Sutherland v. Country Park Village Properties (Duncan) Ltd. and another, 2024 BCHRT 279
Date Issued: October 2, 2024
File: CS-000588/19393
Indexed as: Sutherland v. Country Park Village Properties (Duncan) Ltd. and another, 2024 BCHRT 279
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:
Michael Sutherland
COMPLAINANT
AND:
Norman Eden and Country Park Village Properties (Duncan) Ltd.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Amber Prince
On their own behalf: Michael Sutherland
Counsel for the Respondents: Nicholas Vaartnou
I INTRODUCTION
[1] Michael Sutherland filed a complaint against Country Park Village Properties [Country Park] and a director for Country Park, Norman Eden [together, the Respondents or Landlords ]. Mr. Sutherland alleges that the Landlord discriminated against him in tenancy, based on mental disability, in violation of s. 10 of the Human Rights Code [Code].
[2] Country Park is a manufactured home park. Mr. Sutherland’s grandmother was a tenant at Country Park [Grandmother]. Mr. Sutherland, and his mother, JS, lived with the Grandmother as occupants [together, the Sutherlands]. On August 29, 2019, the Grandmother was evicted from her tenancy at Country Park, as a result of a decision by the Residential Tenancy Branch [RTB]. The basis for the eviction was Mr. Sutherland’s conduct towards a neighbour, CS [neighbour]. As a consequence of the eviction, the Grandmother, JS, and Mr. Sutherland had to leave the tenancy.
[3] The basis for Mr. Sutherland’s complaint can be summarized as follows:
· He has a mental disability, which means that his behaviour is more childlike. At his Grandmother’s tenancy, his child-like behaviour included playing ball in the yard.
· The neighbour made up or exaggerated complaints about him because he branded Mr. Sutherland as a “mental patient” and someone to fear.
· The Respondents accepted the neighbour’s complaints without hearing Mr. Sutherland’s side of the story.
· The Respondents did not consider his mental disability when they issued the eviction.
[4] The Respondents deny discriminating against Mr. Sutherland. They also say that Mr. Sutherland’s complaint has no reasonable prospect of success because the substance of it was already decided by the RTB.
[5] For the reasons that follow, I find that Mr. Sutherland’s complaint has no reasonable prospect of success. Accordingly, I dismiss his complaint under s. 27(1)(c) of the Code.I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[6] Below, I summarize the background to Mr. Sutherland’s complaint for context. I take this background from the materials filed by the parties. I have considered all of their materials, but only refer to what is necessary to explain my decision. I make no findings of fact.
[7] Mr. Sutherland was an occupant at Country Park from 2008 until his eviction in 2019. In 2015, CS moved in next door. There is no dispute that Mr. Sutherland and CS came into conflict with one another.
[8] From 2016 to 2019, CS complained to the Landlord about Mr. Sutherland’s conduct, including:
- Name-calling – He frequently swore at CS and called him a “nazi.” Mr. Sutherland does not dispute referring to CS as a nazi and the materials before me indicate that he did on several occasions: Norman Eden Affidavit, Exhibit D, p. 26-27.
- Hitting the ball – He repeatedly hit a ball against the side of CS’ house, or into CS’ yard, which caused a disturbance and damaged CS’ plants. Without permission, Mr. Sutherland would retrieve his ball in CS’ yard. Mr. Sutherland acknowledged playing ball in his Grandmother’s yard but said that he only ever hit a ball into CS’ yard by accident. He acknowledged retrieving his ball from CS’ yard on two occasions.
- The signage – He placed a sign in his Grandmother’s yard directed at CS’ yard, stating “Nazi suck shit.” At the RTB hearing, Mr. Sutherland confirmed that he made the sign to let CS know that “he was Nazi” after CS put up a fence around his yard: Eden Affidavit, Exhibit G, p. 75.
- The compost pile and fence – He knocked over CS’ compost pile on a daily basis and damaged his fence. At the RTB hearing, Mr. Sutherland admitted that he did kick over CS’ compost pile daily because it was blocking the light and damaging a cedar tree. He also said that CS erected a fence to antagonize the Sutherlands.
