Pearce v. The Owners, Strata Plan KAS 487, 2024 BCHRT 198
Date Issued: June 28, 2024
File: CS-001616
Indexed as: Pearce v. The Owners, Strata Plan KAS 487, 2024 BCHRT 198
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:
Karla Pearce
COMPLAINANT
AND:
The Owners, Strata Plan KAS 487
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), (c), (d)(i), and (e)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Odette Dempsey-Caputo
Counsel the Respondent: D. Hugh MacInnes
I INTRODUCTION
[1] Karla Pearce was a tenant in a strata unit within Strata Plan KAS 487 [the “Strata”]. Ms. Pearce alleges she was discriminated against on the basis of physical and mental disability with respect to an accommodation, service, or facility customarily available to the public contrary to s. 8 of the Human Rights Code when the Strata refused her request for an accessible parking stall closer to her unit.
[2] The Strata denies discriminating. It disputes that Ms. Pearce has a disability that requires accommodation. It says providing her with an accessible parking stall would be an undue hardship because it would inconvenience other residents of the strata. It says Ms. Pearce’s true motivation for requesting a different parking stall is because she does not get along with the tenant who is in the neighboring parking stall. It applies to dismiss the complaint under s.27(1)(b) because, it says, the allegations do not set out facts that contravene the Code, under s.27(1)(c) because, it says, there is no reasonable prospect the complaint will succeed, under s.27(1)(d)(i) because, it says, proceeding with the complaint will not benefit Ms. Pearce, and under s.27(1)(e) because, it says, the complaint was brought for improper reasons.
[3] For the following reasons, I deny the application to dismiss. I have considered each of the Strata’s argument for dismissing the complaint. In my view, Ms. Pearce has set out an arguable contravention of the Code. I am not persuaded that the complaint has no reasonable prospect of success because the Strata has not satisfied me on the evidence that it is reasonably certain to establish it accommodated Ms. Pearce to the point of undue hardship. While the Strata says the remedy Ms. Pearce seeks of an accessible parking stall is now moot because she no longer resides in the strata, I cannot say that proceeding with the complaint will not benefit Ms. Pearce for her other remedies.
[4] Finally, while I acknowledge that there is evidence of conflict between Ms. Pearce and another resident, in my view the evidence does not meet the high onus of establishing that this complaint was brought for improper reasons.
[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.
II BACKGROUND
[6] Ms. Pearce was a resident of a unit in Strata Plan KAS 487 from July 15, 2018, to June 30, 2021. Ms. Pearce says she has mobility issues that impact her ability to walk and mental health issues. Ms. Pearce’s unit was a two-story suite located on the second and third floor of a multi-unit building accessed by a common front door. The area closest to the front door is designated as a loading zone.
[7] Ms. Pearce was assigned two parking stalls by the Strata. One of the parking stalls is 50 meters from the front door. The second parking stall is 156.5 meters from the front door.
[8] On January 29, 2020, Ms. Pearce emailed the strata council president to say the person parking next to the closer parking stall was encroaching into her stall and she could not park her vehicle properly. She said the encroachment issue was ongoing and caused her to “get stuck.” Ms. Pearce said she could not use the second parking stall because she is “disabled.”
[9] On February 1, 2020, Ms. Pearce emailed the strata council president to again report that she could not access her closer parking stall because of her encroaching neighbor. She said she has mental health issues and the difficulty with parking was “severely messing with [her] calm.” She asked if the strata could set up an accessible parking stall for her.
[10] The strata president responded that they could not designate a parking stall as an accessible parking stall for Ms. Pearce. The president said he would talk to Ms. Pearce’s parking neighbor if the encroachment issue continued. The President also said the Strata intended to repaint the parking lines in the spring to ensure all parking stalls were of the same width to prevent encroachment.
[11] Ms. Pearce began using her second parking stall, further from her front door. On April 20, 2020, Ms. Pearce wrote the strata president and asked if the Strata had given any further consideration to setting up an accessible parking stall for her. The strata president invited Ms. Pearce to apply to the strata council for an accessible parking stall.
