2024 BCHRT 281 - BC Human Rights Tribunal

[1] This complaint is about a landholding corporation’s refusal to approve the transfer of a landholding share to Angela Sparvier, and whether that refusal was discriminatory on the grounds of Indigenous identity, marital status and/or disability contrary to s. 9 of the Human Rights Code [Code].

[2] Brighton Beach Properties Ltd. [Brighton] is a corporation that owns land located in an area that is only accessible by boat. It contains a dock and several homes. Individuals own shares in the corporation [Shareholders] that entitle them to ownership of specific parcels located on the property [Lots]. The Shareholders are Directors of Brighton. Any contract of purchase and sale of a Lot requires Shareholder approval for the transfer of a share.

[3] Ms. Sparvier is an Indigenous woman. She learned of the Beach through her partner, Ken Starr, who is a former Shareholder. Many Shareholders harboured ill-feelings toward Mr. Starr because of the circumstances of his departure which involved the foreclosure of his Lot. Mr. Starr maintained some relationships at Brighton and visited occasionally, taking Ms. Sparvier there to socialize. Ms. Sparvier fell in love with the community and envisioned a life there. Mr. Starr and Ms. Sparvier developed a friendship with a Shareholder who was terminally ill and sought to sell her Lot. Ms. Sparvier entered into a contract of purchase and sale for that Lot and sought approval of the share transfer from the Shareholders.

[4] Ultimately, the Shareholders did not approve the transfer. Ms. Sparvier says that Brighton’s refusal was based on their dislike of Mr. Starr and their discriminatory perception of her as untrustworthy. She says this constitutes discrimination on the basis of her marital status and Indigenous identity. She also alleges her disability factored into Brighton’s assessment of her. Brighton argues that their rejection was non-discriminatory, based on the low selling price and concerns about Ms. Sparvier’s honesty and ‘respectability’, which is a criterion against which prospective Shareholders are assessed. Alternatively, Brighton says it was justified in considering Ms. Sparvier’s marital status.

[5] The issues before me are:

Whether s. 9 of the Code applies;
Whether Ms. Sparvier’s Indigenous identity, marital status or disability were factors in Brighton’s decision not to approve the transfer of a share to her; and
If so, whether Brighton was justified in decision on the basis of Ms. Sparvier’s relationship with Mr. Starr and her giving inconsistent answers about the nature of that relationship.

[6] Having considered all of the evidence, on a balance of probabilities, I have found that: s. 9 applies; Brighton discriminated against Ms. Sparvier based on marital status because her relationship with Mr. Starr was a factor in its decision to refuse to approve the transfer; and Brighton was not justified in its conduct.

[7] The parties have waited some time for this decision. I apologize for the delay and appreciate their patience.

[8] Below are my reasons. I begin by summarizing the evidence and my findings of fact. Next, I set out the law and apply it to my findings in this case.

II WITNESSES

[9] On the whole, I have found all of the witnesses to be credible and am satisfied that they did their best to provide an accurate recollection of events within their knowledge. At times, however, the evidence of certain witnesses differed from the evidence of other witnesses in respect of events relevant to the questions above. Where that is the case, I have had to decide whose evidence to prefer. In doing so, I start from the presumption that witnesses are telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. Where testimony conflicts with other evidence, I assess the trustworthiness of their testimony “based on the veracity or sincerity of [the] witness and the accuracy of the evidence that the witness provides”: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] SCCA No. 392 (QL) at para. 186.

[10] I have considered “the witness’ ability and opportunity to observe events, the firmness of their memory, their objectivity, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his pre-trial evidence by the time of trial or their testimony at trial during direct and cross-examination, whether the witness’ testimony seems implausible, and the demeanor of a witness generally”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd ., 2019 BCSC 739 at para. 90. At times, a witness may testify honestly but their evidence may not be reliable because of their inability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56at para. 41; Youyiat paras. 89-90. Where I have preferred the evidence of one witness over another, I have explained why.

[11] Angela Sparvier gave evidence on her own behalf. Brighton submits that Ms. Sparvier’s evidence is not reliable. In support of this, they point to details she did not recall during her direct testimony but then became “adamant about it on cross examination”. I do not find that these points undermine Ms. Sparvier’s credibility as a whole. I have considered weight in respect of events where Ms. Sparvier’s memory seemed less firm or inconsistent and have assessed her evidence by the standards set out above. Brighton further asserts that Ms. Sparvier, “seems to have no qualms about lying or being dishonest” and generally characterizes Ms. Sparvier as dishonest. I find this submission unnecessary and unhelpful, given among other things, that it is based on Brighton’s own characterization of Ms. Sparvier’s ‘honesty’ in her communications, which is in dispute.

[12] Ken Starr also testified on behalf of Ms. Sparvier. Brighton submits that Mr. Starr’s evidence is unreliable because he has an interest in the outcome of the proceeding and threatened Brighton with litigation before a decision was made on Ms. Sparvier’s application to Brighton. I do not agree that these points undermine the reliability of Mr. Starr’s evidence. It is often the case that a witness has an interest of some kind in the outcome of a proceeding. The same could be said of all of Brighton’s witnesses, who face possible financial implications if Ms. Sparvier’s case succeeds. That alone does not lessen the reliability of their evidence. As with Ms. Sparvier and all of the other witnesses, where the firmness of Mr. Starr’s memory of a certain event appeared less certain, I have taken that into account.

[13] Dr. Giacometti testified on behalf of Ms. Sparvier. Dr. Giacometti is the sister of the shareholder [LE] who sought to sell her share in Brighton to Ms. Sparvier. LE lived with her during the material time and had many conversations with Ms. Sparvier and Mr. Starr by speakerphone which Dr. Giacometti overheard. She was also at a meeting between her sister and Ms. Sparvier and Mr. Starr.

[14] Brighton argues that Dr. Giacometti’s testimony is not reliable because she was caught in a “payment for testimony” scheme, and Ms. Giacometti was “motivated to placate the Complainant to avoid any unpleasantness that might have followed from her actions”. At the hearing, I heard evidence of a conversation between Dr. Giacometti and Ms. Sparvier where Dr. Giacometti said that she should be entitled to compensation for testifying at the hearing. She expressed an understanding that witnesses usually were compensated somehow. Dr. Giacometti texted the next day apologizing for asking for compensation, saying she would give evidence regardless, and explaining that she was experiencing a great deal of stress from being involved in this matter. I do not agree with Brighton’s assessment. I found Dr. Giacometti open, straightforward, and coherent in giving her evidence. I accept her explanation for the request for compensation and note that she did not receive compensation ultimately. At the hearing, Dr. Giacometti explained that she had understood that chiropractors usually get paid to testify in legal proceedings, this was the fourth time Ms. Sparvier had phoned her, and she was finding it very stressful. She explained that she “couldn’t stand” having to talk about the case and was talking herself through the stress of having to be involved in the proceeding. She explained that it has been very difficult being involved in the case because she has had to revisit a very difficult time in her life, and that her involvement in the hearing has severed her welcome at Brighton, which was a community that she had an important relationship with because of her sister.

[15] Insofar as Dr. Giacometti may have seemed “agitated”, I am satisfied that she was not agitated in a way that undermined the credibility or coherence of her evidence. Like many witnesses, she was providing very personal information to a group of strangers in the context of a legal dispute in which she has no stake. She explained that her participation came at great personal cost both in terms of the stress that flowed and the negative impact on her relationship with Brighton. None of these things would support a finding that her evidence was altered or otherwise unreliable. Ultimately, I found her to be a credible witness.

[16] The Respondent called five witnesses. Mark Rasmussen is a realtor who assisted Ms. Sparvier with the attempted purchase of a lot at Brighton. Cornelia Bodo-Price is a Shareholder and was the CEO of Brighton at the time of the events in question. Susan Neale, Alexandra Seymour-Hundley and Louise Manelia are also Shareholders that sat on the Brighton executive. On the whole, I found them to be credible. As set out above, where I have preferred the evidence of one witness to another, I have set out why in my reasons.

III EVIDENCE AND FINDINGS OF FACT

[17] In this section I set out the evidence and my findings of fact, which are based on the evidence I heard and the documents submitted at the hearing. I do not refer to everything that was presented at the hearing, but only what is necessary to reach my decision.

[18] Brighton is a corporation controlled by Shareholders and governed by a Board. There are annual elections for the executive of the Board, and the Board has subcommittees. The community is tight knit with the Shareholders working together to manage and maintain the roughly 30-acre property and its shared assets. The property owned by Brighton and the community that has grown there was referred to with great affection by nearly all of the witnesses as “the Beach”, a term which I adopt in this decision to refer to the property and community as a whole [Beach].

[19] Ms. Sparvier met Mr. Starr around 2019. They live together and are engaged. They also run a small business together. In addition, Mr. Starr assists Ms. Sparvier in managing a disability that makes it difficult for her to undertake tasks such as note taking. He does this by reading her emails and taking notes during meetings, for example.

[20] Mr. Starr was a Shareholder for 10 years until 2017. Mr. Starr was diagnosed with cancer in 2016. Amidst his cancer diagnosis and family tumult he was experiencing at that time, Mr. Starr was struggling and unable to meet his financial obligations. As a result, in 2017, his share was foreclosed and sold in a court-ordered sale. This cost Brighton roughly $2,600.

[21] The foreclosure left a great deal of animosity amongst Shareholders toward Mr. Starr, whose circumstances were unknown to them. They knew only that Mr. Starr caused the cost and disruption of allowing his share to go into foreclosure. Many Shareholders also harboured some animosity toward Mr. Starr for having caused some issues with Brighton’s taxes while he was the Treasurer.

[22] After 2017, Mr. Starr maintained friendships with some Shareholders and continued to visit the Beach. Fairly early in their relationship, Mr. Starr brought Ms. Sparvier to social events or to visit friends at the Beach. Ms. Sparvier explained that she connected to the unique lifestyle that she observed there. She explained that she understood community-based land management; the times she visited, people felt friendly and inclusive; and she was drawn to the community. During her visits, Ms. Sparvier did not observe any indications that any of the Shareholders had issues with Mr. Starr.

