute over whether Ms. Montgomery has proven that:
a. Golden Ventures Ltd. refused to remedy her requests for repairs to the same extent that it did when K.C. made such requests, at least in part because of her sex or marital status.
b. Golden Ventures Ltd. denied her the same flexibility to pay late rent as it had provided to K.C., at least in part because of her sex, lawful source of income, or marital status.
c. Golden Ventures Ltd. and Mr. Singh were aggressive toward her on February 19 and March 1, 2022, respectively, negatively impacting her in a manner that she would not have been impacted except for her mental disabilities.
d. On March 8, 2022, and afterwards, Golden Ventures Ltd. denied her a right to occupy the upstairs suite as a tenant, at least in part because of her lawful source of income.
[19] Before moving on, I note that Ms. Montgomery also alleged in her complaint that Golden Ventures Ltd. denied her a right to occupy the upstairs suite as a tenant, at least in part because of her marital status. However, she provided no arguments or evidence at the hearing about a connection between her marital status and Global Ventures Ltd.’s alleged actions, so I treat that part of her allegation as being based only on her lawful source of income.
[20] Now that I have set out the issues in the complainant, I move on to my decision.
V THE COMPLAINT – DECISION AND ORDER
[21] Ms. Montgomery has not made out her complaint. As such, under s. 37(1) of the Code, I dismiss the complaint in its entirety.
[22] I will provide a summary of my reasons for dismissing the complaint, and then a full analysis that further explains those reasons. In summary, I have dismissed the complaint:
a. Against Goldy Kang Real Estate Group because Ms. Montgomery has not proven that it was in a tenancy-like relationship with her, bringing its conduct into the scope of s. 10 of the Code.
b. That Golden Ventures Ltd. discriminated against her, based on her sex, marital status, and mental disabilities, in its responses to her requests for repairs and its carrying out of repairs. She has proven that she experienced an adverse impact regarding the conduct of Golden Ventures Ltd. in response her request for a front door lock repair. However, she has not proven that her sex or marital status were factors in the adverse impacts she experienced regarding that conduct. She has also proven that she experienced an adverse impact regarding the conduct of Golden Ventures Ltd. in its repairs to the upstairs suite bathroom. However, she has not proven that her mental disabilities were a factor in the adverse impacts she experienced. She has not proven that a term or condition of her tenancy required Golden Ventures Ltd. to, at her request, change locks that were in working order. As such, she has not proven that its failure to replace the locks on both suites comes within the scope of s. 10 of the Code.
c. That Golden Ventures Ltd. denied her the same flexibility to pay late rent as it had provided to K.C. To the contrary, the evidence establishes that it treated both K.C. and Ms. Montgomery the same regarding late rental payments.
d. That Mr. Kang and Mr. Singh discriminated against her, based on her mental disabilities, in the way they treated her on February 19 and March 1, 2022. On February 19, 2022, Mr. Kang yelled at Ms. Montgomery on the phone. However, Ms. Montgomery has not proven that she experienced an adverse impact as a result of his yelling at her on that day. On March 1, 2022, Mr. Singh banged aggressively on the door and told Ms. Montgomery that he was there to pick up keys and take possession. However, Ms. Montgomery has not proven that Mr. Singh’s conduct toward her on that date caused the adverse impacts she experienced.
e. That Golden Ventures Ltd. discriminated against Ms. Montgomery by denying her a right to occupy the upstairs suite as a tenant. She has not established that it refused to rent her the upstairs suite because of her lawful source of income.
[23] I will now further explain my reasons for each part of this decision.
VI THE COMPLAINT – ANALYSIS
A. Has Ms. Montgomery proven she has protected characteristics?
[24] I start with why I am satisfied that Ms. Montgomery has proven she has protected characteristics under s. 10 of the Code. First, she has proven she is a person whose sex is female. She testified that she has two children, one of whom she had with K.C. A person cannot carry a baby and give birth if they are not female. I also note that in Ms. Montgomery’s complaint and in her evidence, she refers to herself multiple times as a woman. However, she had not claimed gender identity as a ground for discrimination, so I treat those statements as her statements about being female.
[25] Second, Ms. Montgomery has proven that commencing February 17, 2022, her marital status was that of a person who is separated from their spouse. She was in a relationship with K.C. from September 2020 until February 17, 2022. During that period, they shared financial obligations, raised children together, and resided together. In all respects, they were living as spouses. On February 17, 2022, their relationship ended. From that point forward, she has been a person who is separated from their spouse.
[26] Third, Ms. Montgomery has proven her lawful source of income is the Benefits. She testified that she receives the Benefits, and she provided documentation that corroborates her testimony on this point.
[27] Last, Ms. Montgomery has proven she has mental disabilities under the Code. The Codedoes not define the term mental disability, and neither party made arguments about what comprises a mental disability under the Code. In determining whether she has proven a mental disability, I considered the same factors that I set out in Hayes v. 8899 Holdings Ltd. dba the Port Spots Pub and others , 2021 BCHRT 165 at paras 25 to 42:
a. First, I considered whether Ms. Montgomery has an involuntary condition, which may be an involuntary mental impairment , disorder, or illness, and may include:
i. an impairment of her sensory, mental, intellectual, cognitive, communication, learning, judgement, comprehension, or other mental functioning.
ii. a disorder of the mind, mental illness, psychological disorder, developmental disorder, learning disorder, emotional illness, or disorder of thought, perception, feelings, or behaviour.
b. Second, I considered whether her involuntary mental impairment, disorder, or illness is permanent, temporary, or episodic in nature, and what the level of severity and persistence of that involuntary mental impairment, disorder, or illness is in her life.
c. Third, I considered whether her mental impairment, disorder, or illness results in her inability to participate fully and equally in society, associate with others, or meet the ordinary demands of life.
d. Last, I considered whether there are any relevant social, legislative, or other responses to her mental impairment, disorder, or illness that might shed light on whether she has an actual or perceived mental disability.
[28] Ms. Montgomery has proven she has an involuntary mental disorder known as anxiety disorder. She testified that she experiences anxiety which can be “debilitating” and “crippling,” and that she has lived with it for “as long as she can remember.” It makes her “not want to be put on the spot,” and it makes her “want to isolate herself from others.” She provided medical documents from Dr. M.L. that show he assessed her symptoms on multiple occasions and diagnosed those symptoms as an anxiety disorder. Dr. M.L. testified regarding the content of his medical documents. Based on this evidence, I am satisfied that Ms. Montgomery has an involuntary condition known as an anxiety disorder, which has been persistent in her life, and that her anxiety disorder impairs her during social interactions. I am also satisfied that those impairments make it difficult for her to associate with others.
[29] Ms. Montgomery has also proven she has an involuntary emotional illness known as depression. She testified that she has had “almost a lifelong battle with depression,” that sometimes makes her feel suicidal. She described physical symptoms that relate to her depression, which include not eating or sleeping properly, feeling tired all the time, loosing her hair and eyelashes, and losing weight. Ms. Montgomery provided medical notes from Dr. M.L., dated March 17 and April 5, 2022, which support her testimony. Dr. M.L. also testified regarding what those medical documents say about his diagnosis of Ms. Montgomery’s depression. Based on this evidence, I am satisfied that Ms. Montgomery has an involuntary condition known as depression, and that at times her depression impairs her ability to want to live. That impairment has affected her both emotionally and physically throughout her life.
[30] Last, Ms. Montgomery has proven that she has an involuntary mental disorder known as PTSD. She testified that she was diagnosed with PTSD at a very young age and that it affects her by constantly making her feel scared and “making it so she does not believe anybody or trust anybody.” She described a connection between past abuse and how persons with PTSD are affected when they experience abuse again. She described that yelling and screaming can trigger her PTSD. I am satisfied based on Ms. Montgomery’s testimony that she has a condition known as PTSD, which started at a young age and continues to affect her. I am also satisfied that her PTSD impairs her ability to feel safe and trust people, and that this impairment affects her in her associations with others.
[31] Next, I move on to explaining why I am satisfied that Ms. Montgomery has proven she was in a tenancy-like relationship with Golden Ventures Ltd. and Mr. Singh, making their conduct toward her subject to s. 10 of the Code, but she has not proven she had such a relationship with the Goldy Kang Real Estate Group.
