Ralph v. The Owners, Strata Plan BCS 3495, 2025 BCHRT 4
Date Issued: January 3, 2025
File No: CS-002845
Indexed as: Ralph v. The Owners, Strata Plan BCS 3495, 2025 BCHRT 4
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:
Tara Ralph
COMPLAINANT
AND:
The Owners, Strata Plan BCS 3495
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Beverly Froese
On their own behalf: Tara Ralph
Counsel for the Respondent: Jenny Mehat
I INTRODUCTION
[1] In December 2020, Tara Ralph made a complaint against the Strata alleging discrimination regarding her employment based on sex, family status, and marital status contrary to s. 13 of the Human Rights Code . In July 2022, Ms. Ralph amended her complaint to add the grounds of ancestry and place of origin and allegations that the Strata discriminated against her regarding an accommodation, service, or facility contrary to s. 8 of the Code .
[2] The Strata denies discriminating against Ms. Ralph in any way. The Strata says that all of its conduct was for non-discriminatory and legitimate operational reasons.
[3] In March 2024, the Tribunal decided under its Case Path Pilot that the Strata could make an application to dismiss the complaint under s. 27(1)(c) of the Code on the ground that it has no reasonable prospect of success.
[4] For the following reasons, the Strata’s application is granted. On the materials before me, I am persuaded that Ms. Ralph has no reasonable prospect of proving that the protections regarding employment under s. 13 of the Code are engaged in this case. I am also persuaded that Ms. Ralph has no reasonable prospect of proving she was discriminated against regarding an accommodation, service, or facility contrary to s. 8 of the Code .
[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.
II APPLICATION TO MAKE A FURTHER SUBMISSION
[6] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Tribunal’s Rules of Practice and Procedure , Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Rule 28(5). The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2) , 2006 BCHRT 201, para. 21.
[7] Ms. Ralph filed a further submission. I took that submission into consideration to the extent that it responded to new issues raised in the Strata’s reply, in particular with respect to the Strata’s insurance coverage and a proposed bylaw amendment that would have required all newly elected Council members to submit a criminal record check.
III 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. All decisions regarding the operations of Grand Central are made by the Strata’s Council.
[10] At the material time, Ms. Ralph lived in a residential unit in Grand Central. From about September 2019 to December 2020, her spouse, who owned a unit in Grand Central, was employed by the Strata as the facilities manager. His duties included cleaning the common property and external common grounds, keeping the parking areas clean, removing litter, and recycling.
[11] After the Strata terminated the building manager’s employment around April 2020, Ms. Ralph started to assist her spouse with tasks such as litter removal and general cleaning. Around June 2020, Council became aware that Ms. Ralph was voluntarily assisting her spouse. The parties do not appear to dispute that at the time, Council did not raise any concerns about Ms. Ralph voluntarily assisting her spouse. The materials before me indicate that Council was initially appreciative of Ms. Ralph’s assistance.
[12] Around November 2020, some Council members and owners started to raise concerns about Ms. Ralph’s ongoing involvement with her spouse’s work. Those concerns related to Ms. Ralph having unfettered access to confidential information and liability risks because she might not be covered by the Strata’s insurance. At a meeting in early December 2020, Council discussed their concerns with Ms. Ralph continuing to assist her spouse. At that time Council decided to no longer permit Ms. Ralph to voluntarily assist her spouse with his job duties.
[13] In late December 2020, the Strata terminated the employment of Ms. Ralph’s spouse. The parties do not appear to dispute that in the weeks leading up to the termination, the relationship between Ms. Ralph and her spouse and some Council members and owners had deteriorated. They also do not appear to dispute that after the termination, there was ongoing animosity between Ms. Ralph and her spouse and some Council members.
[14] The evidence before me indicates that sometime in 2021, Ms. Ralph was elected to Council. It is not clear on the materials before me how long Ms. Ralph served on Council.
IV DECISION
[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 .
[19] To prove her complaint at a hearing, Ms. Ralph will have to prove that she has a characteristic protected by the Code , was adversely impacted regarding her employment with the Strata or an accommodation, service or facility the Strata provides, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she 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.
A. Ms. Ralph’s complaint that she was discriminated against regarding her employment contrary to s. 13 of the Code
[20] Ms. Ralph alleges that the Strata discriminated against her regarding employment based on sex, marital status, family status, ancestry, and place of origin when it:
a. paid her a lower rate of pay for similar work;
b. removed her from her volunteer position in early December 2020 and hired a male; and
c. removed her from her volunteer position because of who her spouse is.