[23] In 2019, LE, a Shareholder who lived nearly full time at the Beach, was diagnosed with cancer and given three months to live. It was very energy-intensive for LE to go to the Beach at this time because it was boat-access only. LE was also experiencing financial stress. It became necessary for her to liquidate her belongings. She moved away from the Beach to live with her sister, Dr. Giacometti. LE also listed her Lot for sale but it did not sell. Ms. Manelia is another Shareholder and was a good friend of LE. Ms. Manelia described LE as a strong community member at the Beach. She recalled the pressure LE was experiencing in the last year of her life due to the demands of keeping a property at the Beach and how that influenced her decision to sell.

[24] Around 2019, Mr. Starr became friends with LE. Dr. Giacometti, LE’s sister, testified that LE spoke with Mr. Starr frequently about their shared cancer experiences. She often overheard these conversations because LE used the speakerphone function and they lived in a shared space. In around Spring 2020, Mr. Starr introduced Ms. Sparvier to LE.

[25] Ms. Sparvier testified that she and Mr. Starr’s relationship was getting serious, and they began to look for a place to put roots down. Ms. Sparvier became interested in the prospect of residing at the Beach. She explained that owning a Lot would have furthered her connection to the land and her community. She explained that she worked with an Elder to learn spiritual practices that were tied to the land, like burying the remains of her symbolic ancestors to return them to the earth. She said that these spiritual practices were highly valued in her community and were important to her and her sense of belonging as an Indigenous woman. She testified that the forest is an important place for her and is where she goes to pray. These factored into her sense of excitement at the prospect of living at the Beach.

[26] Ms. Sparvier and Mr. Starr had asked LE about her Lot at one time, but she had said she was not selling. Later in the summer of 2020, however, LE contacted them to say she was ready to sell. Ms. Sparvier had a budget of $320,000. Mr. Starr helped with the process because he had experience with it from his time as a Shareholder. He talked with Ms. Sparvier about how to winterize a house at the Beach and what to expect for maintenance costs.

[27] As noted above, any transfer of a share must be approved by the Shareholders. Article 5.5 of Brighton’s Articles provide financial responsibilities and “respectability” as criteria for approval of a share transfer. The process normally entails a contract for purchase and sale that is conditional upon Board approval, following a “meet and greet” with the executive to assess the prospective purchaser and make recommendations back to all the Shareholders. There is then a Shareholder vote.

[28] On August 7, 2020, LE emailed the then-CEO of Brighton, Ms. Bodo-Price, advising that she was putting her Lot up for sale. Ms. Bodo-Price responded saying, “sorry to hear that. What are you asking for price?”. LE responded the next day, advising that she had sold the Lot to Ms. Sparvier, who was expecting to hear from Brighton to set up an interview. Ms. Bodo-Price again emailed saying that LE had to advise of the price, and that Ms. Sparvier would have to be accepted by the executive before closing the deal. LE then advised of the $320,000 sale price.

[29] On August 8, 2020, Ms. Sparvier entered into a contract of purchase and sale with LE for the purchase of her Lot at Brighton, for a purchase price of $320,000. Dr. Giacometti took a picture of LE and Ms. Sparvier around the dining table with Ms. Sparvier handing over a $20,000 deposit cheque to LE. Mr. Starr is in the background. Dr. Giacometti explained that she wanted to take the photo because it was an answer to a prayer to get a sale on the property given it was very remote and there had not even been “a bite” when LE had tried to sell it before. She asked that everyone remove their masks for the photo (this was during the COVID-19 pandemic) so she could see everyone smiling.

[30] The terms and conditions of the contract provided, among other things, that Ms. Sparvier was aware that she “must be approved as a suitable shareholder of Brighton Breach Properties Ltd. by the Board of Directors prior to the Completion Date”. The completion date was set as September 7, 2020.

[31] Ms. Sparvier was assisted in preparing the contract by a realtor, Mr. Rasmussen.

[32] Ms. Sparvier testified that she planned for LE to keep a room at the house on the Lot so she could have access to the place because it was very special to LE. LE would also keep her boat at the Lot. This way, LE could come and go. When they signed the contract, Ms. Sparvier felt relief and excitement because she had found a place for she and Mr. Starr to set their roots and take the next step in their relationship. She felt like she “had bought into paradise”.

[33] Mr. Starr explained that he was excited and relieved because he knew that Ms. Sparvier would have the place when he passed away. It was a place for her to be with her dog, and she would be alright. He would not be a Shareholder and was not contributing financially to the purchase.

[34] Ms. Sparvier asked LE if they could go inspect the home. LE told Ms. Sparvier and Mr. Starr where the key was, and they went on Mr. Starr’s boat. Ms. Sparvier was impressed with the house. She could see that LR had put her love there. She explained that the property that was safe for her dog and she could see herself growing and moving forward there.

A. The initial canvasing of views

[35] On August 10, 2020, Ms. Bodo-Price emailed Ms. Sparvier saying that as part of the purchase process, she would “have to meet with some of the executive for an interview and then the Directors vote on any share transfer which all has to proceed before any sale can complete.” Ms. Sparvier responded that she was taking her meetings by videoconference because of the pandemic and her partner’s cancer. Ms. Bodo-Price responded asking if the purchase would be registered under both her and Mr. Starr. Ms. Sparvier responded saying, no, that Mr. Starr is her “personal assistant. He does manage my professional and personal life but this is my house which I’m buying for my dog.” They scheduled the meeting.

[36] In her evidence, Ms. Sparvier explained that Mr. Starr helps her with anything involving notetaking. A medical note dated October 15, 2021 (after the events giving rise to this complaint) says that Ms. Sparvier would benefit from a scribe to assist with documentation. Ms. Sparvier testified that in her email, she had referred to Mr. Starr as her personal assistant to be up front about the fact that he reads all of her emails and does her “scribe responsibilities” to assist her in managing her disability. Mr. Starr had played that role for her, and she expected to rely on his assistance for the transactions related to Brighton. Ms. Sparvier explained that with respect to her comment in the email about her dog, what she meant was that because she does not know how long Mr. Starr will live, she expected to eventually live on the Lot with just her and her dog.

[37] In cross-examination, Ms. Sparvier was asked whether she described Mr. Starr as a “personal assistant” so that Brighton would not know he would be living with her. Ms. Sparvier denied this. She explained that everyone at the Beach knew they were partners, referring to the time they had spent there together. She explained she wanted them to understand that they are not “like a regular couple” because he helps her with things like reading her emails. She also explained that Mr. Starr is dying, so she expected to live there alone eventually.

[38] Ms. Bodo-Price emailed various Shareholders saying that LE had sold her share for $320,000 to Ms. Sparvier, and that they were arranging a meet and greet. One Shareholder emailed back to the whole group saying that $320,000 was “an absurd price for that house/share and devalues all of our property. If this is Ken’s girlfriend, I’m not thrilled about that either given how we all got so royally boned by Ken defaulting on his mortgage. None of us will ever be able to get a mortgage because of him.” She went on to suggest a consortium of existing Shareholders put together something in the line of $550,000 to buy the share “at a sensible price”. Another Shareholder, Ms. Manelia, emailed agreeing the price was “questionable at best”. A third Shareholder wrote that the price was “shockingly low” and significantly devalued the other shares, causing problems for others trying to sell for “more reasonable amounts”. He also supported the consortium idea. He made it clear it had nothing to do with the individuals and was only his perceived harm of the sale price.

[39] On August 12, 2020, Ms. Bodo-Price emailed the Shareholders advising that she had spoken with LE. She wrote that LE had said she was approached by Ms. Sparvier and Mr. Starr about renting to which she said no, but told them she would consider selling. Her cancer had progressed quickly, she needed money and was looking for a quick sale. Ms. Bodo-Price asked the Shareholders whether they would approve Ms. Sparvier’s purchase of the Lot or would support the consortium or another idea that would see the Lot remain within the existing Shareholders. She wrote,

I have advised [LE] that things are in progress and I have received concerns from our partners that some people don’t want Ken here and that a group of people might be willing to buy her out at the price agreed to the sale with Angela Sparvier. Angela has stated to me that ‘Ken is her personal assistant who manages her professional and personal life but this is her house and she is buying for herself and her dog.’

[…]

Our lawyer did point out that in our Article 5.5 Transfer Fee subsection ‘c’ it states ‘the Directors shall not be required to give any reason for refusing consent to any such proposed transfer’. That being said, we still have to have a Board meeting on the subject and it is a simple majority that can affect the transfer.

She went on to note that they had not yet met with Ms. Sparvier, but asked for a response ASAP if the group was in favour of the sale proceeding to Ms. Sparvier, or wanted to put together a consortium. The majority of responders said no to Ms. Sparvier’s purchase. Some specifically referenced concerns about Ms. Sparvier and Mr. Starr.

[40] Ms. Bodo-Price testified that she did not have a view at this time, but agreed with the other Shareholders’ comments that the price was very low. She felt that Mr. Starr’s default would affect everyone and observed that the deal seemed good for Ms. Sparvier and Mr. Starr but not for LE. At the same time, however, Ms. Bodo-Price emailed various Shareholders in response to the above emails, saying, that LE “did not give me any details on how and why this proposed sale came about is as much a mystery to me. Personally, I think something is off with this deal.” In her evidence, Ms. Bodo-Price said that she had heard rumours about how Ms. Sparvier had approached LE and that the price was too low. She also testified that she felt Ms. Sparvier was being dishonest in her emailed answer about who would be registered, and her explanation of her relationship with Mr. Starr. Ms. Bodo-Price said she did not accept the explanation when Ms. Sparvier said that the Lot would not be registered in both her and Mr. Starr’s names. It is not clear why Ms. Bodo-Price did not canvas her concerns or questions about the sale with LE directly when she spoke with her.

[41] Ms. Neale testified that she answered no at this point to Ms. Sparvier’s purchase because she felt uncomfortable with what she felt seemed to be inconsistent information from Ms. Sparvier about her relationship with Mr. Starr. She did want to join the consortium to make an offer at the same price as Ms. Sparvier.