B. Were the Respondents in a relationship with Ms. Montgomery that falls within s. 10 of the Code?
[32] In applying s. 10 of the Code, the Tribunal is not bound by the definition of a tenancy in the Residential Tenancy Act , which says that a tenancy “means a tenant’s right to possession of a rental unit under a tenancy agreement”: at s.1. The Tribunal has decided, and the B.C. Supreme Court has confirmed that a person residing in a rental unit does not have to prove they are a party to a rental agreement or that they pay rent or any other form of payment for a rental unit, to have the protection of the Code in their occupancy of a space. However, they must establish that they have a tenancy-like relationship with the person who they make the complaint against, which they can do by showing a sufficient connection between that person’s conduct and their “tenancy context.” Some of the factors that can help establish whether a “tenancy context” exists include whether the respondent has control over the complainant’s living space, and whether the alleged discriminatory conduct occurred in the complainant’s living space: McCulloch v. British Columbia (Human Rights Tribunal) , 2019 BCSC 624, at paras. 129 – 130.
[33] Ms. Montgomery has proven she had a tenancy-like relationship with Golden Ventures Ltd., which owns both the upstairs suite and downstairs suite. Golden Ventures Ltd. is the landlord in each tenancy agreement for those suites. As such, it is in control of both suites.
[34] Ms. Montgomery has also proven that, at least up until March 1, 2022, she had a tenancy-like relationship with Mr. Singh regarding her living spaces. During this period, Mr. Singh acted as the manager for Golden Ventures Ltd. and managed both suites on behalf of it. He reported to Mr. Kang and Mr. Kang made all decisions. Up until February 19, 2022, Mr. Singh was the first line of contact for Ms. Montgomery and K.C. regarding rental payments, extension requests, tenancy agreement renewals, and repairs. In all respects, he had control over the communications between Ms. Montgomery and Golden Ventures Ltd., which gave him at least some control over both suites. Following February 19, 2022, Mr. Singh had very little contact with Mr. Montgomery, up until March 1, 2022, when he attended the two suites as an agent for Global Ventures Ltd. expecting her to move out and give him the keys. This was his last interaction with her regarding her living space.
[35] Ms. Montgomery has not proven she had a tenancy-like relationship with Goldy Kang Real Estate Group regarding her living spaces. She provided no evidence that Goldy Kang Real Estate Group owned, managed, or had any control over her living spaces. She provided evidence that, in some of her communications with Mr. Kang, he used an email address that indicates he works for Goldy Kang Real Estate Group, and she testified that she believed the Goldy Kang Real Estate Group to be her landlord. However, this evidence is not proof of a tenancy-like relationship. I accept Mr. Kang’s evidence that he is a real estate agent and team leader at Goldy Kang Real Estate Group, and that at Goldy Kang Real Estate Group he assists clients in buying and selling properties, but he does not manage properties. He explained that he would need a separate residential management licence to manage properties for it. I also accept his evidence that he inadvertently used his work instead of personal email address in some of his communications with Ms. Montgomery. I find Gold Kang Real Estate Group does not fall within the scope of s.10(b) in relation to this complaint.
[36] Next, I explain why I find that Golden Ventures Ltd. did not discriminate against Ms. Montgomery in its responses to her requests for repairs or in its conduct of repairs.
C. Did Golden Ventures Ltd. discriminate against Ms. Montgomery in its responses to her requests for repairs or it’s carrying out of repairs?
[37] Ms. Montgomery does not make allegations about the conduct of Mr. Singh in these parts of her complaint. As such, I only treat these parts of her allegations as being against Golden Ventures Ltd.
[38] I start with Ms. Montgomery’s argument that Golden Ventures Ltd. discriminated against her when it failed to complete repairs to the front door lock on the upstairs suite. She argues that, in November 2021, she became aware that the lock was not locking properly. She further argues that on January 19, 2022, she texted Mr. Singh asking him to come see the broken lock. Last, she argues that by March 2022, Golden Ventures Ltd. had not fixed the lock and it failed to do so, at least in part, because she was a female separated from her spouse, as it had always made repairs that K.C. requested during their relationship. She also argues that its failure to fix the lock adversely impacted her by exacerbating her mental health condition.
[39] In response, Golden Ventures Ltd. argues that when it became aware of the broken lock, Mr. Kang hired Mr. S.K. to repair it and authorised him to purchase a new front door to do so. On February 18, 2022, Mr. S.K. attended the property to install a new front door. However, Ms. Montgomery screamed and swore at him to get off the property, so Mr. S.K. called Mr. Kang, who told him to leave the door at the property and then leave. Golden Ventures Ltd. also argues that, on May 13, 2022, Ms. J.D. contacted Ms. Montgomery on behalf of it and asked her to provide a time for when a tradesperson could come to fix the door, but Ms. Montgomery did not respond to Ms. J.D.
[40] Ms. Montgomery provides no reply to the arguments of Golden Ventures. Ltd. on these points.
[41] First, the repair of a damaged or defective lock on doors that give access to the upstairs suite are repairs that Golden Ventures Ltd. was responsible for in the terms and conditions of the upstairs suite tenancy: See Residential Tenancy Act, at s. 33. It is essential to occupants’ safety that their home has a functioning lock on the outside door. There can be no dispute that this part of the complaint falls within the scope of s.10 of the Code.
[42] Second, in November 2021, Ms. Montgomery requested that Global Ventures Ltd. repair the front door lock to the upstairs suite. Ms. Montgomery testified that a person came to fix the door lock in November 2021, but said it wasn’t working and he’d come back with a new one, which he did not do. On the day this occurred she had a text conversation with K.C. about the front door lock and the interactions she had with the person who had come. She provided the Tribunal with copies of that text conversation, which corroborate her testimony. On January 19, 2022, Mr. Singh came to Ms. Montgomery’s home. Before he arrived, she sent him a text message asking him to come to the front door to “show him the broken lock.” She provided copies of the text messages she sent to him that day, stating “We haven’t been able to lock the front door for over a month now.” Golden Ventures Ltd. provided no evidence that brings Ms. Montgomery’s evidence about these events into question.
[43] Third, Ms. Montgomery testified that Golden Ventures Ltd. did not fix the front door lock during the time she resided in the two suites, which was up until June 30, 2022. Golden Ventures Ltd. does not deny this, and I accept that it is what occurred.
[44] While I am satisfied that Golden Ventures Ltd. did not fix the front door lock, I am not satisfied that it did so because Ms. Montgomery is a female, or because she was a person separated from her spouse. First, until February 17, 2022, Ms. Montgomery was not a person separated from her spouse, so there is no way that its failure to fix the front door between November 2021 and February 17, 2022, could have been because she was a person separated from her spouse. Second, Ms. Montgomery has provided no evidence that any of Global Ventures Ltd.’s representatives made comments to her about her sex or marital status in their communications with her about the front door lock repair. She also makes no arguments and provides no evidence upon which I could infer a connection between Global Ventures Ltd.’s conduct and her sex and / or marital status.
[45] Next, I move on toMs. Montgomery’s argument that after K.C. moved out, she begged Mr. Kang to change all the locks to the home because she feared K.C., and he still had a set of keys. She argues that Golden Ventures Ltd. discriminated against her when Mr. Kang did not change the locks for her. She further argues that this adversely impacted her by exacerbating her mental health condition. Golden Ventures Ltd. provides no response to this part of Ms. Montgomery’s arguments.
[46] Ms. Montgomery has not proven that Golden Ventures Ltd. discriminated against her when Mr. Kang refused to change the locks. She testified that, after K.C. moved out, she feared for her safety because he still had keys to her living space. She says she asked Mr. Kang to change the locks, and then he told her this was her responsibility and refused to do so. Given I have no other evidence about this part of Ms. Montgomery’s testimony, I accept that her version of these events is true.
[47] While I accept Ms. Montgomery’s evidence about what happened, I do not find that Mr. Kang’s conduct in refusing to change the locks falls within s. 10 of the Code, so it does not amount to discrimination. Ms. Montgomery has not pointed me to any term or condition of her tenancy that requires Mr. Kang to change locks for her that are otherwise functional. Ms. Montgomery provided a copy of her tenancy agreement to the Tribunal. The only sections that discuss locks say the landlord cannot change the locks without the tenant’s consent or without providing the tenant keys to the new locks, and the tenant cannot change the locks without the permission of the landlord to do so, unless an arbitrator has made an order that allows her to do so. As such, she has not proven that any adverse impact that she experienced in these circumstances was a result of Mr. Kang’s conduct regarding a term or condition of her tenancy.
[48] Last, I turn to Ms. Montgomery’s argument that, in February 2022, Golden Ventures Ltd. contracted Mr. S.K. to complete bathroom repairs, and that Mr. S.K. created potential hazards for her children, which adversely impacted her by exacerbating her mental health condition. Ms. Montgomery does not make any arguments about whether this alleged conduct was discriminatory based on her sex, marital status, lawful source of income, or mental disabilities. The alleged ground of discrimination is also not clear in her complaint form. In any event, I treat this part of her complaint as an allegation based on mental disabilities because she alleges that the adverse impacts she experienced relate to her mental disabilities. She was still co-habiting with K.C. at the time so she was not a person separated from their spouse, and she does not mention her Benefits or sex in her complaint or submissions about the bathroom repairs.