[21] The Strata makes several arguments about why the complaint under s. 13 should be dismissed. In my view, it is only necessary to consider its argument that this part of the complaint should be dismissed because the Strata was not in an employment relationship with Ms. Ralph within the meaning of s. 13 of the Code .
[22] Section 13 of the Code prohibits a person from refusing to employ or continue to employ, or to discriminate against another person regarding employment, based on their protected characteristics. Section 13 does not expressly refer to volunteers, however it is well established that a “traditional employer-employee relationship is not required to invoke the protections of the Code ”: Warrington v. Harness Racing BC Society Board and another , 2023 BCHRT 243 at para. 32.
[23] In Nixon v. Vancouver Rape Relief Society , 2002 BCHRT 1, rev’d on other grounds 2005 BCCA 601, leave to appeal to SCC refused, 2007 CanLII 2772, the Tribunal held that some factors to consider when determining whether a volunteer position falls within the scope of s. 13 include whether:
a. there is a formal recruitment and interview process;
b. there is a training process, including defined tasks;
c. volunteers have agreed to abide by the policies and practices of the organization; and
d. there are set requirements as to volunteer availability and defined tasks.
[24] In Nixon , the Tribunal found that the complainant’s volunteer position at the Society was protected under s. 13 of the Code . Relevant to the Tribunal’s conclusion was the fact that work done by volunteers was essential to fulfilling its mandate. The evidence established that the Society publicly advertised for volunteers to attend its training program, there was a screening process, and an “onerous, structured training program of some weeks in duration”: at para. 66. It also established that volunteers were required to complete a practicum and there was a clear set of expectations and guidelines. The Tribunal found that the relationship between volunteers and the Society was equivalent to that between an employer and employee.
[25] The Strata submits that none of the Nixon factors are met in this case. Specifically, it says there was no recruitment process, formal or otherwise, with respect to a volunteer position to assist the facilities manager. The Strata says that at no time was an advertisement posted for a volunteer position and Ms. Ralph did not go through any type of application, interview, or screening process. The Strata says there were never any discussions between Council and Ms. Ralph regarding her availability, nor were any defined tasks identified, or training provided. The Strata says that any volunteer services Ms. Ralph provided were done without Council’s prior authorization or approval and that any work she did was under the direction and supervision of her spouse.
[26] Ms. Ralph argues that the Nixon factors are met in this case. Specifically, she says that in the spring of 2020, there was a call for volunteers to help with cleaning tasks due to the staff shortage and lockdown during the COVID-19 pandemic. She says she was trained by her spouse and the Strata’s former building manager to assist with a defined list of tasks. She also says she adhered to all of the Strata’s standard policies and procedures, for example when her spouse reported to Council in June 2020 that she received a gift from one of the owners.
[27] For the purposes of this application, I accept Ms. Ralph’s assertion that the tasks she did on a voluntary basis were important to maintaining a hygienic, healthy, and safe environment for the Grand Central community during the Covid-19 pandemic. However, I find the evidence as a whole supports the Strata’s argument that it is reasonably certain that Ms. Ralph would not be able to prove the Nixon factors are met in this case.
[28] There is evidence that Ms. Ralph engaged in other volunteer activities for the Strata, for instance as a volunteer scrutineer at an annual general meeting and a special meeting of Council. However, there is no evidence indicating that the Strata created a volunteer position to assist the facilities manager or initiated any kind of recruitment process. There is no evidence that Ms. Ralph applied for or was interviewed for the volunteer position or that the Strata provided her with any kind of orientation or training. The documents Ms. Ralph relies on to support her arguments are undated and unsigned and she does not appear to dispute the Strata’s assertion that they were created by her spouse and not approved by the Strata. In my view, it is reasonably certain the Tribunal would find that the volunteer work Ms. Ralph did was a personal arrangement between her and her spouse and not “employment” for the purposes of s. 13 of the Code .
[29] In my view, this case is similar to Warrington , where the complainant alleged discrimination contrary to s. 13 of the Code after he was removed as a volunteer Board member. The Tribunal dismissed the complaint under s. 27(1)(c) because there was no evidence about any recruitment, training, or requirements of the complainant’s time. There was also no evidence that the Board had control over the complainant in the sense of assigning him any duties or tasks.
