Hetherington v. Crescent Downs Housing Cooperative, 2024 BCHRT 312
Date Issued: November 5, 2024
File(s): CS-012385
Indexed as: Hetherington v. Crescent Downs Housing Cooperative, 2024 BCHRT 312
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:
Susan Hetherington
COMPLAINANT
AND:
Crescent Downs Housing Cooperative
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT and JOINING COMPLAINT
SECTION 22 and 21
Tribunal Member: Steven Adamson
On her own behalf: Susan Hetherington
Counsel for the Respondent: Megan MacNeil
I. INTRODUCTION
[1] On April 2, 2024, Ms. Hetherington filed a retaliation complaint under s. 43 of the Human Rights Code[Code], against the Crescent Downs Housing Cooperative [the Coop].
[2] The issue before me is whether to accept the Complaint against the Coop. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, the complaint is accepted for filing against the Coop as a continuing contravention of the Code : s. 22(2).
II. BACKGROUND
[4] Ms. Hetherington’s parents bought shares and moved into the Coop in 1998.
[5] In 2018 Ms. Hetherington moved into the Coop with her father to care for him and provide companionship after her mother died.
[6] In September 2021, Ms. Hetherington and her father each filed complaints with the Tribunal against the Coop for failing to accept that their cohabitation relationship created a joint Coop membership. The complaints allege that the Coop only accepted the formation of joint memberships for those cohabiting in a marital type of relationship.
[7] On June 20, 2022, Ms. Hetherington’s father passed away. His complaint was subsequently closed.
[8] After her father’s death, Ms. Hetherington alleges the Coop engaged in the following retaliatory conduct for filing her complaint in 2021.
[9] On June 27, 2022, Ms. Hetherington alleges the Coop wrote to advise the notice of her father’s death triggered the end of his membership in the Coop as of August 20, 2022. She says that the Coop told her that she would need to make time for applicants to view the suite for a September 1, 2022, move-in date. Ms. Hetherington alleges she interpreted the notice as the Coop taking steps to evict her in retaliation for her filing her complaint in September 2021 [the Eviction Allegation ].
[10] Ms. Hetherington alleges that in July 2022, the Coop gave her 48 hours notice to make an application to become a Coop member. She says the notice period fell over the weekend when she could not obtain any legal assistance [the Membership Application Allegation #1].
[11] Ms. Hetherington says that she submitted a membership application on July 25, 2022. In it she noted that she had jointly resided with her father in the Coop since October 2018. She requested the Coop honour and implement the survivor rights section of the lease, to prevent discrimination based on family status or marital status. Ms. Hetherington went on to note she was over 55 years old and willing to serve on various Coop committees.
[12] On August 19, 2022, the Coop informed Ms. Hetherington that her membership application was denied. The Coop, through its “Move in / Move out committee” informed her that its decision was based on her previous interactions with Coop members between March and October 2020 where she had displayed “undesirable social and nuisance behaviour”. Ms. Hetherington alleges the Coop’s decision to deny her membership was related to her ongoing discrimination complaint filed in 2021. She alleges the Coop used one-sided versions of brief conversations that occurred years earlier to mischaracterize her as a nuisance to deny her membership. Ms. Hetherington claims that she was well behaved while living with her father for 4 years [the Membership Application Allegation #2].
[13] On September 30, 2022, Ms. Hetherington moved out of the Coop.
[14] Ms. Hetherington alleges the Coop failed to release her late father’s shares in the Coop which were payable to her in a timely manner for reasons related to her filing a human rights complaint. She alleges her sister, while administering the estate, learned from a Coop representative that a delay in the release of these funds could be related to her ongoing human rights complaint.
[15] In early November, Ms. Hetherington’s sister emailed the Coop seeking the release of her late father’s Coop shares in the amount of $107,000 since the end of September move out date. The sister stated that there was no reason to hold back the funds for weeks as Ms. Hetherington had complied with all the requirements for their release. Ms. Hetherington believes that that the Coop withheld the return of funds because she had filed a complaint. Without the return of the funds, she alleges that she was forced to use her own limited money to stay in a motel for the month of October and stay with others while working out of her car for the rest of the year [the Return of Share Funds Allegation].
[16] On November 16, 2022, the Coop informed Ms. Hetherington’s sister that a cheque for $102,000 would be available for pick up that day. She was further informed that a $5,000 holdback had been reserved to cover repair costs to the unit. Ms. Hetherington alleges the Coop’s decision to withhold $5000 was unrelated to repairs associated with her tenancy but was held for reasons related to the new occupants’ potential elective renovations. She alleges the holdback was retaliation because others leaving the Coop were not subject to such a holdback when their shares were refunded [the Holdback Allegation].
