Arroyo Cornejo v. Metcap Living Management Inc. and another, 2024 BCHRT 344
Date Issued: December 18, 2024
File: CS-005759
Indexed as: Arroyo Cornejo v. Metcap Living Management Inc. and another, 2024 BCHRT 344
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:
Enrique Alvaro Arroyo Cornejo
COMPLAINANT
AND:
Paul Heron and Metcap Living Management Inc.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) AND 27(1)(d)(ii)
Tribunal Member: Robin Dean
On his own behalf: Enrique Alvaro Arroyo Cornejo
Counsel for the Respondent: Danny Bernstein and Donna Chapman-Jones
I INTRODUCTION
[1] Enrique Alvaro Arroyo Cornejo, a Hispanic person from Peru, alleges that the Respondents discriminated against him based on race and place of origin when they rejected his applications to rent two residential units in one of the buildings they manage.
[2] The Respondents, MetCap Living Management Inc. and Paul Heron, deny discriminating and say there are solely non-discriminatory reasons for rejecting Mr. Arroyo Cornejo’s rental applications, namely that his rental applications contained partial information. They apply to dismiss the complaint under s. 27(1)(c). Alternatively, they apply under s. 27(1)(d)(ii) to dismiss the complaint against Mr. Heron, who was employed by MetCap as a Resident Manager and was involved in the intake of Mr. Arroyo Cornejo’s rental applications.
[3] I find it most efficient to decide the Respondents’ application under s. 27(1)(c). In this decision, I must consider whether there is no reasonable prospect that the complaint will succeed.
[4] For the following reasons, I allow the application and dismiss the complaint. As a result, I do not find it necessary to decide Mr. Arroyo Cornejo’s application for additional document disclosure, which he made in his response to the application to dismiss.
II BACKGROUND
[5] 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. I make no findings of fact on the merits.
[6] On December 9, 2020, Mr. Arroyo Cornejo left a voicemail with Mr. Heron, regarding two units that were for rent in one of MetCap’s buildings. The units for rent were unit 301 and unit 304 [Units], both south facing. Mr. Arroyo Cornejo also sent Mr. Heron an email that same day.
[7] As Resident Manager, Mr. Heron was responsible for the intake of rental applications and sending completed rental applications to the Licensed Property Manager for review and approval.
[8] On December 15, Mr. Arroyo Cornejo emailed Mr. Heron saying that he was interested in renting one of the Units and asking for pictures. Mr. Arroyo Cornejo and Mr. Heron spoke over the phone. Mr. Heron says that he does not specifically remember the details of this conversation, but that “it is likely that I asked the Complainant routine questions focused on his ability to pay for the tenancy, for example his employment history and prospects for employment.” Mr. Heron says that this is part of his normal intake and screening procedure.
[9] Mr. Arroyo Cornejo says that in this initial conversation, Mr. Heron asked him where he came from, the type of work he did, and how he managed to live in the UK given that he comes from Peru. Mr. Arroyo Cornejo says that this conversation made him feel as if Mr. Heron did not believe what Mr. Arroyo Cornejo told him about his career. He explains further:
[Mr. Heron] placed a lot of emphasis and time during our first phone communication … on [my and my wife’s] countries of origin, the reason why we are moving to Canada, and what work we will be doing. I felt that [Mr. Heron] was surprised and distrustful of my work experience in the financial industry in the countries where we previously lived. We believe that we were treated unfairly and we think that our rental application was never processed.
[10] The Respondents say that when they are not able to perform a credit check for a prospective tenant, like an overseas applicant, financial information is essential to the rental application process.
[11] After the phone call, the Respondents say they engaged in the rental application process with Mr. Arroyo Cornejo. Mr. Heron says he sent Mr. Arroyo Cornejo pictures of the Units by email on December 16.
[12] From December 18 to December 28, Mr. Heron was on vacation and was temporarily replaced by Jan Egge, who, on December 20, sent Mr. Arroyo Cornejo a rental application for unit 304.
[13] As I understand it, there was some back and forth between the parties because a portion of the rental application had not been completed by the Respondents indicating the unit description, monthly rent, and utilities [the landlord information]. On December 21, Ms. Egge says she sent Mr. Arroyo Cornejo an updated application form, which Mr. Arroyo Cornejo returned on December 22. Mr. Arroyo Cornejo disputes this version of events, saying that Ms. Egge did not update the application form and that he submitted the application for Unit 304 with the landlord information missing.
[14] In the application materials I have before me, the application for Unit 304 does not contain information about the co-applicant, Mr. Arroyo Cornejo’s wife. Mr. Arroyo Cornejo says that Mr. Heron had told him on December 15 that he could leave his wife’s employer information blank due to her status as a full-time student. It appears that this information was not communicated to Ms. Egge. Ms. Egge says that she could ultimately not send Mr. Arroyo Cornejo’s application for Unit 304 to the Licensed Property Manager for review because it was incomplete. In particular, the application form did not contain the co-applicant’s supplementary information and other financial documents.
