McKinley and another v. The Owners, Strata Plan VIS 2128 (Dufferin Heights), 2024 BCHRT 311
Date Issued: November 5, 2024
File: CS-000872/20416
Indexed as: McKinley and another v. The Owners, Strata Plan VIS 2128 (Dufferin Heights), 2024 BCHRT 311
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Marti McKinley and Donald McKinley
COMPLAINANTS
AND:
The Owners, Strata Plan VIS 2128 (Dufferin Heights)
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Jessica Derynck
On their own behalf and agent for Donald McKinley: Marti McKinley
Agent for the Respondent: Bill Paisley
Date of Hearing: January 8 to 11, 2024
Location of Hearing: Videoconference
I INTRODUCTION
[1] Donald McKinley and Marti McKinley are a married couple. In 2019 and 2020 they lived in a home they owned in Strata Plan VIS 2128 (Dufferin Heights) [Strata]. On January 29, 2020, they filed human rights complaints alleging that the Strata discriminated against Mr. McKinley on the basis of mental disability because he has PTSD, and against Mrs. McKinley on the basis of marital status because she is married to Mr. McKinley. They allege that members of the Strata’s council treated them poorly at a meeting on October 24, 2019, overreacted by reporting concerns about Mr. McKinley to police on October 25, 2019, and scheduled meetings in 2020 at a location that they could not attend.
[2] Bill Paisley was the Strata council president at the time of the hearing and represented the Strata in this proceeding. The Strata denies discriminating. The Strata says that the council did not treat the McKinleys badly because of Mr. McKinley’s PTSD or Mrs. McKinley’s relationship to him, and that they reasonably accommodated the McKinleys to attend meetings. The Strata says that the McKinleys’ issues were largely personal disputes between neighbours.
[3] For the following reasons I find that the McKinleys have not established that the Strata discriminated against them, and I dismiss their complaints.
II ISSUES AND SUMMARY OF FINDINGS
[4] Section 8(1) of the Human Rights Code prohibits discrimination regarding a service customarily available to the public, including services a strata provides to its owners, because of personal characteristics such as mental disability and marital status.
[5] There is no dispute that Mr. McKinley has PTSD and no dispute that the McKinleys are married. To prove their complaints, Mr. and Mrs. McKinley each must establish that they experienced an adverse impact regarding the Strata’s services in which Mr. McKinley’s PTSD was a factor in his case, and in which Mrs. McKinley’s relationship with Mr. McKinley was a factor in her case: Moore v. British Columbia, 2012 SCC 274 at para. 33.
[6] If the McKinleys establish these criteria, the Strata may defend the complaints by establishing a bona fide and reasonable justification [BFRJ], including that it reasonably accommodated the McKinleys: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868.
[7] In my decision I find that:
a. At the October 24, 2019, meeting the McKinleys did not experience an adverse impact in the Strata’s services. They have not established that the Strata’s conduct with respect to this meeting breached the Code.
b. Neighbours called police on October 25, 2019. This call was unrelated to the Strata’s services and was not an adverse impact in the Strata’s services.
c. The meetings at issue in 2020 were Strata council meetings that the McKinleys had a right to observe, not participate in. They were able to observe a council meeting in February 2020, and the manner in which the council held subsequent meetings was dictated by COVID-19 protocols that came into place in March 2020. The McKinleys have not established any adverse impact related to the council meetings.
III EVIDENCE AND CREDIBILITY
[8] Mrs. McKinley testified at the hearing. Mr. Paisley, Ryan Peloquin, and Jim Goldsack testified for the Strata. Mr. McKinley did not testify; Mrs. McKinley explained that he would have found the process too stressful. I relied on Mrs. McKinley’s evidence about the events that are the basis for the complaints.
[9] This case is much more about differing perspectives than disputed facts, and there are no issues of credibility that are essential to my decision.
[10] At the start of the hearing, I outlined the issues I needed to decide to determine the outcome of the complaint. At times the witnesses testified about background information that was not relevant to those issues, which is understandable when parties are self-represented at a hearing. I considered all of the parties’ evidence, but I only recount what is necessary to explain my decision.
