Levin v. Domus Management Ltd. and others, 2024 BCHRT 259
Date Issued: September 10, 2024
File: CS-003149
Indexed as: Levin v. Domus Management Ltd. and others, 2024 BCHRT 259
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:
Frank Levin
COMPLAINANT
AND:
Domus Management Ltd., Violeta Barjasic, and Oliver Garbsch
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and 27(1)(g)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Eliza Lynn Brown
Counsel for the Respondents: Veronica Franco
I INTRODUCTION
[1] Frank Levin is a tenant in a building managed by Domus Management Ltd. [Domus] He alleges that Domus and two of its employees discriminated against him, based on his disability, by preventing him from receiving assistance from his caregivers. The Tribunal accepted the complaint on the ground of his physical disability.
[2] Mr. Levin alleges three specific instances of discrimination: he says that in 2016 the Respondents forced his caregiver to move out of his apartment, in 2020 they prevented his caregiver from parking in the driveway in front of his building, and in 2021 they attempted to prevent a different caregiver from entering the building. He also says a Domus employee has harassed him throughout his tenancy, which aggravated his disability.
[3] The Respondents deny that Mr. Levin experienced any adverse treatment connected to his disability. They say he did not give them enough information about his need for a caregiver, and they reasonably accommodated him once he did. They also say his allegation from 2016 was filed too late, and the Tribunal should not accept it. They apply to dismiss this part of the complaint because it occurred more than one year before the complaint was filed, and the rest of the complaint because it has no reasonable prospect of success.
[4] For the following reasons, I allow the Respondents’ application, and I dismiss the complaint. I find the 2016 incident is not part of a continuing contravention of the Human Rights Code, along with Mr. Levin’s other allegations, and I decline to accept it. I find that even if the Respondents harassed Mr. Levin, he has no reasonable prospect of proving this was connected to his disability. With respect to his 2020 and 2021 allegations about the Respondents interfering with his caregivers, I find the Respondents are reasonably certain to prove their conduct was justified, because at the relevant times they could not have known that the individuals involved were Mr. Levin’s caregivers.
[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.
[6] I apologise to the parties for the Tribunal’s delay in making this decision.
II BACKGROUND
[7] Mr. Levin has lived in an apartment, in a building managed by Domus, since 2004. Violeta Barjasic and Oliver Garbsch are employed by Domus. Ms. Barjasic is a resident manager in Mr. Levin’s building. Mr. Garbsch oversees the management of multiple buildings, and is Ms. Barjasic’s supervisor.
[8] In 2015, Mr. Levin had a heart attack. He says his recovery was slow, and he had no one to help him with daily tasks.
[9] Around October 2015, Mr. Levin’s friend, RA, came to stay with him. Mr. Levin initially believed it would only be a brief stay, while RA looked for work. Mr. Levin’s tenancy agreement says non-tenants may only reside in the apartment for up to two weeks in a calendar year, unless the landlord gives permission for non-tenants to stay longer.
[10] On November 5, 2015, Mr. Levin sent an update about RA to Ms. Barjasic. His email said:
a. RA’s initial employment plans had not worked out, so his stay with Mr. Levin would have to be extended;
b. RA was supporting Mr. Levin by cooking and helping care for him; and
c. Mr. Levin was aware of the two-week maximum for guests and was grateful to Ms. Barjasic for bending the rules for him.
[11] Ms. Barjasic’s reply said she could no longer bend the rules, and RA would have to move out within two weeks. In response, Mr. Levin sent her a doctor’s note, dated November 6, 2015, saying he needed a live-in caregiver while recovering from his heart attack. RA continued to live in Mr. Levin’s apartment.
[12] Mr. Levin says Ms. Barjasic has been hostile to RA ever since he started visiting Mr. Levin, in 2010. He says she harassed RA based on his race, and accused him of vandalism and theft, and she never accepted that he was providing care for Mr. Levin.