[49] Golden Ventures Ltd. argues that the repairs involved the creation of some debris, which Mr. S.K. cleaned up as he worked. It denies that Mr. S.K. created potential hazards for Ms. Montgomery’s children, exacerbating her mental health condition.
[50] I now explain why Ms. Montgomery has not proven that Golden Ventures Ltd. discriminated against her regarding the bathroom repairs. She testified that while Mr. S.K. completed repairs to the upstairs suite bathroom, debris from his removal of tiles and the tub resulted in pieces of glass and tile “flying everywhere.” She said the bathtub and shower were “smashed on the floor,” and Mr. S.K. left the door to the bathroom open, so all the debris was coming out into the hallway. She testified that she remained in the home but didn’t think she should have. She further testified that she was scared for her kids who she couldn’t leave alone near the area, and she went to make her son a bottle but couldn’t because there was no water.
[51] Assuming I were to accept Ms. Montgomery’s evidence about the adverse impacts she experienced because of the way that Mr. S.K. completed repairs to the upstairs bathroom, and that he did complete those repairs in the way she says he did, she has not proven that her mental disabilities were a factor in the adverse impacts she experienced. She provided no evidence or arguments about how her mental disabilities connect to her being scared for her kids at the time. She also provided no evidence or arguments about how her mental disabilities connect to her having not been able to make her son a bottle at the time.
D. Did Golden Ventures Ltd. discriminate against Ms. Montgomery regarding late rent payments?
[52] Next, I move on to why I find that Golden Ventures Ltd. did not discriminate against Ms. Montgomery, based on her sex or marital status, by not allowing her to make late rent payments. Ms. Montgomery does not make specific allegations regarding the conduct of Mr. Singh in these events. As such, I treat her allegations as being only against Golden Ventures Ltd.
[53] Ms. Montgomery alleges that Golden Ventures Ltd. denied her the same flexibility to pay late rent, as a female on Benefits who had separated from her spouse, as it had given to K.C., a male who received employment income. She argues that she experienced adverse impacts because of receiving the Notice to End Tenancy, including the threat of eviction and feeling “overwhelmed” and “lost,” as if everything she had known was “flipped upside down and ripped away.” Ms. Montgomery also argues that the Tribunal should draw an inference connecting the adverse impacts she experienced to her protected characteristics because “the Respondents treated [her] differently than they had [K.C.] with regard to the timing of the payment of rent … and then evicted her on the basis of non-payment of rent.” She argues that while both herself and K.C. were residing together, Golden Ventures Ltd. allowed K.C. to pay late rent, but when she became the sole tenant, it did not provide her the same leeway.
[54] Golden Ventures Ltd. argues that K.C. had a tenancy agreement for the upstairs suite that required him to pay rent on the first day of each month, and Ms. Montgomery had a tenancy agreement for the downstairs suite that required her to pay rent on the first day of each month. It says in October 2021, December 2021, and January 2022 both K.C. and Ms. Montgomery failed to meet their rent obligations under those agreements. It says in each of those circumstances, K.C. and/or Ms. Montgomery communicated with it about when they could make the rental payments and, based on those communications, it agreed to give them both extensions of time to make their rent payments.
[55] Golden Ventures Ltd. further argues that on February 1, 2022, both K.C. and Ms. Montgomery failed to make their rental payments that were due. It says Ms. Montgomery did not communicate with it to assure it that the rent would be paid for the downstairs suite, and when it reminded her of the overdue rent payment for February, she told it to ask K.C. It points the Tribunal to a February 18, 2022, text message between Mr. Kang and Ms. Montgomery, in which Mr. Kang asks when she will be sending the rent, her response is, “[K.C.] pays the rent.” Mr. Kang then asks, “So when is he paying?” She responds, “Ask him.” The existence of, and content of these text messages is not in dispute. The next day, Mr. Kang sends Ms. Montgomery a text that says, “10 day notice for unpaid rent and utilities served and in your mailbox.”
[56] Golden Ventures Ltd. also argues that K.C. did not communicate with it to assure it that he and Ms. Montgomery would make their rent payments for February 2022. It says Mr. Kang made multiple phone calls to K.C. on February 15, 18, and 19, 2022 to discuss the issue of unpaid February 2022 rent payments. However, K.C. did not answer, or call him back, and his phone was not accepting voicemails. Last, Golden Ventures Ltd. argues that it issued both K.C. and Ms. Montgomery a Notice to End Tenancy for their respective suites because neither of them had assured it that the rent would be paid.
[57] Ms. Montgomery provided no reply to these parts of Golden Ventures Ltd.’s arguments.
[58] Ms. Montgomery has not proven that Golden Ventures Ltd. discriminated against her by denying her the same flexibility as it had provided to K.C. to pay late rent. The evidence shows the Golden Ventures Ltd. treated K.C. and Ms. Montgomery the same regarding late rental payments, which includes evicting them both when they did not pay their rent on time. Further, she has not persuaded me that her protected characteristics were a factor in her eviction.
[59] Neither K.C. nor Ms. Montgomery made their rent payments on time that were due October 1, 2021. Mr. Kang provided uncontested evidence that, on October 1, 2021, he electronically deposited post-dated cheques he had received from K.C. for the downstairs and upstairs suite rents. Each cheque bounced, which he didn’t become aware of until approximately fifteen days later. In the meantime, on October 9, 2021, K.C. emailed Mr. Singh and sought an extension of time until mid-week to pay rent. It is not clear whether anyone approved this request, but in any event, Golden Ventures Ltd. did not take any action against either K.C. or Ms. Montgomery for non-payment of rent. On October 22, 2021, K.C. sent Mr. Kang an e-transfer for the full amounts of both rent payments.
[60] Neither K.C. nor Ms. Montgomery made their rent payments on December 1, 2021. Ms. Montgomery testified that on December 1, 2021, K.C. requested that he pay the rent on the following Saturday. Golden Ventures Ltd. did not take any action against either K.C. or Ms. Montgomery for their non-payment of this rent on December 1, 2021. On December 4, 2021, K.C. sent Mr. Kang an e-transfer for both rent payments.
[61] Neither K.C. nor Ms. Montgomery made their rent payments on time that were due January 1, 2022. Ms. Montgomery provided evidence that K.C. texted Mr. Singh on December 23, 2021, asking for an extension of time for rent payments till January 7, 2022. It is not clear how Mr. Singh responded to this. In any event, Golden Ventures Ltd. did not take any action against either K.C. or Ms. Montgomery for their non-payment of rent on January 1, 2022. On January 3, 2022, Ms. Montgomery sent a text message to Mr. Singh that stated, “Aman I have the rent for basement I have cash, or I can go up to the bank and deposit to e-transfer to you.” On January 5, 2022, she sent Mr. Singh another message asking for the email address to send the money to, and then she sent Mr. Kang an e-transfer for the rent for the downstairs suite. This was the first time Ms. Montgomery ever paid rent directly to Golden Ventures Ltd. K.C. also paid the upstairs suite rent late for January 2022. Mr. Kang provided evidence that in February 2022, K.C. had paid his full rent for January 2022. This included payments he made on January 21 and February 4, 2022.
[62] Neither K.C. nor Ms. Montgomery made their rent payments on time that were due on February 1, 2022. Mr. Kang testified that, sometime in early February 2022, K.C. requested a rent extension for both suites until February 15, 2022. Mr. Kang approved this arrangement and told K.C. they would need to pay no later than that date, and that it is the last time he would approve a rent payment extension. On February 15, 2022, Mr. Kang did not receive rent payments from K.C. or Ms. Montgomery for their respective suites. As I have already stated, on February 15 and 19, 2022, Mr. Kang made attempts to contact K.C. regarding the outstanding rental payments but was unable to reach him. On February 18, 2022, Ms. Montgomery told Mr. Kang he needed to talk to K.C., as K.C. was responsible for paying the rent.
[63] On February 19, 2022, Mr. Kang issued the Notices to End Tenancy on both K.C. and Ms. Montgomery with the reason being non-payment of their respective February 2022 rent payments.
[64] In summary, Golden Ventures Ltd. gave both K.C. and Ms. Montgomery the same flexibility to pay late rent in October and December 2021, and again in January and February 2022. On February 19, 2022, Global Ventures Ltd. issued them each a Notice to End Tenancy for non-payment of rent because they had not paid their rent for the two suites by the deadline of Mr. Kang’s extension of time for payment. In all respects, Golden Ventures Ltd. treated both K.C. and Ms. Montgomery the same in its decisions about their failures to pay rent on time.
