Shahgou v. The Owners, Strata Plan No. BCS 3495S and another, 2024 BCHRT 176
Date Issued: June 7, 2024
File: CS-001371
Indexed as: Shahgou v. The Owners, Strata Plan No. BCS 3495S and another, 2024 BCHRT 176
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:
Somayeh Shahgou
COMPLAINANT
AND:
The Owners, Strata Plan No. BCS 3495S and Tiam Alivand
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
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Tribunal Member: |
Laila Said Alam |
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Counsel for the Complainant: |
Aleem Bharmal, KC |
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Counsel for the Respondent Tiam Alivand: Counsel for the Respondent The Owners, Strata Plan No. BCS 3495S: |
Hovan Patey Harmonie Roesch-West |
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I INTRODUCTION
[1] Somayeh Shahgou alleges that that The Owners, Strata Plan No. BCS 3495S [Strata] and Tiam Alivand [together, Respondents] discriminated against her in the area of accommodation, service or facility on account of her physical disability, contrary to s. 8 of the Code. This application to dismiss concerns Mr. Alivand, only. The Strata did not file an application to dismiss the complaint against them.
[2] Ms. Shahgou alleges that during all material times, Tiam Alivand was her next-door neighbour and smoked marijuana indoors. She says she suffered migraine headaches from the second-hand smoke entering the condo unit where she resides. Ms. Shahgou says that Mr. Alivand used his position as a member of the strata council [Strata Council] to prevent a non-smoking bylaw from being passed and to protect himself from repercussions from the harm he caused her by smoking inside his condo unit. She says he was aggressive and hostile toward her and her husband for complaining to the Strata Council and strata manager about his conduct.
[3] Mr. Alivand denies discriminating against Ms. Shahgou and applies to dismiss this complaint under ss. 27(1)(b), (c), (d), and (e). I find that I can most efficiently decide this application under s. 27(1)(c) of the Code. He asks to dismiss the complaints on the basis that: he has no duty to Ms. Shahgou because, as her neighbour, they are not in a service relationship; she has not established that she has a disability; and her claim that he conspired with the Strata Council and strata management company to thwart efforts for a non-smoking bylaw is merely speculative. The issue I need to decide is whether there is no reasonable prospect that Ms. Shahgou can prove her allegations at a hearing that Mr. Alivand used his position on the Strata Council to both protect himself from the repercussions from smoking marijuana in his condo unit and to prevent her from obtaining the remedy of a non-smoking bylaw.
[4] For the following reasons, I allow the application to dismiss the complaint against Mr. Alivand.
[5] 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. I make no findings of fact.
II BACKGROUND
[6] Ms. Shahgou has owned and resided in her condo unit with her husband since February 2017. Ms. Shahgou says her complaint encompasses the period around 2017 and 2018 [Affidavit #2 of Somayeh Shahgou, dated April 15, 2022 at para. 7]. At the time of her complaint, her strata building permitted smoking within the condo units.
[7] Tiam Alivand was Ms. Shahgou’s neighbour during this period of time. Mr. Alivand held a position on the Strata Council in or around the time that overlaps with her complaint.
[8] On December 2, 2017, Ms. Shahgou notified the Strata about marijuana smoke ingress, which she believed to be originating from Mr. Alivand’s condo unit. She notified the Strata that the marijuana smoke entering her condo unit caused her migraine headaches. She sought the Strata’s assistance to address the issue by passing a non-smoking bylaw.
[9] After her initial complaint, the strata manager sent a “Smoking Reminder” notice to all residents asking them to “ventilate accordingly.”
[10] Ms. Shahgou and her husband notified the Strata on several other occasions that the smell of smoke continued to enter their condo unit. They regularly combined the notification with a request to the strata property manager or Strata Council to assist them with the marijuana smoke ingress because it was causing Ms. Shahgou headaches.