[42] Another Shareholder raised express concerns about the possibility of Mr. Starr becoming a Shareholder again through Ms. Sparvier’s purchase, writing:

Please look into common law spouses and the passing of assets should her relationship with Ken end as my concern is they break up, she transfers the asset to her spouse as he’s entitled to his share and the share changes hands and she’s gone. In this economy is it really a great idea to take a chance to be left in the same position. Spouses should be considered by the beach as well. Also there are rules we vet tenants so regardless there should be a vote on the two? [X] was considered with me and we got grilled about our finances so it’s only fair!

How much money did the foreclosure cost us anyway?

[…] it’s nothing personal but I think if you foreclose there shouldn’t be any way you can in any way buy back here and the path for repeat ownership based on common law I don’t think is difficult and there’s nothing the beach can do about it should that happen down the line.

[43] Another email in the exchange was from another Shareholder looking for information on the last five or six sales prices for comparison and asking some logistical questions.

[44] An email exchange dated August 14, 2020 between Ms. Bodo-Price and yet another Shareholder showed the Shareholder asking about: Ms. Sparvier’s occupation; who was providing the mortgage and noting that her association with Mr. Starr was “cause for concern”; and logistical questions about the consortium. She wrote that the consortium could be complicated but on the other hand a profit could be made on the resale of the house. The email from the Shareholder concluded saying, “We are sorry for [LE] if the sale doesn’t go through, but [Brighton] has to live with the long-term consequences of the purchaser and her partner.”

[45] Ms. Manelia testified that she believed that LE was being manipulated because she was in a vulnerable state and the price seemed so low. She was against Ms. Sparvier purchasing the Lot, mainly because of the price but also because of her impression of Ms. Sparvier and Mr. Starr during their visits to the Beach. She acknowledged that she assumed that Ms. Sparvier had pressured LE into the sale based on the price, though she also acknowledged knowing little about Ms. Sparvier. She acknowledged that she did not want Mr. Starr back at the Beach, though Ms. Manelia said, and I accept, that for her at least, the price was a significant consideration.

[46] Amongst the majority of Shareholders who were saying no to approving the sale to Ms. Sparvier were comments, including, “yaaa… we’re not getting honest answers”; and another who did not “see them as good business partners”.

B. The Meet and Greet

[47] On August 17, 2020, Ms. Sparvier met virtually with the Board’s Executive Committee for a “meet and greet”. Ms. Bodo-Price (then-CEO), Ms. Neale and Ms. Seymour-Hundley attended from Brighton on behalf of the executive. The evidence was that these meet and greets typically lasted anywhere from 30-90 minutes. In this case, however, it lasted for about 10 minutes.

[48] Mr. Starr testified that he heard the first few minutes of the meeting as he helped Ms. Sparvier with the video and audio check. He said that when he and his former wife had their meet and greet, it had lasted 1.5 hours and started with some back and forth chatting to get to know one another. He observed that Ms. Sparvier did not have that experience. He observed that there were only 3 people not 4 from the Brighton executive because one of the members had been told the meeting would happen on the dock and was unaware it was by videoconference.

[49] Ms. Sparvier testified that she expected the meet and greet to be friendly. She felt she would be a perfect fit because of what she could bring to the community. Ms. Sparvier recalled asking at the beginning of the meeting, if she could do a land acknowledgement to start the meeting in a good way. Afterwards, Ms. Sparvier recalled that Ms. Bodo-Price immediately said, “Are you that Indian Princess from the Alberta Stampede?” [Comment]. Ms. Sparvier said she felt “belittled,” “shocked” and caught off guard. She felt that Ms. Bodo-Price’s tone was not a friendly one. She said that she answered no, and Ms. Bodo-Price asked, “actually, what do you do?” Ms. Sparvier recalled Ms. Bodo-Price then asking if she knew how Mr. Starr had left Brighton, and asked what she should tell people if they disagree with the sale.

[50] Ms. Sparvier also recalled that Ms. Neale asked why Ms. Sparvier needed a scribe, and she explained that it is due to a disability. She recalled that Ms. Neale asked if she had any advice for her son, who shares the same condition. Then Ms. Bodo-Price asked if she had children. She said that when Ms. Bodo-Price asked this, she knew it was not going well because she had already spoken of her children during the meet and greet. The Committee was required to assess Ms. Sparvier’s financial responsibilities. However, Ms. Sparvier’s evidence was that she was not asked any questions about her finances.

[51] Ms. Sparvier said her impression of how it went was “not good”. She felt that the “Indian Princess” comment set the tone for the Executive to pick on her, which she felt they did one by one. From her perspective, they were talking about Mr. Starr, not her, and asking about her disability. Ms. Sparvier had never heard the phrase “Indian Princess” before and did not know about the Stampede person. A news article from 2017 shows a photo of and reference to a “Calgary Stampede Indian Princess”, which was a person sharing the same last name as Ms. Sparvier. She suspected that she likely came across as rigid and stiff after the comment because she was having trouble regulating her emotions. She had been really excited about the meeting.

[52] Mr. Starr recalled hearing the land acknowledgement and then a comment, “So what are you, an Indian Princess?”, followed by a chuckle.

[53] Ms. Seymour-Hundley recalled a land acknowledgement, and also recalled the Comment. She acknowledged her memory was a bit vague and she did not recall the context of the Comment or mention of the Stampede. Ms. Seymour-Hundley described the discomfort level as “ebbing and flowing”, noting that the conversation about Ms. Sparvier’s disability was “tense”. She testified that she was a bit “put off” by Ms. Sparvier seeming to think she already had the Lot even though she had not even read the rules of the Corporation. She did not feel that it went very well.

[54] Ms. Bodo-Price did not recall a land acknowledgement. She said that it began with some small talk at the start and then she asked Ms. Sparvier if she was the Indian Princess, because she remembered an article about it and a pretty woman who reminded her of Ms. Sparvier. Ms. Bodo-Price denied using the exact words alleged by Ms. Sparvier in making the Comment.

[55] Ms. Bodo-Price noted that Ms. Sparvier had referred to Mr. Starr as her boyfriend, partner, and assistant at various times over the course of the correspondence. Ms. Bodo-Price recalled Ms. Sparvier again saying she was buying the Lot for herself and her dog during the meeting. Of the Comment, Ms. Bodo-Price testified that she did not know at the time that the term “Indian” is derogatory, and was not aware of the term “Indian Princess” as a derogatory term. She said that she found Ms. Sparvier was defensive throughout the meet and greet. She did not recall asking for clarification of the way Ms. Sparvier described Mr. Starr. At the same time, however, she testified that they opted to end the interview and finish it in writing because of inconsistencies in her description of her relationship with Mr. Starr. They had no idea if Mr. Starr was employed by her, but in her view she was not honest about whether she was alone or whether Mr. Starr would be living with her on the Lot. There was not clarity in which was more important for Brighton as between whether they sought to prohibit Mr. Starr from merely co-owning or owning a share or from living at the Beach at all.

[56] Ms. Bodo-Price said that she did not go into the meet and greet with her mind made up, but was concerned about the “dishonesty” about Mr. Starr, even though she took no steps to address or clarify. She also said that she had a personal concern that Ms. Sparvier and Mr. Starr were manipulating LE because she was very sick, the price was very low, but again she did not take any steps to speak with LE or otherwise look into the transaction or circumstances around it. In the meantime, Ms. Bodo-Price’s handwritten notes from the meeting are sparse and in bullet point, but note, “Ken is boyfriend”.

[57] Like Ms. Bodo-Price, Ms. Neale did not recall a land acknowledgement. Ms. Neale recalled Ms. Bodo-Price saying that she had searched Ms. Sparvier’s name on the internet and found the article about the Stampede, and Ms. Bodo-Price asked if Ms. Sparvier was the Indian Princess. Ms. Neale recalled Ms. Sparvier speaking of her connection to the land, and about her plans when she moved to the Beach, seeming to think it was a “done deal”. Ms. Neale said that Ms. Sparvier spoke of her disability, and because Ms. Neale’s son had just been diagnosed with the same thing, she asked questions about it because she was interested in what accommodations she uses.

[58] Ms. Neale recalled that the meeting did not go well or smoothly and got increasingly tense. She testified that she was bothered by the various ways Ms. Sparvier referred to Mr. Starr, and she felt like the relationship was being misrepresented. She was uncomfortable that Ms. Sparvier had not read the articles and policies and perceived her as acting like she was already part of the community despite having not done any due diligence to know these ‘important aspects of the business’.

[59] Ms. Neale acknowledged that the meet and greet with Ms. Sparvier was shorter than usual and normally includes a discussion of financing, what family or others would use the property with the candidate, and information about boating and parking. She said that usually there is small talk to get to know and assess if the person understands the commitment and what is involved in being part of the community, and is eager to be a part of it. She said that when they realized Ms. Sparvier had not read the articles or policies, they described how Brighton works.

[60] After the meeting, Ms. Bodo-Price emailed Ms. Sparvier saying that they forgot to ask a couple of questions and share some important facts. She then set out a number of points related to requirements and rules for Brighton. Included in the list were questions about how Ms. Sparvier was financing the purchase; whether she had received copies of the articles, rules, user agreement and lease and whether she had questions; whether she planned to live at Brighton full time and who would live with her; and whether she had experience boating. Ms. Bodo-Price concluded the email saying that the executive would be presenting information to the Directors to vote on the share transfer, “[b]ased on our conversation and your responses to the above and you mentioned Ken Starr as your common law partner.”

[61] Ms. Sparvier testified to being hurt by the email noting all of it should have been discussed during the meeting. She responded noting she had not yet received any articles or regulations; did not need financing; and would live at Brighton close to full-time. She also wrote,

As for the question of asking who will be living with me, I find that inappropriate. The only time I’ve ever had a business partner dictate to me on who I can have in my house was my husband and I divorced him.

Being a First Nations woman, community is everything to me. That’s how I was raised, which is one of the reasons I chose this property over the dozens I looked at.

[62] Ms. Sparvier testified that it was clear Mr. Starr would be a problem for Ms. Bodo-Price. She noted that when Mr. Starr passes away, it will just be her. Ms. Bodo-Price testified that she in turn thought it was inappropriate that Ms. Sparvier would not answer who would be living with her. She suggested that it was a safety issue given the remote location of the Property. In any event, this marked the end of Brighton’s information-gathering with Ms. Sparvier.