[30] For the above reasons, the employment-related part of the complaint is dismissed. While I agree with Ms. Ralph that the onus is not on her to prove her case on this application, there still must be sufficient evidence or information before the Tribunal to take it out of the realm of conjecture.
B. Complaint of discrimination regarding an accommodation, service, or facility contrary to s. 8 of the Code
[31] Section 8 of the Code prohibits a person, without a bona fide and reasonable justification, from denying or discriminating against a person or class of persons regarding “any accommodation, service or facility customarily available to the public” because of a protected characteristic. To fall under s. 8, there must be a public relationship between the accommodation, service, or facility provider and the user: University of British Columbia v. Berg , [1993] 2 SCR 353 at p. 384.
[32] The Tribunal has held that when a person purchases a strata lot that is subject to management by a strata corporation, a public relationship is created between the strata corporation and the owner: Konieczna v. The Owners Strata Plan NW2489 , 2003 BCHRT 38 at paras. 32-34. It has also held that services a strata corporation provides to owners for the purposes of s. 8 “can generally be characterized as ‘management services in relation to the upkeep, development and maintenance of the property to the owners’”: Konieczna at para. 28. Those services include both “common” services “such as parking, intercom services, and swimming pools” and services “which impact on an owner’s private living area”, for example a bylaw that prohibits any type of flooring other than carpeting: Konieczna at para. 35. It also may include providing safe and effective access to an owner’s residence: Testar v. The Owners, Strata Plan VR 1097 , 2022 BCHRT 70 at para. 62.
[33] The Tribunal has also recognized that a strata corporation may be liable under the Code if, for example, a bylaw related to management services contravenes the Code, the manner in which a bylaw related to management services is enforced was discriminatory, or comments made by individual strata council members or actions taken to influence decisions based on a protected characteristic may be discriminatory: Vamburkar-Dixit v. Brown and others , 2004 BCHRT 161 at para. 14; Hallonquist v. Strata Plan NW307 and another , 2014 BCHRT 117 at para. 16. Section 8 may also apply to attendance at and participation in the governance of a strata: Kargut obo others v. Strata Plan BCS 802, 2017 BCHRT 269 at paras. 110-111; Oostlander v. The Owners, Strata Plan LMS2891 and others , 2024 BCHRT 141 at para. 80. However, unless there is discrimination, the Tribunal is not the forum to address such matters as alleged irregularities in a strata council’s voting process or conflicts of interest: Vamburkar-Dixit v. Brown and others (No. 4) , 2007 BCHRT 437 at para. 7.
[34] In her complaint, Ms. Ralph alleges she was discriminated against regarding an accommodation, facility, or service based on sex, marital status, family status, ancestry, and place of origin when:
a. a Council member said things that made living at Grand Central and volunteering very uncomfortable for her;
b. Council deliberately excluded her from email communications and messages when she was on Council because of her relationship to her spouse;
c. she and her spouse were aggressively attacked by a Council member in early December 2020 while performing their duties;
d. she and her spouse were assaulted by the Strata’s president in late December 2020;
e. the Strata’s president and his wife followed and chased her and her spouse in late December 2020;
f. in mid-June 2021, Council requested an opinion from the Strata’s lawyers on her eligibility to be on Council based on her relationship with her spouse and labelled her “the Girlfriend”;
g. she and her spouse were slandered, defamed, and discredited by some Council members during the Strata’s annual general meeting in mid-June 2021;
h. during the June 2021 annual general meeting, a Council member I will refer to as Council Member A said Ms. Ralph should not be on the Council because she is an “Australian convict” [ Alleged Comment ];
i. she was required to get a criminal record check in June 2021 to continue to be on Council because she is an “Australian convict” [ Criminal Record Allegation ];
j. she was assaulted by the Council president’s wife at a Council meeting in early July 2021;
k. in September 2021, some Council members colluded to enforce a fraudulent chargeback against her spouse, and she was removed from Council due to her association with her spouse;
l. requests she made in November and December 2021 for documents from the Strata’s Treasurer were ignored or denied;
m. Council Member A said in an email sent to the strata manager in late November 2021 that the Strata’s lawyer had added Ms. Ralph to its case against her spouse;
n. she did not get a response to an email she sent to Council around mid-December 2021 alleging that the Council’s president was committing fraud against the owners, human rights violations, and harassment;
o. she emailed the Council in late December 2021 and said the Strata’s president was continuing to stalk her; and
p. at an “illegal meeting” around mid-April 2022, certain Council members were pressured into paying longstanding invoices from the Strata’s lawyer and allowing the Strata’s lawyer to continue with its fraudulent chargeback despite the clear conflict of interest.