[9] In response to CS’ complaints about Mr. Sutherland, the Landlord wrote 13 letters to the Sutherlands asking that they address these concerns. In some of their communications, the Respondents asked the Sutherlands to meet to discuss and resolve these concerns. In their communications the Respondents repeatedly warned that Mr. Sutherland’s conduct was putting his Grandmother’s tenancy at risk. In response to one of these letters, Mr. Sutherland replied: “Fuck off ya wacko woozies!”: Eden Affidavit, Exhibit D, p. 36.
[10] On April 17, 2019, the Respondents issued an eviction notice to the Grandmother in accordance with s. 40 of the Manufactured Home Park Tenancy Act : Eden Affidavit, Exhibit D, p. 21 . The basis for the eviction notice was Mr. Sutherland’s alleged conduct towards CS. The Sutherlands disputed the eviction notice. As a result, the RTB held a hearing to decide whether the Respondents had cause to evict the Sutherlands.
[11] The RTB hearing took place, by conference call, on July 11 and 16, 2019, before Arbitrator McKay. The issue before Arbitrator McKay was whether Mr. Sutherland significantly interfered with or unreasonably disturbed CS, allowing the Respondents to end the Grandmother’s tenancy, and evict the Sutherlands.
[12] At the hearing, the following witnesses gave evidence: CS; NR, the Manager for the Landlord; JP, the Administrative Manager for the Landlord; and the Sutherlands – Mr. Sutherland, his mother JS, and his Grandmother. After considering the evidence, Arbitrator McKay determined that Mr. Sutherland significantly interfered with, and unreasonably disturbed CS. Arbitrator McKay came to this conclusion after finding that:
· The Landlord submitted substantial documentary evidence which confirms that this has occurred for a number of years. Despite repeated warnings, over the course of nearly four years, that her tenancy was in jeopardy due to her grandson’s behaviour, [Mr. Sutherland] continues to behave in a way which significantly and unreasonably disturbs C.S.
· I accept C.S.’s testimony that the situation has become totally unbearable. I also accept his evidence that he is subjected to [Mr. Sutherland’s] behaviour on a daily basis and now fears for his safety. C.S. has brought this to the Landlord’s attention on numerous occasions and the documentary evidence supports his statement and his testimony as to the severity and frequency of the disturbances.
Eden Affidavit, Exhibit G, p. 70.
[13] As a result of the decision, Arbitrator McKay granted the Landlords with an order of possession. The Sutherlands did not challenge the RTB decision through judicial review to the BC Supreme Court. However, Mr. Sutherland filed a human rights complaint on July 26, 2019.
III ANALYSIS
[14] The question before me is whether Mr. Sutherland’s human rights complaint has no reasonable prospect of success under s. 27(1)(c) of the Code.
A. Section 27(1)(c) of the Code
[15] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. As part of this gate-keeping function, the Tribunal has discretion to dismiss a complaint if the complaint has no reasonable chance of succeeding at a hearing: Lord v Fraser Health Authority, 2021 BCSC 2176, para. 19.
[16] The Tribunal does not make findings of fact on a dismissal application, as it would at a hearing. Instead, the Tribunal considers the whole of the evidence to decide whether there is no reasonable prospect that a complaint could be proven, after a full hearing of the evidence: Byelkova v Fraser Health Authority, 2021 BCSC 1312, para. 24; Francescutti v. Vancouver (City) , 2017 BCCA 242, para. 52. The Tribunal bases its decision on the materials filed by the parties; not on what evidence might be given at the hearing: University of British Columbia v. Chan, 2013 BCSC 942, para. 77; Conklin v University of British Columbia, 2021 BCSC 1569, para. 32.
[17] The onus is on the applicant to show there is no reasonable prospect a complaint will succeed:Byelkova, para. 27. At this stage, the complainant must show that their allegations are based on more than speculation:Lord, para. 19.
[18] To prove discrimination, Mr. Sutherland would have to prove at a hearing that the Respondents evicted him for reasons related to his disability: Moore v. BC (Education), 2012 SCC 61 at para. 33. If, based on the dismissal application materials, Mr. Sutherland has no reasonable chance of proving discrimination, I may dismiss his complaint under s. 27(1)(c) of the Code. Even if Mr. Sutherland has a reasonable chance of proving discrimination, I may still dismiss his complaint under s. 27(1)(c), if it is “reasonably certain” that the Respondents would prove that their conduct was justified: Purdy v. Douglas College and others , 2016 BCHRT 117, para. 50.
