Fath v. Paseska, 2024 BCHRT 239
Date Issued: August 14, 2024
File: CS-007747Indexed as: Fath v. Paseska, 2024 BCHRT 239
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:
Cheyanne Fath
COMPLAINANT
AND:
Michael Paseska
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: Cheyanne Fath
On his own behalf: Michael Paseska
I INTRODUCTION
[1] On October 5, 2022, Cheyanne Fath filed a complaint of discrimination in tenancy based on ancestry, place of origin, mental and physical disability, family status and lawful source of income contrary to s. 10 of the Human Rights Code[Code], against Michael Paseska [the Respondent].
[2] The issue before me with respect to timeliness is whether to accept the complaint against the Respondent. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, I find that it is in the public interest to accept the late filed complaint for filing.
II BACKGROUND TO COMPLAINT
[4] Ms. Fath is Indigenous with a history of childhood trauma.
[5] In June 2020, Ms. Fath rented a basement apartment from Mr. Paseska which she shared with her mother. It also appears that her sister resided in the apartment with her at some point as well. Ms. Fath received government shelter assistance to pay for a portion of her rent.
[6] A few weeks after moving in, Ms. Fath alleges Mr. Paseska drugged and sexually assaulted her following an evening they spent together outside in a common area of the property. Following this incident, Ms. Fath alleges that she suffered ongoing physical and mental abuse by the Respondent. This included Mr. Paseska coercing her into a sexual relationship by threatening to evict her if she did not comply. Ms. Fath also alleges Mr. Paseska evicted her on several occasions while holding onto her personal possessions and pets as part of his abusive behaviour.
[7] Throughout the tenancy, Ms. Fath alleges Mr. Paseska verbally assaulted her and sent her numerous racist texts. In the complaint form materials, she quoted from and provided screen shots of documentary evidence of his numerous derogatory and negative Indigenous comments and slurs. Ms. Fath believes these actions were made by Mr. Paseska for the purposes of isolating and controlling her. She also detailed allegations of Mr. Paseska’s Indigenous slurs related to her family.
[8] During the tenancy, Ms. Fath alleges Mr. Paseska prevented her from leaving by using her mental disabilities (PTSD and depressive disorder) and physical disabilities (substance use disorder) to control her. She reports Mr. Paseska pushed substances on her and uttered threats about holding onto her belongings and pets as part of gaining and maintaining this control.
[9] During the tenancy, Ms. Fath alleges Mr. Paseska tried to force her to commit fraud by adding him on to the government benefits she received as a spouse.
[10] In early August 2020, Ms. Fath alleges Mr. Paseska evicted her after becoming jealous when she visited with a male friend.
[11] In her early August 2020 government benefits application questionnaire, Ms. Fath states she was homeless and hungry because of Mr. Paseska’s mental abuse and coercion.
[12] It appears that Ms. Fath returned to live in the tenancy again, however.
[13] In October 2020, Ms. Fath went to a women’s shelter and sought the assistance of police in the return of her cats and belongings from Mr. Paseska.
[14] It appears that Ms. Fath returned to live in the tenancy again, however.
[15] On December 1, 2020, Ms. Fath alleges she tried to move out of the house she lived in with Mr. Paseska. However, she reports Mr. Paseska coerced her into staying by not allowing her to take her belongings and telling her he would not return her legal documents or cat unless she has sex with him.
[16] On December 5, 2020, Ms. Fath alleges Mr. Paseska attacked her at the bottom of the stairs as she tried to get back to her room. During the attack she alleges that he strangled her, and she pretended to faint so that he would let her go.
[17] It appears that Ms. Fath’s tenancy with Mr. Paseska permanently ended soon after this incident.
[18] On December 13, 2020, Ms. Fath applied for supplemental government benefits related to moving out from Mr. Paseska’s house. She reported being stalked by him and worried about being found by him.
[19] On July 25, 2021, Ms. Fath reports Mr. Paseska confronted her at the beach while she was walking her dog. She alleges Mr. Paseska verbally assaulted her and chased her until she got to a safer location that was not isolated. Ms. Fath alleges the police attended to de-escalate the situation.
[20] Ms. Fath reports Mr. Paseska discovered where she lived some time in 2021 and sent texts and emails threatening to run her over with his car should he spot her on the street.
III ANALYSIS AND DECISION
[21] 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.
[22] 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: Chartier v. School District No. 62, 2003 BCHRT 39.
A. Time Limit
[23] The complaint was filed on October 5, 2022. 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 October 5, 2021.
[24] The allegations of discrimination in this case occurred from July to December 2020 when Ms. Fath rented an apartment from Mr. Paseska. In my view, Ms. Fath’s later negative interactions with Mr. Paseska are related to the continuing effects or consequences of the tenancy discrimination allegations and are not capable of forming complaint allegations on their own: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District v. Parent obo the Child, 2018 BCCA 136 at para. 50.
[25] As such, the complaint is late-filed and I proceed 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: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[26] 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.
