Greene v. The Owners, Strata Plan BCS 3495, 2025 BCHRT 3
Date Issued: January 8, 2025
File No: CS-002840
Indexed as: Greene v. The Owners, Strata Plan BCS 3495, 2025 BCHRT 3
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:
Jason Greene
COMPLAINANT
AND:
The Owners, Strata Plan BCS 3495
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and (d)(ii)
Tribunal Member: Beverly Froese
On their own behalf: Jason Greene
Counsel for the Respondent: Jenny Mehat
I INTRODUCTION
[1] In December 2020, Mr. Greene made a complaint against the Strata alleging discrimination regarding his employment as the Strata’s facilities manager based on mental disability contrary to s. 13 of the Human Rights Code . In October and November 2021, Mr. Greene amended his complaint to add further particulars to his existing complaint and to add an allegation that the Strata discriminated against him regarding an accommodation, service, or facility contrary to s.8 of the Code . In April 2022, Mr. Greene made a complaint against the Strata alleging that it retaliated against him contrary to s. 43 of the Code . At that time, the Tribunal accepted Mr. Greene’s retaliation complaint and joined the two complaints. Mr. Greene subsequently amended his complaint to add further particulars and allegations.
[2] In his original complaint, Mr. Greene alleges that the Strata discriminated against him when a member of the Strata’s Council I will refer to as Council Member A “labelled” him in an email as having a mental disability, when he was aggressively harassed by a Council member I will refer to as Council Member B , and when the Council did not allow his spouse to voluntarily assist him with performing his daily employment tasks. In his amended complaint, Mr. Greene alleges that between September and December 2020, he was continually harassed, threatened, and verbally assaulted by at least one Council member. He also alleges that the Strata failed to accommodate his generalized anxiety and sleeping disorders and terminated his employment after he made the original complaint. Last, Mr. Greene alleges that after his employment was terminated, the Council continued to intimidate, threaten, and harass him in an effort to coerce him into moving.
[3] The Strata denies discriminating or retaliating against Mr. Greene. The Strata says that at all times it accommodated Mr. Greene to the extent it knew he had any disability-related limitations or restrictions. It says that Mr. Greene’s employment was terminated for non-discriminatory reasons. The Strata further says that the Council Member A’s email about Mr. Greene was not discriminatory. Last, the Strata says it decided to terminate Mr. Greene’s employment before becoming aware of his complaint and denies that Mr. Greene was subject to any retaliatory intimidation, threats, or harassment.
[4] In December 2022, the Tribunal decided under its Case Path Pilot that this complaint would proceed directly to a hearing. In May 2023, the Tribunal granted the Strata’s request to make a dismissal application based on new information. The Tribunal allowed the Strata to make a dismissal application under ss. 27(1)(c) and (d)(ii) of the Code .
[5] For the following reasons, the Strata’s application under s. 27(1)(c) is granted in part. The allegations that the Strata discriminated against Mr. Greene by failing to accommodate his mental disability while he was the facilities manager and then terminated his employment and that Council Member A’s email was discriminatory will proceed to a hearing. The allegations that Mr. Greene experienced disability-related harassment and bullying regarding his employment or a service, accommodation, or facility provided by the Strata are dismissed on the ground they have no reasonable prospect of success. The allegation that the Strata retaliated against Mr. Greene for making a complaint contrary to s. 43 of the Code is dismissed on the basis it has no reasonable prospect of success.
[6] The Strata’s application under s. 27(1)(d)(ii) is denied. I decline to dismiss any of the allegations not dismissed under s. 27(1)(c) because I am not persuaded that proceeding with them does not further the purposes of the Code .
[7] To make this decision, I have considered all the information filed by the parties. I note here that not all of the attachments Mr. Greene submitted corresponded to his statement; however, I reviewed all the materials he provided. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[8] The background is taken from the materials provided by the parties. I make no findings of fact on the merits of the complaint.
[9] The Strata is known as Grand Central and consists of three buildings that include both commercial and residential strata lots. In 2016, Mr. Greene purchased a residential unit. He was elected to the Strata’s Council in 2019.
[10] Around June 2019, the Council passed a resolution to adopt a new staffing model such that a facilities manager position would be created to replace contracts with external companies. The Strata says the purpose of the new staffing model was to save money because many of the tasks performed by external companies could now be done by the facilities manager. For example, it was expected that the facilities manager would be responsible for pool maintenance, supervising cleaning staff, and performing minor repairs. At the same time, it adopted the new staffing model, the Council agreed that Mr. Greene would perform the duties of the facilities manager on a voluntary basis until the position could be filled.