C. The apology letter

[63] During their visit to LE’s Lot to inspect the house, Ms. Sparvier and Mr. Starr began packing up some of LE’s belongings to take back on their boat for LE. Ms. Starr explained in his evidence that he had lost a lot of his personal treasures in the foreclosure of his Lot because he was too embarrassed to ask for help, and he did not want to see LE experience the same thing. Ms. Seymour-Hundley recalled running into Mr. Starr on the dock after the meeting, where he expressed concern that his involvement would make people think poorly of Ms. Sparvier. Ms. Seymour-Hundley suggested that he write something to explain what had happened and why he had “phantomed into the wind.” At the same time, she testified that she supported the idea of Shareholders buying the Lot, sprucing up the house, and selling it higher to keep the values higher.

[64] Mr. Starr then wrote an apology letter explaining the circumstances that had surrounded his abrupt departure and the foreclosure of his share. The executive did not circulate it to all of the Shareholders, though some saw it.

[65] Ms. Neale saw Mr. Starr’s apology letter. She testified that she felt Mr. Starr was part of Ms. Sparvier’s purchase and would be part of life at the Beach if Ms. Sparvier’s purchase were approved. She worried because of Mr. Starr’s history that they were misleading Brighton about his involvement, and that Ms. Sparvier may replicate his behaviour. In cross examination, Ms. Neale said that she did not want to go back into business with Mr. Starr and did not think Ms. Sparvier was a good fit because she did not show interest or respect in how they work. She also acknowledged that preventing Mr. Starr from buying into Brighton was a consideration alongside share price. Ms. Neale characterized Ms. Sparvier as “cavalier” in not reading the policies, talking about when she moved to Brighton as though it was a done deal, and not taking the meet and greet, and approval process seriously. She was concerned with the way Ms. Sparvier represented her relationship with Mr. Starr. She acknowledged, however, that she did not ask Ms. Sparvier directly about the relationship but rather interpreted her as being dishonest. When asked in cross-examination if it could be said that Brighton also treated the process as a formality given they had done a vote prior to it, Ms. Neale said that they were trying to deal with LE’s situation, and she went in with an open mind.

D. The share transfer vote

[66] Following the meet and greet, on August 19, 2020, one shareholder emailed the group:

We heard that Ken Starr is helping [LE] move out of her house on the assumption that he and his girlfriend are buying lot 25. We find this very dangerous for [Brighton]:

1) they are taking advantage of and manipulating a terminally ill shareholder of [Brighton].

2) what if they move into [LE]’s house and cause enormous legal problems, saying for instance that they are renting, how is [Brighton] going to deal with that? Do you know what it means to evict them?

3) is [LE] providing the mortgage?

4) [Brighton] had to pay a fine of $3000 to DNV for nonpayment of property tax when Starr was the treasurer. He caused loss and grief to himself and others several times in the past and [Brighton] has been witness to that. He bought lot 28 and [Brighton] has been dealing with the bank and the financial consequences for the past several years. His family is in shambles and now he is a personal assistant to this woman, who we don’t even think has the money to buy the property. It is a scam and [Brighton] should beware.

5) Unless [Brighton] is looking for a nightmare, there should be a discussion immediately, and Ken Starr should be barred from [Brighton].

[67] On August 20, 2020, Ms. Bodo-Price sent a breakdown of the outcome of the initial canvassing of views on a sale to Ms. Sparvier versus the existing Shareholders, and sought everyone’s final vote on whether to approve transfer of a share. She noted that all 20 “households” responded and reported on the outcome as follows:

On question A (are you in favour of the sale proceeding as presented), people answered 1 yes, 1 abstention, 16 no and 2 undecided
On question B (if a consortium of buyers are willing to purchase lot 25 at S320k), people answered 14 yes, 6 no, 1 undecided
On question C (if the buying consortium should include Brighton in the ownership), people answered 9 yes, 1 abstention, 9 no and 1 undecided

Ms. Bodo-Price then shared the following information:

The executive team of Susan Neale, Alexandra Seymour and myself had a video conference with Angela Sparvier on Monday Aug 17. After this meeting, I felt that we missed some important discussion points and so followed up with a list of questions and information about the company that were not adequately discussed and asked her to respond accordingly. (see attached 1) Please note, I did receive a number of questions from the membership but felt that this core set was most appropriate. Angela has advised that she had not received a copy of the Articles or rules, lease agreement or water user agreement but that she understands the set up of [Brighton].

Angela has provided that she expects to be living here full time and felt it inappropriate to ask who would be living here with her and yet Ken has stated how grateful he is to have such a partner. Angela has stated that she is retired and does not need financing for this purchase. Angela stated that as a First Nations woman, community is everything and that is one reason she chose this property.

Since that meeting Ken Starr has sent an email to a few members apologizing for his actions and claiming he had explained all this to me previously to which I have no recollection. (see attached 2) I do recall trying to find him to talk about what he was doing and who was going to pay for things.

Subsequent to this, a member of the executive was approached by Ken suggesting “[Ms. Bodo-Price] needs to draw it in” and implied they would have grounds for a lawsuit should the transfer not be approved. Please note, I have spoken with our company lawyer to which he stated that [Brighton] is in its rights.

It is the opinion of the members who met with Angela Sparvier on the video conference that considering her early emails, and her responses during the meeting, we felt that we could not recommend approval for the share transfer and therefore don’t want to be in business with her/them. Between the two of them, it is felt they have tried to misdirect and work around our policies and procedures. They have been up to the Beach moving things from [LE’s] house in aid to [LE]. Some feel they’re acting like they already own the place, and this is an annoying formality. It is felt by some that the whole thing shows a lack of respect and concern for their future neighbours and business partners.

We appreciate [LE’s] situation and that is why we provided alternative purchasing options to support [LE] and do right for the Beach.

As a result of the correspondence to the membership, another buyer had been presented and is on hold till the outcome of this deal is completed.

This should be the final email on this subject and I am asking all of you to respond if you are in favour the sale proceeding as presented

1. No 2. Yes

[68] Another Shareholder emailed Ms. Bodo-Price and Ms. Seymour saying:

Great work. I think you’ve presented the case fairly, and we have done our due diligence. The only things I would change … perhaps adding the policy that explicitly states we have the right to disapprove any offer. And the line … “Some feel they’re acting like they already own the place, and the approval process is an annoying formality”

Ken is approaching people here and insinuating they would take legal action? How does this foster community?

Their boat is gone now. Thanks for all your hard work

[69] Yet another Shareholder emailed:

It doesn’t change our vote. We still don’t want to be in business with him, Between the two of them, I feel they have tried to misdirect and work around our policies and procedures. Ken was here long enough to know the process of buying at BB, by they tried to skip the approval process. Now they’re acting like they already own the place and this is an annoying formality. […] We should share Ken’s letter and all the other contributing factors … then we take another vote?

[70] The Shareholders voted almost unanimously to reject the share transfer to Ms. Sparvier.

[71] On August 23, 2020, Ms. Sparvier emailed Ms. Bodo-Price asking for the reasons why the Board denied her purchase. Ms. Bodo-Price responded that the Board voted to reject it, “and that is all I am required to advise.” Ms. Sparvier then emailed again asking why she was rejected. Ms. Bodo-Price replied asking Ms. Sparvier to accept that the Directors had rejected the request to purchase, and saying that she had “no intention on commenting on this any further.”

[72] Ms. Bodo-Price testified that she took her job as president of the Brighton Board very seriously, she noted that the people at Brighton have typically been very forthcoming and open about answering questions and offering information about themselves. She acknowledged that in assessing a potential Shareholder, they consider whether it will be a good fit. She noted that they need people who can participate in events and activities. Ms. Bodo-Price said she did not consider Ms. Sparvier a good fit because her answers were inconsistent and untruthful. In cross-examination, Ms. Bodo-Price acknowledged that Mr. Starr was a factor in considering Ms. Sparvier’s purchase of the Lot. She noted that Ms. Sparvier never visited Brighton without him and referred to him regularly.

[73] Ms. Bodo-Price testified that the only instance she knows of other than Ms. Sparvier where a prospective Shareholder was rejected was in the case of what she referred to as “a known drug dealer”.

[74] Ms. Bodo-Price said that she did not think Mr. Starr should have been surprised that they rejected Ms. Sparvier because of what he did leaving Brighton on the hook following his foreclosure. When asked why they were concerned about Mr. Starr’s past foreclosure when Ms. Sparvier had the money to cover the price on her own, Ms. Bodo-Price answered only, “As you can see, different people had different views of the transaction.”

[75] When asked in cross examination how she assessed Ms. Sparvier’s “respectability” as required under the corporate Articles during the meet and greet, Ms. Bodo-Price said that she assessed it “in not so many words”. Of her email comment that something seemed “off” with the deal, she explained that some people thought that Ms. Sparvier did not even have the money and that it may be a scam.

[76] Ms. Sparvier testified that nothing in any of the communications between her and the Shareholders showed who she was or what she could contribute. She believed that they never wanted her, and the whole thing was a “show-face”. She experienced the meet and greet as opening with a racial slur, then being asked about how to deal with people who did not like her partner, then being asked about her disability. She felt belittled and was struggling with her emotions.

[77] An undated text between Ms. Sparvier and a Brighton resident shows the resident saying that the price was the issue for most people to approve, and that if it had been at least $450,000 they likely would have approved.

[78] Dr. Giacometti testified that the Board offered to buy the Lot from LE instead, but that LE was not interested. LE decided to fix it up and try to sell it herself for more money. LE later changed her asking price to $395,000 and sold the Lot. It was in September that someone ultimately came and purchased the Lot for $400,000. LE passed away in November 2020.

