Bouwman v. Cascadia Apartment Rentals Ltd., 2024 BCHRT 327
Date Issued: November 19, 2024
File: CS-001176
Indexed as: Bouwman v. Cascadia Apartment Rentals Ltd., 2024 BCHRT 327
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:
Lee Bouwman
COMPLAINANT
AND:
Cascadia Apartment Rentals Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b)
Tribunal Member: Theressa Etmanski
Own their own behalf: Lee Bouwman
Agent for the Respondent: Ellen Martine and Olena Byelan
INTRODUCTION
[1] Lee Bouwman’s husband was a resident at Cascadia Apartments (Shannon Gardens). Ms. Bouwman was her husband’s caretaker, and a regular visitor to the unit. Ms. Bouwman says she generated additional income by collecting and recycling empty bottles and cans, which she cleaned and sorted inside her husband’s unit [ Unit ]. She alleges that Cascadia subjected her to verbal abuse, intimidation, persistent surveillance, and interfered with her ability to support her husband. Cascadia ultimately ended her husband’s tenancy, which she says disrupted her source of income and rendered her husband homeless. She has filed a complaint against Cascadia alleging discrimination in tenancy on the ground of lawful source of income.
[2] Cascadia denies discriminating against Ms. Bouwman and says it ended her husband’s tenancy because of health and safety concerns related to the cleanliness of the Unit. They say Ms. Bouwman was not a tenant of the Unit, and they were unaware of her source of income. Cascadia applies to dismiss the complaint pursuant to s. 27(1)(b), (c), (d), (e), and (f) of the Code . I find it most efficient to address this complaint under s. 27(1)(b). Ms. Bouwman has not provided a response to this application, although she was given the opportunity to do so.
[3] The resolution of this application turns on whether Ms. Bouwman has alleged facts that, if proven, would support that she was adversely impacted in tenancy. I find that she has not.
[4] For the following reasons, I grant the application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
BACKGROUND
[5] The following background is taken from the information provided by the parties. I make no findings of fact.
[6] Ms. Bouwman’s husband signed a rental agreement with Cascadia on May 1, 2017. In his application for tenancy, he indicated that he was married but would be the sole occupant of the Unit.
[7] Ms. Bouwman visited the Unit to provide care to her husband. She describes her husband as the tenant of the Unit. She describes the Unit as her work environment.
[8] In June 2017, Cascadia conducted a fire inspection of the Unit and noted concerns regarding the odour and cleanliness in the Unit. Follow up inspections took place multiple times between July and September 2017, each raising similar concerns.
[9] On September 27, 2017, Cascadia sent a “final notice” letter to Ms. Bouwman’s husband following another inspection of the Unit. It detailed concerns about cleanliness, damage to property, and health and safety, and reproduced the relevant sections of the tenancy agreement that it said were not being followed. The letter stated that a follow-up inspection would take place approximately two weeks later, and that an eviction notice would be issued if the conditions in the Unit were not improved.
[10] On October 16, 2017, a Health and Safety Manager inspected the Unit. The follow-up letter addressed to the Property Manager states in part:
Having performed an “Informed Inspection,” I determined during the course of this inspection that the tenant is NOT keeping up with their housekeeping obligations, pursuant to the terms and conditions of their lease agreement; furthermore, the sub-standard housekeeping and hygiene in the unit has damaged surfacing materials beyond repair (carpets, walls, cupboards, etc.), most of which will require replacement at the time of move-out.
Turnover of this unit will be extremely costly due to the need for ozone application to get rid of the smell of garbage; additionally, the tenant’s habit of collecting garbage from the common area garbage cans and bringing these items into the unit, has significantly jeopardized the lawful rights of the neighbours and staff by presenting a Health & Safety issue by way of the introduction of smell, pathogens, dirt and overall uncleanliness.
The tenant has applied an anti-bedbug powder throughout their floors in a proactive attempt to mitigate the introduction of bedbugs from the garbage they’re bringing into the unit. This power, [sic] likewise isn’t safe to ingest in the large amount it has been haphazardly distributed on the flooring materials.
I hereby recommend grounds for immediate possession of the unit based on the above observations.
[11] Cascadia subsequently issued a notice to end tenancy to Ms. Bouwman’s husband in October 2017. The Residential Tenancy Branch issued an order of possession of the Unit to Cascadia, effective February 28, 2018. Ms. Bouwman’s husband ultimately agreed to vacate the Unit by the end of April 2018.
[12] Ms. Bouwman’s husband filed a separate complaint with the Tribunal. That complaint has since been closed.
DECISION
[13] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code . Under s. 27(1)(b), the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon , 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56.