[11] In late July 2019, Mr. Greene applied for and was hired to be the facilities manager. The term of his employment contract was from September 1, 2019 to August 31, 2021. The contract included terms that Mr. Greene would work a split-shift and be given advance notice if his contract were not going to be renewed.
[12] At the time Mr. Greene was hired, the Strata employed a building manager whose duties included cleaning and garbage removal. In April 2020, the Strata terminated the building manager’s employment. When the building manager’s employment was terminated, the Strata intended to hire a caretaker or cleaner to assist Mr. Greene because two people were required to clean and maintain the property.
[13] The parties do not appear to dispute that before Mr. Greene’s employment was terminated in late December 2020, a caretaker or cleaner had not been hired to assist him. Nor do they appear to dispute that between April and December 2020, Mr. Greene’s spouse helped him with various tasks, for instance garbage collection and removal, on a voluntary basis. The parties do, however, disagree about why a caretaker or cleaner was never hired. The Strata says it was because Mr. Greene obstructed the hiring process and wanted his spouse to get the position. Mr. Greene denies that and says Council failed to initiate the hiring process.
[14] In late December 2020, Mr. Greene’s employment was terminated. The Strata says it decided to terminate Mr. Greene’s employment because he breached his employment contract in several ways. Mr. Greene denies the Strata’s allegations against him and says they are fabricated. He says that between April and December 2020, the Strata failed to accommodate his diagnosed mental health condition and terminated his employment in retaliation for making a human rights complaint. Mr. Greene also alleges that he was subjected to constant bullying and harassment by certain Council members based on his disability, both before and after the termination of his employment.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[15] The Strata applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Strata to establish the basis for dismissal.
[16] 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.
[17] 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 942 at para. 77 .
[18] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at 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 .
B. Discrimination complaint
[19] To prove his complaint of discrimination at a hearing, Mr. Greene will have to prove that he has a characteristic protected by the Code , he was adversely impacted regarding his employment with the Strata or an accommodation, service, or facility the Strata provides, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he does that, the burden will shift to the Strata to justify the impact as a bona fide occupational requirement or bona fide reasonable justification. If the impact is justified, there is no discrimination.
[20] The Strata makes several arguments as to why the discrimination complaint should be dismissed under s. 27(1)(c). I consider each in turn.
1. Mr. Greene does not have a characteristic protected by the Code
[21] The Strata argues that Mr. Greene has no reasonable prospect of establishing that, at the material time, he had a disability protected by the Code . In support of its argument, the Strata points out that in the original complaint, Mr. Greene said he did not have a disability and only alleged he had a Code -protected disability in subsequent amendments.
[22] In his response, Mr. Greene explains why he initially said he did not have a disability. Specifically, Mr. Greene says that at the time he filed his complaint, he did not know that his diagnosed disorder was a disability protected by the Code . He says he was able to provide additional details about his medical condition after doing research and obtaining legal assistance.
[23] The term “disability” is not defined in the Code and whether a complainant has established this element is determined on a case-by-case basis. The Tribunal considers “the individual’s physical or mental impairment, if any; the functional limitations, if any, which result from that impairment; and the social, legislative or other response to that impairment and/or limitations”, with the focus being on the third element: Morris v. BC Rail , 2003 BCHRT 14 at para. 214. The Tribunal has said that meeting this part of the test requires proof of a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Boyce v. New Westminster (City) , [1994] B.C.C.H.R.D. No. 33 at para. 50.
[24] Based on the materials before me, I am not persuaded that Mr. Greene has no reasonable prospect of establishing that, at the material time, he had a disability protected by the Code .
[25] The evidence before me indicates that when he accepted the volunteer position, Mr. Greene was on a leave of absence from his former position because of a generalized anxiety disorder that affected his ability to function and perform his work duties. The medical evidence indicates that Mr. Greene had been under a doctor’s care since October 2018 and assessed for ongoing medical issues, specifically generalized anxiety disorder, mild generalized social anxiety disorder, chronic insomnia, depressive moods, lethargy, agitation, and reduced concentration. In my view, that evidence is sufficient to take this part of Mr. Greene’s case out of the realm of conjecture.