E. Did Golden Ventures Ltd. and Mr. Singh discriminate against Ms. Montgomery in their treatment of her on February 19 and March 1, 2022, respectively?
[65] Next, I explain why Ms. Montgomery has not proven that Golden Ventures Ltd. discriminated against her on February 19, 2022, in Mr. Kang’s conduct toward her, and why she has not proven that Mr. Singh discriminated against her on March 1, 2022 in his conduct toward her.
[66] Ms. Montgomery argues that, on February 18, 2022, she told Mr. Kang about her disabilities, and that after doing so Mr. Kang and his agents should reasonably have been aware that interacting with her in an aggressive manner has an acute effect on her regarding her disabilities. In support of this argument, she provided the Tribunal copies of text communications between herself and Mr. Kang, which read as follows (each set of initials indicate who said what):
HMC: There was an emergency here last night. My daughter is home from school. I’m extremely uncomfortable with the door being replaced today. I’m at a loss with you guys and don’t know what to do anymore.
GK: Why didn’t you message. Now I have to pay the tradesman for no reason. Rent is due today just a reminder.
HMC: Had I known people were coming today I would have … Since I have disabilities including anxiety, depression PTSD and other things it is very hard to talk with you when you insist on being hostile. I haven’t done anything other than try to survive and protect my kids.
[67] Golden Ventures Ltd. and Mr. Singh do not deny that Ms. Montgomery sent the above messages to Mr. Kang. However, they argue that she has not proven, through medical evidence, that the statements she made are true. I treat this as their argument that she has not proven her mental disabilities are a factor in any adverse impacts she experienced in their treatment of her.
[68] Ms. Montgomery argues that, on February 19, 2022, after Mr. Kang delivered a Notice to End Tenancy to her, she texted him asking him to “please provide paper copies of the notices.” She says he responded by calling her and yelling at her on the phone, saying words to the effect of, “you better get out, you better get out right now.” Ms. Montgomery points to three cases that she says support her position that Mr. Kang’s conduct interfered with her right as a tenant to quiet enjoyment of her tenancy, resulting in discriminatory harassment. She points to Friedmann v. MacGarvie, 2012 BCCA 445, Dawson v. Boundary Management Inc. (No. 2) , 2020 BCHRT 177, and Blatta v. Meadow Highlands Mobile Home Co-operative and another , 2023 BCHRT 66. She makes no specific arguments about the adverse impacts that she experienced as a result of Mr. Kang’s conduct toward her in that phone call.
[69] Golden Ventures Ltd. and Mr. Singh argue that, on February 19, 2022, Mr. Kang did not contact Ms. Montgomery in an aggressive manner, and that he did not yell at her “you better get out right now.” They argue that all he tried to do that day was find out when rent would be paid. They further argue that it was Ms. Montgomery who was aggressive and threatening towards Mr. Kang in text messages, when she threatened to tell her special needs community about his conduct and make a negative review on google about him. They do not dispute Ms. Montgomery’s argument that she has a right as a tenant to quiet enjoyment of her tenancy.
[70] Ms. Montgomery and Mr. Kang provided conflicting testimonies about what happened February 19, 2022. As such, I must make credibility findings regarding their evidence. Credibility is about a person’s veracity or truthfulness. When assessing credibility, I start from the presumption that each witness is telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. The factors I consider to determine whether they were telling the truth include: the presence of any potential motives or biases, whether their evidence is internally consistent, whether independent supporting or contradictory evidence exists either in the form of a corroborating witness’s evidence, documentary or other evidence, whether their testimony seems unreasonable, impossible, or unlikely, and how it fits into the general picture revealed by all the evidence: R. v. J.M., 2021 BCCA 263at para. 53; Pardy v. Earle, [2011] B.C.H.R.T. No. 101 at para. 12; Van Hartevelt v. Grewal, 2012 BCSC 658at paras. 30–35; Bradshaw v. Stenner, 2010 BCSC 1398at paras. 185–87.
[71] Overall, I find Ms. Montgomery’s evidence to be credible, and I accept her version of events about what happened. I do not find Mr. Kang’s evidence to be credible. Ms. Montgomery testified that around 9:00 or 10:00 a.m., she went to the hospital with one of her children, and while at hospital Mr. Kang text messaged her to inform her that he had issued evictions notices to her and K.C. She responded by telling him it would be disputed and to put it in writing. Ms. Montgomery further testified that approximately an hour after their text communication, Mr. Kang called her. She was still at the hospital. She says Mr. Kang started yelling at her, “you better get out, you better get out right now.” She says during their phone call she told him that she is going to dispute his notices, that what he is doing isn’t right, its not fair. She also testified that she told him “we’d let the human rights tribunal and tenancy branch deal with this.” In support of her testimony, she provided:
a. A text message that shows on February 19, 2022, she communicated with Mr. Kang as follows, with each of their initials indicating who Ms. Montgomery says said what:
10:56 a.m. – GK: 10-day notice for unpaid rent and utilities served and in your mailbox. Thanks.
11:05 a.m. – HMC: I need paper writing. It will be disputed.
11:06 a.m. – GK: Ur welcome. Its in your mailbox.
12:18 p.m. – HMC: Please stop calling me to intimidate, threaten and bully me. We’ll let the tenancy branch and human rights tribunal settle this.
b. A phone log that shows, on February 19, 2022, at 12:12 p.m., she received an incoming call from Mr. Kang that lasted 43 seconds.
[72] During cross-examination, Golden Ventures Ltd.’s lawyer proposed to Ms. Montgomery that during Mr. Kang’s phone call to her on February 19, 2022, he told her that rent had not been paid for February 2022. She responded, “I don’t know why he would tell me that when he just gave me the notices stating that. He was saying to get out and get out right now.”
[73] Mr. Kang agreed that he sent Ms. Montgomery a text and told her that a ten day notice to end tenancy is in the mailbox. He testified that after delivering the Notice to End Tenancy to her, they had no verbal communications, and that all further communications between them were via text message. He provided copies of text messages to the Tribunal, which are date stamped but each individual message is not time stamped. They read as follows, with each of their initials indicating who Mr. Kang says sent each message:
Sat, Feb 19, 10:56 AM
GK: 10 day notice for unpaid rent and utilities served and in your mailbox. Thanks.
HMC: I need paper writing. It will be disputed.
GK: Ur welcome. Its in your mailbox.
HMC: Utilities are in our name. you’re evicting a disabled single mother who was just assaulted. With two children one being special needs. I have a huge following in the special needs community and everyone will be hearing a about how disrespectful and inhumane you are. They will never use your realtor company and Will right bad reviews regarding this. I’ll also be filing a human rights complaint at the tribunal. I had solutions to these problems but you didn’t want to listen to me. You wouldn’t even let me talk. You didn’t give me a chance. I wanted to give notice for the basement and have me and the kids stay upstairs and make it more manageable. Since you wouldn’t even hear me out before I will be taking this as far as I need to go including talking to my acquaintances At Global News. This is not the first time I have sued a landlord.
HMC: Please stop calling me to intimidate, threaten and bully me. We’ll let the tenancy branch and human rights tribunal settle this.
[74] During cross-examination, Ms. Montgomery said that the second to last paragraph in the above text excerpt from Mr. Kang “is fabricated,” and that she did text Mr. Kang a similar message, but it was not during this conversation. She also admitted that she believed Goldy Kang Real Estate was the landlord, and that she posted a negative google review about it evicting her. In any event, I do not need to determine whether that part of their text message conversation occurred when she says it did, or whether it occurred at all, because it does not help me determine whether Mr. Kang called her and yelled at her.
[75] I prefer Ms. Montgomery’s evidence about Mr. Kang’s phone call to her over Mr. Kang’s evidence about having not spoken to her in person after delivering the notices to end tenancy to her. Ms. Montgomery has provided documentary evidence that Mr. Kang made a phone call to her during the period she says he did, which corroborates her testimony. The nature of her text message to Mr. Kang after that phone call is also consistent with what she says occurred. Her testimony is internally consistent and she did not sway from her version of events when challenged in cross-examination.
[76] Mr. Kang’s evidence that he did not phone Ms. Montgomery is inconsistent with Ms. Montgomery’s documentary evidence about him making a phone call to her. Global Ventures Ltd. has not challenged the authenticity of the phone log document Ms. Montgomery provided.