[17] On December 5, 2022, it appears that the $5000 holdback, apart from just less than $300, was refunded to Ms. Hetherington’s father’s estate.
[18] On January 15, 2023, Ms. Hetherington’s sister emailed the Coop seeking a written rationale with receipts for the portion of the $5,000 holdback that was not returned.
[19] On January 16, 2023, the Coop responded by noting that sliding doors and a bifold door were missing from the unit and a replacement amount of approximately $300 would be deducted from the holdback amount.
[20] On February 11, 2023, Ms. Hetherington’s sister wrote to the Coop questioning the almost $300 charge for missing doors in the unit. She noted that Ms. Hetherington and the Coop had previously agreed that they would not be the responsibility of the estate because the Coop had insisted that they should be disposed of rather than being stored onsite. Ms. Hetherington’s sister accused the Coop of reneging on its prior decision to pass the inspection of the unit. She asked why new toilets installed by her father adding value to the unit were not addressed if putting it back into original condition was required.
[21] On March 29, 2023, the Coop sent a copy of its letter dated March 20, 2023, to Ms. Hetherington’s sister, which provided a decision on the holdback matter. The Coop confirmed its board unanimously decided to charge the Hetherington estate for the missing doors based on the occupancy agreement’s requirement that the unit be left vacant in the same condition and state of repair that it was at the date the member took possession. The letter also noted several other deficiencies, such as missing carpet transition strips, broken kitchen cupboard doors and dangerous broken bathroom bar light sockets that were considered reasonable wear, tear and damage that would not be subject to any charges.
[22] In circumstances where Ms. Hetherington was the recipient of the shares refund amount after any holdback charges, she alleges the Coop treated her differently than others who had made major changes to their units and were not required to return them to their original condition when moving out. She alleges that it was the Coop’s decision to dispose of the closet doors stored in a shed along with another small folding closet door stored in the attic. As such, the parties agreed during the inspection that no holdback charges would result from the removal of these doors. Ms. Hetherington further alleges the other problem items raised by the Coop were minor and no one else in the Coop would have been subject to this level of scrutiny. She believes it is reasonable to conclude the Coop targeted her in retaliation for filing a human rights complaint [the Charge for Missing Doors Allegation].
III. ANALYSIS AND DECISION
[23] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62, 2003 BCHRT 39.
[24] The complaint was received on April 2, 2024. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination had to occur on or after April 2, 2023.
[25] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child, 2018 BCCA 136 at para. 68. A continuing contravention is “>a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50.
[26] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dicksonat paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[27] Turning then to the first question identified above, I have considered when the last instance of the arguable contravention of s. 43 of Code occurred. Ms. Hetherington alleges the last allegation occurred with the Charge for Missing Doors Allegation of March 29, 2023, when the Coop notified her of its final decision to retain a portion of the holdback. She argues this is retaliation because a reasonable person would assume the Coop was treating her in this manner because of her ongoing human rights complaint.
[28] The Coop submits the March 29, 2023, Charge for Missing Doors Allegation is not an arguable contravention of s. 43 the Code . From its perspective the letter merely communicated the Coop’s decision to levy a modest holdback charge for the missing doors. It appears the Coop is arguing that Ms. Hetherington has not plead sufficient facts from which an arguable contravention of s. 43 could be proven.
[29] In Gichuru v. Pallai 2018 BCCA 78, at para. 58, the Court determined that to establish a complaint under s. 43, a complainant must show the following on a balance of probabilities:
1. A previous complaint has been made under the Codeand that the respondent was aware of the complaint.
2. The respondent engaged in or threatened to engage in the conduct described in s. 43 (e.g., evicted, discharged, intimidated, etc.).
3. There is a sufficient connection between the impugned conduct and the previous complaint. This connection may be established by proving that the respondent intended to retaliate, or may be inferred where the respondent can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct.
[30] With reference to the elements listed above, I disagree with the Coop on that nature of the March 29, 2023, Charge for Missing Doors Allegation. In this case the Coop was certainly aware of Ms. Hetherington’s human rights complaint filed against it for discrimination in services and tenancy. While appreciating the amount of money involved was relatively minor, under $300, this amount was nevertheless still a penalty that was experienced as a form of harassment by Ms. Hetherington. After taking all the necessary steps to satisfy the move out requirements and agreeing that there would be no charge for the missing doors because the Coop had insisted on their disposal, Ms. Hetherington alleges the Coop’s reversal of that decision can be reasonably perceived as an act of retaliation for the filing of her complaint with the Tribunal. She argues the Coop’s failure to force others who had made substantial changes to their units to bring them back to their original state or face move out charges while insisting this petty deficiency be deducted from the holdback amount clearly indicates retaliation against her for filing a complaint. For the purposes of this decision, I am satisfied that Ms. Hetherington has plead sufficient facts that, if proven, could establish a sufficient connection between the charge for the missing doors and the prior human rights complaint. Here, she says the Coop treated her differently than others moving out who had made changes and were not required to return their units to the original condition. I agree that, if proven, in the circumstances of this case it is reasonable to conclude this differential treatment was retaliation for filing a complaint.