2. The Strata did not know Mr. Greene had a disability
[26] The Strata argues that Mr. Greene has no reasonable prospect of establishing that it failed to accommodate his disability while he was employed as the facilities manager. The Strata says that before, during, and after the hiring process, Mr. Greene never disclosed that he had a disability or that he required any disability-related accommodation.
[27] The Strata further argues that Mr. Greene has no reasonable prospect of establishing a nexus between his alleged disability and the termination of his employment. The Strata says it was apparent by November 2020 that it could not continue to keep Mr. Greene on as the facilities manager if it wanted to continue to operate and meet the needs of the Grand Central community. The Strata says Mr. Greene’s employment was terminated solely for non-discriminatory reasons, namely failure to protect the Strata’s privacy, poor job performance, unauthorized overtime, obstructing and resisting efforts to fill the caretaker position, unprofessional conduct, inappropriate use of online platforms, and hostile and intimidating behaviour toward others.
[28] Mr. Greene says the Strata knew about his disability and need for accommodation. He says he disclosed his condition to the Strata’s president at the time [ Former President ] when he accepted the volunteer position. He says that during the negotiation process for the permanent position, he requested certain terms to accommodate the symptoms of his condition, specifically to work a split shift, three weeks’ holidays, and advance notice if his contract was not going to be renewed. Mr. Greene says he maintained ongoing communication with the Former President and the Strata’s subsequent president [ President ], repeatedly informed the Council about his deteriorating health, and disclosed more detailed medical information after his workload increased.
[29] It is arguable that the Strata had non-discriminatory reasons for terminating Mr. Greene’s employment. The evidence indicates there was an acrimonious relationship between Mr. Greene and certain Council members that included reciprocal accusations about such things as breaching confidentiality and making false or slanderous statements. It is not the Tribunal’s role at this stage to make factual findings on any non-discriminatory reasons the Strata alleges led to the termination of Mr. Greene’s employment. The only issue I consider is whether Mr. Greene has a reasonable prospect of proving that the Strata knew about his alleged disability, or his alleged disability was a factor in the termination of his employment.
[30] The evidence indicates that after the building manager’s employment was terminated, Mr. Greene began to report to Council that he was experiencing health issues because of his increased workload and ongoing issues with some Council members. Specifically:
a. In late July 2020, Mr. Greene informed Council that a Council member’s unfounded allegations against him were affecting his work and the “added stress and anxiety are also resulting in loss of sleep and basic cognitive ability”;
b. In October 2020, another Council member told Mr. Greene that Council would work on hiring a caretaker because “most important is your health”;
c. In late November 2020, Mr. Greene reported to Council that covering the staff shortage and dealing with Council Member B over the past seven months had seriously affected his sleep, stress level, and overall health;
d. In early December 2020, Mr. Greene reported to the Council that he was exhausted and overwhelmed by his duties;
e. In early December 2020, Mr. Greene messaged the President and told her he went to the hospital as a precaution because he was having severe chest pains that could be due to stress; and
f. The termination letter states that one of the reasons why Mr. Greene’s employment was terminated was because he was telling owners that Council members were insensitive about his mental health.
[31] The evidence indicates that at least some Council members were aware that Mr. Greene was struggling with prioritizing and completing his tasks, which the Strata does not appear to dispute required two people to complete. The evidence also indicates that although Council asked Mr. Greene to provide details about the work he was doing because of concerns about his job performance, it never inquired whether any of those concerns might be related to a disability. The law is well settled that when an employer knows, or reasonably should have known, that there might be a relationship between their employee’s job performance and a disability, “the employer has a duty to inquire into that possible relationship before making an adverse decision based on performance”: Martin v. Carter Chevrolet Oldsmobile, 2011 BCHRT 37 at para. 29. If after making those inquiries an employer knows there is a relationship between the job performance and the employee’s disability, “then the employer has a duty to accommodate the employee to the point of undue hardship”: Martin at para. 29.
[32] In my view, a hearing is required to determine whether the information Mr. Greene provided to Council about his health triggered the Strata’s duty to make inquiries to ascertain if there might be a relationship between his job performance and his alleged disability for the purposes of considering whether it could reasonably accommodate him or before deciding to terminate his employment.