[27] I have first considered the length of delay in filing. As noted above, the allegations in this case occurred up to December 2020. As such, the complaint was approximately 10 months late, which is substantial: Molefe v. United Church of Canada,2004 BCHRT 147, at para. 12. However, such a delay is not a bar to accessing the Tribunal’s process. Rather it must be considered together with other considerations, including the reasons for delay: Mziteat para. 55.
[28] Ms. Fath provided several reasons for her delay in filing a complaint with the Tribunal after the one-year timeframe. She reports experiencing periods of homelessness and substance use related to dealing with the trauma incurred while living in the tenancy with Mr. Paseska. Ms. Fath states she was unable to seek assistance with filing her complaint until after she went through trauma counselling and established stable housing. She reports living with crippling fear of contact with Mr. Paseska and did not have any support in making her complaint until recently.
[29] Once Ms. Fath established relationships with community-based services, she states that she began addressing her issues with Mr. Paseska in limited ways at the direction of her support workers. First, she started the process of retrieving her rental deposit back from the landlord. Next, she filed a Civil Resolution Tribunal claim for the return of her belongings. At the same time, Ms. Fath reports that she was going to counselling and looking for stable housing and work. She claims all her efforts could only have been made with the guidance and support of community services workers. In particular, she reports being advised by those supporting her to proceed with one process at a time due to her limited capacity and the support workers’ limited capacity.
[30] In an undated letter, Ms. Fath’s practicing clinical counsellor reported having almost weekly meetings with her since June 2021. Through her observation of Mr. Fath, as well as Ms. Fath’s own observations during sessions, the counsellor identified the following factors contributing to the delay in filing:
· Fear of Mr. Paseska and retaliation
· Fear due to Mr. Paseska engaging in stalking tendencies
· Ms. Fath’s unstable living situation, including homelessness
· Ms. Fath’s lack of support and advocacies
· Ms. Fath’s problematic use of substances related to coping with previous abuse from Mr. Paseska
· Ms. Fath’s trouble navigating systems – which included the RCMP being unable to assist with charging Mr. Paseska with any crime
· Ms. Fath’s family situation challenges that reduced her ability to manage the situation with Mr. Paseska
· Racial remarks, manipulation, and abuse from Mr. Paseska that impacted Ms. Fath’s overall well-being , and mental health
[31] In an October 27, 2023, letter, a peer support worker recounted their assistance of Ms. Fath beginning in November 2020. At that time, the support worker describes Ms. Fath as wanting out of the living arrangement, wanting her items and personal documents back, and wanting to prevent another person from going through what she experienced with Mr. Paseska. These goals were assessed as being daunting and overwhelming for Ms. Fath due to her personal safety vulnerabilities and not knowing who could assist her. The support worker recounted arranging for Ms. Fath to be interviewed by police in March 2021 in relation to Mr. Paseska’s conduct. They also helped Ms. Fath find proper housing, a job, income assistance, and a doctor. The support worker also organized a meeting with a tenancy advocate in March 2021. She was then introduced to a legal advocate who assisted her in an arranging for a protection order by the RCMP, starting a Civil Resolution Tribunal action to have her personal items returned, and finally filing a human rights complaint.
[32] Mr. Paseska argued the merits of the case by alleging Ms. Fath’s tenancy ended when she voluntarily entered a consensual relationship with him in July 2020 after one month of living in the house. In response to the time limit issues, Mr. Paseska submits that Ms. Fath’s reasons for late filing do not attract the public interest as she has always faced issues of homelessness, along with the use of substances to self-medicate for various disabilities. It appears Mr. Paseska is arguing that Ms. Fath had a level of functioning sufficient to not attract the public interest as her reported reasons for late filing were long-term issues around which she could have navigated to file in time.
[33] I have first considered whether Ms. Fath’s fear of retaliation by Mr. Paseska attracts the public interest in allowing her late filed complaint to proceed. Section 43 of the Codeprotects individuals against retaliation for filing a complaint. With this protection in place, fear of potential retaliation generally does not militate towards accepting a late-filed complaint as being in the public interest: Mullholland v. City of Vancouver, 2015 BCHRT 170 at para52; Fehr and another v. Alexander Laidlaw Housing Co-operative, 2012 BCRHT 232 at para 16; and Kafer v. Sleep Country Canada and another, 2013 BCHRT 137 at para 29. In the circumstances of this case, I find Ms. Fath has provided specific reasons for fearing retaliation by the Mr. Paseska if she filed a complaint with the Tribunal. Ms. Fath’s allegations include prior physical and mental abuse by Mr. Paseska during the tenancy. She further alleges Mr. Paseska was violent towards her when she met him on the beach in July 2021 such that the police were called to de-escalate the situation. Finally, Ms. Fath indicates Mr. Paseska continued to threaten her physically by messaging her that he would run her over if he came across her while driving in the small city where they reside. During the timeframe for filing and for much of the period leading up to filing the Complaint, Ms. Fath was focused on eliminating any contact she had with Mr. Paseska for reasons related to her safety. In these circumstances, I find Ms. Fath has provided reasons for fearing Mr. Paseska’s would retaliate if she filed a complaint that attracts the public interest in allowing her to file late.