[19] In this case, the Respondents argue that Mr. Sutherland’s complaint has no reasonable chance of success because the substance of his complaint was already determined by the RTB. There is no question that the RTB made findings about the dispute between Mr. Sutherland and CS. These findings were the basis for Arbitrator McKay’s decision to allow the Respondents to end the Grandmother’s tenancy and evict the Sutherlands.
[20] As Mr. Sutherland points out, the RTB cannot decide if someone was discriminated against: Application to Dismiss Response, p. 1. The RTB does not have jurisdiction to apply the Human Rights Code: Manufactured Home Park Tenancy Act, s. 5.1. However, where parties have litigated an issue and obtained a final decision on that issue in another forum, the doctrine of issue estoppel may prevent the parties from litigating that same issue before this Tribunal: Seignoret v. Bakonyi Holdings and others , 2019 BCHRT 277, para. 30; Fox v. Strata Plan KAS 1911 and others , 2018 BCHRT 259, para. 32; Krsmanovic v. Snowflake Trading, 2012 BCHRT 113, para. 24.
[21] Next, I consider whether the doctrine of issue estoppel applies to Mr. Sutherland’s human rights complaint. When issue estoppel applies, the Tribunal may dismiss a complaint on the basis that it has no reasonable prospect of success: Seignoret, para. 30; Fox, para. 32; Krsmanovic, paras. 24-25.
B. Issue Estoppel
[22] The test for issue estoppel has two steps. First I must decide if the preconditions of issue estoppel apply. Those preconditions are: (1) the same issue has already been decided; (2) the previous decision was final; and (3) the parties or their “privies” were the same in the previous and current proceeding: Danyluk v. Ainsworth Technologies Inc ., 2001 SCC 44, para. 25. The burden is on the party seeking to rely on issue estoppel to establish the preconditions: Danyluk, para, 33. If the preconditions are met, I then determine whether, as a matter of fairness, I should apply issue estoppel: Danyluk, para. 33; Penner v. Niagara (Regional Police Services Board) , 2013 SCC 19, paras. 36-39.
Precondition 1: Did the RTB decide the same issue?
[23] I begin with the first pre-condition of estoppel: Has the issue before this Tribunal already been decided by the RTB? To succeed in his human rights complaint, the Tribunal would need to find that Mr. Sutherland’s mental disability was a factor in the eviction, and that the Respondents’ conduct surrounding the eviction was unjustified: Moore , paras. 33, and 49. This issue turns on findings about the reasons for the eviction.
[24] In the RTB proceeding, Arbitrator McKay made findings about the basis for the eviction, as follows:
· The basis for the eviction was Mr. Sutherland’s conduct which was significantly interfering with and unreasonably disturbing the Sutherlands’ neighbour, CS.
· CS was subjected to Mr. Sutherland’s conduct on a daily and ongoing basis. The situation had become “totally unbearable” for CS, and he feared for his safety.
· Despite the Respondents’ “repeated warnings, over the course of nearly four years, that [the Grandmother’s] tenancy was in jeopardy due to her grandson’s behaviour, [Mr. Sutherland] continues to behave in a way which significantly and unreasonably disturbs C.S.”
Eden Affidavit, Exhibit G, p. 70-72.
[25] As a result of these findings, Arbitrator McKay found that the Respondents had proven the reasons for the eviction, and upheld it: Eden Affidavit, Exhibit G, p. 71-72. The Arbitrator found as a fact that Mr. Sutherland was significantly inferring with and unreasonably disturbing CS, and as a result, the Respondents were justified in issuing an eviction notice for cause. Arbitrator McKay found that Mr. Sutherland’s conduct continued despite the Respondents’ attempts – over years – to address the issue short of an eviction notice.
[26] In my view, the first precondition of issue estoppel is met because the RTB has already decided the main factual questions that Mr. Sutherland’s human rights complaint would pose: what was the basis for the Respondents’ eviction notice, and was it justified?