[15] Apparently, Ms. Egge did not communicate to Mr. Heron or to Mr. Arroyo Cornejo that she had rejected Mr. Arroyo Cornejo’s application for Unit 304. On December 24, Mr. Heron sent Mr. Arroyo Cornejo an email telling him that he would send him an application for Unit 304 when he returned from vacation. That same day, Mr. Arroyo Cornejo confirmed that he wanted to move into Unit 304 on January 14, 2021.
[16] Mr. Heron says that on December 28, another applicant submitted completed paperwork for Unit 304, which was reviewed and accepted by the Licensed Property Manager.
[17] On December 29, Mr. Heron sent an application form for Unit 301, which had not yet been rented. Mr. Heron asked Mr. Arroyo Cornejo to “please be detailed”. Mr. Arroyo Cornejo asked for a virtual tour of Unit 301; however, Mr. Heron said he could not offer a virtual tour given his workload.
[18] Mr. Arroyo Cornejo returned the application for Unit 301 on December 29. Again, the co-applicant’s information was incomplete, and Mr. Heron says he could not provide the incomplete application to the Licensed Property Manager for review.
[19] On January 4, 2021, Mr. Arroyo Cornejo asked for an update on his applications for the Units. Mr. Heron replied a half hour later informing Mr. Arroyo Cornejo that both Units had been rented.
[20] Mr. Arroyo Cornejo lodged a complaint with Mr. Heron’s manager and filed this human rights complaint.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[21] The Respondents apply to dismiss Mr. Arroyo Cornejo’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[22] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[23] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[24] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[25] To prove his complaint at a hearing, Mr. Arroyo Cornejo will have to prove that he has characteristics protected by the Code , he was adversely impacted in tenancy, and his protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he did that, the burden would shift to the Respondents to justify the impact as a bona fidereasonable justification. If the impact is justified, there is no discrimination. The Respondents do not advance a justification defence in the materials before me.
[26] The Respondents say that Mr. Arroyo Cornejo’s complaint is based on speculation and conjecture and that he has no reasonable prospect of proving that the adverse impact he experienced was connected to his race or place of origin. For the following reasons I am persuaded that Mr. Arroyo Cornejo’s complaint has no reasonable prospect of success.
[27] The Tribunal has often remarked that discrimination can be subtle and can take the form of unconscious beliefs, biases, prejudices, and stereotypes: see e.g. Young Worker v. Heirloom and another, 2023 BCHRT 137 at para. 47. Indeed, discrimination will often be proved by circumstantial evidence and inference: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302 at para. 482.
[28] Here, Mr. Arroyo Cornejo asks the Tribunal to infer the requisite connection between his protected characteristics and the adverse impact he experienced from the tone and content of Mr. Heron’s questions. Mr. Arroyo Cornejo points to the December 15 phone call as evidence of discrimination. He says Mr. Heron’s tone and the content of his questions made him feel that Mr. Heron was skeptical of Mr. Arroyo Cornejo’s professional achievements due to his ethnicity. Mr. Arroyo Cornejo says given this conversation that his protected characteristics were a factor in his treatment by the Respondents. Mr. Arroyo Cornejo also points to inconsistencies in the materials before me to argue that other applicants were treated differently from him, which he says raises concerns about potential discrimination.
[29] The Respondents say that they had to engage in these topics with Mr. Arroyo Cornejo given that they could not perform a credit check on him. Further, they say that they did not hear anything problematic from Mr. Arroyo Cornejo and therefore did engage in the application process with him. That he was ultimately not successful in his applications, according to the Respondents, does not evidence discrimination. Rather, they say, it evidences the busy and competitive nature of the rental application process, particularly around the winter holidays. Ultimately, according to the Respondents, other applicants submitted completed forms before he did and that is why they were successful in their applications. Any failures in communication, they say, are understandable in the circumstances and in no way related to Mr. Arroyo Cornejo’s personal characteristics.
[30] Considering all the evidence before me, I am satisfied that Mr. Arroyo Cornejo has not taken his complaint out of the realm of speculation and conjecture. While Mr. Heron asked Mr. Arroyo Cornejo questions about his place of origin, it is not necessarily in contravention of the Codeto ask a question regarding a protected characteristic. Rather, what matters is the context in which the questions are asked: Jahromi v. Link2 Manufacturing , 2017 BCHRT 161 at para.28. The context here has been discussed above and included investigating Mr. Arroyo Cornejo’s motivations for moving to Canada and his ability to pay the rent on one of the Units. It also includes the Respondents sending Mr. Arroyo Cornejo information and applications after the conversation he points to as a basis for a possible inference. If any of the other applicants were treated differently, the Respondents have explained that this was due to the busyness of the season and the fact that Mr. Heron went on holiday while the application process was ongoing.
[31] Therefore, even if I had been persuaded that Mr. Arroyo Cornejo had taken an inference of nexus out of the realm of conjecture, I find the Respondents are reasonably certain to rebut that inference based on their non-discriminatory explanations of their conduct.
IV CONCLUSION
[32] Ultimately, the Respondents engaged in the application process with Mr. Arroyo Cornejo. I am not satisfied that his race or place of origin were factors in the outcome of this application process – i.e. that Mr. Arroyo Cornejo’s applications were unsuccessful. I have allowed the Respondents’ application. Mr. Arroyo Cornejo’s complaint is dismissed.
Robin Dean
Tribunal Member
Human Rights Tribunal