IV ANALYSIS AND DECISION
A. The Strata’s services
[11] In Rutherford v. Strata Plan VS 170, 2019 BCHRT 227 at paras. 19 to 22 the Tribunal described the extent of a strata’s services for the purposes of s. 8 of the Code:
The Code regulates three main spheres of social activity: employment, housing, and services. Within those spheres, it aims to identify and eradicate barriers to full and free participation. This is an ambitious purpose, but it is not unlimited. The Code does not purport to regulate or remove all barriers to equitable participation in society, even if they arise from protected characteristics like a disability. Rather, only those barriers arising within an area of life regulated by the Code are subject to scrutiny.
There is no question that strata corporations provide services to strata owners and are required by s. 8 of the Code to do so without discrimination. That obligation, however, must be grounded within the strata’s services. I will not attempt to exhaustively define the scope of a strata’s services, except to note that its function is broadly captured by s. 3 of the Strata Property Act, which says:
Responsibilities of strata corporation
Except as otherwise provided in this Act, the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners.
This function, and a strata’s relationship with its owners, is grounded fundamentally in the owners’ ability to enjoy and use their property. The types of services that a strata provides, and which are rightfully subject to scrutiny under the Code, include making rules and decisions about common areas of the property as well as the design, use, and accessibility of individual units. Without being exhaustive, these are the types of services that must be provided without discrimination.
These services clearly include the implementation and enforcement of a strata’s bylaws. Bylaws with a discriminatory impact may violate the Code . For example, if a no-pets bylaw adversely impacts a person who needs a pet because of their disability, a strata may be required to waive the application of the bylaw to that person: see eg. BH obo CH v. Creekside Estates Strata KAS1707 and another , 2016 BCHRT 100 at para. 88. Likewise, I accept that if a person is adversely impacted by a no-rental bylaw because of characteristics protected by the Code, the strata will be obliged to take all reasonable and practical steps to remove or alleviate that impact: Moore at para. 49; see eg. Talbot v. Strata Plan LMS 1351 and another, 2017 BCHRT 69.
A strata’s obligations, however, are limited to alleviating discriminatory barriers endemic to its services. They do not extend to alleviating discriminatory barriers faced by their owners because of social forces outside of the strata’s control: see eg Vik v. Finamore (No. 2), 2018 BCHRT 9 at para. 59.
[12] Mr. Paisley’s evidence was consistent with the Tribunal’s explanation of a strata’s services in Rutherford. He explained that the Strata council’s authority comes from the Strata Property Act . He explained that the Strata has two sections, one with about 15 residential units, and one with commercial units. The residential and commercial sections of the Strata each have their own set of bylaws, which must be consistent with the Act. This dispute only involves the residential units.
[13] The Strata is responsible for tasks that must be done on the property like landscaping, snow removal, and maintenance. The Strata contracts companies to do this work. The Strata also utilizes the services of Westcoast Strata Management Services Inc., which is Ryan Peloquin’s employer. Mr. Peloquin provides management services to the Strata.
[14] The Strata holds an annual general meeting [AGM] and regular council meetings. Strata members have a right to attend the AGM and participate. They also have a right to observe council meetings.
[15] The Strata council is made up of Strata members who volunteer their time to conduct the Strata’s business. The Strata council addresses members’ requests and any issues raised according to the bylaws. Mr. Paisley and Mr. Peloquin testified, and I accept, that the bylaws do not require the Strata to resolve personal disputes between neighbours.
B. October 24, 2019, AGM
[16] The Strata held this AGM at a Strata member’s home. Jim Goldsack was the Strata council president at the time and was at the meeting. Mr. Peloquin attended in his strata manager role. Mr. Paisley and the McKinleys also attended. Mr. McKinley has a service dog, which he brought to the meeting.