[79] Dr. Giacometti testified that in November 2022, she was contacted by another Shareholder who referenced a perception amongst some Shareholders from the time of the sale that LE was being taken advantage of by Ms. Sparvier and Mr. Starr. She noted that no one had contacted LE to ask about this belief. Dr. Giacometti explained to the Shareholder that LE needed to liquidate and wanted to sell to someone with a passion for the Lot. She said that the Shareholder told her that no one had wanted Mr. Starr back at Brighton. The text messages show the Shareholder saying that the Shareholders “were doing our best to see that [LE] did not lose out by the decision”.

IV ANALYSIS

[80] In a human rights complaint, the burden to establish that discrimination has taken place rests with the complainant. It is not up to the respondent to prove that they did not discriminate: Heyman v. Saunders (No. 2) , 2010 BCHRT 88, para. 6. A complainant is required to prove a case of discrimination on a balance of probabilities. If the complainant is successful in establishing a case of discrimination, the burden shifts to the respondent to justify its conduct. If the complainant fails to prove a case of discrimination, then there is no breach of the Code: Rai v. Shark Club of Langley (No. 2) , 2013 BCHRT 204, at para. 361.

[81] Here Ms. Sparvier must prove that she was denied “the opportunity to acquire land or an interest in land” or that she experienced an adverse impact regarding “a term or condition of the purchase or other acquisition of […] land or interest in land”; and that one or more of her protected characteristics was a factor in the denials or adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, para. 33.

A. Is Section 9 of the CodeEngaged??

[82] Section 9 of the Code prohibits discrimination in the purchase of property as follows:

A person must not

(a) deny to a person or class of persons the opportunity to purchase a commercial unit or dwelling unit that is in any way represented as being available for sale,

(b) deny to a person or class of persons the opportunity to acquire land or an interest in land, or

(c) discriminate against a person or class of persons regarding a term or condition of the purchase or other acquisition of a commercial unit, dwelling unit, land or interest in land

because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sex, sexual orientation, or gender identity or expression of that person or class of persons.

[83] Brighton argues that this section of the Code does not apply because there is no purchase of “property” at issue. Rather, Brightson asserts, it is “a purchase of a share in the corporate entity and the occupation of Land is governed by the Commercial Tenancy Act” (as written). Brighton points to the contract of purchase and sale which provides that:

The Buyer is aware that this contract is for the purchase of one (1) share of 22 shares of Brighton Beach Properties Ltd. The Buyer is aware that they must be approved as a suitable shareholder of Brighton Beach Properties Ltd. by the board of Directors prior to Completion Date. […]

[84] Having considered Brighton’s submissions, I am satisfied that s. 9 of the Codeapplies. With regard to the purchase having been for a share rather than to acquire land directly, I note that ss. 9(b) and (c) specify not just the purchase of land but also of “an interest in land”. Brighton argued that it does not provide for purchases of land but rather purchases of corporate shares, and it points to Article 26.I of its Articles of lncorporation which provides:

26.1 The Company Shall not purchase lease, license, sell, transfer, dispose of, rezone, mortgage, charge, subdivide, encumber or other wise [sic] deal with land, or enter into any agreement to do so, unless such action is a lease entered into in accordance with Articles 26.2 and 25.3i or has been authorized by a resolution consented to in writing by not less thon ninety percent (90%) of the Shareholders of the Company.

[85] The evidence before me indicates that Brighton is a landholder, and that it is only through purchasing a share that a shareholder gains an interest in a specific parcel of land that Brighton holds. This is evidenced among other things in the fact that Shareholders sell their respective Lots through contracts of purchase and sale which are for the purchase and sale of a share of the company that accords to a specific parcel of land. The contracts for purchase and sale are conditional upon approval of a share transfer in accordance with the corporate articles. In my view, the corporate articles make plain that Brighton has the power to withhold or extend an interest in land, and that is precisely what is in question in the within complaint – whether they exercised that power in a manner that complied with the Code.

[86] Ms. Sparvier entered into a contract of purchase and sale in relation to LE’s Lot, which was subject to Brighton’s approval of a transfer of a share to her. The share transfer was a term of the purchase of the Lot. The entire purpose of Ms. Sparvier’s seeking to purchase a share was to acquire an interest in LE’s Lot to live in the house situated on it. People obtain an interest in the land held by Brighton solely through becoming a Shareholder given that it is only through ownership of a share that someone becomes entitled to a Lot. Brighton has not argued otherwise.

[87] I am satisfied that s. 9 of the Code applies here.

[88] I now turn to whether Ms. Sparvier has established the elements of her case.

B. Has Ms. Sparvier established that she has the protected characteristics of Indigenous Identity, marital status, mental disability and physical disability?

[89] It is not disputed that Ms. Sparvier is an Indigenous woman. Ms. Sparvier has tendered into evidence her federally issued Status Certificate. I pause to note that while this was tendered as evidence in this case, a Status Certificate is not necessarily a piece of evidence that would be required in every case for establishing Indigenous identity. In addition to her Status Certificate, Ms. Sparvier described her sense of connection to her community through her relationship with an Elder and learning about spiritual practices. I am satisfied that she has this protected characteristic.

[90] With regard to marital status, Brighton does not dispute that Ms. Sparvier’s relationship with Mr. Starr brings her under the purview of marital status.

[91] Ms. Sparvier and Mr. Starr were not married at the time of the events that gave rise to the complaint. However, the Tribunal has found that a person has this characteristic where they live with a person in a relationship analogous to marriage: Gipaya v. Anton’s Pasta Ltd., 27 CHRR 326, 1996 CanLII 20072. It similarly extends where there is a perception by others of such a relationship: Stranger v. Canada Post Corporation , 2017 CHRT 8; Jensen [Jensen v. B.C. Report Magazine Ltd.(1993), 1993 CanLII 16477 (BC HRT)]. People are protected from discrimination on this ground where they experience adverse impacts by reason of their marital, or marriage-like relationship with a particular person: Martin v. Grapevine Optical and another (No. 2) 2022 BCHRT 76; B v. Ontario (Human Rights Commission), 2002 SCC 66 at para 36.

[92] Ms. Sparvier was living with Mr. Starr in a marriage-like relationship at the time of the events, they shared a dog, they shared an email address which had them sign off as Angela and Ken Starr; and they planned to live together at the Beach. The evidence also shows that they were perceived by at least some of the Shareholders to be in a marriage-like relationship, with emails showing Shareholders expressing concerns about the Lot passing to Mr. Starr were they to separate, and opining that “spouses should be considered”, for example.

[93] Turning to the ground of disability, Brighton argued for the first time in its closing submissions that there is no evidence that Ms. Sparvier has a disability. I am satisfied, however, that Ms. Sparvier has established that she has a disability. Ms. Sparvier testified that she has dysgraphia, and tendered a doctor’s letter about her diagnosis and how she would benefit from a scribe. Brighton’s own evidence was that Ms. Sparvier spoke of her disability at the meet and greet. I am satisfied that this is enough to establish, on a balance of probabilities, that Ms. Sparvier has the protected characteristics under which she filed her complaint.

C. Adverse Impact

[94] It is not disputed that Ms. Sparvier experienced an adverse impact when Brighton denied her request to transfer a share to her that would have entitled her to acquire an interest in land and, specifically, the Lot. The key question in this case, as I have outlined in the beginning, is whether Ms. Sparvier’s protected characteristics factored into Brighton’s denial of approval, and if so, whether it was justified in its conduct.

D. Nexus

[95] In following its internal processes and corporate Articles, Brighton’s Shareholders were required to assess Ms. Sparvier’s financial responsibilities and her “respectability”. Ms. Sparvier argues that because her protected characteristics factored into this assessment, Brighton’s refusal to approve the transfer of a share to her so she could complete her purchase of the Lot was discriminatory.

[96] Ms. Sparvier does not have to prove that her protected characteristics were the only factor or overriding factor in Brighton’s decision to reject her purchase to establish nexus. She need only prove that one or more of those characteristics was a factor in Brighton’s decision: Quebec (Commission des Droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39 at paras. 45-52; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 46.

[97] For the reasons that follow, I am satisfied that Ms. Sparvier’s marital status was a factor in Brighton’s denial of approval of her application. I am not satisfied, however, that her Indigenous identity or disability were factors in the denial.

1. Marital Status

[98] On marital status, I am satisfied that there is ample evidence to support a finding that Brighton considered Ms. Sparvier’s relationship with Mr. Starr when it rejected the share transfer to her.

[99] First, as set out in the previous section, there are numerous emails in which Shareholders refer to their negative views of Mr. Starr and refer to his relationship with Ms. Sparvier in a negative light in the context of Ms. Sparvier’s potential purchase. In their emails, the Shareholders connect concerns about Ms. Sparvier’s relationship with Mr. Starr and concerns about ‘going into business’ with Ms. Sparvier because of Mr. Starr’s past behaviour with his Lot going into foreclosure. The emails include the following:

“If this is Ken’s girlfriend, I’m not thrilled about that either given how we all got so royally boned by Ken defaulting on his mortgage”;
“I have received concerns from our partners that some people don’t want Ken here”;
“[…] why this proposed sale came about is as much a mystery to me. Personally, I think something is off with this deal”;
“Spouses should be considered by the beach as well”, and Brighton should ensure the share doesn’t pass to Mr. Starr if they break up;
“We are sorry for [LE] if the sale doesn’t go through, but [Brighton] has to live with the long-term consequences of the purchaser and her partner”;
“[I do not] see them as good business partners;
“We heard that Ken Starr is helping [LE] move out of her house on the assumption that he and his girlfriend are buying lot. We find this very dangerous for [Brighton].” Among the reasons why were an assertion that “they are taking advantage of and manipulating a terminally ill shareholder of [Brighton]. […] Unless [Brighton] is looking for a nightmare, there should be a discussion immediately, and Ken Starr should be barred from [Brighton].”

[100] Other evidence regarding the consideration of Ms. Sparvier’s relationship with Mr. Starr in the context of her proposed share purchase includes:

Ms. Neale acknowledged that Mr. Starr’s involvement impacted her feelings toward the deal. Her suggestion that Mr. Starr write an apology letter explaining what happened to the Shareholders suggests that she understood that other Shareholders felt similarly. She testified that she was concerned that Ms. Sparvier may replicate Mr. Starr’s behaviour by virtue of their association.
Ms. Manelia believed that Ms. Sparvier and Mr. Starr were manipulating LE, assuming that Ms. Sparvier had pressured LE into the sale despite knowing little about Ms. Sparvier aside from her association with Mr. Starr. She also acknowledged that she did not want Mr. Starr back at the Beach.
Ms. Bodo-Price acknowledged in cross examination that Mr. Starr was a factor in the decision to reject Ms. Sparvier’s application.