[11] Amongst other things, the Strata responded by: asking her to call a building manager or Strata Council representative to conduct sniff tests; sending out a “Smoking Reminder” notice on December 19, 2017 to all the residents, including Mr. Alivand; sending Mr. Alivand a letter on May 29, 2018, with the bylaw that he was reportedly violating and asking him to address the issue; asking Ms. Shahgou whether other neighbours experiencing smoke ingress issues from Mr. Alivand’s unit can corroborate her complaint; inviting her to speak to the Strata Council; issuing Mr. Alivand “a written communication” on or around July 1, 2018, and; referring her to Health Canada.
[12] On July 2, 2018, Ms. Shahgou, her husband, and building manager [RM], collected signatures from neighbours on her floor to corroborate her complaint that marijuana smoke was emanating from Mr. Alivand’s unit and entering the hallway and their respective condo units.
[13] Mr. Alivand submits two partial videos capturing parts of the July 2, 2018, events. He films Ms. Shahgou, her husband, and RM, sometimes at close range moving away from him. Mr. Alivand follows them and asks, “what are you guys doing here?” and “what are you doing on my floor?” Ms. Shahgou says they have some evidence against him. She is holding a binder with a paper containing writing. I understand this paper to be the corroborating signature page that is in the materials.
[14] Ms. Shahgou, her husband, and RM move in the opposite direction toward the elevator, to go to the strata building office. Mr. Alivand says, “No worries, I can come to the office too. I’m the strata president. Absolutely I can come.” He says he is a “sick patient,” has “a doctor’s prescription,” and says he does not smoke marijuana but uses tinctures and oils. They ask why he is following them and he says, “I want to see what you’re up to when you’re harassing me on my floor.” Mr. Alivand continues to engage them and follows them into the elevator.
[15] When Ms. Shahgou, her husband, and RM get off on another floor, Mr. Alivand follows them and adds, “so I’m following you.” In the other video, the interaction continues, and Mr. Alivand follows them into the stairwell and partially outside the building before he returns to the building.
[16] Ms. Shahgou reported the incident to the strata manager. She requested to speak at the July 25, 2018, Strata Council meeting. The Strata Council accepted her request. She describes the Strata’s acceptance as, “the residential council members accepted my problem.” Her husband attended the meeting on her behalf. Mr. Alivand is listed as a council member attending that meeting. Another person is identified as the Strata Council President at the time. I understand the following excerpt of the meeting minutes relates to her husband’s presentation:
HEARING REQUEST
Strata lot 228 – A residential Owner appeared before Council in order to report an on-going matter regarding nuisance/smoking violation on his floor, Grand Central – Tower 2. The Residential Council decided to appoint two (2) members of Council to form a Committee that will be responsible for Investigating and assessing future reports of this nature. The appointed members were duly noted to be: [the Vice President and the Privacy Officer]
[17] A non-smoking bylaw was defeated by vote at the March 28, 2019, Annual General Meeting. Mr. Alivand sold his unit and moved from Ms. Shahgou’s strata building in or around March 31, 2020. A non-smoking bylaw was carried by vote at the May 31, 2021, Annual General Meeting.
III DECISION
A. Application to File Further Submissions
[18] Ms. Shahgou applies to file further submissions. Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Tribunal Rules of Practice and Procedure [Rules], Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Rules, Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2) , 2005 BCHRT 24 at para. 17, and address new information not available to the party when they filed their submission: Rules, Rule 28(6)]. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201 at para. 21.
[19] On this application, Ms. Shahgou was required to immediately notify the Tribunal and other parties of her intention to apply to file a further submission; apply within one week of receiving the reply submission; state in the application the new issue raised in the reply submission and why fairness requires that the Tribunal consider the further submission; and attach the further submission to the application.
[20] Ms. Shahgou received the Strata’s reply to this application on April 26, 2022. Ms. Shahgou notified the Tribunal on May 5, 2022, of her intention to apply to file further submissions. The Respondents consented to her request to extend the application timeline beyond the one-week requirement.