[33] I recognize that the Tribunal has held that workplace stress or anxiety, for example from what a complainant believes is unfair treatment, may not, in and of itself be a disability protected under the Code : Smith v. Sobeys Inc. , 2023 BCHRT 138 at para. 33; Osman v. Think Profit.com Inc. and another , 2021 BCHRT 89 at para. 19. However, given the medical evidence about Mr. Greene’s alleged disability, in my view it may be open to the Tribunal member hearing this complaint to find that what is otherwise “a commonly experienced emotion may be a symptom of a disability that is protected under the Code , for example an anxiety disorder”: Smith at para. 33; see also Hyggen v. Teck Coal and others , 2020 BCHRT 34 at para. 74. And, based on what Mr. Greene appears to have told Council prior to the termination of his employment, whether it ought to have inquired about a possible disability and accommodation options before terminating his employment.
3. Council Member A’s email about Mr. Greene is not discriminatory
[34] In late November 2020, Mr. Greene sent an email to Council expressing disappointment with its lack of support and frustration with Council Member B’s public disclosure of confidential information that affected his career and livelihood. In his email, Mr. Greene also said that covering the labour shortage for the past seven months “has seriously affected my sleep, stress level and overall health”.
[35] In an email sent to Council a couple of days later, Council Member A asked for support with instructing Mr. Greene to stop communications on various online platforms. Council Member A said she was making this request because it came to her attention that Mr. Greene was intentionally misinforming owners and residents and making misleading and slanderous comments about the Strata’s commercial section.
[36] The next day, Mr. Greene sent an email to Council to respond to Council Member A’s claims. In her email reply, which appears to also have been sent to someone not on the Council, Council Member A replied to Mr. Greene’s response and also said:
I do also have concerns with his judgment, particularly as [Mr. Greene] stated in his last e-mail that he is currently suffering from mental health issues. This and in combination with his grandiose statements and antisocial behaviours lately, his current mental status appears to be exasperating what appears to be “Cluster B symptoms mostly attributable to those with a personality profile of either a Narcissistic Personality Disorder or Antisocial Personality Disorder.
Of course, I am no mental health expert or practitioner, but if [Mr. Greene] would like to substantiate his mental health claims, he should attain an independent psychological evaluation to corroborate his prior statements.
[ November 2020 Email ]
[37] About an hour after Council Member A sent the November 2020 Email, the President responded and said:
As a mental health professional I want to remind you how highly inappropriate [sic] is to speak of others mental health state or presentation.
[Mr. Greene] is entitled to speak of his own mental health and it is not up to any of us to challenge it.
[38] In Council Member A’s reply, she said:
I didn’t, if you read correctly, I said if he is claiming to be suffering from mental health issues, he should get an independent psychological evaluation. Particularly, as I have my own concerns as a Council member. That is standard practice. You should know that then.
[39] In her affidavit filed in support of this application, Council Member A says she misread Mr. Greene’s initial email and erroneously believed he indicated he had mental health issues. She says that although she made a comment about Mr. Greene’s antisocial behaviours and gave her opinion about him having certain personality disorders, she did not know that Mr. Greene had any diagnosed psychological issues or disorders.
[40] The Strata argues that Mr. Greene has no reasonable prospect of proving that the November 2020 Email is discriminatory. The Strata says that while the November 2020 Email was inappropriate, it was not discriminatory given the context of what was taking place. The Strata says tensions were high at the time because of Mr. Greene’s actions, which Council Member A and other Council members perceived as unacceptable and improper. The Strata says that Council Member A’s choice of language was reflective of mounting frustration with Mr. Greene.
[41] In support of its argument, the Strata relies on Brito v. Affordable Housing Societies and another , 2017 BCHRT 270, where the Tribunal stated at para. 41:
… not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the Code . It is certainly undesirable for people to treat each other rudely, disrespectfully, or inappropriately. However, it is not the Tribunal’s purpose to adjudicate disputes other than where a person’s protected characteristic has presented as a barrier in their ability to fully, and with dignity, access an area of life protected by the Code .
[42] Mr. Greene says the November 2020 Email was “both humiliating and concerning” because Council Member A “reported a false diagnosis based on her perception of my deteriorating condition”. He says Council Member A’s statement “instilled fear in the community, implying they should be scared of me”. Mr. Greene says the intent of his initial email was to mention the effects of the situation on his mental health in the hopes of receiving a supportive response. He says Council Member A sent the November 2020 Email outside the Council to publicly humiliate him and exacerbate the situation. He did not address the Strata’s legal argument in his response.
