Agbebiyi v. BentallGreenOak (Canada) Limited Partnership and another, 2024 BCHRT 213
Date Issued: July 24, 2024
File: CS-005470
Indexed as: Agbebiyi v. BentallGreenOak (Canada) Limited Partnership and another, 2024 BCHRT 213
IN THE MATTER OF THE HUMAN RIGHTS CODE
R. S. B. C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Babajide Agbebiyi
COMPLAINANT
AND:
BentallGreenOak (Canada) Limited Partnership and Rocky Oquendo
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: Babajide Agbebiyi
Counsel for the Respondents: Sherry Yu
I Introduction
[1] On November 4, 2021, Babajide Agbebiyi filed a complaint based on race and colour contrary to s. 10 of the Human Rights Code [Code], against his former property management company, BentallGreenOak (Canada) Limited Partnership, and its manager, Rocky Oquendo [together the Respondents].
[2] The issue before me is whether the complaint is a continuing contravention of the Codeunder s. 22(2), and if not whether it is in the public interest to accept any late-filed allegations of discrimination under s. 22(3) of the Code. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, I do not find the complaint is a continuing contravention of the Code: s. 22(2), and it is not in the public interest to allow the proceed late filed: s. 22(3).
II Background
[4] Mr. Agbebiyi identifies as a person of colour.
[5] In April 2020, Mr.Agbebiyi rented an apartment managed by the Respondents. He notes that at the start of his tenancy Mr. Oquendo provided him with his keys at the end of a stick for reasons apparently related to pandemic safety. Mr. Agbebiyi wonders whether his race was a factor in Mr. Oquendo deciding to deliver the keys in this manner.
[6] On May 4, 2020, Mr.Agbebiyi reports receiving a letter from another management company employee accusing him of using cannabis in the building. He alleges the Respondents targeted him with the accusation as he was only person of colour residing in the block. The Respondents deny that they targeted Mr. Agbebiyi as others were similarly notified. However, Mr. Agbebiyi alleges his immediate neighbour, a white older woman, did not receive a letter about cannabis use from the Respondents.
[7] On May 4, 2020, Mr. Agbebiyi alleges he sought out an apology from the Respondents for falsely accusing him of cannabis use, but only received a personal apology from the building manager in his personal capacity.
[8] Throughout the remainder of 2020, Mr.Agbebiyi alleges that he had various interactions with representatives of the Respondents who took a defensive posture towards his concerns while diminishing the validity of his grievances. He describes the Respondents’ approach as hindering the prospect of finding a fair resolution while contributing to an atmosphere of hostility and unease.
[9] In late 2020, Mr. Agbebiyi states he abandoned his lease with the Respondents for reasons related to the discrimination experienced. He reports that he moved to a different location in the neighbourhood before departing the province to live elsewhere in Canada.
III ANALYSIS AND DECISION
[10] Section 22 of the Codeprovides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within one year of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
a. it is in the public interest to accept the complaint, and
b. no substantial prejudice will result to any person because of the delay.
[11] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently and to allow respondents the comfort of performing their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[12] The issues in this decision are whether the Complaint is a continuing contravention of the Code: s. 22(2), and if not, whether it is in the public interest to allow Mr. Agbebiyi’s late-filed allegations to proceed: s. 22(3).
A. Time Limit and Continuing Contravention
[13] The complaint was filed on November 4, 2021. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination had to occur on or after November 4, 2020.
[14] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City),2015 BCCA 57 at para. 23; School District at para. 50.
[15] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67 at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[16] The Complaint sets out allegations in April and May 2020 when Mr. Agbebiyi received his keys and the letter about cannabis use. These allegations are late filed unless there are other timely allegations capable of bringing them in as part of a continuing contravention of the Code. Mr.Agbebiyi refers to the ongoing effects of the Respondents’ actions occurring within the timeframe for filing the complaint. In particular, he alleges the Respondents attempted to damage his credit score when a collection agency logged amounts owed, presumably related to damage he made when he moved out[the credit score allegations]. Mr.Agbebiyi states that he had these reports of amounts owed removed by the Consumer Protection BC as the collection agency had not sent him a copy of the amounts allegedly owed. He asserts the credit score allegations were a consequence of the Respondents’ actions that could justify the timeliness of his complaint. If I understand Mr. Agbebiyi correctly, he is arguing the existence of timely credit score allegations of discrimination capable of tethering his out of time allegations to create a continuing contravention of the Code: s. 22(2).