[77] Ms. Montgomery has proven her version of what happened during the February 19, 2022 phone call. However, she has not proven that she experienced an adverse impact because of Mr. Kang’s conduct toward her during that phone call. Ms. Montgomery provided no testimony or other evidence about how Mr. Kang’s conduct toward her during their phone call impacted her. She provided evidence about how she was negatively affected by the Notice to End Tenancy, and about how those negative effects were exacerbated due to her recent separation with K.C. However, she did not give evidence about how his specific conduct during that phone call impacted her. Given that Ms. Montgomery has not proven she experienced an adverse impact because of Mr. Kang’s conduct toward her in their phone call, I do not need to determine whether her mental disabilities were a factor in the adverse impacts she experienced.
[78] Next, I turn to why Ms. Montgomery has not proven that the events that unfolded on March 1, 2022, amount to discrimination under s. 10 of the Code. As a matter of background, the parties agree that on February 24, 2022, Ms. Montgomery asked her social worker to fill out a form that she understood would result in a cancellation of her lease for the downstairs suite without having to comply with the otherwise mandatory one month notice period. She testified that she did this so she wouldn’t owe March rent for the downstairs suite, and her plan was to move into the upstairs suite until she could find something else. Her social worker filled out the form, which stated that she is eligible to end her downstairs suite tenancy due to family / household violence as per the Residential Tenancy Act. Ms. Montgomery emailed the form to Mr. Kang with a message that, “The basement will be available to rent for March 1st.” The parties treated this as her notice to Mr. Kang that she will give up possession of the Downstairs Suite on March 1, 2022. Between February 24 and March 1, 2022, Ms. Montgomery did not advise anybody at Golden Ventures Ltd. that she will not be vacating the downstairs suite.
[79] Now, I turn to the issues in dispute. The first issue is whether Ms. Montgomery can prove that, on March 1, 2022, Mr. Singh banged aggressively on the door of her residence causing her to experience an adverse impact. If he did, then the second issue is whether Ms. Montgomery’s mental disabilities were factors in the adverse impacts that she experienced.
[80] Ms. Montgomery argues that, on March 1, 2022, Mr. Singh banged on the door to the downstairs suite and yelled that he was there to take possession and wanted the keys. She argues that he told her Mr. Kang would be there shortly to help him, and that he wants the keys to both suites. She argues that this caused her to panic and call the police. She further argues that Mr. Singh banged so aggressively on the door that it caused her terror and made her think about how men could come in and physically remove her and her children from their home.
[81] Golden Ventures Ltd. and Mr. Singh argue that Mr. Singh and his father attended Ms. Montgomery’s residence on March 1, 2022, intending to retrieve the keys to the downstairs suite from her. They deny that he aggressively knocked on the door. They argue that Mr. Singh and his father knocked on the back door, that Ms. Montgomery was upstairs, and she came out on the balcony. They say Mr. Singh remained outside and told her he was there to take possession, and she phoned the police.
[82] I now turn to Ms. Montgomery’s testimony. She testified that, on March 1, 2022, she was outside with her children when she saw Mr. Singh coming toward her. She said she scooped up her children, went inside the house and locked the door. She says Mr. Singh saw her, and that he came to the downstairs suite door; he was banging on the door and yelling, “I’m here to get possession and I want the keys.” She can’t remember exactly what she said back to him, but it was something about her not opening the door because he had said that Mr. Kang and others would be there shortly to “take possession.” She testified that, at this time, she instantly panicked because Mr. Singh was coming with other people, and she started to think to herself, “who’s going to come get me, who’s going to get me out, who’s going to remove me.” She then testified, “I thought they were going to, so I called 9-1-1 and the police came.” Ms. Montgomery said the police came and “surely enough they couldn’t remove us and put us on the street.” She says an officer came to the front door and she told him she had disputed the notices, but she had done it wrong. She says it was after the police arrived that Mr. Kang arrived. The police had already spoken to Mr. Singh at that time. Ms. Montgomery testified that when she was first speaking to Mr. Singh about him “taking possession,” she didn’t know where she would go if he “took possession.” Ms. Montgomery described this day as being “a really scary day.” She said, “he was banging so aggressively,” “If he knocked politely, I would have probably opened the door,” and “It was absolutely terrifying to think that these men could come in and just physically remove us and throw our stuff outside.” She said she felt terrified enough to call 9-1-1. Last, Ms. Montgomery says that when this occurred, she also called her children’s dad, her aunt, and the residential tenancy branch multiple times. She says she called everybody she could think of.
[83] Mr. Singh and Mr. Kang also provided evidence about what occurred on March 1, 2022. However, I do not find it necessary to repeat their evidence here because even if I were to accept all of Ms. Montgomery’s evidence as true, I am not convinced that it was Mr. Singh banging on the door that caused the adverse impacts she describes.
[84] On February 19, 2022, both K.C. and Ms. Montgomery received a ten-day Notice to End Tenancy regarding their respective suites. They had five days to either dispute those notices or pay their outstanding rent and utilities to Golden Ventures Ltd. According to the notice, they would otherwise be presumed to accept that their tenancies are ending, and they would have to move out of their respective suites no later than March 1, 2022. As of March 1, 2022, neither of them had made the outstanding rental payments, and Ms. Montgomery had made a mistake in her attempts to dispute the two notices. A week earlier, she had also told Golden Ventures Ltd. that she would vacate the downstairs suite, commencing March 1, 2022. However, she had not moved all her belongings out of the downstairs suite. She had no place to go, and she was trying her best to navigate a very difficult situation on her own, having just gone through a terrible separation with K.C. I find that it is more likely than not that it is these circumstances, and not Mr. Singh’s banging on the door, that caused Ms. Montgomery to experience the fear she experienced and have the thoughts that she did during her interactions with Mr. Singh on March 1, 2022. Ms. Montgomery does not say that she was fearful of Mr. Singh because of his banging. She says she feared what would happen if Mr. Singh and Mr. Kang could forcefully move her out of her home. These are two very different things.
[85] Next, I explain why I find that Golden Ventures Ltd. did not discriminate against Ms. Montgomery, based on her lawful source of income, by denying her a right to occupy the Upstairs Suite.
F. Did Golden Ventures Ltd. discriminate against Ms. Montgomery by denying her a right to occupy the Upstairs Suite?
[86] Ms. Montgomery does not make allegations regarding the conduct of Mr. Singh in these events. As such, I treat her allegations as being only against Golden Ventures Ltd.
[87] First, I comment on some preliminary matters that the parties are not in dispute over. From September 2020 until September 2021, Global Ventures Ltd. charged $2,000 per month in rent for the upstairs suite, excluding utilities. In September 2021, it increased that amount to $2,100 a month. Ms. Montgomery raised issues about the lawfulness of this rental increase, as well as over her status as a tenant to the upstairs suite tenancy agreement. However, I have no authority to make decisions about those matters and I do not need to do so for the purpose of assessing whether discrimination occurred.
[88] In March 2022, Global Ventures Ltd. considered its tenancy agreement regarding the upstairs suite to have ended and it wanted to rent the upstairs suite out to somebody for $2,100 a month. As of March 1, 2022, Ms. Montgomery continued to occupy both the upstairs and downstairs suites. At the same time, neither she nor K.C. had made any rental payments to Global Ventures for their February and March 2022 rental payments regarding those suites. In total, they owed $6,000 in overdue rent to Global Ventures Ltd. On March 7, 2022, Ms. Montgomery sent an e-transfer in the amount of $900 to Mr. Kang with the message “March rent basement.” I will come back to that e-transfer later.
[89] The parties are in dispute over whether, on March 8, 2022, Mr. Kang told Ms. Montgomery that she could not afford to rent the upstairs suite because of either the source of her income or the amount of that income.
[90] Ms. Montgomery argues that, on March 8, 2022, she advised Mr. Kang that she wishes to rent the upstairs suite, and Mr. Kang told her she could not afford it. She argues that she explained to him that she could afford it short term, but he was adamant that she could not and that she should move into the downstairs suite only. She further argues that Mr. Kang’s refusal to rent the upstairs suite to her resulted in her experiencing an adverse impact, which she describes as an ongoing threat that Global Ventures Ltd. would force her to move out of the upstairs suite, and the stress of having to focus on a legal battle with it over possession of the upstairs suite rather than on a long-term accommodation option for her family. Last, Ms. Montgomery argues that when Mr. Kang told her she could not afford the upstairs suite, he was concerned about her source of income being the Benefits and that he made assumptions, based on her source of income, about her not being able to afford it. Ms. Montgomery points to five Tribunal cases in support of her arguments. However, I do not need to provide distinguish them to explain my decision, so I do not refer to them any further.