[43] Whether one alleged incident of rude, disrespectful, or inappropriate behaviour is a violation of the Code is highly fact specific. For that reason, I am not persuaded that Mr. Greene has no reasonable prospect of establishing that the November 2020 Email constitutes discrimination. In my view, this allegation is best left to be decided at the hearing, when the Tribunal can hear all the evidence surrounding the circumstances in which the November 2020 Email was sent and make factual findings.
4. There is no nexus between the alleged bullying and harassment and Mr. Greene’s disability
[44] In his complaint and response to this application, Mr. Greene makes numerous allegations that he was subjected to threats, unprovoked and ongoing bullying and harassment, false accusations, and confrontational behaviour by certain Council members, both during and after his employment was terminated. For example, Mr. Greene alleges that certain Council members stalked him and lurked around his vehicle and unit, restricted his access to the gym and pool, and removed his ability to report issues to Council. Mr. Greene says the Strata failed to address these incidents and because the Strata does not have an anti-bullying and harassment policy, he was left to deal with the situation on his own.
[45] The Strata argues that Mr. Greene has no reasonable prospect of establishing that he experienced any disability-related bullying and harassment. The Strata says the relationship between Mr. Greene and members of the Council deteriorated in 2020 and “the expressions of antagonism between certain Council members and Mr. Greene were very much reciprocal and based on differences of opinion”.
[46] I recognize that many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . In my view, this likelihood of success of this allegation can be determined based on the affidavit evidence, Mr. Greene’s statement, and the contemporaneous documents submitted by the parties.
[47] The evidence before me indicates that between June and December 2020, there were a considerable number of mutually acrimonious communications between Mr. Greene and some Council members. Those communications include reciprocal accusations, for instance of breaching privacy and making slanderous comments on various social media platforms. The evidence also indicates there were incidents in the office or on the Strata’s property involving Mr. Greene and certain Council members, one of which resulted in Mr. Greene making a workplace violence incident report to WorkSafeBC. The evidence also indicates that these communications and incidents continued after Mr. Greene’s employment was terminated, for example when the Strata accused Mr. Greene of theft and vandalism.
[48] However, in the absence of sufficient evidence indicating a nexus between the alleged conduct by some Council members and Mr. Greene’s alleged disability, in my view he has no reasonable prospect of proving this part of his complaint. It is not enough for Mr. Greene to allege that he was bullied and harassed while he was the facilities manager or was denied access to a service or facility such as the pool and gym. There must be evidence of some connection between the alleged bullying and harassment or denial and his alleged disability: Ingram v. Workers’ Compensation Board and others , 2003 BCHRT 57 at para. 20. Based on the totality of the evidence before me, I find this part of the complaint has no reasonable prospect of success because Mr. Greene has not taken it out of the realm of conjecture.
C. Retaliation complaint
[49] Mr. Greene alleges that the Strata retaliated against him contrary to s. 43 of the Code after he made this complaint by terminating his employment and continuing to bully and harass him.
[50] Section 43 of the Code “protects the integrity of the complaint process, and is aimed at ensuring that people can exercise their rights under the Code without fear of prejudicial consequences”: Redmond v. The John Howard Society Okanagan & Kootenay , 2024 BCHRT 219 at para. 81. Section 43 “protects people from retaliatory conduct for participating, or possibly participating, in a human rights complaint process”: Redmond at para. 80.
[51] The Strata argues that Mr. Greene has no reasonable prospect of proving that terminating his employment and any subsequent conduct by the Strata or any Council members was retaliation for making this complaint. I agree.
[52] To succeed at a hearing, Mr. Greene must show that the Strata: (1) was aware that he made, or was going to make, a complaint; (2) engaged in or threatened to engage in retaliatory conduct; and (3) there was a sufficient connection between the retaliatory conduct and the complaint. In other words, Mr. Greene must prove the Strata terminated his employment and subsequently harassed and bullied him because he made or was going to make this complaint: Brooks v. Skyacres Turkey Ranch Ltd. and others (No. 2) , 2022 BCHRT 73 at para. 234 ; Redmond at para. 81. Mr. Greene could establish the connection by proving the Strata intended to retaliate against him. He could also establish the connection by inference if it can reasonably be perceived that the Strata engaged in retaliatory conduct “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”: Gichuru v. Pallai , 2018 BCCA 78 at para. 58.
[53] The Strata argues there was no retaliation because it was already taking steps to terminate Mr. Greene’s employment at the time he made his complaint with the Tribunal. The Strata says that between June and December 2020, there were a series of issues that caused the Council’s relationship with Mr. Greene to “sour, and as the list of issues began to grow, the Council took steps to terminate his employment”.