[17] In this case, Mr. Agbebiyi’s further problems related to ending his tenancy are properly characterized as consequences of his decision to end his tenancy, rather than separate arguable contraventions of the Code. While he appears to allege further harms occurred in relation to his credit score because the Respondents somehow directed a collection agency to pursue funds owed by him, in my view these are not allegations of discrimination capable of proceeding as arguable contraventions of the Code because Mr. Agbebiyi has not provided any information indicating his race or colour was a factor in the harms alleged: Moore v. British Columbia (Education), 2012 SCC 61 at para 33. While Mr. Agbebiyi asserts the Respondents had the collection agency go after him for monies owned without letting him know what was owed, he has not provided any information indicating his race or colour was a factor in this course of action taken by the Respondents. In my view, the credit score allegations were a consequence of Mr. Agbebiyi’s earlier discrimination allegations which cannot stand on their own as separate allegations of discrimination capable of forming continuing contravention of the Code.
[18] Having found all the allegations of discrimination capable of proceeding in this case were late filed, I now move on to an analysis of whether the Tribunal should exercise its discretion to accept the complaint outside the one-year time limit because it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay: Codes. 22(3). I begin with the public interest determination.
B. Public Interest
[19] Whether it is in the public interest to accept the late-filed complaint is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code : Hoang v. Warnaco and Johns, 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, 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. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mziteat para. 55.
[20] I have first considered the length of delay in filing. The allegations in this case occurred in April and May 4, 2020. As such, the complaint allegations are six months late which is significant and weighs against accepting the complaint for filing: Paneswar v. Future Shop and others, 2012 BCHRT 297, at para 27.
[21] Mr. Agbebiyi provided several reasons for his delay in filing. First, he reports having challenges with understanding the process, and a lack of trust and awareness about how to initiate the Tribunal’s complaint process. Ignorance of the Code, or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2), 2006 BCHRT 74 at para. 12; Ferrier v. BCAA, 2009 BCHRT 412 at para. 31. Mr. Agbebiyi has not provided any information indicating he should be exempt from this general rule. From my review of his submissions, he presents as an articulate individual, capable of researching and understanding his rights under the Code, including the deadline for filing a complaint. This is demonstrated in the level of sophistication of his submissions and his stated ability to have his credit score revised by the Consumer Protection BC for errors related to monies owed.
[22] Mr. Agbebiyi also states that he did not pursue a complaint for reasons related to him being a minority who is “cautious about the responsiveness of such processes”. My understanding of this reason is that he waited to file due to a lack of confidence in being able to receive a positive outcome from the Complaint as a racial minority. In my view, having concerns about whether he could succeed in his complaint as a minority, without further explanation, does not attract the public interest in allowing a late filed complaint to proceed. The Tribunal is accessible to persons of every race and colour with neutral decision makers guided by the provisions of the Code.
[23] Mr. Agbebiyi also submits that his busy work travel schedule and two moves to live in two different cities complicated his ability to file his complaint in time. Without doubting the various demands placed upon Mr. Agbebiyi’s time related to work and moving twice, this reason for late filing does not attract any public interest in allowing the complaint to proceed late filed. In my view, such time constraints are like those experienced generally by others with active lives and do no attract the public interest.
[24] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others, 2014 BHCRT 10 at para. 22; Bains v. Advanced Air Supply and others, 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code, this factor may weigh in favour of finding a public interest in accepting the complaint: Mziteat paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mziteat para. 67.
[25] Mr. Agbebiyi is concerned about the Respondents’ failure to address legitimate concerns from tenants. As a result, he fears that tenants may feel discouraged to report issues for fear of facing intimidation rather than finding a collaborative and constructive resolution. Mr. Agbebiyi believes he has a good case of discrimination related to the cannabis letter incident and asks that it proceed on the merits as opposed to being rejected on the “exploitation of a loophole” by the Respondents. While appreciating Mr. Agbebiyi is seeking justice in this case, I am unable to conclude his complaint is unique for the purposes of attracting the public interest in allowing it to proceed. The Tribunal routinely deals with cases involving discrimination in tenancy based on race and colour, and the jurisprudence in this area is fairly settled.
[26] In the end, I do not find this Complaint attracts the public interest in allowing it to proceed late filed. The Complaint was filed six months late and Mr. Agbebiyi has not adequately explained the delay. Further, the Complaint is not sufficiently unique or novel to attract the public interest. Having not found it is in the public interest to accept the late-filed complaint, I need not address the issue of whether substantial prejudice would result.
IV Conclusion
[27] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member