[21] Ms. Shahgou submitted her arguments on sur-reply with the application for it. She says both Mr. Alivand and the Strata’s replies contain new evidence and argument that they did not include in the application to dismiss. Therefore, Ms. Shahgou says, she has not had a chance to respond and it would be unfair to dismiss her complaint without allowing her to address the new information and argument raised for the first time in the Respondents’ replies.
[22] Amongst Mr. Alivand’s reply are videos, an affidavit, a Memorandum of Understanding and settlement offer originating from the Tribunal’s mediation process; none of which were included with his application to dismiss.
[23] The Strata Respondent also filed a reply to Mr. Alivand’s application to dismiss. The reply consisted of legal and factual arguments and new information. The new information included: contemporaneous police records; Mr. Alivand’s Health Canada certifications for medical cannabis use; his email to the Strata notifying them of his disability; a smoking reminder notice sent to residents on or around December 19, 2017; redacted emails between the Strata and other parties dating beyond the scope of Ms. Shahgou’s initial complaint, and; Strata Council’s meeting minutes [Minutes] and bylaws. It also relies on the Memorandum of Understanding and without prejudice Settlement Officer derived from the Tribunal’s mediation process. None of these were included in Mr. Alivand’s application to dismiss.
[24] The information and documents are material to the application to dismiss. As the Respondents did not rely on and submit this documentation in the initial application, it would be unfair for Ms. Shahgou to be denied the opportunity to make submissions on the new information and documents.
[25] The application for sur-reply is allowed. I consider her sur-reply, as well as the Respondents’ submissions and Ms. Shahgou’s response, to decide the application to dismiss, which I turn to next.
B. Application to Dismiss
1. Defining the scope of the complaint
[26] I begin with the need to define the scope of this application against the individual respondent in terms of both substance and the time frame it covers.
[27] First, I address the scope of the substance of the complaint. There is no doubt that the relationship between Ms. Shahgou and Mr. Alivand was a strained one. The submissions include inflammatory accusations against each other’s character beyond what is alleged in the complaint. To the extent that the accusations are irrelevant and unhelpful in deciding this application, I will not directly address them in this decision. I rely only on the alleged facts related to the substance of this complaint.
[28] Mr. Alivand submits that there is no service relationship between himself and Ms. Shahgou. I agree with this assertion in part. As Ms. Shahgou’s neighbour, he did not owe Ms. Shahgou any duty to accommodate her disability. However, while acting as a member of the Strata Council, he may have owed her a duty, depending on the circumstances.
[29] In Lee v. Strata Plan 4082 and others (No. 2), 2012 BCHRT 21, the Tribunal explained why it declined to dismiss the complaint against individually-named respondents who were, at all material times, acting as members of officers of the Strata Council. Lee states at paras. 5-7:
At a hearing on the merits, the question is not whether the individual respondents should be named and proceeded against, but whether they are liable.
As explained in Kayne v. The Owners Strata Plan LMS 2374, 2004 BCHRT 62:
…The situation of Strata Council members is not different from that of officers or directors of corporations. Many complaints are filed with the Tribunal that name a corporate respondent and also officers or directors of the corporation. This is because, under the Code, “persons” must not contravene the requirements of the Code. If individuals were able to hide behind a corporate veil, the purposes of the Code could be thwarted. In my view, the potential of personal liability is an important factor that serves to ensure compliance with the Code. (at para. 38)
[30] The individual Respondents are liable because, as members of the Strata Council, they had the power to direct the actions of the strata corporation.
[31] I find that the rationale in Lee applies here to limit the scope of the complaint against the individual respondent to the time when Mr. Alivand was a member of the Strata Council, and therefore was in a position to influence the Strata’s response to Ms. Shahgou’s complaints.
[32] During the time that he was a member of the Strata Council, I am satisfied that Ms. Shahgou has taken out of the realm of conjecture that she and Mr. Alivand were in a service relationship within the meaning of s. 8 of the Code.
