Ibrahim v. The Owners, Strata Plan LMS 1222 and another, 2024 BCHRT 183
Date Issued: June 14, 2024
File: CS-005861
Indexed as: Ibrahim v. The Owners, Strata Plan LMS 1222 and another, 2024 BCHRT 183
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:
Ali Ibrahim
COMPLAINANT
AND:
The Owners, Strata Plan LMS 1222 and Bayside Property Services Ltd.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
|
Tribunal Member: |
Robin Dean |
|
|
Counsel for the Complainant: |
Aleem Bharmal, KC |
|
|
Counsel for the Respondent: |
Jacob Foster |
|
I INTRODUCTION
[1] Ali Ibrahim owned a strata lot in the respondent strata corporation. Ownership in the strata lot transferred on June 24, 2020, and Mr. Ibrahim filed his complaint more than a year later, on July 29, 2021. In his complaint, he alleges that during his ownership, the Respondents failed to accommodate his mental and physical disabilities when they did not allow him to rent out his strata lot or allow telephone hearings with the Strata Council to dispute fines levied against his strata lot. The parties agree that the last alleged discriminatory act occurred on May 23, 2019.
[2] The Tribunal reviewed the complaint and the response to the complaint as part of the Tribunal’s Case Path Pilot, where a case proceeds directly to a hearing unless it is determined that there may be a more fair and timely way to resolve it. It was determined through the Case Path Pilot process that it could serve the just a timely resolution of the complaint to allow the Respondents to file an application under s. 27(1)(c) of the Code. Section 27(1)(c) of the Code permits the Tribunal to dismiss a complaint where there is no reasonable prospect that the complaint will succeed.
[3] The Respondents filed their application to dismiss, arguing in part that Mr. Ibrahim’s complaint was out of time given that all the events he alleges occurred while he was still owner of the strata lot. This is an argument properly made under s. 27(1)(g) of the Code. Mr. Ibrahim opposed granting leave to argue s. 27(1)(g), but in the alternative provided full submissions on the issue.
[4] Although the Tribunal allowed the Respondents to file their application under s. 27(1)(c) only, for the following reasons, I exercise my discretion to dismiss Mr. Ahmad’s complaint under s. 27(1)(g) because it is untimely. Mr. Ibrahim had a full opportunity to respond to the Respondents’ 27(1)(g) arguments, and he did so in his response to the application to dismiss.
[5] I note that this discretion is to be exercised sparingly; but it is appropriate in this case given the core mission of the Tribunal, which is to promote timely and fair resolution of complaints. My decision to dismiss Mr. Ibrahim’s complaint under s. 27(1)(g) should not be taken as condoning the Respondents’ method of raising additional grounds for dismissal in an application to dismiss following the Case Path Pilot process. To be clear, generally it will not be appropriate to add grounds to an ATD where those grounds have not been allowed through the Case Path Pilot process. However, it is appropriate under these circumstances where the Tribunal seems to have overlooked the timeliness issue and where, as here, both parties made full submissions on the matter.
II DECISION
[6] 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.
[7] There is a one-year time limit for filing a human rights complaint: Code,s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[8] The Respondents argue that all the allegations in this complaint are late filed and should be dismissed.I must decide two issues under s. 27(1)(g) of the Code: (1) whether the complaint is late filed, and (2) if so, whether to exercise my discretion to accept it because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code,s. 22(3), School District v. Parent obo the Child, 2018 BCCA 136 at para. 68.
[9] First, I am satisfied that the complaint is late-filed. The Respondents say that the last discriminatory act alleged in the complaint occurred in May 2019, 26 months before Mr. Ibrahim filed his complaint on July 29, 2021. In response, Mr. Ibrahim acknowledges that the complaint was filed in July 2021, but he also incorrectly asserts that July 2021 was only two months after the May 2019 incident. The materials before me do not support an assertion that the complaint was filed two-months after the last alleged Codecontravention. The complaint clearly alleges Codecontraventions ending in May 2019. I therefore find the complaint was filed outside the one-year time limit.
[10] Mr. Ibrahim also argues that the allegations in the complaint are part of a continuing contravention of the Code. A complaint is filed in time if the last allegation of discrimination happened with one year, and older allegations are part of an alleged “continuing contravention”: Code, s. 22(2). Therefore, in order for there to be a continuing contravention, at least one of the allegations must be timely. As I have already determined that none of the allegations in the complaint are timely, I do not find Mr. Ibrahim’s argument persuasive.
[11] Because the complaint is late-filed, I now consider whether to accept all or part of the complaint under s. 22(3). The burden is on the complainant to persuade the Tribunal to accept the complaint. Generally, the Tribunal considers two things at this juncture: public interest and substantial prejudice.
[12] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [Mzite] at para. 53 and 63; Hoang v. Warnaco and Johns,2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon,2012 BCSC 161 at para. 152; Mziteat para. 55. The inquiry is always fact and context specific.
[13] A delay of 14 months is substantial given the one-year time limit for filing human rights claims. This weighs significantly against accepting Mr. Ibrahim’s complaint in the public interest: Naziel-Wilson v. Providence Health Care and another , 2014 BCHRT 170 at para. 13.
[14] Mr. Ibrahim says that if the Tribunal finds the complaint is untimely, then any delay is attributable to the fact that he was dealing with significant trauma and health issues as well as trying to resolve the issues with the strata through an internal process. He cites issues dating back to April 2016 through May 2019. I do not find this persuasive given that the inquiry is whether Mr. Ibrahim was able to file within the one-year time limit—i.e. between May 2019 and May 2020. There is no evidence before me that would indicate that Mr. Ibrahim could not have filed his complaint within this time period. To the extent that he is saying that his disabilities generally precluded him from being able to file a complaint, there is evidence before me that suggests otherwise. In fact, I have evidence before me that Mr. Ibrahim advanced proceedings against the strata in the British Columbia Supreme Court during the relevant time period.
[15] Finally, Mr. Ibrahim argues that there are serious and novel issues that weigh in favour of accepting his complaint in the public interest. He says that these issues are whether a strata owes a duty to accommodate a past owner under the Code; and whether the strata was providing or denying Mr. Ibrahim a “service” such that it could be found to have been acting contrary to s. 8 of the Code. However, numerous decisions have confirmed that section 8 of the Codeapplies to stratas and that “services” include the implementation and enforcement of a strata’s bylaws: Rutherford v. Strata Plan VS 170, 2019 BCHRT 227 at para. 21. While it may be that the Tribunal has not already determined whether a strata owes duties to past owners, I do not find that this alone is a reason to allow the late-filed complaint as the determination of whether a strata owed a duty to a past owner would be a fact-specific and individual assessment in every case. Further, as I read the complaint, the last alleged incident of discrimination occurred in May 2019, while Mr. Ibrahim was still an owner.
[16] In light of the above, I do not find that the public interest weighs in favour of accepting Mr. Ibrahim’s late-filed complaint. Given my finding on public interest, it is unnecessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
III CONCLUSION
[17] The complaint is late-filed, and Mr. Ibrahim has not convinced me that it would be in the public interest to accept it. I therefore grant the Respondents’ application and dismiss Mr. Ibrahim’s complaint.
Robin Dean
Tribunal Member