[101] Cumulatively, the emails and the above evidence support of an inference that Ms. Sparvier’s relationship with Mr. Starr factored into Brighton’s consideration of her purchasing the Lot and joining the community at the Beach.

[102] Further, in its closing submissions, Brighton acknowledged that some Shareholders linked their vote to their aversion to having Mr. Starr rejoin the community at the Beach. Brighton’s Form 2 Response to the Complaint states that “[t]he Directors were concerned about the relationship of the Complainant with Ken Starr who had defaulted on his assessments when he was an owner […]”; and “were reluctant to approve the Complainant’s application because of her relationship with Ken Starr who the Directors, because of their experience with him, considered to be unacceptable.”

[103] The evidence suggests that Brighton focused more heavily on Ms. Sparvier’s relationship with and its feelings about Mr. Starr than it did on evaluating Ms. Sparvier in her own right. The initial, informal canvassing of views is indicative of this. While indeed price was a consideration in the discussion about the possibility of a share transfer to Ms. Sparvier, it is notable that Brighton was forming views on Ms. Sparvier in advance of learning very much about her at all in terms of either her financial responsibilities or respectability – beyond the fact of her relationship with Mr. Starr. Their focus on their perception of Ms. Sparvier’s description of her relationship with Mr. Starr, perceiving her as being dishonest, strengthens this impression.

[104] Brighton did relatively little to assess Ms. Sparvier in her own light, separate from her relationship with Mr. Starr. Rather than focusing on her own, individual financial responsibilities, there was a focus throughout the evidence on Mr. Starr’s past financial behaviour. In viewing Ms. Sparvier through the lens of Mr. Starr, and Mr. Starr’s behaviour, Brighton imbued her with a perceived propensity to behave in a similar way. This is bolstered by the informal canvassing of views, which saw Shareholders sharing their impressions of Ms. Sparvier and the deal before engaging directly with Ms. Sparvier in respect of their questions or concerns.

[105] Brighton argues in closing that in any event, Ms. Sparvier’s application was “destined for failure” before the meet and greet because the decision had already been made to move forward with purchasing LE’s Lot as a result of that initial canvassing of views. It argues that as a result, everything that came after that first vote is irrelevant. I note first that this acknowledges that Brighton formed a view of Ms. Sparvier prior to engaging with her directly. Next, I do not agree with Brighton’s argument. While the outcome regarding Ms. Sparvier may not have changed in the second vote, there was at least at some point a change about whether the Shareholders would themselves purchase the Lot, and more critically, by the time of the second vote, new information had been obtained by and about Ms. Sparvier which Ms. Bodo-Price circulated to the Shareholders. The question of whether that information impacted the outcome of the second, formal vote is relevant to the analysis of whether Ms. Sparvier’s protected characteristics factored into Brighton’s decision-making, in these circumstances. The fact that a preliminary vote was taken does not serve to shield Brighton from scrutiny over what came next, particularly in the circumstances of this case. The whole sequence of events must be considered.

[106] I note further that if nothing after the first informal vote were relevant, this would require me to accept that the outcome was determinative. This would beg the question of why Brighton would then put Ms. Sparvier through the meet-and-greet and why it would hold the second, final vote. More particularly however, it highlights the problems with Brighton’s concerns – which I will come to below – about Ms. Sparvier treating the meet-and-greet as a mere formality when this would mean Brighton itself was doing exactly, explicitly that.

[107] Brighton argues that it has reasonable, non-discriminatory explanations for denying the share transfer and that the evidence of these, taken together, are sufficient to rebut the inference that marital status was a factor. In this regard Brighton advances three arguments. First, Brighton argues that its concerns about the low purchase price informed its decision. Second, it argues that it was Ms. Sparvier’s own conduct, not her relationship with Mr. Starr, that informed the decision. Third, it argues that it was reasonable to bar Mr. Starr from living at the Beach, and so Ms. Sparvier was not treated differently because of her marital status. I deal with each argument below.

[108] First, Brighton argues that it was not Ms. Sparvier’s protected characteristics but Shareholders’ concerns about the purchase price that informed the decision. They believe the price was too low. These concerns included a desire to buy the share themselves to sell at a profit and concerns about the impact the price would have on share prices broadly. Brighton points to the initial canvasing of views – before the meet-and-greet, where a majority voted in favour of the consortium of existing Shareholders purchasing at the same price. It argues that removing the total votes attributable to concerns about Mr. Starr would not have changed the outcome, as that still leaves a majority of votes against Ms. Sparvier. It bases its assessment of the votes attributable to concerns about Mr. Starr on the emails where Shareholders make that view expressly known.

[109] I accept that there was a real concern about the sale price for many Shareholders, and that they viewed it as too low. I do observe a tension between the concern about a low sale price driving down Lot values across the corporation and the Shareholders themselves purchasing at the same price. This does not seem internally consistent reasoning. If the low sale price were to depress values, it seems the Shareholders would be concerned about their ability to then flip it at a profit. I heard evidence, however, that a private sale of this kind would shield the purchase price making it easier to then raise the resale price. The question this raises is why the sale to Ms. Sparvier would not also preserve property values in the same way. Regardless, while I accept that this was a concern for the Shareholders, I am not satisfied on a balance of probabilities that the evidence of this concern rebuts the inference that Ms. Sparvier’s relationship with Mr. Starr was factor. The absence of an express reference to the relationship or Mr. Starr in some of the voting emails is not enough to refute a finding that Ms. Sparvier’s relationship with Mr. Starr factored into the way the Shareholders voted, particularly considering that the Shareholders did not ultimately follow through on purchasing the Lot themselves. The evidence suggests on a balance of probabilities that concerns about Ms. Sparvier’s relationship with Mr. Starr were pervasive and infused the lens through which Ms. Sparvier herself was assessed. While the Shareholders’ concerns about purchase price was certainly a factor in their decision making, that alone does not displace the inference that marital status was a factor as well.

[110] Second, Brighton argues that its decision to not approve the share transfer was driven by Ms. Sparvier’s own conduct, not by her protected characteristics. The conduct Brighton impugns is its perception that she was dishonest about her relationship with Mr. Starr; did not look at the rules and regulations that governed the community; did not learn or understand anything about the community that she wanted to join; and refused to disclose who was part of her household and community. Brighton argues that these were relevant considerations in assessing Ms. Sparvier given that they had to assess “whether she will make a fit and proper use of the premises”, her “reputation in the community personally and professionally”, and her “creditworthiness” in accordance with the Articles’ requirement that they consider her financial responsibilities and respectability.

[111] I do not need to decide whether or not Ms. Sparvier was being dishonest about her relationship with Mr. Starr by describing it in different ways, though I note that the evidence was fairly consistent in showing that it was common knowledge that she and Mr. Starr were romantic partners. In any event, even accepting that the Shareholders perceived Mr. Sparvier to have been dishonest (or not forthcoming) with them, and even if this were a factor in its consideration of her respectability, I am not satisfied that this evidence is sufficient to rebut the inference that marital status was also a factor.

[112] I view Brighton’s taking umbrage with Ms. Sparvier having not read the rules and related documents in advance of the meet and greet similarly. It is not clear to me why the fact that she had not yet read documents was a sufficient basis on which to assess her against the criteria and determine that she had no interest in learning about the community. It seems to me that Brighton had a preconceived notion of Ms. Sparvier prior to the meet and greet which it formed at least in part based on her association with Mr. Starr. In this regard, the assessment that Brighton puts forward to refute an inference that her relationship factored into its consideration of her itself seems infused with its thoughts about that relationship. Even if it were not, however, even if Brighton simply viewed Ms. Sparvier poorly because she had not taken more measures to read documents and educate herself about Brighton and the Beach, this would not be enough to refute the inference that Ms. Sparvier’s relationship with Mr. Starr was also a factor in its rejection of the share transfer.

[113] Third, turning to Brighton’s argument that it was reasonable to exclude Mr. Starr from the Beach and therefore not discriminatory, Brighton says that Ms. Sparvier “could only have been discriminated against if she was arbitrarily disadvantaged” by Brighton’s consideration of her relationship with Mr. Starr or experienced “differential treatment.” It says that neither was the case, as Brighton had “very rational reasons” for not wanting Mr. Starr to live at the Beach based on his own past behaviour. Brighton cites Lavender Co-Operative Housing Association v. Ford, 2009 BCSC 1437 in asserting that there, as here, Ms. Sparvier was not assessed differently than other Shareholders because the suitability requirement of financial responsibilities and respectability were equally applied to all Shareholders. I distinguish that case. In that case, the Court determined that the complainant had not experienced an adverse impact because of her marital status. I have found in this case that Ms. Sparvier did.

[114] Brighton also seeks to distinguish this case from B v. Ontario (Human Rights Commission) , [2002] 3 S.C.R. 403, 2002 SCC 66 [B] where, at para. 60, the Court said:

The appellants also assert that the dismissal of Mr. A does not amount to discrimination because the decision was based solely on personal animosity. Even if we were to accept that assertion, the animosity did not result from any action or behaviour of Mr. A, but rather solely because of his marital and familial affiliations. Thus the appellants’ automatic attribution of the wife and daughter’s behaviour to Mr. A reflects stereotypical assumptions about Mr. A that have nothing to do with his individual merit or capabilities. This is precisely the kind of conduct which the Codeaims to prevent.

[115] In my view, however, this argument makes this case quite analogous to the circumstances in B. Brighton says that unlike in B, Brighton assessed Ms. Sparvier “on her own merits and her less than stellar interview and responses to questions”; “[n]o characteristic of Mr. Starr was attributed to her”. However, I have not accepted this was the case. Conversely, I have found that Brighton assessed Ms. Sparvier primarily through the lens of her association with Mr. Starr. In fact, this is the basis of Brighton’s argument – that they had rational reasons for not wanting Mr. Starr at the Beach. This has little to do with an assessment of Ms. Sparvier in her own right.