[34] I have also considered whether Ms. Fath’s mental and physical disabilities attract the public interest in allowing the Complaint to proceed late filed. Where delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth, 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments that result in great trouble coping with even the basic daily tasks of life: Naziel- Wilson v. Providence Health Care and another, 2014 BCHRT 170at para. 21.
[35] Ms. Fath reports descending into homelessness, falling into deep despair, and feeling shame about her ancestry following her experience of living with Mr. Paseska. She states that as a direct result of his discriminatory and predatory behaviour, she suffered a significant decline in her mental and physical health. Ms. Fath’s counsellor supports the conclusion that her delay in filing is attributable to mental and physical disabilities symptoms related to her experience with Mr. Paseska. In the circumstances of this case, I find Ms. Fath’s disabilities from filing a complaint as a reason for her delay attracts the public interest. In reaching this conclusion, I rely on her own evidence of disability from filing during the relevant time and that of her treating clinical counselor. Ms. Fath was clearly struggling mentally and physically after leaving the tenancy in mid 2020 and it took a significant amount of time, including counselling, for her to regain the ability to engage others to support her in filing the Complaint.
[36] Ms. Fath also states she waited to file a complaint as part of an overall strategy for success based on the advice of those assisting her with her recovery. Her decision to engage in one process at a time appears to be related to her reduced capacity related to disability and following her advisers’ advice about prioritizing her legal actions. Finally, taking on one process at a time appears to have also been driven to some extend by the Ms. Fath’s advisers’ limited ability to assist. In the circumstances of this case, I accept that Ms. Fath had to make choices about the timing for pursuing various avenues of redress given her limited capacity and the limited resources of the help organizations she was accessing. In my view, this reason for late filing attracts the public interest in allowing the Complaint to proceed.
[37] In reaching this conclusion I have considered whether Ms. Fath’s advisers should have told her to start the Complaint in time with the understanding that it would take many months for the Tribunal to process it. Given the Tribunal’s currently backlog, filing in time would have resulted in Ms. Fath having nothing to do for a year or two before the parties were notified that the Complaint was proceeding and a date for a Tribunal assisted mediation was scheduled. In this case, however, I accept that considerable work was involved in assisting Ms. Fath to set out the details of her complaint in the form needed to initiate it. Given her limited capacity to file and the limited resources of her advisers to assist, I am satisfied that they could not have quickly filed the complaint in time and waited for it to proceed later when there was more capacity to navigate the process.
[38] 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.
[39] Ms. Fath states she is filing her complaint to prevent other vulnerable members of the community from being taken advantage of by Mr. Paseska. She attached evidence of others being mistreated by him following her time in the house. In response, Mr. Paseska states he is no longer renting rooms and he does not see any good coming out of pursuing these allegations for anyone. While acknowledging Ms. Fath’s concerns about others falling victim to Mr. Paseska’s mistreatment of his tenants, I am not satisfied that her complaint raises a novel issue that should be heard by the Tribunal to advance the purposes of the Code. Unfortunately, complaints involving Indigenous racism in tenancy continue to be filed and this area is fairly settled: see for example, Smith v. Mohan (No. 2) , 2020 BCHRT 52.
[40] On balance, I am satisfied Ms. Fath’s reasons for late filing her complaint related to her fear of retaliation and being precluded from filing due to her disabilities outweighs the 10-month delay in filing and a lack of public interest associated with the nature of the complaint itself. It is now necessary to address the issue of whether any substantial prejudice would result.
C. Substantial Prejudice
[41] The Respondent submits he will experience substantial prejudice because he has lost most of the evidence supporting his view that he was in a consensual relationship with Ms. Fath that ended her tenancy before the allegations in questions occurred. It appears that evidence was amassed by him during a separate process at another Tribunal.
[42] Ms. Fath states she kept a lot of documentary and electronic evidence explaining the Complaint in detail despite her delay in filing. I note she already provided a significant amount of this evidence in support of this application.
[43] In my view, no substantial prejudice would result to the Respondent because of the delay. In this case, the parties can apply for the release of records amassed by the other tribunal for the purpose of that proceeding if Mr. Paseska did not retain copies of evidence submitted. It also appears that Ms. Fath retained electronic records, including texts sent by Mr. Paseska, that likely ensures important documentary evidence is available during the Tribunal’s process. While appreciating Mr. Paseska ultimately may not a have access to documentary evidence supporting his view that the tenancy ended when he entered a relationship with Ms. Fath, he will get a chance to give his oral evidence on this issue at a future hearing into the merits of this case.
[44] As such, I have determined Ms. Fath has satisfied the burden of establishing both elements under s. 22(3) of the Code and I cannot conclude that the Respondent would suffer substantial prejudice.
IV CONCLUSION
[45] For these reasons, the complaint is accepted for filing.
Steven Adamson
Tribunal Member