[13] On January 15, 2016, Mr. Garbsch sent Mr. Levin a letter. It said:
a. He had breached his tenancy agreement by not seeking the landlord’s permission for RA to live in his apartment for more than two weeks;
b. The landlord had agreed to accommodate his need for a live-in caregiver on a temporary basis;
c. The landlord understood that Mr. Levin had now recovered from his illness; and
d. If RA did not move out by February 15, 2016, the landlord would take steps to end Mr. Levin’s tenancy.
[14] On January 18, 2016, Mr. Levin told Mr. Garbsch he would agree for RA to move out by February 29, 2016. RA moved out on that date.
[15] In his response to the application to dismiss, Mr. Levin says he had not fully recovered when RA moved out. He says he continued to have limited energy, he used a cane, and he still needed support. But he does not suggest that he told the Respondents he still needed RA’s support, or that he had not recovered, after he received Mr. Garbsch’s letter.
[16] After 2016, Mr. Levin continued to have health problems. Although RA had moved out, Mr. Levin says he continued to visit the apartment about once a week, to assist Mr. Levin with household tasks and grocery shopping.
[17] On September 8, 2020, RA came to the building to pick up Mr. Levin and take him shopping. He parked in the driveway of the building while he waited for Mr. Levin. The Respondents say the driveway is used for pickups and drop-offs and emergency vehicle access, and parking is generally not permitted so as to keep the driveway clear.
[18] Ms. Barjasic says RA was parked in the driveway, on September 8, 2020, for over 20 minutes, when she approached him and asked him to move. Mr. Levin says RA was only there for five minutes, and he was not blocking anyone’s access to the driveway. Ms. Barjasic says RA refused to move. She does not say what happened next. Mr. Levin says she told RA he was banned from parking in the driveway ever again.
[19] Shortly after this incident, Mr. Levin sent an email to Ms. Barjasic, asking her to reverse the ban on RA parking in the driveway. The email said he still needed RA’s help with daily tasks, and he would make sure RA never blocked the driveway again.
[20] On September 11, 2020, Mr. Garbsch sent a letter to Mr. Levin, saying Mr. Levin’s guests could park in the driveway, for short periods, when visiting Mr. Levin.
[21] Mr. Levin filed this complaint in January 2021. He filed an amendment to the complaint in May 2022.
[22] On February 18, 2021, Mr. Levin asked his friend, PS, to stay with him because Mr. Levin had just undergone a medical procedure and he needed overnight support. At that time there were pandemic-related public health orders in effect that restricted gatherings in private residences. As PS entered the building with Mr. Levin, Ms. Barjasic approached them and said PS was not allowed in the building. Mr. Levin says Ms. Barjasic was rude and yelled at them, but PS entered the building anyway. Mr. Levin says he later called Ms. Barjasic and told her he had recently undergone a medical procedure and PS was staying with him as an overnight caregiver. He says Ms. Barjasic did not believe him and said he was “mentally ill”.
[23] Ms. Barjasic says that based on her understanding of public health orders, PS was not allowed in the building. But it appears that PS was able to stay with Mr. Levin overnight. Mr. Levin does not suggest that Ms. Barjasic took any steps to remove PS from the building.
[24] The next day, Mr. Levin sent an email to Mr. Garbsch, to confirm he had undergone a medical procedure. He also accused Ms. Barjasic of harassing him, and asked Mr. Garbsch to stop the harassment. In response Mr. Garbsch said he let Ms. Barjasic know about Mr. Levin’s request, but it does not appear that he took any further action. Mr. Levin sent another email to Mr. Garbsch, saying Ms. Barjasic had been harassing him constantly for years, and in the future she should only contact him by email.
[25] Mr. Levin says Ms. Barjasic continued to harass him, after February 2021. He refers to an incident in September 2021 when he gave her a form related to his tenancy, and she called him a vulgar word. He says his health declined because Ms. Barjasic’s conduct caused stress for him, and he has changed his daily routines to avoid running into her.