[27] In arriving at this conclusion, I recognize that it is possible for an eviction to be discriminatory even when it is upheld by the RTB. The RTB considers residential tenancy law, and not human rights law to decided whether an eviction is valid. This Tribunal must also consider whether a protected characteristic was a factor in an eviction. Mr. Sutherland says the Respondents assumed that he was not believable in connection with his mental disability and did not consider his disability in pursuing the eviction. In a human rights analysis, a respondent may rebut a connection between a protected characteristic and an adverse impact by giving evidence of a non-discriminatory reason for the adverse impact: Bragg v. Aquilini Investment Group and another, 2015 BCHRT 166, para. 17. That is the case here. The findings of the RTB support a non-discriminatory explanation: Mr. Sutherland’s repeated and ongoing conduct towards CS.
[28] The findings of the RTB also support the Respondents’ evidence that they “provided the Sutherlands with more opportunities to address the issues between Mr. Sutherland and [CS] than typically would be afforded to a tenant because of Mr. Sutherland’s stated disability”: Eden Affidavit, para. 18. The Respondents’ evidence that they had sent 13 warning letters to the Sutherlands from December 2016 to February 25, 2019 was before the RTB: Eden Affidavit, Exhibit G, p. 64. Arbitrator McKay noted that in response to one of these warning letters, Mr. Sutherland responded with “F[uc]k off ya wacko woozies!”: p. 66. Arbitrator McKay went on to find as a fact that the Respondents had “clearly tried to resolve matters without ending this tenancy”: p. 70. The evidence about the Respondents’ extra efforts due to Mr. Sutherland’s stated disability is also evidence that the Respondents were justified in their conduct surrounding the eviction.
[29] In the end, the RTB made factual findings about the same issues raised in Mr. Sutherland’s human rights complaint: the Respondents evicting the Sutherlands, and their conduct towards Mr. Sutherland in pursuing the eviction. The Tribunal is bound by these findings: Christensen v. Save-A-Lot Holdings Corp. (No. 2) , 2021 BCHRT 91, para. 48; Krsmanovic, para. 48. In the face of the RTB findings about the reasons for his eviction, Mr. Sutherland has no reasonable prospect of showing a connection between the eviction and his disability. Further, given the RTB’s findings around the Respondents efforts surrounding the eviction, I am reasonably certain that the Respondents could justify their conduct if Mr. Sutherland’s human rights complaint proceeded to a hearing.
[30] The first precondition of issue estoppel is met, and I consider the second precondition next.
Precondition 2: Was the RTB’s Decision Final?
[31] The RTB decision was a final and binding decision, subject only to the right to apply for reconsideration or judicial review: Knight v. Sunshine Coast Campground Group Ltd ., 2024 BCCA 121, para. 30. I have no evidence before me that a reconsideration or judicial review was commenced with respect to the RTB decision, in the timeframe to do so. Unsurprisingly then, there is no evidence before me that the RTB decision was reversed in any respect on appeal. Accordingly, the RTB decision stands as a final decision and the second pre-condition of estoppel is met: Giles v. Westminster Savings Credit Union, 2006 BCSC 1600, paras. 35-41 (upheld in Giles v. Westminster Savings Credit Union , 2007 BCCA 411).
Precondition 3: Are the parties to the complaint the same parties or privies to the RTB proceeding?
[32] Mr. Sutherland and the Respondents were directly involved in the RTB process and participated in the RTB hearing. Mr. Sutherland says that he was not able to fully participate in the RTB process. Instead, he says that he only had status as a witness and was not able to make full arguments or given a “full voice” at the RTB hearing: Response to Dismissal Application, p. 1. In the RTB decision, Mr. Sutherland is referred to as a “witness on behalf of the Tenant [Grandmother]” rather than a party: Eden Affidavit, Exhibit G, p. 61-62. This accords with the RTB’s jurisdiction to resolve disputes between landlord and tenants: Manufactured Home Park Tenancy Act , s. 51. Mr. Sutherland was not a tenant but an occupant at his Grandmother’s tenancy.
[33] I take Mr. Sutherland to be arguing that: he was not a party in the RTB proceeding; therefore, he should not bound by the RTB decision; and issue estoppel does not apply because the parties here are not the same parties that were before the RTB. Even if Mr. Sutherland was not a party in the RTB process, I need to consider whether he was a “privy” as part of the issue estoppel analysis.