[91] Golden Ventures Ltd. argues that it rented the downstairs suite to Ms. Montgomery, knowing she was on Benefits, and no problems arose regarding rent until she became unable to pay rent. It says the issue it had with Ms. Montgomery when she requested to rent the upstairs suite was not the source of her income, but the fact that she was unable to pay the rent she was already responsible for.
[92] Golden Ventures Ltd. further argues that, on March 8, 2022, Mr. Kang did not tell Ms. Montgomery that she could not afford to rent the upstairs suite and refuse to rent it to her. It says Ms. Montgomery requested to rent the upstairs suite for $900 a month when the rental rate for that suite was $2,100 a month. It further argues that Mr. Kang and Ms. Montgomery were unable to agree on a rental payment amount for the upstairs suite and Mr. Kang provided her with other rental options, each of which were at a lower rental rate than the upstairs suite. However, she declined each of those offers and instead insisted that she rent the upstairs suite for $900 per month, which was unacceptable to Mr. Kang.
[93] Ms. Montgomery and Mr. Kang each testified regarding their March 8, 2022, phone call, providing different versions of their discussion. I prefer Mr. Kang’s evidence about that phone call over Ms. Montgomery’s. I will now provide a summary of the evidence about their interactions on March 7 and 8, 2022, and explain why.
[94] Ms. Montgomery testified that, on March 8, 2022, she told Mr. Kang on the phone that she wants to move into the upstairs suite, that its not a long-term thing but she wants a fighting chance. Almost immediately after testifying to this, she testified that she told Mr. Kang she had already moved into the upstairs suite and that K.C. had damaged the door, so Mr. Kang would need to get that replaced then the downstairs suite would be available for him to rent out. She said Mr. Kang responded by being adamant that she rent the downstairs suite and that she could afford it. She says she told him she could afford the Upstairs Suite, insisted that she could do so for the short term, and told him she could make the sacrifices to make it happen.
[95] Mr. Kang testified that, during his March 8, 2022, conversation with Ms. Montgomery, he explained to her that he was experiencing a $6,000 loss in rental income, and he wanted to come to terms with her regarding possession of the downstairs suite. He said she told him she had moved upstairs, which would have been fine if she could pay the upstairs suite rent. However, Ms. Montgomery told him that she wants to stay in the upstairs suite for $900 per month. He explained to her that $2,100 is generous when market rent is $2,500. He also offered her another suite in the same house for $1,400 per month, which had two bedrooms. She declined his offer and insisted that she needs the upstairs suite. In cross-examination, Ms. Montgomery denied telling Mr. Kang that she wants to pay $900 for the upstairs suite.
[96] The parties both provided evidence that after their March 8, 2022, phone call, Ms. Montgomery cancelled the $900 e-transfer she had sent to Mr. Kang the day before. Ms. Montgomery testified that “after [the March 8, 2022 phone call], he did not accept the payment,” so she cancelled it and she thought she would “put it towards the upstairs portion.” Later, she testified that she cancelled it because he told her he didn’t want or need the money because it was nothing to him. Another time during her testimony, she said that she cancelled the payment because “he told her that he only wanted the upstairs suite rent paid in full and nothing else was good enough.” Of these three statements, I accept the latter as true because it is not believable that a landlord who is owed two months of overdue rent from their tenant, totalling $6,000, would either not accept money from them or tell them they don’t want the money because it is nothing to them. I also accept that one of the reasons Ms. Montgomery cancelled the payment was because she thought she would use it for the upstairs suite rent.
[97] The parties both provided evidence that after their March 8, 2022, phone call, Ms. Montgomery sent Mr. Kang a text message advising that she could not make her decision that day, and she can send him $450 “to cover until the 15 th at least.” Global Ventures Ltd. argues that in this message Ms. Montgomery was telling Mr. Kang that she could not decide what to do amongst the options he proposed to her, and that she wanted to pay Mr. Kang $450 for the upstairs suite rent for the first half of March 2022, in accordance with her belief that she should be able to rent it for $900 a month. In cross-examination, Ms. Montgomery denied that the $450 she had offered to pay Mr. Kang was for the upstairs suite rent, and said it was for half of the downstairs suite rent.
[98] I find that when Ms. Montgomery sent Mr. Kang $900, she intended it to be for the March 2022 downstairs suite rent. It is obvious from her message in the e-transfer that this was her intention. However, I prefer Mr. Kang’s version of events about his conversation with Ms. Montgomery on March 8, 2022, over her version of events about that conversation. I also prefer his version of events about the $450 that Ms. Montgomery offered to pay him after their conversation. As such, Ms. Montgomery has not proven his alleged conduct toward her occurred, which means she has not made out her complaint in regard to this allegation. Now, I will explain why I prefer Mr. Kang’s evidence over Ms. Montgomery’s on this issue.
[99] First, during cross-examination, Ms. Montgomery admitted that she believes Mr. Kang did tell her that he hadn’t received payment for the February and March 2022 rental payments for either suite. This corroborates Mr. Kang’s version of events, in which he says he told her that he was experiencing a $6,000 loss in rental income, the same amount that the upstairs and downstairs suite rental payments would have been for a two-month period. She also admitted that Mr. Kang offered to rent her another two-bedroom suite in the same house, which corroborates his testimony about what happened.
[100] Second, Ms. Montgomery cancelled the $900 payment she had made to Mr. Kang because “he told her that he only wanted the upstairs suite rent paid in full and nothing else was good enough.” This makes sense alongside Mr. Kang telling Ms. Montgomery that the full amount for the upstairs suite rent is all he will accept, and that he was not willing to rent it to her for $900 a month. Ms. Montgomery initially sent him the money for the downstairs suite rent. However, she had told him she was moving out of the downstairs suite and that her goal was to reside in the upstairs suite and not have to pay March rent for the downstairs suite. She had also already moved most of her belongings into the upstairs suite. It makes perfect sense that she asked to rent the upstairs suite for $900 a month, he declined her request, and then she decided to cancel the e-transfer before he accepted it because it was clear that he would not accept the payment she had sent as rent for the upstairs suite instead, as she had hoped for and asked him to do.
[101] Third, Ms. Montgomery’s statement that she offered to pay $450 to Mr. Kang for half the rent for the downstairs suite is difficult to reconcile with the fact that, for the most part, she had already moved into the upstairs suite and her intention since February 24, 2022 had been to live in the upstairs suite rather than the downstairs one. She failed to provide a persuasive reason why she would offer to pay him half a month of rent for a suite that she said she was not residing in. Rather the scenario that is most in harmony with the preponderance of the probabilities is that the money she offered to send him was for a half month of rent towards the upstairs suite that she had believed she should be able to rent for $900 a month.
[102] Fourth, Ms. Montgomery’s version of events is hard to reconcile with the March 8, 2022, Notice of Dispute Resolution that she filed with the Residential Tenancy Branch regarding the upstairs suite. In it, she alleges she is a party to the upstairs suite tenancy agreement, that Mr. Kang and Mr. Singh are denying her status as a party to it, and she disputes the upstairs suite Notice to End Tenancy. I do not accept that on the same day as she completed this form, stating that she believed she was already legally a tenant in the upstairs suite, that she would ask Mr. Kang to rent the upstairs suite to her rather than tell him that she is already tenant and that she is challenging his Notice to End Tenancy.
[103] I have explained why Ms. Montgomery has not proven that Golden Ventures Ltd. discriminated against her, based on her marital status or lawful source of income, by denying her a right to occupy the upstairs suite. Next, I turn to the retaliation complaint.
VII RETALIATION COMPLAINT – DECISION AND ORDER
[104] Ms. Montgomery has not proven that Golden Ventures Ltd. or Mr. Singh retaliated against her, contrary to s. 43 of the Code, regarding her intention to file the complaint, or her subsequent filing of it. As such, under s. 37(1) of the Code, I dismiss the retaliation complaint.
VIII Analysis OF the RETALIATION COMPLAINT
A. Proving retaliation under section 43 of the Code
[105] Section 43 of the Code states, in part, that:
43 A person must not … intimidate, … deny a right or benefit to … a person because that person complains … [or] might complain [to the Tribunal]
[106] To be successful in the retaliation complaint, Ms. Montgomery must prove that:
a. She either intended to file a complaint with the Tribunal, or did file a complaint with the Tribunal and the Respondents knew of her intentional or actual filing of that complaint;
b. In response to her intended or actual filing of that complaint the Respondents acted in a manner listed in s. 43 of the Code; and
c. There is a sufficient connection between her intended or actual filing of the complaint and the Respondent’s conduct, which she can prove by illustrating either that they intended to retaliate against her, or that from the point of view of a reasonable complainant, apprised of the facts at the time of their conduct, it can be reasonably perceived they engaged in their conduct in retaliation: Gichuru v. Pallai, 2018 BCCA 78at para. 58.