[31] In concluding a timely arguable contravention exists, I am mindful of the Coop’s position that it was merely holding back a small amount necessary to bring the unit back to its original state that had nothing to do with retaliating against Ms. Hetherington for filing a complaint about its failure to recognize her as a joint member. My decision reflects the low threshold for finding an arguable contravention of the Codeonly. Once past the screening stage it will be necessary for Ms. Hetherington to prove retaliation occurred on the balance of probabilities following consideration of the evidence provided by both parties.
[32] The Coop also appears to argue the March 29, 2023, decision is not an allegation of retaliation as it was merely a reiteration or confirmation of a prior decision. I appreciate that the Coop’s January 16, 2023, email informed Ms. Hetherington’s sister about the charge for the missing doors. However, I am satisfied the March 29, 2023, decision was more than a reiteration or confirmation of the January 16, 2023 decision as it contains further details about the Coop board’s decision being made unanimously at the previous board meeting after reviewing the inspection report. The Coop also explained that it chose to charge for the missing doors but not for other deficiencies that were considered reasonable, wear, tear and damage. In my view, the March 29, 2023, letter provided reasons for its decision not previously communicated in the January 16, 2023, email.
[33] The Coop did not dispute the March 29, 2023, Charge for Missing Doors Allegation was late filed, and I agree. Here, the one-year deadline for filing a complaint for the March 29, 2023, allegation was March 29, 2024. That date was not a business day at the Tribunal as it was a holiday. It was the first day of a four-day weekend at Easter and, therefore, the due date of March 29, 2024, moved to the next business day, which was April 2, 2024. As such, Ms. Hetherington’s complaint received after close of business on March 28, 2024, was filed in time when it was officially received by the Tribunal on April 2, 2024: Rule 9 of the Tribunal’s Rules of Practice and Procedure.
[34] I also conclude Ms. Hetherington has set out other arguable allegations of retaliation in her complaint. First, with reference to the Eviction Allegation, she alleges it was reasonable to conclude that the Coop retaliated for her filing of a complaint by taking steps to evict her as soon as it learned of her father’s death. I agree that there is an arguable contravention of s. 43 of the Code where this conduct followed shortly after Ms. Hetherington filed a complaint about her membership. In circumstances where the Complaint centres around Ms. Hetherington’s entitlement to remain in the Coop and it is alleged that the Coop moved quickly to evict her, I am satisfied that a reasonable complainant would perceive this as retaliation. In my view, a temporal link exists between the filing of Ms. Hetherington’s complaint and the move to evict her from the Coop. I appreciate that the link is not one measured in days, but I am satisfied that the Coop moved to evict her soon enough after she filed a complaint to establish an arguable retaliation contravention of the Code.
[35] Second, I am satisfied that Ms. Hetherington has set out allegations of retaliation related to the two Coop Membership Application Allegations during the summer of 2022. First, she alleges the Coop gave her inadequate time to prepare her application. Ms. Hetherington further alleges the reasons for denying her application were flimsy and she was not given any opportunity to respond to accusations that she displayed undesirable social and nuisance behaviour. I conclude that a reasonable complainant would perceive the Coop’s alleged actions in relation to the membership application process and decision were retaliation given the nature of Ms. Hetherington’s complaint and the timing of the request for membership application and its denial. In this case, Ms. Hetherington filed a complaint related to the Coop not recognizing her joint membership and soon afterwards it allegedly offered her an unfair opportunity to gain membership that was pre-destined to fail.
[36] Third, I am satisfied that Ms. Hetherington has set out allegations of retaliation related to the Return of Share Funds Allegation and Holdback Allegation. In circumstances where Ms. Hetherington filed a complaint about her ability to remain in the Coop, I agree that a reasonable complainant would perceive the Coop’s alleged delays in paying out monies owed to Ms. Hetherington as retaliation based on her allegation that others moving out from the Coop were not treated in the same manner. In reaching this decision, I appreciate the Coop disputes the differential treatment allegations. Once again, I note that the burden will be on Ms. Hetherington to prove these retaliation allegations after the initial screening stage of this complaint.