[14] In this case, Ms. Bouwman must set out facts that, if proven, could establish that she has a characteristic protected by the Code , she was adversely impacted in tenancy, and her source of income was a factor in the adverse impact : Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[15] Lawful source of income is a protected characteristic in the area of tenancy under s. 10 of the Code . I understand that one of Ms. Bouwman’s sources of income was the collection of empty cans and bottles which she returned to a recycling facility for a refund.
[16] At issue in this complaint is whether Ms. Bouwman has set out facts that, if proven, would support that she was adversely impacted in tenancy. I find that she has not. She has not provided information to support that s. 10 applies to the current complaint or that her allegations arose in the context of a tenancy-like relationship.
[17] Protection against discriminatory treatment in a tenancy context is found under s. 10(1)(a) or s. 10(1)(b) of the Code . Section 10(1)(a) provides that a person must not “deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant” because of a person’s protected characteristic. Section 10(1)(a) contains specific language about who it applies to with the qualification “as a tenant.”
[18] Section 10(1)(b) of the Code prevents discrimination against “a person or class of persons” regarding a “term or condition of the tenancy of the space” because of a protected characteristic. I understand this to mean that s. 10(1)(b) could apply to individuals beyond formal tenants, although there must still be a contextual basis for the terms or conditions of tenancy to impact them.
[19] The terms “tenant” and “tenancy” are not defined by the Code . The Tribunal interprets these terms broadly and purposefully, to ensure that s. 10 achieves its broad public purpose: McCormick v. Fasken Martineau DuMoulin LLP , 2014 SCC 39 at para. 17. One of the public purposes of s. 10 is access to housing for vulnerable and historically excluded groups. As the Tribunal described in Vik v. Finamore (No. 2) , 2018 BCHRT 9 at para. 58:
Section 10 is a legislative recognition that equity-seeking groups have long been excluded and marginalized from the housing market, and that safe and secure housing is a necessary component of full and free participation in economic, social, political and cultural life: Code, s. 3; [citations omitted]. Section 10 prohibits persons from excluding or treating people adversely in relation to a tenancy because of characteristics protected by the Code – characteristics marked by longstanding patterns of exclusion and consequent social inequality.
[20] Despite these goals, the protections under s. 10 do not impose obligations on landlords to remove barriers people may face in relation to housing outside the specific tenancy they are providing: Vik at para. 59. While there does not need to be a formal tenancy relationship for s. 10 to apply, there must still be a tenancy-like relationship between the parties: Davis v. Hrycan , 2003 BCHRT 40. The Tribunal has stated that the Code ’s protection of tenancy-like relationships may be broader than tenancies regulated under the Residential Tenancies Act , which involves an intention between parties to form the legal relationship of landlord and tenant: Brooks v. Skyacres Turkey Ranch Ltd. and others (No. 2) , 2022 BCHRT 73 at paras. 218-219.
[21] With these parameters in mind, the Tribunal has identified a non-exhaustive list of factors which may indicate the presence of a tenancy-like relationship. These include:
the “exchange of money, services, or other consideration in exchange for lodging”; a pre-agreed term; some degree of permanence; and an intention – explicit or implicit – to create a tenancy [citations omitted]. In McCulloch v British Columbia (Human Rights Tribunal) , 2019 BCSC 624, the BC Supreme Court held that s. 10 does not require payment of rent or consideration in circumstances where an occupant is otherwise legally entitled to live in the space: para. 123.
Brooks , at para. 219.
[22] In this case, I find that Ms. Bouwman has not provided any information to suggest that she was a tenant or in a tenancy-like relationship with Cascadia. She does not allege that she lived in the Unit or wished to live in the Unit. There is no information to suggest that there was an agreement between Ms. Bouwman and Cascadia, either explicit or implicit, with respect to her access to the Unit or otherwise. This complaint is not about access to housing for Ms. Bouwman, or otherwise preventing discrimination where she lives. Ms. Bouwman does not suggest that the Unit was in anyway her living space; rather, the information she provides is that the Unit was where she provided care to her husband and carried out certain functions with respect to her source of income. Applying a broad and purposeful approach to tenancy, I cannot conclude that there are any facts before me which could invoke the protection of s. 10 of the Code .
[23] The Tribunal is not empowered to “prevent discrimination wherever it is found” and some relationships will not be “subject to scrutiny under human rights legislation”: University of British Columbia v. Berg , 1993 CanLII 89 (SCC), [1993] 2 SCR 353. In these circumstances, I am not persuaded that there are any facts in this complaint which could support a contravention of the Code .
CONCLUSION
[24] Ms. Bouwman has not provided facts that, if proven, could support that she was adversely impacted in tenancy.
[25] I grant Cascadia’s application and dismiss the complaint in its entirety pursuant to s.27(1)(b) of the Code .
Theressa Etmanski
Tribunal Member