[17] The McKinleys allege that Mr. McKinley had to sit apart from Mrs. McKinley in the kitchen where it was hard to see everyone because he had his service dog with him. They say he was not appropriately accommodated to attend.
[18] There is some dispute between the witnesses about exactly where Mr. McKinley sat at the meeting. Mrs. McKinley says he sat in a chair in the kitchen with a towel on the floor near a heat register for his dog. Other witnesses recall him sitting outside of the kitchen near a set of stairs.
[19] It is not necessary to determine exactly where Mr. McKinley was sitting at the AGM. It is clear that from the evidence about the events that transpired at the meeting that wherever Mr. McKinley was seated, he was able to hear the meeting and engage in discussions, and at least some other Strata members at the meeting were able to see him. I find that he was not isolated or otherwise adversely impacted based on where he sat at the meeting.
[20] The McKinleys also allege that they were bullied at the AGM, which triggered Mr. McKinley to have a reaction related to his PTSD. There is no dispute that Mr. McKinley became agitated, had a short outburst, and left the meeting. To explain why this happened it is necessary to set out some background information.
[21] About five months before the AGM Mr. Goldsack’s wife sent an email to Mr. Peloquin for the Strata council providing some information about a community garden and asking the council to review garden rules at an upcoming meeting. This email also asked the council to consider adding a new rule after an incident where Ms. Goldsack said someone behaved inappropriately in the garden. It is not necessary to describe the garden incident to explain my decision.
[22] Mr. Peloquin forwarded Ms. Goldsack’s email to council members, which included Mr. McKinley at the time. Mr. McKinley believed that the garden incident involved him, although the email did not specifically refer to him or anyone else. He became upset, and Mrs. McKinley says he had a strong reaction because of his PTSD.
[23] About three months before the AGM, Ms. Goldsack sent an email to neighbours, including the McKinleys, about garbage cans and litter on the property. Mr. McKinley again believed that the email was about him even though Ms. Goldsack did not specifically refer to him.
[24] Mrs. McKinley became interested in and concerned about the Strata’s privacy obligations. She sent the Strata council multiple emails about her concerns.
[25] Mrs. McKinley says that at the start of the AGM, Mr. Goldsack said “We had 26 emails from one owner, and it was the most frustrating year ever.” She says most people knew that Mr. Goldsack was referring to her, and Mr. McKinley commented that everyone hated her. The McKinleys say Mr. Goldsack did not explain that Mrs. McKinley’s emails were about efforts to get the Strata to comply with privacy legislation because Mr. McKinley was upset by Ms. Goldsack sending emails with gossip and accusations to residents and the council, and this comment made Mrs. McKinley look bad.
[26] The McKinleys say there was a discussion about appointing Mr. Peloquin as the Strata’s privacy officer, Ms. McKinley objected and gave reasons for her objection. She testified that Mr. Peloquin argued with Ms. McKinley about whether he had previously shared an email that he should not have shared. Mrs. McKinley testified that the issue about the garden incident came up somehow, this set Mr. McKinley off, and he got up screaming.
[27] There is no dispute that when Mr. McKinley became agitated, he jumped up and said, “I have to get out of here before I kill somebody” and left the meeting with his dog. Mrs. McKinley says she helped him leave, then stayed at the meeting herself because she had complaints to raise.
[28] Mr. Goldsack did not testify about whether he made a comment near the start of the meeting about Strata council receiving 26 emails and being frustrated. Mr. Paisley did not ask him about this in direct examination and Mrs. McKinley did not put this to him in cross examination.
[29] Mr. Goldsack’s recollection of Mr. McKinley leaving the AGM is that Mrs. McKinley said something about the garden incident, then Mr. McKinley jumped up and said, “it was me, it was me, I have to get out of here before I kill somebody.” Mrs. McKinley did not cross examine Mr. Goldsack about his recollection. In her own evidence she did not say who raised the garden incident at the AGM.
[30] Mr. Peloquin recalled that there was some discussion between Mr. McKinley and Mr. Goldsack before Mr. McKinley became agitated, but he does not recall the words either of them used.
