Bethinger and others (by McMillan and another) v. British Columbia Housing Management Commission and others, 2024 BCHRT 231
Date Issued: August 7, 2024
File: CS-006915
Indexed as: Bethinger and others (by McMillan and another) v. British Columbia Housing Management Commission and others, 2024 BCHRT 231
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:
Miranda Bethinger, Amy McMillan, Laura McLuckie,
Rachel Camille (by Sheila McMillan and Stan Skelton)
COMPLAINANTS
AND:
British Columbia Housing Management Commission (BC Housing) and
His Majesty the King in Right of the Province of British Columbia
as represented by the Ministry of Social Development and Poverty Reduction
and Ladysmith Resource Centre Association
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a)
Tribunal Member: Beverly Froese
Counsel for the Complainants: Peter Harrison
Counsel for the Respondent British Columbia Housing Management Commission (BC Housing): Anne Cochrane
Counsel for the Respondent Ministry of Social Development and Poverty Reduction: Rochelle Pauls
Counsel for the Respondent Ladysmith Resources Centre Association: Enriques Montes
I INTRODUCTION
[1] In December 2020, BC Housing and the Ladysmith Resources Centre Association [Association] entered into an Operating Agreement to provide housing to households with moderate to low incomes. Funding to construct the residential apartment building in the town of Ladysmith known as “Heart on the Hill” came from BC Housing’s Community Housing Fund.
[2] Heart on the Hill opened in 2023 and is owned and operated by the Association. It consists of 36 units. The terms of the Operating Agreement require 30% of the units to be “market units”, meaning the resident’s income cannot exceed specific moderate income limits and the rent is based on the market rent; 50% are “Rent-Geared-to-Income units”, meaning they are for residents with low incomes and the rent is calculated based on a rent scale; and 20% are “Deep Subsidy Units” for people with low incomes, in particular people on income or disability assistance.
[3] The Complainants are adults with intellectual and developmental disabilities who live in Ladysmith and their representatives. The Complainants made a complaint against the Respondents alleging discrimination under ss. 8 and 10 of the Codeon the basis of disability. Specifically, the Complainants allege that the allocation of units in Heart on the Hill is discriminatory because there are not enough “Deep Subsidy Units” reserved for persons with intellectual and developmental disabilities living in Ladysmith. In the amendment to the complaint, the Complainants say their complaint is “also a systemic complaint on behalf of all persons with intellectual or developmental disabilities who are discriminated against in securing affordable and appropriate housing”.
[4] The only allegation against the Ministry relates to the amount of monthly shelter allowance provided to eligible persons with disabilities under the Employment and Assistance for Persons with Disabilities Act [Act] and Employment and Assistance for Persons with Disabilities Regulation [Regulation]. Specifically, the Complainants allege that the low amount of the shelter allowance, combined with BC Housing’s policies, create economic barriers to access subsidized housing in Ladysmith by persons with intellectual and developmental disabilities.
[5] In February 2024, the Tribunal allowed the Ministry to apply to dismiss the complaint against it under ss. 27(1)(a) and (c) of the Codeon the ground that it is not within the Tribunal’s jurisdiction and has no reasonable prospect of success. In mid-March 2024, the Ministry made this application under both ss. 27(1)(a) and (c). The Complainants filed a response to the application and the Ministry filed a reply. BC Housing and the Association did not file any submissions on the application.
[6] In my view, this application is best decided under s. 27(1)(a) of the Code. For the reasons that follow, I grant the application and dismiss the complaint against the Ministry on the ground that it is outside the Tribunal’s jurisdiction. I find the complaint against the Ministry is a direct attack on the Actand Regulation .
[7] I have considered all the information filed by the Complainants and the Ministry. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact on the merits of the complaint.
II DECISION
A. Scope of the complaint against the Ministry
[8] In their complaint, as amended, the Complainants allege discrimination by the Respondents in the areas of tenancy and services. One of the arguments in the Ministry’s application to dismiss is that the Complainants have no reasonable prospect of proving they were in a tenancy relationship for the purposes of s. 10 of the Code. In their response, the Complainants do not make any submissions on this argument and only say they “prefer to focus on the meaning of services and apply it to the factual context of this case”.
[9] Based on my review of the complaint and materials before me, it is evident that the complaint against the Ministry was made solely in the area of services under s. 8 of the Code. For that reason, it is not necessary for me to consider the Ministry’s argument and decide whether the Complainants have a reasonable prospect of proving the complaint against the Ministry falls within the definition of “tenancy” for the purposes of s. 10 of the Code.