B. When did Global Ventures Ltd. and Mr. Singh become aware of Ms. Montgomery’s intention to file, or actual filing of, the complaint?
[107] On February 19, 2022, Golden Ventures Ltd. became aware of Ms. Montgomery’s intention to file a complaint when Ms. Montgomery told Mr. Kang in a text message that she will be filing a human rights complaint. On March 14, 2022, she filed the complaint, and Mr. Kang testified that on April 11, 2022 he became aware of it.
[108] Mr. Singh testified that he first found out about the complaint on or around March 17, 2022, either before or during the time that he was drafting an affidavit in support of a B.C. Court petition that Mr. Kang filed to obtain an order of possession regarding the two suites [Petition]. Absent any evidence to the contrary, I accept that this is when Mr. Singh first became aware of Ms. Montgomery’s filing of the complaint. I do not accept that prior to this he was aware of her intention to file the complaint. Ms. Montgomery gave no evidence about her telling Mr. Singh directly about her intention to file a complaint before she filed it.
C. Did Mr. Singh retaliate against Ms. Montgomery?
[109] I start with Ms. Montgomery’s argument about Mr. Singh’s retaliatory conduct. She argues that, on March 1, 2022, when Mr. Singh came to the property, he came to intimidate her because she had intended to file the complaint. I do not accept that this was the case. He could not have come to intimidate her regarding her intention to file the complaint because at that time he did not know that she intended to file the complaint.
D. Did Global Ventures Ltd. retaliate against Ms. Montgomery?
[110] Now, I turn to Ms. Montgomery’s argument about Mr. Kang’s retaliatory conduct on February 19, 2022. Ms. Montgomery argues that on February 19, 2022, when Mr. Kang found out she was planning to file the complaint, he responded by intimidating her. I treat this as an argument that his phone call to her, where he yelled, “you better get out, you better get out right now,” was him intimidating her.
[111] While I accept that this phone call occurred and that Mr. Kang did yell at Ms. Montgomery in it, I do not accept that his conduct was a response to her telling him that she intended to file a complaint. Ms. Montgomery says his yelling at her is how her conversation with him that day started. So, while I accept that she did tell him during their phone call that she was planning to file a complaint, it would have been after he had yelled at her. Likewise, Ms. Montgomery did not send her text message to Mr. Kang about “letting the human rights tribunal settle things” until after his phone call to her.
[112] Next, I turn to Ms. Montgomery’s argument about Global Ventures Ltd. retaliating against her by withholding her rights or benefits to garbage collection. She argues that, in mid-March 2022, Global Venture Ltd. removed one of the garbage bins that it had provided to her as a tenant up until then. She further argues that she phoned the City of Surrey [City], and it told her that the owner stopped paying the required fee, so it removed the bin. She further argues that she asked Mr. Kang to return the bins, and she points to a letter she wrote on March 18, 2022 asking for “the additional bin back.” She says it did not return the bins. She makes no specific arguments about the connection between this alleged conduct and Global Ventures Ltd.’s knowledge of her intention to file the complaint, or her filing of the complaint.
[113] Ms. Montgomery has provided testimony to support her arguments. She testified that in mid-March 2022, “the landlord removed a garbage bin from her property.” She said during her tenancy, K.C. had asked for an additional garbage bin, which Mr. Singh agreed to and purchased for them. They then had two garbage bins, and it is the additional garbage bin that was no longer there in March 2022. She said she called the City and the City told her “they had stopped paying the fee, so they had to remove it.” She said she asked if she could pay the fee, and it told her only the landlord could pay it. She said she then wrote a letter and delivered it to Mr. Singh’s home asking for the garbage bin back. During cross-examination, Ms. Montgomery confirmed that her allegation about Golden Ventures Ltd. taking away one of the garbage bins is not an allegation that they personally removed such bins from the property, as she had found out later that it was the City that removed the bin. She said she called the City, originally thinking someone had stolen the bin, and they told her that it had removed the bin because payment for it had stopped. She said she asked the City if she could pay it, and that she spoke to a supervisor in either Ontario or Manitoba, and they told her that the residence “was only listed as two rental units, and two or three people.” She also said she didn’t realize it was “up for debate” that the “landlords took it away,” and that she thought they “felt it was ok to do it because of the non-payment or something.”
[114] Global Ventures Ltd. argues that it did not undertake any act that could have resulted in the removal of a garbage bin from the property. It argues that garbage removal is a service included in its property tax payments, and that it paid those property taxes so there should have been no changes to the garbage removal that was available to Ms. Montgomery.
[115] Mr. Kang provided testimony in support of Global Ventures Ltd.’s arguments. He testified that he always paid his property taxes, that the City includes garbage removal in his payment of those taxes and that he did not take any steps to ask the City to remove a garbage bin or to reduce the number of garbage bins it provides as part of his property tax payments.
[116] It is not necessary for me to decide whether Global Ventures Ltd. withheld rights or benefits to a garbage bin from Ms. Montgomery because even if I were to accept that the provision of two garbage bins was a right or benefit Ms. Montgomery was entitled to under her tenancy agreement with Golden Ventures Ltd., and that it asked the City to remove a garbage bin from the property, Ms. Montgomery has not provided evidence that proves a connection between it removing that garbage bin and her either telling it she intends to file a complaint, or her filing of a complaint. Based on her own testimony during cross-examination, she says that when she noticed the garbage bin was no longer there, she thought the landlords had removed it because “of non-payment or something.” Ms. Montgomery’s current claim that they removed it in retaliation is no more than speculation on her part, and speculation alone is not enough to prove a connection between their actions and her intention to file, or actual filing of, a complaint.
[117] I now turn to Ms. Montgomery’s argument about Global Ventures Ltd. retaliating against her by intimidating her when it allegedly sent a series of strangers to her home to knock on her door to view an available suite for rent. Ms. Montgomery testified that after she received her Notice to End Tenancy and before the Residential Tenancy Branch matter was resolved, which was on June 3, 2022, there were instances where people would show up knocking on the front door asking to view the suite for rent. She would tell them she isn’t the landlord and that she won’t show them it. She said people would get angry, so she stopped answering the front door and would instead go on the front patio to talk to people who were banging on the door. She said there were “lots of times” where people would come. When asked how many times this occurred, she testified that it happened “approximately, at least twice, and possibly three different times,” always on a weekend. She later testified that “sometimes it would be a single man, sometimes maybe a student, one time a family in a van looked like five or six people,” and then there were single men who went up to the basement window, looked in and said, “is it for rent, is it for rent,” and she continued to say its not her responsibility, she is not the landlord. During cross-examination, Ms. Montgomery said she “believes she said earlier that this occurred on a few occasions.” She also said that once it occurred “during the renovations.” Global Ventures Ltd. also asked Ms. Montgomery whether people told her that the landlord had sent them over. She responded, “Um, yeah. They said they were, uh, they had spoken to somebody to come here and see the place.” It then asked her who they said they had spoken to, and she responded, “I don’t think we got that far in the conversation.”
[118] I am not convinced that Global Ventures Ltd. sent strangers to Ms. Montgomery’s home to knock on her door and view an available suite for rent. As such, she has not proven that they have undertaken such conduct to intimidate her. I do not accept Ms. Montgomery’s testimony about people coming to her home because she provided inconsistent testimony about how many people allegedly came to her house. At the beginning, she said it was “a lot of people.” Then, she said it was “at least twice, and possibly three times,” which I treat this as meaning no more than three times, and more likely twice. Later, she describes at least five instances. In cross-examination, she said it only occurred “on a few occasions.” Ms. Montgomery also provided conflicting testimony about when these instances occurred. On the one hand, she said they all occurred after she received the Notice to End Tenancy, on February 19, 2022. On the other hand, she said one of the instances occurred during the renovations, which I treat as her saying it occurred during the bathroom renovation. That renovation took place during the week before Global Ventures Ltd. delivered the Notice to End Tenancy to her.
[119] Next, I turn to Ms. Montgomery’s argument about Global Ventures Ltd. retaliating against her by intimidating her, on March 18, 2022, when it filed the Petition. Ms. Montgomery argues that it filed the Petition knowing that she intended to file the complaint. It does not dispute this. She further argues that its frustration with her intention to file the complaint motivated its filing of the Petition. Last, she argues that the Tribunal should draw an inference between the timing of Ms. Montgomery advising Mr. Kang of her intent to file the complaint, and the timing of the Petition, and conclude that there is a connection between the two because only ten days had passed between the two incidents.