[12] On April 29, 2020, Ms. Pearce emailed the strata council. She asked them to create an accessible parking stall next to the loading zone at the building’s front entrance. Ms. Pearce said her disability made it difficult to access her vehicle in her current parking stall.
[13] On May 4, 2020, the strata council discussed Ms. Pearce’s request. They deferred the decision and tabled the request without making a motion to add an accessible parking stall or issue Ms. Pearce a new parking stall.
III PRELIMINARY ISSUE – APPLICATION TO FILE FURTHER SUBMISSIONS
[14] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Tribunal Rules of Practice and Procedure, 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]: Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. 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, para. 21.
[15] Ms. Pearce applies to file further submissions dealing with, what she says is, new evidence and arguments made by the Strata in their reply submission. Specifically, she says the Strata included an affidavit from a witness with information which the Strata had at the time they made the application, but did not include in its application. She also seeks to correct factual inaccuracies in the Strata’s summary of her complaint and response.
[16] The Strata takes no position on the application to file further submissions.
[17] I have reviewed all of the materials. I agree with Ms. Pearce that the Strata added new evidence in their reply submissions. The affidavit was from the resident of the strata who had the parking stall next to Ms. Pearce. It includes information which I find was available and could have been provided with the Strata’s application, but they chose not to do so. In these circumstances, I am satisfied that Ms. Pearce must be given a fair opportunity to respond and I allow her to do so.
[18] I grant the application for sur-reply under Rule 28(5).
IV DECISION
A. Section 27(1)(b) – No arguable contravention
[19] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code. Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon, 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low:Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56.
[20] In this case, Ms. Pearce must set out facts that, if proved, could establish that she has a disability protected by the Code, she was adversely impacted in a service the Strata ordinary provides, and her disability was a factor in the adverse impact : Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[21] The Strata argues that Ms. Pearce’s complaint does not allege an adverse impact. It says she has a parking spot that is three car stalls from the walkway to her suite and she only needs to walk further when she uses her second parking stall.
[22] I am not persuaded by the Strata’s argument. The Strata argues that the proximity of Ms. Pearce’s stall to the entrance is sufficient and there will be no change in the alleged adverse impact by moving marginally closer to the entrance. The Strata is asking the Tribunal to make a finding about the adverse impact on Ms. Pearce. I cannot consider such an argument in an application under s.27(1)(b), which focuses only on the allegations in the complaint.
[23] I find that Ms. Pearce has alleged an arguable contravention of the Code. Ms. Pearce alleges she is a person with disabilities, and she experienced an adverse impact in service because the Strata did not provide her with an adequate parking stall. Her complaint sets out a connection between her disabilities and the adverse impact because she says using her parking stall exacerbates her disabilities. If Ms. Pearce is able to prove these facts, the Tribunal could conclude that the Strata has violated the Code. I find Ms. Pearce has met the threshold under s.27(1)(b) and set out an arguable contravention of the Code. I deny the application to dismiss under s.27(1)(b).
B. Section 27(1)(c) – No reasonable prospect of success
[24] 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.
[25] Under s. 27(1)(c) the Tribunal looks at all 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. In doing so, the Tribunal does not make findings of fact.
[26] 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.
[27] In this application, the Strata argues that the complaint has no reasonable prospect of success because Ms. Pearce will not be able to prove that being denied a parking stall adversely impacted her or is connected to her disability. It also argues it is reasonably certain to prove a justification defence: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50. I will consider each argument in turn.
[28] I have already set out what Ms. Pearce will have to prove to make out her complaint at a hearing pursuant to Moore. I will not repeat it here.
