Montgomery-Caplette v. Goldy Kang Real Estate Group and others (No. 2), 2024 BCHRT 258
Date Issued: September 6, 2024
File: CS-006474
Indexed as: Montgomery-Caplette v. Goldy Kang Real Estate Group and others (No. 2), 2024 BCHRT 258
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:
Heather Montgomery-Caplette
COMPLAINANT
AND:
Goldy Kang Real Estate Group and Golden Ventures Ltd. and Amanpreet Singh
RESPONDENTS
REASONS FOR DECISION
APPLICATION FOR COSTS
Section 37(4)
Tribunal Member: Sonya Pighin
Counsel for the Complainant: Meredith Shaw and Alison Moore
Counsel for the Respondents: Aleksandra Mihailovic and Alejandra Henao
I INTRODUCTION
[1] In Montgomery-Caplette v. Goldy Kang Real Estate Group and others , 2024 BCHRT 172 [Montgomery No. 1], I dismissed a complaint filed by Heather Montgomery-Caplette [Ms. Montgomery] alleging that, contrary to s. 10 of the Human Rights Code, Goldy Kang Real Estate Group, Golden Ventures Ltd., and Amanpreet Singh [Respondents] each discriminated against her regarding the terms and conditions of her tenancy, and in their denial to either continue her tenancy or offer her a new tenancy. I also dismissed a retaliation complaint filed by Ms. Montgomery alleging that contrary to s. 43 of the Code, the Respondents retaliated against her after they knew she planned to file a complaint with the Tribunal by intimidating her and withholding rights and benefits from her.
[2] In Montgomery No. 1, I conducted a hybrid hearing, where the parties provided their evidence in-person and their closing submissions in writing. In the Respondents closing submissions, they applied for an order under s. 37(4) of the Code requiring Ms. Montgomery to pay them $2,000 in costs because she engaged in improper conduct. In Ms. Montgomery’s reply submissions, she responded to the Respondents’ costs application, opposing it.
[3] In Montgomery No. 1, I decided whether Ms. Montgomery had proven the complaint and the retaliation complaint. However, instead of deciding the costs application, I invited the Respondents to reply to Ms. Montgomery’s response to it. The Respondents provided their reply. Ms. Montgomery then sought the Tribunal’s permission to file further submissions on the costs application.
[4] This decision addresses both the Respondents costs application and Ms. Montgomery’s request to file further submissions on that application.
II COSTS UNDER THE HUMAN RIGHTS CODE
[5] Section 37(4) of the Code sets out that:
The member or panel may award costs
(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and
(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3).
[6] The Code does not define costs. As I have explained in Pike v. Ooh La La Café and others (No. 3), 2024 BCHRT 191 [Pike No. 3] at paras. 13 to 17, I treat the term costs as a reference to:
a. An indemnification for the legal expenses and services that a person incurs because of a participant’s improper conduct; and
b. any amount that the Tribunal determines is sufficient to:
i. hold a participant accountable for their improper conduct,
ii. deter a participant from engaging in similar improper conduct in the future, or
iii. encourage a participant to carefully assess how they conduct themselves in the Tribunal’s proceedings.
[7] The Code also does not define improper conduct. As I have explained in Pike No. 3, I treat the term improper conduct as any conduct that:
a. is a breach of the Tribunal Rules, or an order or direction of the Tribunal;
b. has a significant impact on the integrity of the Tribunal’s process; or
c. has a significant prejudicial impact on the party seeking the costs award: at paras. 18 to 25.
[8] A person who is alleging that improper conduct occurred does not need to prove that the conduct at issue was intentional: at paras. 24, 25 and 34.
[9] I have now explained what I consider to be improper conduct. Next, I turn to my decision.
III DECISION
[10] First, I deny the costs application. In making this decision, I identified each of the facts that the Respondents point to in their costs application about Ms. Montgomery’s alleged improper conduct. I also considered the arguments they made in both their costs application and their reply to Ms. Montgomery’s response to that application. Next, I assessed whether the Respondents described facts and made arguments in that application and reply which, if proven and accepted by the Tribunal, could establish that Ms. Montgomery engaged in improper conduct. The Respondents did not describe facts and make arguments that could, if proven and accepted by the Tribunal, establish that Ms. Montgomery engaged in improper conduct. It follows that they have not proven she engaged in improper conduct.
[11] I have now denied the Respondents costs application. As such, there is no need for me to decide Ms. Montgomery’s application to file further submissions because it is moot.
[12] I will now further explain my reasons for this decision.
IV ANALYSIS
[13] The Respondents argue that Ms. Montgomery engaged in improper conduct when she filed her retaliation complaint, by making statements in it that were misleading and by leaving out key facts about the context within which the Respondents conduct toward her occurred. First, they argue that Ms. Montgomery stated in the retaliation complaint that them and their agents phoned her and told her that she had to leave the property immediately. However, she left out the fact that they made these calls to her in relation to her non-payment of rent, and not in response to her telling them that she intended to file a complaint with the Tribunal.
[14] Second, they argue that Ms. Montgomery made a statement in the retaliation complaint about “visitors on May 12, 2022” that was misleading, and in doing so she did not include key facts about the context of what occurred.
[15] Third, as I understand the Respondents arguments, they say that Ms. Montgomery stated in her retaliation complaint that in response to her telling them that she intended to file a complaint with the Tribunal, on March 1, 2022, Mr. Singh banged aggressively on the door seeking possession of the property, leaving her terrified. However, in doing so she omitted the fact that on February 24, 2022, she had told the Respondents that she would vacate one of the rental suites on that property on that date.
[16] Last, the Respondents point to various additional facts that Ms. Montgomery omitted from the retaliation complaint, including that:
a. On March 7, 2022, she cancelled an e-transfer to them for rent.
b. On March 25, 2022, she only made a partial rental payment to them, and continued to occupy a rental unit of theirs that she had not paid rent for.
c. When the Respondents filed a petition against her in B.C. Supreme Court, she was in significant rent arrears and had no intention of leaving the rental unit that she was in arrears regarding.
d. During a residential tenancy board hearing, the Respondents agreed to waive all her unpaid rent and utilities obligations to them.
[17] Next, the Respondents argue that Ms. Montgomery did not disclose to the Tribunal that she was engaged in a residential tenancy board dispute with them. In addition to this, they argue that Ms. Montgomery submitted evidence to the Tribunal that was misleading.
[18] The Respondents have not pointed me to any Tribunal Rules , order or direction that Ms. Montgomery failed to comply with in her above-mentioned actions. Nor have they explained how her above-mentioned actions have had a significant impact on the Tribunal’s processes. In their reply, they argued that Ms. Montgomery’s conduct had a significant prejudicial impact on them. However, they have not explained how her conduct caused the impacts they describe in their reply.
[19] Before I conclude, I comment on the Respondents argument that Ms. Montgomery failed to put forward various pieces of evidence at the hearing and that her doing so was misleading to the Tribunal. Ms. Montgomery’s failure to produce evidence to the Tribunal is not improper conduct. When a party presents their case, it is their right to decide what evidence to present. If they decide not to present evidence that would support the other party’s case, the other party may put that evidence forward, as the Respondents did with the evidence that they point me to.
V CONCLUSION
[20] I deny the Respondents costs application. As a result, Ms. Montgomery’s request for permission to file further submissions is moot.
__________________________________
Member Sonya Pighin
Tribunal Member
BC Human Rights Tribunal