[54] The evidence supports the Strata’s assertions. Mr. Greene made his initial complaint on December 15, 2020 and says in his statement that he made the Strata aware of the complaint on December 16, 2020. The evidence indicates that around mid-November 2020, the Council began to discuss terminating Mr. Greene’s employment. It indicates that the Council obtained a legal opinion regarding the termination of Mr. Greene’s employment before it knew about the complaint. Although the evidence indicates that the Council voted to terminate Mr. Greene’s employment after finding out about the complaint and gave him a termination letter a few days later, in my view Mr. Greene has no reasonable prospect of proving that his employment was terminated because of the complaint.
[55] Further, there is no evidence before me indicating that any of the communications or incidents that took place after Mr. Greene’s employment was terminated were intended to be in retaliation for the complaint. Nor is there any evidence from which an inference could be drawn to make such a conclusion. For that reason, I am also of the view that Mr. Greene has no reasonable prospect of establishing that any of the alleged conduct that occurred after his employment was terminated was because of the complaint.
D. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[56] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . These purposes include both private and public interests: Code , s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC , 2003 BCHRT 73 , at para. 59 , Tillis v. Pacific Western Brewing and Komatsu , 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2) , 2010 BCHRT 125, at paras. 113-118.
[57] The Strata argues that the complaint should be dismissed because Mr. Greene’s belief that he was discriminated against is not genuine. The Strata says Mr. Greene made this complaint because of a perceived vendetta against him and that many of his allegations are irrelevant, farfetched, and unfounded. The Strata further says that the Civil Resolution Tribunal [ CRT ] has already decided issues raised in the complaint.
[58] Neither of the Strata’s arguments are properly grounded under s. 27(1)(d)(ii) of the Code . Examples of when the Tribunal may dismiss a complaint under this provision are when the respondent has already provided a remedy to the complainant, when the respondent has made a reasonable settlement offer, or the parties have settled the complaint.
[59] The basis of the Strata’s argument that the complaint should be dismissed because Mr. Greene does not genuinely believe he was discriminated against is s. 27(1)(e), which allows the Tribunal to dismiss a complaint if it was made for improper motives or in bad faith. The basis of the Strata’s argument that the complaint should be dismissed because the CRT has already decided issues raised in the complaint is s. 27(1)(f), which gives the Tribunal discretion to dismiss a complaint because its substance has appropriately been dealt with in another proceeding.
[60] The Tribunal gave permission to the Strata to make an application to dismiss under ss. 27(1)(c) and (d)(ii) of the Code . I have already considered the Strata’s argument under s. 27(1)(c) and dismissed parts of the complaint. For that reason, I only consider whether anything in the CRT’s decision convinces me that proceeding with allegations that have not been dismissed would not further the purposes of the Code .
[61] The CRT’s decision concerns a claim that Mr. Greene made against the Strata regarding an alleged chargeback to his unit and compensation for tools that Mr. Greene alleged went missing after his employment was terminated. The CRT dismissed Mr. Greene’s claim regarding the missing tools. The CRT did not decide the chargeback issue because it was not within its jurisdiction and, even if it was, his claim was premature.
[62] As the CRT’s decision did not provide a remedy to Mr. Greene for the allegations that will go to a hearing and the Strata has not otherwise persuaded me to do so, I decline to dismiss any part of the complaint under s. 27(1)(d)(ii) of the Code .
IV CONCLUSION
[63] The Strata’s application to dismiss the complaint is granted in part.
[64] The allegation that the Strata discriminated against Mr. Greene when it failed to accommodate his disability while he was the facilities manager and then terminated his employment will proceed to a hearing.
[65] The allegation that the November 2020 Email is discriminatory will proceed to a hearing.
[66] The allegation that Mr. Greene experienced disability-related bullying and harassment regarding his employment or a service, accommodation, or facility the Strata provided, either before or after his employment was terminated, is dismissed under s. 27(1)(c) of the Code .
[67] The allegation that the Strata retaliated against Mr. Greene contrary to s. 43 of the Code when it terminated his employment and continued to bully and harass him after his employment was terminated is dismissed under s. 27(1)(c) of the Code .
[68] I decline to dismiss any of the complaint under s. 27(1)(d)(ii) of the Code .
Beverly Froese
Tribunal Member