[29] For the purposes of this application, the Strata does not dispute that Ms. Pearce could establish that she has mobility issues which amounts to a disability. The Strata denies that Ms. Pearce being denied a disabled parking stall is an adverse impact or that the adverse impact is connected to her disability. The Strata argues that Ms. Pearce’s existing parking stall was sufficiently close to the walkway and her requested accommodation would only bring her closer by three car stalls or 7.25 meters. It says there is no medical evidence to support that Ms. Pearce being required to walk an additional 7.25 meters adversely impacted her because of her disability.
[30] I am not persuaded by the Strata’s argument. Ms. Pearce alleges that being required to walk from her parking stall to her home aggravates her disabilities. To support her own evidence, she has put before me a medical note. The medical note states that Ms. Pearce suffers from chronic lower back pain and migraines. I acknowledge the medical note says Ms. Pearce’s disabilities were aggravated, at the time, by walking “5 minutes uphill to her home” and not the 7.25 meters the Strata says is the difference between her requested accommodation and her existing parking stall. However, I do not agree with the Strata that the medical note is only capable of showing Ms. Pearce is negatively affected only when she walks the full distance from her second parking stall.
[31] There is some evidence that suggests that walking longer distances negatively affects Ms. Pearce’s disabilities. Therefore, I cannot say that Ms. Pearce’s complaint has no reasonable prospect of success on that basis.
[32] I next turn to the Strata’s justification defence. For the reasons that follow, I am not satisfied that the Strata is reasonably certain to prove the elements of justification.
[33] To justify denying Ms. Pearce with a parking stall closer to the entrance, the Strata would have to prove that: (1) it adopted the standard for a purpose rationally connected to its function, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate Ms. Pearce to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),[1999] 3 SCR 868 [Grismer] at para. 20.
[34] The Strata does not address the first two elements of Grismer in its submissions. In the absence of specific submissions, I cannot say the Strata is reasonably certain to prove these elements. There is nothing before me to explain whether the Strata has a policy to assign parking stalls to residents or how requests from residents to change stalls are handled. There is no evidence before me about any policy and whether it was adopted in good faith. Consequently, I cannot say the Strata is reasonably certain to establish a justification defence at a hearing. On this basis I could find the Strata is not reasonably certain to make out a justification defence because every element of the Grismer test must be made out in order to succeed at a hearing. However, for the purposes of completeness, I consider their accommodation argument.
[35] The Strata focuses its submission on the third element of Grismer.It argues it would have been an undue hardship to accommodate Ms. Pearce by converting the area next to the loading zone into a parking stall for Ms. Pearce. The Strata says that 20-30 other residents of the strata use the loading zone, and it would inconvenience them if it were no longer available. Justifications that rest on impressionistic evidence or assumptions are generally suspect: Grismer at para. 31. It has long been established that some hardship is acceptable, and it is only when that hardship is undue that a respondent will satisfy the justification test: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at p. 984. What is missing in the submissions is evidence addressing how the alleged inconvenience is so onerous that it is reasonably certain to meet the undue hardship threshold. For example, there is no information before me about how often the loading zone is used by residents or the impact that may be caused if it were removed or relocated. Furthermore, as I understand from Ms. Pearce’s email to the strata president on April 29, 2020, she is not requesting the loading zone be eliminated but for the Strata to “create a disabled parking spot next to the loading zone.”
[36] Based on the materials before me, I am not satisfied that the Strata is reasonably certain to prove its conduct was justified under the Grismer analysis.
C. Section 27(1)(d)(i) – Proceeding would not benefit the complainant
[37] The Tribunal has the discretion to dismiss a complaint if proceeding with the complaint would not benefit the complainant. The Tribunal will not dismiss a complaint where proceeding with the complaint may give the complainant access to remedies under the Code: D.D. v. The Hotel and others , 2020 BCHRT 109 at para. 69.
[38] The Strata argues that proceeding with the complaint would not benefit Ms. Pearce because she is only seeking a single remedy – that a parking spot be provided. It says Ms. Pearce moved out of the strata in 2021 and will not be able to use this remedy even if she was successful in her complaint and the remedy was granted.