[34] A privy is a person who has parallel interests with a party in a proceeding: Giles, para. 60; Tham v Bronco Industries Inc ., 2017 BCSC 828, para. 207 (upheld in Tham v. Bronco Industries Inc ., 2018 BCCA 207). A parallel interest may occur as a result of a blood/family relationship, shared title or other interest: Child K (by Ehmke) and another v. Queen of All Saints School and another , 2024 BCHRT 150, para. 95. To qualify as a privy, the person must have had notice of the earlier proceeding, a right to participate in it, and be bound by the finding in that proceeding: XY, LLC v. Canadian Topsires Selection Inc ., 2014 BCSC 2017, citing with approval, Donald J. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: Butterworths, 2010), para. 89.
[35] Factors relevant to assessing whether a person was a privy in the previous proceeding include whether the person: had knowledge of the previous proceeding; had a clear interest in the proceeding; had the ability to intervene as a participant in the proceeding by giving evidence; and was being part of the litigation team: XY, para. 89. A person may also become a privy if they “insert themselves into the litigation”: XY, para. 99.
[36] I have considered these factors and conclude that Mr. Sutherland was a privy in the RTB proceeding for several reasons. First, he had parallel interests with parties in the RTB proceeding: his Grandmother and mother. His Grandmother was a party in the RTB proceeding because she was the tenant. His mother was a party because she acted as an agent for the Grandmother at the RTB hearing. Mr. Sutherland, his Grandmother, and mother all shared a common interest as close relatives living together in the Grandmother’s tenancy. Their common interest was to dispute the eviction notice and maintain the tenancy.
[37] Second, Mr. Sutherland had knowledge of the risk of eviction years before getting notice of the eviction itself. He was aware that the eviction risk stemmed from the Respondents’ concerns about his conduct. The evidence points to, and the RTB found that, the Sutherlands had multiple opportunities to address the Respondents’ concerns before getting the eviction notice. The eviction notice itself could not have been a surprise to any of the Sutherlands.
[38] Third, Mr. Sutherland was an active participant in disputing the eviction. With his mother and Grandmother, he filed an “Application for Dispute Resolution” with the RTB to dispute the eviction notice. This triggered the RTB hearing to determine the validity of the eviction notice. The sole issue before the RTB was whether Mr. Sutherland’s conduct warranted the eviction notice. Mr. Sutherland had notice of the RTB hearing and then the ability to give full evidence on the only issue before the RTB: his conduct. His interests were otherwise aligned with and represented by his Grandmother and mother.
[39] Fourth, Mr. Sutherland was bound by the RTB’s findings and decision as an occupant of the tenancy. Like his Grandmother and mother, he had to leave the tenancy.
[40] The third precondition of issue estoppel is met.
Is it otherwise unfair to apply issue estoppel in this case?
[41] Since the preconditions of issue estoppel are met, I consider next whether it is otherwise unfair to apply the doctrine of issue estoppel in this case. The purpose of issue estoppel is to promote the orderly administration of justice but not at the cost of a real injustice or unfairness in a particular case: Danyluk, para. 67.
[42] In Penner, the Supreme Court of Canada set out general principles to assess whether, in exceptional circumstances, it would be unfair to apply the doctrine of issue estoppel. There are two broad considerations. First, whether there was an unfairness in the prior decision. Second, even where the prior decision was fair, it may still be unfair to use the results of the prior decision to preclude the later claim: Penner, paras. 39-48. I have considered these principles and see no unfairness in applying issue estoppel to Mr. Sutherland.
[43] First, I do not find any unfairness in the RTB Decision. The Sutherlands, including Mr. Sutherland, had notice of the eviction and the basis for it. Mr. Sutherland had a fair opportunity to refute the basis for the eviction at the RTB hearing, which centred on his conduct. Any challenges to the fairness of the RTB proceeding should have been made by judicial review: Gatica and another obo Temporary Foreign Workers from Guatemala v. Golden Eagle Blueberry Farm and others (No. 3) , 2024 BCHRT 154, para. 36.
[44] Second, I do not find it unfair to rely on the RTB decision to preclude Mr. Sutherland’s human rights complaint. The Sutherlands understood that the RTB hearing would consider Mr. Sutherland’s conduct and decide whether it warranted an eviction. In my view, it is fair to hold Mr. Sutherland to the results of the RTB decision.
[45] Mr. Sutherland is estopped from re-litigating the basis for his eviction. Since his human rights complaint is centred on this issue, I conclude that it has no reasonable chance of success.
IV ORDER
[46] Mr. Sutherland’s complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
Amber Prince
Tribunal Member