[33] Complaints by member owners against a strata corporation are encompassed by s. 8 of the Code: Williams v. Strata Council No. 768 , 2003 BCHRT 17; Konieczna v. The Owners Strata Plan NW 2489, 2003 BCHRT 38; Leary v. Strata Plan VR1001, 2016 BCHRT 139. S. 8 of the Code prohibits a strata from discriminating against a strata unit owner in the services it provides: Leary v. Strata Plan VR1001, 2016 BCHRT 139 at para. 65; Stengert obo others v. Strata Plan BCS2427, 2018 BCHRT 70 at paras. 17-20; Shannon v. The Owners, Strata Plan KAS 1613 (No. 2 ), 2009 BCHRT 438 at paras. 175-176. As stated in Leary, “as service providers, stratas have an important role to play in removing barriers that may affect their owners with disabilities. This includes taking a serious and rigorous approach to complaints related to smoking.” In this case, the service provided by the Strata, and Mr. Alivand as a Strata Council member, was the enforcement of its bylaws and taking a serious and rigorous approach to Ms. Shahgou’s request for an accommodation based on a disability.
[34] Second, I turn to the temporal scope of the complaint. As the substance of the complaint is limited to Mr. Alivand’s time on the Strata Council, it is important to turn to the materials before me to determine whether the acts of discrimination she alleges align with the time Mr. Alivand held a position on the Strata Council.
[35] Ms. Shahgou alleges that she first informed the strata building manager about her migraines in or about February 2017 [Affidavit #2 of Somayeh Shahgou, dated April 15, 2022 at para. 4]. Ms. Shahgou asserts that Mr. Alivand was the Strata Council president from February 2017 to May 2019. Mr. Alivand submits that he was the Strata Council president around mid May 2018. He does not say when his tenure started or ended. The materials before me include some of the Minutes. The Strata Council members are listed on the Minutes. Based on those Minutes, Mr. Alivand was no longer Strata Council president as of July 25, 2018; however, he remained a member of the Strata Council. The next available strata minutes are dated January 9, 2019. Mr. Alivand is not listed as a member of the Strata Council.
[36] Accordingly, Ms. Shahgou has not taken her allegation that Mr. Alivand was a member of the Strata Council from, at the latest, January 8, 2019, to May 2019 out of realm of conjecture.
2. Section 27(1)(c) – No reasonable prospect of success
[37] 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.
[38] 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.
[39] 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.
[40] While the Tribunal does not make findings of credibility or find facts on a balance of probabilities as it would at a hearing, it must assess all the evidence before it: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 69. Among other things, the Tribunal looks for internal and external consistency, and considers the evidence in context, in light of the overall relationship of the parties and all of the circumstances in which the alleged discrimination occurred: Ritchie v. Central Okanagan Search and Rescue Society and others , 2016 BCHRT 110, at para. 120.
[41] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti at para 67.
[42] To prove her complaint at a hearing, Ms. Shahgou will have to prove that she has a characteristic protected by the Code, she was adversely impacted in accommodations, services and facilities, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to Mr. Alivand to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[43] Mr. Alivand applies to dismiss Ms. Shahgou’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Mr. Alivand to establish the basis for dismissal.
[44] Mr. Alivand says that Ms. Shahgou’s evidence has no reasonable prospect of proving that she has a disability protected under the Code. Mr. Alivand denies conspiring with the Strata Council or strata management company to insulate himself from accountability, preventing her from seeking a remedy, and preventing a non-smoking bylaw from being carried. He says Ms. Shahgou’s allegations in this regard are merely speculative.
[45] On this application, Ms. Shahghou is not required to prove her complaint, but only take it out of the realm of conjecture. This application turns on whether Ms. Shahgou’s allegation that there is a connection between Ms. Shahgou’s inability to seek a remedy, including the failure of the non-smoking bylaw to pass at the Annual General Meeting, and Mr. Alivand’s position on the Strata Council at the time. For that reason, I assume, without deciding, that Mr. Shahgou has taken her allegation that she suffers from migraine headaches caused by smoke ingress into her condo unit from another condo unit out the realm of conjecture.