[39] I do not agree with the Strata that Ms. Pearce is only seeking a single remedy. While I acknowledge the Strata’s submission that the Tribunal’s electronic complaint form is confusing and the remedies being sought appears indistinguishable from headings on the Tribunal’s form, Ms. Pearce has indicated the remedies she is seeking in her complaint.
[40] In her complaint form, in addition to the specific remedy of a parking spot she has indicated she is seeking the following remedies:
Order to stop the discrimination, Compensation for injury to dignity, feelings, and self-respect, Declaration that the conduct is discrimination, Steps or programs to address the discrimination (examples: training, policy) [as written]
[41] Under the circumstances, I cannot say that proceeding with the complaint will not benefit Ms. Pearce. While I cannot say, in an application to dismiss, whether Ms. Pearce will succeed in her complaint, I cannot say that proceeding with the complaint will not benefit her because she is seeking remedies beyond the provision of a parking stall. I deny the Respondents’ application to dismiss under s. 27(1)(d)(i).
D. Section 27(1)(e) – The complaint was filed for improper purposes
[42] The Tribunal may dismiss a complaint that was filed for improper motives or in bad faith: Code,s. 27(1)(e). Dismissal under this section requires a finding of wrongdoing: Mokhtari v. Hain-Celestial Canada and others , 2007 BCHRT 196 at para. 7. This is a difficult standard to meet on a preliminary application, where parties are not subject to cross-examination.
[43] To establish an improper motive or bad faith, a respondent must do more than present a different version of events and say the complainant is wrong: Crosby v. Dairyland Fluid Division Ltd. and others , 2004 BCHRT 1 at para. 35. They must show that the complainant did not have an honest belief that the Code was violated, or was motivated by some “ulterior, deceitful, vindictive, or improper” purpose that is inconsistent with the Code: Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 2) , 2005 BCHRT 359 at para. 13. This issue is assessed objectively, because it is rarely possible to know the mind of the complainant: Johnson v. Cheng and another , 2012 BCHRT 408 at para. 57.
[44] The Strata submits that Ms. Pearce’s true motivation for requesting a different parking spot and filing her complaint is because she does not get along with the person who parks in the neighboring stall. They say the complaint was filed for improper motives and in bad faith because Ms. Pearce did not inform the Strata about a physical disability, she did not respond to the Strata’s request for information regarding her disability and requested accommodation, and Ms. Pearce posted videos of herself on YouTube where she appears to move without limitation from disabilities.
[45] I am not persuaded that the Strata’s arguments reach the “high bar” to show that the complaint was filed for improper purposes: Yaniv v. Various Waxing Salons (No. 2) , 2019 BCHRT 222 at paras. 103-106. It is undisputed that Ms. Pearce did not get along with the person in the neighboring parking stall but that alone is insufficient to infer that the overriding purpose of the complaint is improper. In my view, showing that there were other factors that may have contributed to Ms. Pearce’s decision to file her human rights complaint is insufficient to support a finding that Ms. Pearce does not have an honest belief that the Code was violated. The Strata’s argument that Ms. Pearce did not disclose and does not have a disability is disputed and, in any event, merely suggest a different version of events; one that may show Ms. Pearce failed to cooperate in the accommodation process but does not show impropriety or bad faith within the meaning of s. 27(1)(e).
[46] In my view, on the evidence before me the Strata’s assertion that Ms. Pearce was not motivated by an honest belief that her allegations are true, but instead for ulterior or improper motives is speculation. I am not satisfied on the materials before me that the Strata has met its onus under s. 27(1)(e).
[47] I find the Strata has not provided any objective evidence showing that Ms. Pearce did not have a genuine belief that she was discriminated against when she made her complaint. Accordingly, I deny the application to dismiss under s. 27(1)(e).
V CONCLUSION
[48] I deny the application to dismiss. I encourage the parties to take advantage of the Tribunal’s mediation services or otherwise try to resolve this matter by mutual agreement.
Edward Takayanagi
Tribunal Member