III DECISION
A. Section 27(1)(g)
[26] There is a one-year time limit for filing a human rights complaint: Code,s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[27] 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: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50.
[28] Section 27(1)(g) of the Code permits the Tribunal to dismiss late-filed allegations in a complaint. The Respondents say the part of the complaint alleging that they forced RA to move out of Mr. Levin’s apartment in 2016 is late-filed, and this allegation should not be seen as part of a continuing contravention of the Code along with the parts of the complaint about events in 2020 and 2021.
[29] 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 209at 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 204at para. 14.
[30] Mr. Levin says his allegations are of the same character because they relate to the Respondents’ failure to accommodate his physical disability. In response to a question on the complaint form about the gaps in time between his allegations, he says he did not list all his issues with Ms. Barjasic. He says that since the pandemic began, he had to rely more heavily on RA, so RA was in the building more often, and he was subject to more abuse by Ms. Barjasic. But he does not give any examples of this abuse, after 2016, until the September 2020 incident in the driveway. In his response to the application to dismiss he does not address the gap in time between the part of the complaint alleging the Respondents forced RA to move out, in 2016, and his allegations from 2020 and 2021.
[31] Even if Mr. Levin’s allegations are all related to the Respondents’ failure to accommodate his physical disability, the gap in time between the allegations is significant: it was over four and a half years between the date when RA moved out, in February 2016, and the date when Ms. Barjasic tried to stop RA from parking in the driveway, in September 2020. Mr. Levin says he continued to need a caregiver during this period, and RA visited him weekly, but he does not give any examples of harassment or discrimination between February 2016 and September 2020.
[32] In the absence of any explanation for the gap between Mr. Levin’s allegation from 2016 and his allegations from 2020 and 2021, I find the earlier allegation does not amount to a continuing contravention of the Codealong with the later ones. This means the part of the complaint alleging the Respondents forced RA to move out, in 2016, is late-filed.
[33] Next I must consider whether to accept the late-filed part of the complaint. Under s. 22(3) of the Code, the burden is on the complainant to persuade the Tribunal to accept the complaint, considering the public interest and whether it would cause substantial prejudice to any person.
[34] In assessing the public interest in a late-filed complaint, the Tribunal considers factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220at para. 53 and 63; Hoang v. Warnaco and Johns,2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. The inquiry is always fact and context specific.
[35] In Mr. Levin’s complaint form he says his problems with Ms. Barjasic go back many years, but he did not often complain because he thought it would be pointless. I understand this to mean that he did not complain to the Respondents because he thought it would be pointless. He does not explain why he did not file a human rights complaint sooner. His response to the application to dismiss did not include any submissions about why proceeding with the part of the complaint alleging the Respondents forced RA to move out, in 2016, would be in the public interest.
[36] There was a delay of almost five years between the date when RA moved out, in February 2016, and the date when Mr. Levin filed his complaint, in January 2021. Without any explanation for this delay, and without any submissions about the public interest in proceeding, I am not persuaded that it is in the public interest for the Tribunal to accept the part of the complaint alleging the Respondents forced RA to move out, in 2016. It is therefore unnecessary for me to consider whether accepting the late-filed part of the complaint would cause substantial prejudice to any person.
[37] I dismiss the part of the complaint alleging the Respondents forced RA to move out, in 2016.
B. Section 27(1)(c) – No reasonable prospect of success
[38] The Respondents apply to dismiss the rest of the complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). 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.
[39] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at 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. 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 942at para. 77.
[40] 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.
[41] To prove his complaint at a hearing, Mr. Levin will have to prove he has a characteristic protected by the Code, he was adversely impacted in his tenancy, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to the Respondents to justify the impact as a bona fidereasonable justification. If the impact is justified, there is no discrimination.