[31] Mr. Paisley recalls that a couple of issues became heated at the AGM. One was an issue another Strata member raised related to smoke entering her unit. The other was the discussion about the Strata’s privacy obligations. He testified that the privacy issue had been heated for some time. He understood that Mrs. McKinley wanted to be the Strata’s privacy officer and review emails between Strata members as part of that role. He testified that there was discussion over some time about privacy legislation applying to the Strata as a corporation but not to how individuals communicate with each other. He says that before the AGM Mrs. McKinley encouraged neighbours to vote against the Strata’s suggested privacy policy, which frustrated council members because it was Mrs. McKinley who wanted the council to address its privacy obligations in the first place. Mr. Paisley recalls that Mr. McKinley got up during the heated discussion about privacy obligations and raised his voice before leaving, but he does not recall the content of the discussion at the time or exactly what Mr. McKinley said.
[32] I find that the comments and heated discussion at the AGM did not amount to an adverse impact on the McKinleys.
[33] I accept that Mr. Goldsack may have made a comment near the start of the meeting about receiving 26 emails from one owner and this being frustrating. Although Mr. Goldsack did not address this issue in his evidence, it is consistent with Mr. Paisley’s evidence that council members were frustrated with Mrs. McKinley about the privacy issue. Even if Mr. Goldsack made a comment along these lines, however, it was nothing more than a comment that the council was dealing with a frustrating issue with a high volume of emails. I do not find this to be an adverse impact, nor did it lead to an adverse impact such as preventing the McKinley’s from participating in the AGM.
[34] The heated discussion about the Strata’s privacy obligations was stressful for the McKinleys, but I find that there was no conduct by any council member amounting to an adverse impact. Mrs. McKinley had strong feelings about the issue. I accept that her strong feelings about it were related to her wanting to protect her husband because he had strong reactions to emails from neighbours if he believed they were saying or implying negative things about him. I also accept that discussion of the issue upset Mr. McKinley.
[35] However, the privacy issue was part of the Strata’s business and inevitably would be discussed at the AGM. Discussion of the issue itself, even if people had strong feelings about it, did not amount to an adverse impact. There is no evidence that anyone on the council said or did anything improper during the discussion of the issue. The clearest evidence about what triggered Mr. McKinley to get up, yell, and leave, is Mr. Goldsack’s undisputed evidence that it was Mrs. McKinley who specifically raised the garden incident, which led to Mr. McKinley saying, “it was me” and that he had to leave. Therefore, I cannot accept that the Strata’s conduct created an adverse impact on either of the McKinleys.
[36] In short, the McKinleys have not established that they experienced an adverse impact at the AGM.
C. October 25, 2019, call to police about Mr. McKinley
[37] The McKinleys allege that the Strata discriminated against Mr. McKinley when Mr. Goldsack, who was the council president at the time, called police to report concerns about Mr. McKinley’s outburst at the AGM.
[38] Mrs. McKinley’s evidence is that a police officer attended their home on October 15, 2019, while they were having coffee. They invited the officer in, and the officer was empathetic and kind and said he understood PTSD. Mrs. McKinley’s evidence is that they knew it was Mr. Goldsack and his wife who called the police, and that the officer went to speak to them after leaving her home.
[39] Mrs. McKinley entered a police report into evidence, which says the officer who attended their home was investigating a report of uttering threats. The name of the person who called is redacted from the report. The report says that the person who called said Mr. McKinley had an outburst at the AGM, he was angry about a complaint made against him about the garden incident, and had stated that he was going to kill someone if he did not leave. The report says the officer talked to Mr. McKinley about his PTSD and the garden incident, how Mr. McKinley had since written an apology letter for his outburst, and there was no offence because his “threats” were veiled and not directed toward any individual.
[40] Mrs. McKinley wrote to the Strata council on December 8, 2019, to request that council meetings no longer be held in the same home where the AGM was held. In her email she says the officer who visited on October 25 was wonderful, kind, and empathetic, and assured them that he was there to make sure Mr. McKinley was okay, before asking them why they were holding meetings in people’s homes in the first place. Mrs. McKinley said in her email that she was certain that the officer would have spoken to Mr. Goldsack about this after visiting them.