[120] In support of Ms. Montgomery’s arguments, she points the Tribunal to Seignoret v. Bakonyi Holdings and others, 2019 BCHRT 277. In that case, the Tribunal refused to draw an inference between the timing of two events because of the overwhelming balance of evidence that weighed against the inference: at para 52. She also points to an affidavit of Mr. Singh made in support of the Petition, in which he says that Ms. Montgomery is “planning to file a complaint with the Human Rights Tribunal to gain more time and free rent, at Golden Ventures Ltd.’s detriment.” Last, Ms. Montgomery points to Mr. Singh’s testimony, where she says he admits that he and Mr. Kang had discussed their “tremendous amount of frustration at being blocked from getting access to the property.”
[121] Global Venture Ltd. argues that its only motivations for filing the Petition were that:
a. Ms. Montgomery confirmed she was vacating the downstairs suite, then made a sudden and unilateral decision not to do so;
b. Ms. Montgomery asserted a right to occupy the upstairs suite, which Global Ventures Ltd. contested, and because of this assertion she impeded K.C. from ending the upstairs suite tenancy;
c. Ms. Montgomery failed to pay any rent or utilities for either suite, which were due on February 1 and March 1, 2022, and which resulted in Global Ventures Ltd.’s losing income; and
d. Ms. Montgomery told Global Ventures Ltd. that she intends to continue not paying rent or utilities for either suite until at least June 2022, when her daughter finished school.
[122] Global Ventures Ltd. further argues that its former legal counsel advised it to file the Petition to get an order requiring Ms. Montgomery to vacate the property, and that Ms. Montgomery’s notice to it about her intention to file a complaint does not bar it from exercising its own legal rights.
[123] Ms. Montgomery has not proven that Global Ventures Ltd. retaliated against her by intimidating her, on March 18, 2022, when it filed the Petition. I am not satisfied that its filing of the Petition falls within the scope of the term “intimidation” in s. 43 of the Code . I agree with the Tribunal’s decision in Birchall v. BCS 61 Strata Corporation and another , 2018 BCHRT 29 that the purpose of s. 43 of the Code is to create safe conditions for people to bring forward issues of discrimination and that the term “intimidation” in it captures conduct that generates a fear or sense of powerlessness, and carries the potential to deter a complainant from pursuing an allegation of discrimination: at paras. 68-70. What amounts to such intimidation is case specific, and the Tribunal has assessed whether a person’s conduct is intimidating by looking at the facts of a case from the perspective of a reasonable human rights complainant. This approach involves considering the reasonableness of the complainant’s fears and perceptions, being sensitive to the difficulties that they confront, which may include fear and anxiety around pursuing a complaint, and which can be exacerbated when they are in an ongoing relationship with the respondents, in particular relationships that involve a power imbalance: at para 71.
[124] Ms. Montgomery has not convinced me that Golden Ventures Ltd.’s filing of the Petition was an act of intimidation, aimed at scaring her out of filing the complaint or deterring her from doing so. Rather, it was Global Ventures Ltd.’s attempt to gain access to its property, in a manner consistent with its advice from its lawyer, during a time when it believed that it would not receive any further rental payments for that property. Ms. Montgomery had been exercising ongoing possession of both the upstairs and downstairs units, and nobody had paid the rent or utilities for those units for the months of February and March 2022. Ms. Montgomery had filed with the Residential Tenancy Board to dispute both notices that Global Ventures Ltd. had delivered to her and K.C. seeking to end their respective tenancies and gain possession of those units. On March 1, 2022, she had phoned the police to intervene when Mr. Singh and Mr. Kang attended to take possession of at least the downstairs suite, after she had told them she would give them possession of it. On March 8, 2022, Ms. Montgomery told Mr. Kang that she had moved into the upstairs suite and that she wanted to live in the upstairs suite until at least June 2022. They did not reach any agreement about her renting the upstairs suite.
[125] Both Mr. Kang and Mr. Singh’s testimonies support a finding that Global Ventures Ltd. filed the Petition to enforce Global Ventures Ltd.’s right to gain access to its property at a time when it believed that it would not receive any further rental payments for that property. Mr. Kang testified that when he filed the Petition, he had not had any issues with tenants during the past ten years, and he was under immense pressure to access the property. He said Ms. Montgomery had accused him and Mr. Singh of banging on the doors, and the police had told them they could not do what they had done. He said he just wanted to protect his property, that he had no rent coming in, a friend had suggested he obtain legal advice, and he obtained a lawyer who told him to file the Petition. He said he was frustrated, and dying to make those payments because he is not a rich guy and that he comes from a frugal family. During cross-examination, Mr. Kang admitted that, on February 28, 2022, K.C. had advised him that he would not be making any more rent payments, and that it would be Ms. Montgomery who is responsible for the rent payments moving forward. He also admitted that with K.C. gone he was worried he would not get any more rent payments. Mr. Kang further said that his main purpose for filing the Petition was that he needed access to at least one unit, not two, but he was in a financial hardship at the time, and he was worried about his property. He reiterated that the situation was all new to him, that he went to the lawyer to look at his options, and his lawyer advised him that the Petition was the best option for him.
[126] Mr. Singh provided no direct testimony about his affidavit in support of the Petition, or about any involvement he had with Global Ventures Ltd. regarding its filing of the Petition. In cross-examination, Mr. Singh stated that after Mr. Kang received Ms. Montgomery’s text message, which included her statement about filing a complaint, Mr. Singh observed Mr. Kang go through a tremendous amount of frustration about maybe not being able to get a remedy, and that he understood Mr. Kang wanted to get access to the property back through whatever legal avenue available to him. Mr. Singh admitted that he shared this frustration with Mr. Kang, but that they did not talk about it.
[127] Last, I address Ms. Montgomery’s argument about Global Ventures Ltd. retaliating against her when, on June 30, 2022, which is the date she moved out of both suites, it withheld rights or benefits from her. Ms. Montgomery alleges that Global Ventures Ltd.’s agent, Ms. J.D., told her that she would pack up and place items that Ms. Montgomery did not have time to move out of the two suites by the possession deadline outside for her to pick up later. Ms. Montgomery further alleges that Ms. J.D. failed to do so. She makes no specific argument about how this alleged conduct is a withholding of a right or benefit, and she provides no arguments about how this alleged conduct is connected to her filing of the complaint.
[128] Global Ventures Ltd. argues that it did not direct Ms. J.D. to make any such offer to Ms. Montgomery, but that it did agree to multiple extensions of time for Ms. Montgomery to remove her belongings from both suites on June 30, 2022. It further argues that if Ms. J.D. did make such an offer and then fail to follow through with it, then there is no connection between Global Ventures Ltd.’s conduct and Ms. Montgomery’s filing of the complaint.
[129] Even if I were to accept that everything Ms. Montgomery has argued is true, she has not proven that Global Ventures Ltd. withheld rights or benefits from her. In this context, I consider a right or benefit to be those things that Ms. Montgomery is entitled to from Global Ventures Ltd., as set out in the terms and conditions of her tenancy with it, as well as any other statutory or legally recognised right or benefit that it owes to her due to the nature of their landlord-tenant relationship. Ms. Montgomery has not pointed me to any specific right or benefit that Global Ventures Ltd. owed to her regarding what it does with her personal belongings after her tenancy has ended and after she has vacated it. Likewise, even if I were to accept that everything Ms. Montgomery has argued is true, and that Ms. J.D.’s offer to place her personal belongings outside for her became an acquired a right or benefit to Ms. Montgomery, then Ms. Montgomery has still not provided any evidence to support that there is a connection between its failure to follow through with that offer and her filing of the complaint.
IX COSTS
[130] I note that Global Ventures Ltd. made an application in its closing submissions regarding costs, and that Ms. Montgomery has provided a response to that application. The Tribunal has not received a reply from Global Ventures Ltd. regarding Ms. Montgomery’s response to its application. I note that the Tribunal did not provide the parties a submission schedule regarding that application, likely because Global Ventures Ltd. did not make it in accordance with Rule 28 of the Tribunal Rules.
[131] In any event, I find it appropriate to vary Rule 28 in accordance with Rule 2, and I accept Global Ventures Ltd.’s application. However, before I decide that application, Global Ventures Ltd. will have until June 21, 2024 to provide any reply it has to Ms. Montgomery’s response.
X CONCLUSION
[132] The complaint and the retaliation complaint are dismissed.
[133] I will decide the costs application after Global Ventures Ltd.’s deadline for providing its reply expires.
Sonya Pighin, Tribunal Member