B. Is the complaint against the Ministry within the Tribunal’s jurisdiction?
[10] To prove the Ministry violated s. 8 of the Code, the Complainants must establish that they experienced an adverse impact with respect to a service it provides that is customarily available to the public, and that their intellectual and developmental disability was a factor in that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33. To prove their “systemic” complaint of discrimination against the Ministry, the Complainants must establish that persons with intellectual and developmental disabilities are adversely impacted with respect to a service the Ministry provides that is customarily available to the public.
[11] The Complainants and the Ministry acknowledge it is well-settled that human rights law does not impose a positive obligation on governments to provide a service customarily available to the public. They also acknowledge it is well-settled that “once government chooses to provide a service, it must not do so in a discriminatory manner”: Hasek v. BC (Ministry of Health) , 2018 BCHRT 187 at para. 78. As the Supreme Court of Canada stated at para. 41 of Auton (Guardian ad Litem) v. British Columbia (Attorney General) , 2004 SCC 78:
This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner: [citations omitted]
[12] For a complaint to fall under s. 8 of the Code, the alleged discriminatory activity must “be a service, customarily available, and customarily available to the public”: British Columbia v. Crockford , 2006 BCCA 360 at para. 78. To determine whether s. 8 is engaged, the Tribunal must first “identify the service in question, and then … determine whether that service gives rise to a public relationship between the service provider and the service user”: Gould v. Yukon Order of Pioneers , [1996] 1 SCR 572 at para. 58.
[13] The Complainants submit that determining what constitutes the service in this case is a question of mixed law and fact and should only be answered after a hearing. The Complainants cite Abraham v. Greater Vancouver Housing and others , 2008 BCHRT 41 to support its argument that “a factual foundation, established at a hearing, may be necessary to assess the application of the law”. Unlike the situation in Abraham, I find that determining what constitutes the service at issue regarding the complaint against the Ministry can be done at this stage on the materials before me.
[14] The Ministry first argues that the complaint against it does not fall under s. 8 of the Codebecause passing the Act and Regulation is not a “service”. I agree with the Ministry that the act of passing legislation or regulations is not a “service” for the purposes of the Code: Phillips v. BC Ministry of the AttorneyGeneral, 2019 BCHRT 76 at para. 14; Startek v. Ministry of Finance and another , 2022 BCHRT 117 at para. 29. However, I disagree with the Ministry that the complaint against it is beyond the Tribunal’s jurisdiction for that reason. In my view, this case is distinguishable from Phillipsand Startekbecause the Actand Regulationdo create a “service” for the purposes of the Code.
[15] In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2018 SCC 31 [Andrews/Matson] the Supreme Court of Canada recognized that a critical issue for adjudicators is whether a human rights complaint is a “direct attack on legislation” or alleges discrimination with respect to a service: at para. 57. The Court stated that:
It is uncontroversial that actions of the executive in providing services primarily available to the public are reviewable under human rights legislation. What is controversial is consideration of complaints that, in substance, solely target legislation. In reviewing such complaints, human rights tribunals are faced with the challenging task of distinguishing between administrative services and legislation. [citations omitted]
[16] When considering this critical issue, I find the Tribunal’s decision in Khabazian-Isfahani v. BC Ministry of Finance (No. 2), 2023 BCHRT 94, cited by the Ministry in its submission, to be helpful to my analysis. In that case, the complainant alleged that the strict application of the four-year time limit to apply for a refund of motor fuel tax paid and the 90-day time limit to appeal decisions denying a refund under the Motor Fuel Tax Actwere discriminatory. The complainant argued the respondent failed to consider and accommodate the impacts his mental disability had on his ability to meet the deadlines.
[17] In that case, the Tribunal found the Fuel Tax Refund Program created by the Motor Tax Fuel Actthat allows people with disabilities to apply for fuel tax refunds of up to $500 per year was a “service customarily available to the public”. It also found that the time limits to apply for the refund and to appeal decisions denying the refund were not included in that service. The Tribunal dismissed the complaint after a hearing on the basis that because there was no discretion in the Motor Fuel Tax Actfor the time limits to be varied, the complainant had not established an adverse impact regarding a service customarily available to the public.
[18] Following the approach in Khabazian-Isfahani, I first look to the Act and Regulation to determine the precise scope of the service that may be at issue and what the Complainants are asking of the Ministry: at para. 64. I note here that in their complaint, the Complainants refer to “BC government policies” that they allege have thwarted their ability to find affordable housing. The Complainants have not identified any such policies and it is evident from the materials before me that disability assistance, including the shelter allowance, was created by and is administered under the Act and Regulation. There is no evidence before me indicating that any of the Ministry’s policies are at issue in this case.
[19] A primary purpose of the Act is to provide “disability assistance” to eligible individuals with disabilities and family units, which consists of monthly support and a monthly shelter allowance. The maximum monthly support and shelter allowance are set out in Schedule A to the Regulation. For an eligible single person with disabilities, the maximum amount of support is $983.50, and the maximum monthly shelter allowance is $500 (increased from $375 in 2023).