[42] In their application to dismiss, the Respondents do not deny that Mr. Levin has a physical disability, but they deny that he was subject to any adverse treatment, or that there was any connection between his disability and the alleged adverse treatment. They say they accommodated him as soon as they learned of his need for accommodation. If they can show that they are reasonably certain to prove a defence at a hearing, the complaint has no reasonable prospect of success: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[43] Based on his complaint, as amended, and his response to the application to dismiss, I understand Mr. Levin to allege that the Respondents are responsible for two related forms of adverse treatment. The first is the negative treatment of his caregivers, including the incident when Ms. Barjasic asked RA to move his car from the driveway, in September 2020, and when she tried to prevent PS from entering the building, in February 2021. He says these incidents made it more difficult for him to get the care he needed. The second form of adverse treatment consists of ongoing harassment of Mr. Levin by Ms. Barjasic, which Mr. Levin says led to a decline in his health due to increased stress, and made him feel less secure in his home. I will address each of these forms of adverse treatment in turn.
a. Negative treatment of caregivers
[44] I find that even if Mr. Levin proved that the negative treatment of his caregivers caused an adverse impact on him, the Respondents are reasonably certain to prove their conduct was justified, because they could not reasonably have known, at the relevant times, that RA and PS were his caregivers.
[45] Although Mr. Levin did not explicitly make this argument, I considered whether Ms. Barjasic had a duty to inquire whether he needed accommodation, before she asked RA to move his car, in September 2020, or before she told PS he was not allowed in the building, in February 2021. But even if the Respondents knew Mr. Levin had a disability and needed a caregiver, on the evidence before me, they are reasonably certain to prove they did not have sufficient information to alert them to the possibility that RA and PS were his caregivers, at the time of these interactions with Ms. Barjasic.
[46] In the 2020 incident when RA parked in the driveway, Mr. Levin suggests that Ms. Barjasic should have known that RA was his caregiver before she asked RA to move his car. Mr. Levin says she knew he had a disability, and that RA had been his caregiver in the past. He says RA continued to visit him weekly to help him out with chores. But he also says RA was his friend, and started visiting him years before he needed a caregiver. He does not suggest that he ever told the Respondents that RA continued to be his caregiver, until after the incident in the driveway. In these circumstances, I find the Respondents are reasonably certain to prove Ms. Barjasic did not have sufficient information to alert her to the possibility that RA may have been there to provide care for Mr. Levin, when she asked him to move his car out of the driveway.
[47] In the 2021 incident when Ms. Barjasic tried to stop PS from entering the building, the Respondents say she did not know PS was Mr. Levin’s caregiver. Mr. Levin says he was under no obligation to request accommodation in advance. But it appears he did not tell Ms. Barjasic PS was his caregiver until after he and PS entered the building and went to his apartment. He says PS was his friend, and he does not suggest that PS had ever acted as his caregiver before. Again, I find the Respondents are reasonably certain to prove Ms. Barjasic had no reason to suspect that PS was there as Mr. Levin’s caregiver, at the time when she tried to stop him from entering the building.
[48] Mr. Levin relies on Lapidus v. Pioneer Park Co-operative Housing Association and others , 2018 BCHRT 28,where the Tribunal declined to dismiss a complaint alleging that a housing co-operative discriminated by not allowing the complainant to have a caregiver reside with her. In Lapidus, the respondents refused to allow the caregiver to become a member of the co-operative, which would have allowed him to stay, without giving any reasons for the refusal. The complainant had to move out of her home because the respondents would not allow her caregiver to stay there.
[49] I do not find the situation in Lapidus to be analogous to the 2020 and 2021 incidents involving RA and PS. Unlike the complainant in Lapidus, Mr. Levin was not forced to decide between having a live-in caregiver or moving out of his residence. The evidence before me suggests that in both the 2020 and 2021 incidents, the Respondents did not try to enforce any rules that would have prevented Mr. Levin from receiving care, after he explained that RA and PS were his caregivers.