[37] I note the Coop submits that Ms. Hetherington’s complaint appears to also contain allegations of retaliation related to its conduct in the Tribunal’s proceedings. I agree with the Coop that on the materials before me declining a voluntary mediation opportunity is not an arguable allegation of retaliation. I also agree with the Coop that its failure to acknowledge it discriminated against Ms. Hetherington prior to a determination by the Tribunal in a related matter is not an arguable allegation of retaliation.
[38] Having found several arguable retaliation allegations from mid to later 2022, it is now necessary to determine whether the timely March 29, 2023, Charge for Missing Doors Allegation can tether the later filed allegations stemming back to mid 2022. Put another way it requires me to determine whether the complaint alleges a continuing contravention. This analysis starts with a consideration as to whether the allegations are of a similar nature.
[39] The Coop argues the Charge for Missing Doors Allegation is unrelated to the two Membership Application Allegations. It also argues the Charge for Missing Doors Allegation is unrelated to the Return of Share Funds Allegation and the Holdback Allegation. I disagree with the Coop and conclude all the allegations are of a similar nature. In my view, the harms alleged concern Ms. Hetherington’s attempts to remain in the Coop and the process of her moving out. Although the Coop dealt the Ms. Hetherington’s father’s estate for the moving out allegations, she alleges that they affected her directly as she was the recipient of the payout of share funds as adjusted by the holdback and missing doors charge. In this case, the Coop is alleged to have created a number of hardships for Ms. Hetherington by forcing her out of the unit soon after she notified the Coop of her father’s death, providing her a negligible opportunity to become a member of the Coop, holding back the release of her father’s share funds owed to her at a time when she needed to obtain new accommodation, creating further financial harm by withholding $5000 for reasons related to the new occupiers’ renovation, and finally levying a charge for missing doors that had already been sorted out during the inspection. In my view, these harms are similar in nature as they relate to the Coop’s mistreatment of her shortly after her father’s death in connection with her human rights complaint.
[40] I have next considered the existence of gaps between allegations. After reviewing the allegations in this case, I have determined that there are no significant gaps for the purposes of s. 22(2) of the Code. The events took place during relatively short period from the time Ms. Hetherington’s father died in mid June 2022 until the missing doors charge decision on March 29, 2023. In reaching this decision, I note the Coop has not provided any arguments related to the existence of significant gaps in this case.
[41] Overall, I am satisfied that Retaliation allegations exist from mid to late 2022 of a similar nature in succession to the timely March 29, 2023, allegation. As such, the Complaint is a timely continuing contravention of the Code and it is, therefore, unnecessary for me to determine whether it is in the public interest to allow any late filed allegations to proceed.
IV. JOINING MS. HETHERINGTON’S COMPLAINTS
[42] The Tribunal sought submissions from the parties regarding whether to join Ms. Hetherington’s initial discrimination complaint with her retaliation complaint at the same time late filing submissions were requested. The parties were informed that Ms. Hetherington’s initial discrimination complaint was currently awaiting scheduling of a hearing on the merits.
[43] The Tribunal will join complaints if it is satisfied that it is fair and reasonable in the circumstances to do so under the Code : s. 21(6).
[44] While agreeing that it makes sense for related complaints to be jointly heard, the Coop requested a further opportunity to make joinder submissions if the Tribunal proceeded with accepting portions of the retaliation complaint that engage solicitor-client privilege, such as the decision to participate in mediation.
[45] In this case, I have decided to join Ms. Hetherington’s two complaints for consideration at one future hearing. In reaching this decision, I note the scope of the retaliation complaint does not now appear to engage solicitor-client privilege. I am satisfied that it is fair and reasonable to join the two complaints as both matters involve the same parties and an ongoing chain of events. Given the timeframe for scheduling Tribunal hearings I am further satisfied that there is sufficient time for the Coop to amend its complaint response to address the allegations of retaliation, and for the parties to engage in further document disclosure related to the retaliation allegations before any hearing related deadlines occur.
[46] As such, Ms. Hetherington’s two complaints are joined and proceed together under the initial complaint number. The Tribunal case manger will contact the parties shortly to set amended Form 2 and amended Forms 9.1 and 9.2 deadlines.
V. CONCLUSION
[47] For these reasons, the Complaint is accepted for filing as a continuing contravention of the Code: s. 22(2).
[48] The Complaint is also joined with Ms. Hetherington’s previous discrimination complaint under the Code: s. 21(6).
Steven Adamson
Tribunal Member