[20] In my view the Act and Regulation establish a “service customarily available to the public”, whether it be disability assistance in general or the shelter allowance in particular. I am supported in my conclusion by the cases cited at para. 17 of Phillips relating to complaints alleging discrimination with respect to income assistance benefits, survivor pension benefits, and workers’ compensation benefits. Specifically, Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482; Ball v. Ontario (Community and Social Services), 2010 HRTO 360; Gwinner v. Alberta (Human Resources and Employment), 2004 ABCA 210, leave to appeal declined [2004] SCCA No. 342; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115; Harmer v. BC (Ministry of Human Resources),2005 BCHRT 279.
[21] I note here that in their response, the Complainants make an alternative argument that the service at issue is “shelter”. The Complainants do not elaborate on that argument and, in my view, have no reasonable prospect of establishing that the service created by the Act and Regulation is shelter.
[22] Section 24 of the Regulation expressly states that the monthly amount of disability assistance must not be more than the amount set out in Schedule A less the family unit’s net income determined under Schedule B. For that reason, in my view the service at issue does not include discretion to assess an amount for support or shelter allowance greater than that set out in Schedule A of the Regulation . In other words, the service at issue is limited to assessing an applicant’s eligibility for disability assistance and providing no more than the maximum amount of monthly support and shelter allowance allowed for in the Regulation.
[23] In their response, the Complainants allege that the Ministry has violated s. 8 of the Codebecause persons with intellectual and developmental disabilities may not be able to fully participate or participate in the same way as the general public in accessing the shelter allowance. More particularly, the Complainants allege that:
a. some private landlords are unwilling to rent to people with intellectual and developmental disabilities;
b. some people with intellectual and developmental disabilities are not able to manage money or other affairs such as completing forms;
c. people with intellectual and developmental disabilities do not have the same “guile” to secure accommodation as members of the general public, including people with physical disabilities;
d. some people with intellectual and developmental disabilities cannot avail themselves of the service because they cannot first secure shelter;
e. compared to the general public, people with intellectual and developmental disabilities are in greater danger of experiencing negative health consequences if they cannot access adequate shelter; and
f. the shelter allowance rate applies an “obvious fallacy”, in that it is the same amount regardless of where the person lives even though rent amounts vary throughout the province.
[24] The Complainants say they will be able to present evidence at the hearing to show the obstacles and barriers that people with intellectual and developmental disabilities face when they are forced to move to another community to find cheaper shelter.
[25] I make no findings of fact regarding the Complainants’ allegations as to if or why people with intellectual and developmental disabilities face barriers when trying to access affordable housing. My only consideration at this stage is to determine if the complaint against the Ministry is within the Tribunal’s jurisdiction.
[26] In my view, it is evident from the complaint and the Complainants’ response that the essence of their complaint against the Ministry is that the amount of shelter allowance is too low for adults with intellectual and developmental disabilities to be able to find affordable housing in their community.
[27] The Complainants have identified difficulties that people with intellectual and developmental disabilities allegedly face in accessing affordable housing. They have not, however, made allegations that could support a finding that the Ministry confers disability assistance generally or the shelter allowance specifically in a discriminatory manner. For example, none of the Complainants allege they were denied a shelter allowance because they have an intellectual or developmental disability, nor do they allege that the Ministry relied on negative stereotypes about people with intellectual and developmental disabilities when assessing their eligibility for benefits: Khabazian-Isfahani at para. 62.
[28] Based on the materials before me, it is apparent that what the Complainants seek is an amount of shelter allowance for adults with intellectual and developmental disabilities that is higher than that allowed under the Act and Regulation. As I have found that the service at issue does not include providing a shelter allowance higher than that allowed under the Regulation, what the Complainants seek is not a benefit that exists under the statutory scheme. For that reason, I agree with the Ministry that the complaint against it is a direct attack on the Actand Regulation and, therefore, outside the Tribunal’s jurisdiction.
[29] In their response, the Complainants appear to allege that the complaint includes an allegation of discrimination against the Ministry as funder or indirect funder of Heart on the Hill. The complaint, as amended, does not make this allegation. I have not considered it in this decision because if, in fact, the Complainants are making such an allegation, it is a new allegation, and they did not apply under Rule 24(4) of the Tribunal’s Rules of Practice and Procedureto amend the complaint to add it.
III CONCLUSION
[30] The Ministry’s application to dismiss the complaint against it under s. 27(1)(a) of the Codeis granted.
[31] The proper way for the Complainants to pursue their complaint against the Ministry is to continue with their Court action seeking relief under s. 15 of the Canadian Charter of Rights and Freedoms .
Beverly Froese
Tribunal Member