[41] Mr. Goldsack’s evidence is that his wife called police, and he believes two other neighbours did as well. He says he believes his wife called to ask for a wellness check for Mr. McKinley, but he does not know the details. He says he saw the police officer’s car at the Strata on October 25, but the officer did not call or visit his home.
[42] I find that the call to police on October 25, 2019, cannot be discrimination by the Strata because it was not related to the Strata’s services.
[43] In a Strata of 15 residential units, it is inevitable that neighbours, including those who volunteer their time to be on the council, will know each other. Neighbours may not always get along, and some issues the Strata council and members must deal with will be difficult. An individual being on the Strata council, or the spouse of someone on the council, does not mean that their individual decisions and actions are actions of the council. Mrs. McKinley stayed at the AGM after Mr. McKinley left, and there is no evidence that any concerns about Mr. McKinley’s outburst were discussed. There is no suggestion that there was a council decision to call police because of any concerns about Mr. McKinley.
[44] Ms. Goldsack did not testify at the hearing. Based on Mr. Goldsack’s evidence, and the lack of any evidence to suggest that her call to police was related to any decision or action of the council, I find that Ms. Goldsack’s call to police was based on her own perspective or concerns. Being a council member or spouse of a council member does not prevent individuals from calling police or other emergency services based on any personal concerns they have for or about their neighbours. Ms. Goldsack doing so on October 15, 2019, is not discrimination in the Strata’s services.
D. Council meetings in 2020
[45] The Strata’s bylaws say that Strata members may attend council meetings as observers. The McKinleys regularly observed council meetings. After the AGM the McKinleys requested that no further meetings be held at the same house as the AGM where Mr. McKinley became agitated and left. They explained that returning to that location would raise risks to Mr. McKinley’s mental health. Mrs. McKinley also said she felt threatened because of how the owner of that home spoke to her at the AGM.
[46] The McKinleys asked for a council meeting on February 20, 2020, to be held at a neutral location offsite, specifically, at a meeting room in a grocery store. The Strata council initially agreed to move the council meeting to that location. However, Mr. Paisley, who was president of the council by this time, testified that when the council let other owners know about the new meeting location, some of them raised concerns, including one council member who would not drive at night, and others with concerns about stairs to the meeting room. Mr. Paisley explained that most owners in the Strata are older, that he is one of the youngest at age 60, and the Strata had to consider all of their needs.
[47] The Strata council moved the meeting location back to the home where the AGM was held. In her email to the council on December 8, 2019, Mrs. McKinley reiterated that she and Mr. McKinley would not be able to attend and observe the meeting at that location. She asked that the council move the meeting back to the neutral offsite location. She said “This is not a complicated or time-consuming decision for you, so will you please have an answer for me one way or the other by Monday, December 16. If you decide not to change the location or I do not hear from you, I will take that as a preference for me to begin the human rights complaint process.”
[48] Mr. Paisley understood Mrs. McKinley to be saying that even though there were seven weeks before the February 20 council meeting, she would file a human rights complaint if the Strata did not agree to have the meeting in the location of her preference, and she would not deviate from her position. He explained that the council decided to provide a zoom link to the meeting so all owners could observe it remotely. His view was that this would treat all owners equally.
[49] The Strata sent a zoom link to owners to allow them to observe the February 20, 2020, meeting. The McKinleys observed the meeting this way. On March 1, 2020, they wrote an email to council in which they raised concerns about the zoom format. Their concerns included that they could only see Mr. Peloquin on the screen, it was difficult to hear the council members, and they could not tell who was chairing the meeting or taking notes. The council replied to their email and explained that the president chaired the meeting, Mr. Peloquin was presenting material, and Mr. Peloquin took notes.