[50] In September 2020, once Mr. Levin notified the Respondents that he still needed RA’s support, they allowed Mr. Levin’s visitors—including RA—to park in the driveway for short times. There is no evidence before me suggesting that Mr. Levin’s caregivers ever had a problem parking in the driveway again. As for the incident In February 2021, Mr. Levin says that when he told Ms. Barjasic that PS was his caregiver she did not believe him, but he does not suggest that she took any steps to stop PS from remaining in his apartment, or to prevent PS from entering the building again.
[51] A respondent is not responsible to accommodate disability-related needs that it could not reasonably have been aware of: Student (by Parent) v. School District, 2023 BCHRT 237 at para. 89. At the time of the 2020 and 2021 incidents, the Respondents are reasonably certain to prove Ms. Barjasic’s conduct was justified, under the Code, because she could not reasonably have been aware that RA and PS were providing care for Mr. Levin, until Mr. Levin told them so. Mr. Levin does not suggest that the Respondents prevented him from receiving care from RA and PS, after he explained to them that RA and PS were his caregivers.
[52] For these reasons, I find the part of Mr. Levin’s complaint alleging discrimination based on the Respondents’ negative treatment of his caregivers has no reasonable prospect of success.
b. Harassment by Ms. Barjasic
[53] Mr. Levin also alleges ongoing harassment by Ms. Barjasic, in addition to the 2020 and 2021 incidents involving RA and PS. He says she has made negative and disrespectful comments on multiple occasions, and this behaviour makes him feel less safe and secure in his home. He says she causes him stress, which aggravates the symptoms of his disability.
[54] In his response to the application to dismiss, Mr. Levin refers to several examples of Ms. Barjasic’s harassment and hostility, to him and his caregivers. He says she was hostile to RA going back to 2010, before Mr. Levin had a heart attack and required a caregiver, and she continued to be hostile to him when he stayed with Mr. Levin in 2015 and 2016. Mr. Levin says the September 2020 incident involving RA parking in the driveway and the February 2021 incident involving PS were also part of this pattern of hostility by Ms. Barjasic. Finally, Mr. Levin says she called him a vulgar word in September 2021.
[55] It is clear that the relationship between Ms. Barjasic and Mr. Levin has soured over the years, and it appears that she has not always acted professionally towards him. However, for the following reasons, I find that Mr. Levin has no reasonable prospect of proving his disability was a factor in her harassment and hostile behaviour.
[56] Mr. Levin’s own evidence suggests that his disability was not a factor in Ms. Barjasic’s hostility towards his caregivers. He says her hostility towards RA is related to RA’s race, and it started years before RA began acting as his caregiver. He does not suggest that PS faced any hostility from Ms. Barjasic, after Mr. Levin explained to her that PS was his caregiver. He says Ms. Barjasic called him “mentally ill” when he explained that PS was his caregiver, but he does not explain how this comment could be connected to his physical disability. Nor does he suggest that his disability was a factor in the incident where she called him a vulgar word, in September 2021.
[57] Mr. Levin says Ms. Barjasic’s harassment caused him stress, which aggravated his condition, and caused him to change his daily routines to avoid running into her. But even if she is responsible for aggravating his disability, this does not mean his disability was a factor in the adverse impact on him. The Tribunal has found that conduct causing stress and anxiety is not necessarily discriminatory: Vandale v. Town of Golden and others , 2009 BCHRT 219 at para. 43. Mr. Levin does not suggest that Ms. Barjasic harassed him because of or in relation to his stress or his disability.
[58] I understand how Ms. Barjasic’s conduct created stress for Ms. Levin, which could have aggravated his disability. But on the evidence before me, I find he has no reasonable prospect of proving that his disability was a factor in her conduct.
IV CONCLUSION
[59] I dismiss the part of the complaint alleging the Respondents forced RA to move out, in 2016, under s. 27(1)(g) of the Code . I find the rest of the complaint has no reasonable prospect of success, and I dismiss it under s. 27(1)(c).
Andrew Robb
Tribunal Member
Human Rights Tribunal