[116] Brighton’s key concerns about Mr. Starr’s “past behaviour” were financial. The information it had was that Ms. Sparvier herself, as an autonomous person, was seeking to conclude an agreement made in her name, to be paid for with her money, with herself as the Shareholder. While it was certainly apparent that Mr. Starr would have been living at the Beach with Ms. Sparvier, it is unclear why this would have any impact on Brighton’s assessment of Ms. Sparvier’s financial responsibilities, unless they were imputing Mr. Starr’s past to her.

[117] This is directly analogous to the circumstances in B, and indeed, “precisely the kind of conduct which the Codeaims to prevent”.

[118] In sum, I accept that Brighton was concerned about the sale price and about what it perceived to be inconsistencies or even evasiveness in Ms. Sparvier’s answers to questions about her relationship with Mr. Starr. I accept that these concerns factored into the decision to reject Ms. Sparvier’s share purchase. However, the cumulative evidence about these and related concerns is not enough to rebut an inference that Ms. Sparvier’s relationship with Mr. Starr, and therefore her marital status, was also a factor. Given the protected characteristics need only be a factor and not the overriding one, this is enough to establish discrimination.

2. Indigenous Identity

[119] Turning now to Indigenous identity, the Tribunal has consistently recognized that discrimination in race-based complaints often arises from subtle biases and can be established through circumstantial evidence and inferences: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302; Torres and others v. Langtry Industries (No. 5), 2009 BCHRT 3; Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para 44. For the following reasons, Ms. Sparvier has not persuaded me, on a balance of probabilities, that her Indigenous identity factored into Brighton’s denial of her application.

[120] Ms. Sparvier argues that in this case, the evidence shows “an Indigenous complainant who was immediately and persistently deemed to be untrustworthy and deceitful despite there being no basis for these conclusions”. Ms. Sparvier argues that nexus can be inferred from the Comment and Brighton’s suspicion about her and the deal with LE.

[121] I accept Ms. Sparvier’s assertion that Indigenous People are subject to many harmful, pernicious stereotypes in Canadian society, and may be viewed with the kind of suspicion implicit in Brighton’s view of her. However, the evidence is consistent that the suspicion Brighton cast upon Ms. Sparvier arose primarily from its perception and distrust of Mr. Starr, which they in turn imbued Ms. Sparvier with as I have described above. Ms. Sparvier’s evidence was that she relied heavily on Mr. Starr in her business affairs. Indeed, she referred to him as her “business partner” and “assistant”. Brighton’s evidence was that their concerns about Ms. Sparvier as a prospective business partner in the context of a share transfer arose from this relationship, based on Mr. Starr’s handling of his own and Brighton’s financial affairs during his time as a Shareholder. These concerns include that Mr. Starr would somehow be getting his hands on the Lot in future; or an implied sense that Ms. Sparvier was more likely to be a bad business partner because of Brighton’s prior dealings with Mr. Starr. I have described this above in my reasons for why I am satisfied that Ms. Sparvier’s marital status vis-à-vis Mr. Starr factored into its rejection of the share transfer.

[122] Additionally, I am satisfied that it was reasonable for Brighton to have questions about some of Ms. Sparvier’s answers to their questions about Mr. Starr. For example, while Ms. Sparvier explained in her testimony what she meant when she told Brighton she was buying the Lot for her dog, it was reasonable for Brighton to view that response with uncertainty as it is on its face an unusual answer. Similarly, Ms. Sparvier’s defensive response to the question of who would reside with her on the Lot – in the context of Mr. Starr’s history with the Beach – would reasonably have been of concern to the Beach. In my view, had Brighton taken the time to view Ms. Sparvier as her own person, independent of her relationship with Mr. Starr, they would perhaps have extended her the courtesy of providing her with a chance to address these things or at least being open in the first instance about their concerns. The fact that they failed in this aspect of their engagement with her does not, however, support an inference that Ms. Sparvier’s Indigenous identity was a factor in Brighton’s view of her.

[123] With regard to the Comment, I accept that it invoked a stereotype and was jarring for Ms. Sparvier. However, regardless of whether Ms. Bodo-Price should have known better than to use the term, on the evidence before me the fact is that the term was used as an official title in the particular context of the Calgary Stampede at the time and an article that Ms. Bodo-Price had read. It may also be the case that Ms. Bodo-Price should have looked more closely at the titleholder and Ms. Sparvier’s first names, or ages, or faces to discern that they are not the same person. However, Ms. Bodo-Price’s evidence was that the only details that she recalled were the last name and the title. Her failure to have given the article a close reading is not enough – even within the surrounding evidence – to support a finding that Ms. Sparvier’s Indigenous identity factored into her or Brighton’s denial of Ms. Sparvier’s application.

3. Disability

[124] Ms. Sparvier argues, finally, that her disability factored into the decision not to transfer a share to her because one of the reasons Brighton took a negative view of her was the fact that she had not read the articles of incorporation, and Ms. Sparvier informed them at the meet and greet that she had a learning disability. This is not enough to support an inference that Ms. Sparvier’s disability factored into Brighton’s decision, particularly given the absence of any evidence that Ms. Sparvier’s disability affected whether she read the articles. Ms. Sparvier’s evidence was that she had not received them. While she now argues that Brighton should have asked or itself inferred that perhaps her disability was a factor in why she had not read them, the evidence suggests that had they asked this question, Ms. Sparvier’s disability would not have been part of the answer. This argument is simply too speculative to persuade me on a balance of probabilities that Ms. Sparvier’s disability factored into Brighton’s decision to not transfer her a share.

E. Justification

[125] In closing submissions, Brighton argued that its conduct was justified. Brighton argues that although s. 9 of the Code does not contain a statutory justification defence, the defence is available, noting it has been extended in other sections silent on this defence: Stewart v. Satorotas Enterprises and others , 2012 BCHRT 442, at para.74, relating to s. 10.

[126] Brighton argues that it would have constituted undue hardship to approve the transfer of the share to Ms. Sparvier at such a low price.

[127] As per the test established in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20, to prove its justification defence, Brighton must show that the standard was:

adopted for a valid purpose rationally connected to its function;
adopted in an honest and good faith belief that it was necessary to fulfil the valid purpose; and
reasonably necessary to accomplish its purpose and that Brighton could not accommodate Ms. Sparvier without incurring undue hardship.

[128] Brighton did not make direct submissions on the standard. I understand the standard to be the requirement in the corporate Articles that Brighton assess Ms. Sparvier’s “respectability” and “financial responsibilities” as a potential transferee before approving a share transfer.

[129] Brighton asserts that the standard meets the above test. It provides various civil law contexts in which this standard arises, and cases where such a standard has been accepted as a reasonable one through which to balance the respective interests of a landlord and tenant or similar relationship. It cites the Cambridge Dictionary (online) definition of “respectability” as “the quality of being considered socially acceptable”.

[130] Without arguments from Ms. Sparvier to the contrary, given Brighton’s obligation to maintain the Shareholders’ interests which would include the financial soundness of the corporation and the community at the Beach, I accept that the standard was adopted for a valid purpose rationally connected to its function. I do note, however, that Ms. Sparvier has made submissions about the ways in which standards such as this have historically been used to further discrimination against specific groups. Ultimately, “respectability” must be assessed in a non-discriminatory way. In any event, for the following reasons, I am not persuaded that Brighton was justified in refusing to approve the transfer of a share to Ms. Sparvier on the basis of its assessment of her ‘respectability’.

[131] Brighton argues that it would be undue hardship to “recommend or accept a transfer of shares to Ms. Sparvier at substantially below market value that would affect the overall value of the company’s shares, to the detriment of all shareholders” because of the risk that it would significantly decrease overall share value. Brighton argues that whether this risk was real is not material because “it was believed to be true and a validly held opinion” by at least a majority of the shareholders.

[132] It is not enough to simply believe in undue hardship in order to satisfy the Grismer test. In this case, Brighton has submitted no evidence to support the assertion that there would have been any negative financial impact on Shareholders from selling at the price LE and Ms. Sparvier had agreed on. Simply worrying about it does not make it so, or even likely. For that reason alone, I do not find this persuasive. However, I also cannot reconcile the prospect of this risk with the Shareholders’ simultaneous willingness to purchase the share at the exact same price with a view to later selling it at a profit. There is insufficient evidence on which I can find that a sale at the same price by the Shareholders would impact the resale price any less than a sale to Ms. Sparvier. In any event, undue hardship is the threshold cap for accommodation. Brighton did not accommodate Ms. Sparvier, and in any event, it would not have been an accommodation to assess her suitability to join the Beach community in a non-discriminatory way. I have very little evidence otherwise about the property value other than Ms. Sparvier’s realtor’s view that her purchase price seemed within market range and that there had been no offers at all on the Lot previously when LE had listed it. I have some evidence that it ultimately sold for more than the price Ms. Sparvier had offered after some improvements were made and time had passed. However, this is not enough to establish undue hardship.

[133] The evidence satisfies me, on a balance of probabilities, that to the extent Brighton assessed Ms. Sparvier on the criteria at all, it did so based more on assumptions and perception of her relationship with Mr. Starr than any information gleaned from an actual discussion with her. As Ms. Bodo-Price said in her evidence, they assessed Ms. Sparvier’s respectability “in not so many words”, which meant, according to the evidence, not clarifying what they perceived as inconsistencies in her answers about Mr. Starr, not putting their concerns to Ms. Sparvier to address, and not assessing Ms. Sparvier in her own right independent of her relationship.

[134] On a balance of probabilities, I am not satisfied that Brighton’s denial of Mr. Sparvier’s request was justified.

V Remedies

[135] I have found Ms. Sparvier’s complaint to be justified, I declare Brighton’s conduct was discrimination contrary to s. 9 of the Code. I order Brighton to cease the contravention and refrain from committing the same or a similar contravention: Code, s. 37(2)(a) and (b).

[136] In addition, Ms. Sparvier seeks a number of other remedies. I consider each in turn after considering an application by Ms. Sparvier for costs against Brighton.