[50] On all the evidence, I am not persuaded that the McKinleys experienced an adverse impact related to this meeting. I accept that they wanted to observe the council meeting, and they wanted to do so in person at a neutral offsite location, but the evidence does not establish that the Strata had an obligation to allow owners to observe council meetings by physically attending the meetings or to give owners input into where and how they held council meetings as part of its services.
[51] The McKinleys’ right under the Strata bylaws was to observe council meetings, and the Strata allowed them to do so in the same manner as it ultimately decided on for all owners. The Strata bylaws say owners have a right to “attend” council meetings to observe, but they do not preclude remote attendance. Once the council decided to allow all owners to observe the meeting remotely instead of by physically attending the meeting, the council was not treating the McKinleys differently from other owners or requiring them to attend a location they could not go to in order to exercise their right.
[52] I find that the McKinleys only being able to see Mr. Peloquin and having difficulty hearing others speaking at the meeting does not constitute an adverse impact. They were observing, not participating, and council meeting minutes are made available to owners. They would have had an opportunity to review the meeting minutes to review any information they missed.
[53] While I dismiss this allegation based on my decision that the McKinleys have not established that they experienced an adverse impact related to their right to observe the council meeting on February 20, 2020, I also note that even if I had found that initially planning to hold the meeting at the same home as the AGM created an adverse impact for the McKinleys, I would dismiss the complaint in any event because allowing them to observe the council meeting online was a reasonable accommodation.
[54] For the purposes of this analysis, I assume that Mr. McKinley’s PTSD is a factor in his reasons for declining to attend a meeting at the same home where the AGM was held. I also assume for the purposes of my decision that Mrs. McKinley’s marital relationship to Mr. McKinley is a factor in her reasons for declining to attend another meeting at that location, although this connection is less clear on the evidence before me. In any case, providing the McKinleys with a zoom link to observe the meeting remotely was a reasonable accommodation. The McKinleys did not have a right to dictate the location or format of the meeting as part of a reasonable accommodation. Mr. Paisley submitted that an accommodation must be reasonable and that someone seeking an accommodation is not necessarily entitled to their preferred accommodation. This is accurate:Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at 994‐995.
[55] The McKinleys also say the Strata did not allow them to observe three additional council meetings before they sold their home and moved in February 2021. They say the zoom call did not work for the second meeting in May 2020, the video feed of the third meeting was interrupted after 36 minutes when the council went to walk around the Strata property during the meeting, and they did not receive the link for the last meeting they had a right to attend before they moved.
[56] The McKinleys filed their complaints in January 2020. The scope of their complaints includes the AGM and the Strata’s decision to allow owners to observe the February 20, 2020, meeting online instead of holding it offsite. They did not amend their complaints to add additional allegations. At the outset of the hearing, I decided to allow the McKinleys to enter evidence related to the subsequent council meetings on the basis that if I found that the Strata discriminated by holding the February 20 meeting at the same home as the AGM, and giving them only remote access, this evidence could be relevant to the appropriate remedy if I found the discrimination to be ongoing.
[57] I have found that the Strata’s decision about how to give the McKinleys access to the February 20, 2020, council meeting was not discrimination. It is not open to me to assess allegations about later meetings that are not within the scope of the complaint to determine whether the Strata discriminated against the McKinleys on separate occasions. In any case, Mr. Paisley testified that when COVID-19 pandemic restrictions on gatherings came into place after the February 2020 meeting, it was not possible to allow Strata owners to attend council meetings in person to observe at any location. Mrs. McKinley did not dispute this. Any issue that arose from allowing them to observe meetings online only after this point, instead of at a location where they would be comfortable attending in person, could not be an adverse impact in which Mr. McKinley’s disability or Mrs. McKinley’s relationship with him were factors.
[58] The McKinleys have not established that the Strata’s decision to allow for online observation of the February 2020 council meeting instead of changing the location was discrimination.
V CONCLUSION
[59] The McKinleys have not established that they experienced an adverse impact in the Strata’s services. I dismiss their complaints under s. 37(1) of the Code.
Jessica Derynck
Tribunal Member