[46] I cannot find that Ms. Shahgou has taken her allegations that that Mr. Alivand used his position to prevent her from obtaining a remedy and to protect himself from repercussions out of the realm of conjecture.
[47] I note that, in the materials before me, the event that Ms. Shahgou most strongly relies on is her interaction with Mr. Alivand on July 2, 2018. She refers to this incident to support her allegation that Mr. Alivand used his position to prevent her from obtaining a remedy. I repeat the alleged facts here for simplicity. Preceding the July 2, 2018 incident, the Strata property manager asked Ms. Shahgou if she could corroborate her complaint of marijuana smoke ingress originating from Mr. Alivand’s condo unit. Ms. Shahgou went to her neighbours to collect signatures to corroborate her complaint. Mr. Alivand followed and aggressively engaged her as she did so. He referred to the floor that they both lived on as “my floor.” She says the confrontation stopped her from continuing to collect signatures on the floor on which she lives. When she sought to leave that floor to go to the strata building’s office, Mr. Alivand stated, “No worries, I can come to the office too, I’m the strata president.” The video recording ends with her leaving the building.
[48] Following this, Ms. Shahgou asked to present at the next Strata Council meeting and the Strata Council agreed. She was out of the country, so her husband appeared as her representative. Mr. Alivand was present at the meeting in his capacity as a member of the Strata Council. The minutes from the meeting show, and Ms. Shahgou does not dispute, that the issue was heard and the Strata Council responded. The Strata Council designated two of its members, the Vice President and Privacy Officer, to form a committee to investigate future smoking complaints. She complains that the committee did not reasonably investigate her complaints thereafter. Without facts in support of this allegation, it remains speculative that the Strata Council failed to reasonably investigate her concerns because of Mr. Alivand’s influence. The minutes do not speak to Mr. Alivand voicing any dissent or using his position to thwart Ms. Shahgou’s request to be heard or the remedy proposed by the Strata Council. Here, Mr. Alivand denies the allegations, and the materials before me do not point to Mr. Alivand preventing her from seeking a remedy.
[49] I also note that the meeting where the non-smoking bylaw was defeated are outside the scope of the time being considered in this application; however, it bears highlighting that Mr. Alivand was no longer a member of the Strata Council at that time and Ms. Shahgou has not alleged facts that persuade me her allegation that he was responsible for the bylaw being defeated is anything more than speculation.
[50] I am also not convinced on the materials before me that Ms. Shahgou has taken her allegation that that Mr. Alivand used his position to protect himself from the repercussions of smoking marijuana in his condo unit outside of the realm of conjecture. I am satisfied the notice and letter sent to Mr. Alivand from the strata property manager advising Mr. Alivand that there had been a complaint against him for a bylaw infraction and asking him to turn his attention to the complaint against him is some evidence that he was not protected from the repercussions of smoking marijuana in his condo unit. Any potential concerns Ms. Shahgou might have about whether the bylaws were fully enforced against Mr. Alivand would be more appropriately analysed under the Strata’s duty to accommodate her.
[51] I acknowledge Ms. Shahgou’s experience with Mr. Alivand as her neighbour was unpleasant, hostile and confrontational, even involving allegations of physical violence on July 2, 2018. I acknowledge her frustration in seeking a remedy with someone who was, at best, disinterested in her problems. However, as much as Ms. Shahgou perceived Mr. Alivand to be lacking as a reasonable and caring neighbour, I am not satisfied on the evidence before me that Ms. Shahgou has taken her allegation that Mr. Alivand used his position on the Strata Council to impede her request for a remedy or a non-smoking bylaw out of the realm of conjecture.
IV CONCLUSION
[52] The application to dismiss is allowed under s.27(1)(c).
[53] The complaint against Mr. Alivand is dismissed.
Laila Said Alam
Tribunal Member