A. Costs

[137] Ms. Sparvier seeks an order of costs against Brighton in the sum of $3,000 for improper conduct and failure to disclosure relevant documents.

[138] Section 37(4) of the Code grants the Tribunal discretion to award costs against a party who has engaged in improper conduct during the course of a complaint, including by contravening the Tribunal’s Rules or orders. In Gichuru v. The Law Society of British Columbia (No. 11) , 2012 BCHRT 275, the Tribunal explained that costs awards are punitive and are meant to have a deterrent effect and to sanction conduct that has a significant and detrimental impact on the integrity of the Tribunal’s processes. The Tribunal will generally consider the nature and severity of the behaviour being sanctioned and its impact on the integrity of the Tribunal’s processes.

[139] Ms. Sparvier argues that Brighton failed to disclose numerous relevant documents until January 12, 2023, after she closed her case. Ms. Sparvier says that it was only after she asked, during the hearing, that Brighton admitted to having a significant number of relevant documents including emails in its possession that it had not disclosed. These included Ms. Bodo-Price’s notes from the meet and greet and documents regarding the sale of LE’s Lot to another buyer. Ms. Sparvier also notes that despite having requested an updated witness list in January 2023, Brighton only provided one in May – two weeks before the hearing.

[140] While late disclosure is to be discouraged, and Ms. Bodo-Price should have been more diligent in identifying and disclosing documents, I am not persuaded that Brighton’s oversight warrants sanction through an award of costs. The documents were ultimately disclosed when identified in the course of Ms. Brighton’s evidence. Ms. Sparvier had an opportunity to cross-examine. While the hearing did run into a continuation, I am still not satisfied that the conduct rises to the level of improper conduct, in all the circumstances, that warrants a costs award.

[141] I decline to order costs in the circumstances.

B. Injury to dignity, feelings and self-respect

[142] This Tribunal has the discretion to award a complainant an amount to compensate for injury to their dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii). The purpose of these awards is compensatory, not punitive. In exercising this discretion, the Tribunal generally considers three factors: the nature of the discrimination, the complainant’s vulnerability, and the effect on the complainant: Torres v. Royalty Kitchenware Ltd.(1982), 3 CHRR D/858 (Ont. Bd. Inq.); Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185, upheld in 2014 BCCA 396 at para. 260.

[143] Ms. Sparvier seeks an amount of $40,000 for injury to dignity. Brighton says this case would fall better within the $1,000 – $7,000 range.

[144] Ms. Sparvier has cited cases with awards ranging from $12,000, in a case involving a person denied the opportunity to purchase a property because his dog, who he relied upon for safety, was not a certified guide dog (Jones v. The Owners Strata Plan 1571 and others, 2008 BCHRT 200) to $150,000, in a case that involved years of separation from the complainant’s children and other restrictions on her access to them (RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116.

[145] I distinguish that latter case on the basis of the length of time over which the discrimination occurred, the nature of the discrimination, and the unique and expansive nature of the harm experienced by the Complainant.

[146] Brighton argues that this case belongs in the lower end of damages, focusing its argument on the Comment rather than the denial of the purchase more broadly.

[147] In my view, this case falls closer to the $20,000 range of other cases cited by Ms. Sparvier, in particular, Campbell v. Vancouver Policy Board (No. 4) , 2019 BCHRT 275, where the Tribunal awarded $20,000 where police physically removed and threatened the complainant with charges when she tried to obtain information during the course of her son’s arrest; and Smith v. Mohan (No. 2), 2020 BCHRT 52, where a landlord discriminated against the Indigenous complainant by making derogatory and stereotypical comments, and evicted her for smudging in her apartment.

[148] Turning to the Gichuru factors, the nature of the discrimination is reminiscent of an age when women could only obtain property through marriage or through an assessment of their spouse. Similarly, Ms. Sparvier was denied an opportunity to purchase a Lot after being assessed through the lens of her partner’s behaviour and perceptions of her that were inflected with suspicion because of her relationship with him. This weighs in favour of a higher award.

[149] In terms of vulnerability, Brighton argues that Ms. Sparvier was not vulnerable because Mr. Starr supported her in her dealings and “is a sophisticated individual and longstanding previous and highly involved member of the Respondent’s community”; she had the financial means to complete the share transfer without financing; she had other housing alternatives; and “she was purpose-driven in her approach in dealing with LE and the Lot”.

[150] Ms. Sparvier argues that she is “an Indigenous woman with disabilities and is uniquely vulnerable to discrimination under the Code . She sought to purchase a share in Brighton Beach so she could have a deeper connection to her Indigenous community and land. This was land, like all land in British Columbia, that Canada had stolen from Indigenous peoples.” She submits that in this context, Brighton’s “exclusion” impacted her uniquely. While I have not found that Ms. Sparvier’s Indigenous identity was a factor in Brighton’s refusal to approve the share purchase, I am mindful of the ways that personal characteristics intersect, and that in this case, the intersection of Ms. Sparvier’s marital status and Indigenous identity factored into how she experienced Brighton’s conduct.

[151] Ultimately, in my view, this weighs in favour of a higher-end award.

[152] Turning to the effect on the complainant, Ms. Sparvier testified to how the rejection of her offer to purchase the Lot impacted her. She said, “how do I articulate that I am a strong, resilient woman when I can’t even buy property in 2020? How could I be a role model?” After having told everyone about the opportunity and losing it, she did not want to practice her culture. She felt embarrassed in her community, did not want to see her Elder, and felt like a failure. She felt low, embarrassed, and hurt. It hurt her relationship with Mr. Starr. She moved out, and they broke up, though it appears they have now reconciled. She explained that she envisioned raising her grandchildren there and teaching them the ways of her culture. Ms. Sparvier had talked about the purchase with her cultural community, because she was excited to take on more spiritual work given her access to the land on the Lot.

[153] In all the circumstances, I am satisfied that an award of $25,000 is appropriate.

C. Loss of property value and expenses

[154] Under s. 37(2)(d)(ii), the Tribunal may order a person who has contravened the Code to “compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention.” Under this provision, Ms. Sparvier seeks compensation in the amount of $2,500 for realtor brokerage fees and a further $75,000 for what she says she lost in terms of the value of the property. I decline to award Ms. Sparvier either of these amounts.

[155] With respect to the realtor fee, Mr. Rasmussen testified that because Ms. Sparvier assumed approval from the Board was a given so she made an unconditional offer under which a commission of $4,761.90 would be payable to him regardless of whether the sale completed. Despite that language, he viewed it as a “grey area” whether there had been a default given the buyer and seller were ready to go, but it was the Board that obstructed the sale completing. He testified that when the sale did not complete, Ms. Sparvier insisted on paying him for his efforts, thought he did not require it, and they agreed on a reduced commission of $2,500. Ms. Sparvier’s evidence was similar. She testified essentially that she felt it was fair that Mr. Rasmussen receive some compensation for the work he had done for her. In other words, the evidence shows that Ms. Sparvier paid the $2,500 because in her view, Mr. Rasmussen deserved to be compensated for the work that he had done for her, notwithstanding that the sale did not ultimately go through.

[156] In these circumstances, the evidence does not establish, on a balance of probabilities, that Mr. Rasmussen charged Ms. Sparvier a fee Ms. Sparvier would have incurred this expense had she not offered it. While Ms. Sparvier’s desire to fairly compensate Mr. Rasmussen shows good faith in her dealings with him, her decision on how to manage her dealings with her realtor does not in turn compel Brighton to be responsible for the same. I am not satisfied that this sum constituted an expense incurred by the contravention within the meaning of s. 37.

[157] With respect to the claimed loss of property value, Ms. Sparvier asserts that insofar as the Code is to be given a broad and purposive reading, and remedies are to return a person to the position they would have been in absent the discrimination, she is entitled to “compensation for the financial loss she suffered as the result of being denied the property”. She argues that she agreed to pay $320,000 for the Lot, which represents a “reduced price” on a Lot that was actually worth $395,000. She bases this estimate of the Lot’s ‘actual value’ on evidence from Ms. Bodo-Price that $395,000 is what the Lot ultimately sold for.

[158] I am not persuaded on a balance of probabilities that Ms. Sparvier is entitled to the difference between what she agreed to pay for the Lot and what it ultimately sold for. On Brighton’s not approving the sale, Ms. Sparvier’s deposit was refunded, and she did not pay the agreed price. In other words, there was no actual loss. In terms of whether the Lot was worth $395,000 at the time, I note first that the evidence before me is insufficient to establish the actual market value of the Lot at the time of Ms. Sparvier’s would-be-purchase. Mr. Rasmussen testified that Ms. Sparvier’s offer of $320,000 did not seem far off market. Dr. Giacometti testified that when LE first put the Lot on the market, there were no buyers at a higher price. What Ms. Sparvier now relies on to assert a $395,000 value is uncertain and unsubstantiated by documentary evidence. In sum, I do not have evidence before me on which I can conclude, on a balance of probabilities, that at the time of the would-be transaction, Ms. Sparvier stood to acquire a $395,000 Lot for her $320,000 purchase price such that she would be acquiring a potential $75,000 gain. On a balance of probabilities, I can find only that had Ms. Sparvier’s purchase been approved, she would have had access to the Lot and the shared amenities at the Beach. It would be a far more complex assessment requiring much different evidence to support a finding of how the value of that Lot may or may not have changed at a future time that Ms. Sparvier eventually decided herself to sell and realize any gain.

VI Order

[159] Pursuant to s. 37(2)(b) of the Code, the conduct complained of is discriminatory contrary to s. 13(1) of the Code.

[160] Under s. 37(2)(a) of the Code, I order Brighton to cease the contravention and refrain from committing the same or a similar contravention of s. 13(1) of the Code.

[161] Under s. 37(2)(d)(iii) of the Code, Brighton will pay Ms. Sparvier the sum of $25,000 for injury to her dignity, feelings, and self-respect.

[162] Brighton will pay to Ms. Sparvier post-judgement interest on the injury to dignity amounts until paid in full, based on the rates set out in the Court Order Interest Act.

Emily Ohler, Tribunal Chair