[35] In her response, Ms. Ralph made new allegations of discrimination by the Strata, specifically that after her spouse’s employment was terminated, the Strata removed elevator access to her floor, denied her access to common area facilities such as the pool and gym, and denied her an assigned parking spot. Ms. Ralph did not apply under Rule 24(4)(b) to amend her complaint to add these allegations. That Rule requires a complainant to apply to amend their complaint if an application to dismiss is outstanding. The purpose of Rule 24(4)(b) is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others , 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37. In my view, accepting these allegations would create a moving target and it would not be fair to the Strata to take them into consideration in my analysis.
[36] The Strata argues that the complaint of discrimination under s. 8 of the Code should be dismissed because it does not relate to any accommodation, service, or facility customarily available to the public of Strata owners. The Strata says Ms. Ralph did not particularize what accommodation, service, or facility she was denied or discriminated against based on a protected characteristic. The Strata describes the allegations in the complaint as “a list of generalized gripes and conflicts with people associated with Grand Central, including past and present owners, council members, and lawyers retained by the Strata”. It further says that Ms. Ralph does not allege she experienced any adverse impacts related to an accommodation, service, or facility and only alleges that she “felt offended, excluded, ignored, uncomfortable and other emotional reactions as a result of the various incidents outlined in the complaint”. Last, the Strata denies that Council Member A made the Alleged Comment and says that even if she did, it does not rise to the level of discrimination under the Code .
[37] In support of its argument, the Strata cites Meyer and Meyer v. Strata Corporation LMS 3080 and Boies 3080 , 2005 BCHRT 89. In that case, the complainants, a married couple, alleged the strata corporation and its council president discriminated against them contrary to s. 8 of the Code . The allegations in their complaint related to incidents that occurred during the strata’s annual general meeting and a special general meeting. In his complaint, Mr. Meyer alleged that after the president’s supporters voted him off council, some council members and owners treated both he and his wife in a hostile and offensive manner. He alleged he was ridiculed at a special council meeting because of his hearing impairment and because English is not his first language. In her complaint, Mrs. Meyer alleged she was discriminated against based on family and marital status because the strata “proceeded with a campaign of publicly humiliating her because she is married to Mr. Meyer”: at para. 9. Mrs. Meyer alleged that the council president singled her out at council meetings and interrupted her when she tried to ask a question at a special general meeting. She alleged that she was humiliated at a special council meeting and had to leave the meeting to maintain her composure. The strata denied discriminating against either of the complainants and said, among other things, that the underlying reason for the complaints was the general animosity between the parties.
[38] The Tribunal dismissed Mr. Meyer’s complaint under s. 27(1)(b) of the Code because the evidence indicated that the animosity between him and the council president arose from a prior dispute and not a protected characteristic. With respect to Mrs. Meyer’s complaint, the Tribunal recognized that there could be a finding of discrimination if she had been publicly humiliated because she is married to Mr. Meyer: at para. 18. However, at para. 20 the Tribunal dismissed her allegation that the strata corporation’s president “embarked on a campaign of injuring her reputation and publicly humiliating her because they disliked her husband” since:
… neither the Code nor the Tribunal is responsible for policing every aspect of an individual’s social or council-related activities simply because that individual happens to live in a strata complex.
[39] In Meyer , the Tribunal also recognized that there could be a finding of discrimination if it were proven that the strata created a hostile environment at the special council meeting such that Mr. Meyer was not able to participate effectively: at para. 28. The Tribunal dismissed that allegation under s. 27(1)(c) of the Code because the evidence indicated that Mrs. Meyer left the meeting of her own volition. I note here that the Tribunal went on to say that had the remaining allegations not been dismissed under s. 27(1)(b), the entire complaint would have been dismissed under s. 27(1)(c).
[40] With respect to the Alleged Comment, the Strata relies on Finucci v. Mohammed , 2005 BCHRT 80, where the Tribunal dismissed a complaint after a hearing. The complainant in that case alleged discrimination regarding employment on the basis of her place of origin. Specifically, the complainant, who is from Mexico, alleged that when her employer was angry at the quality of photocopies she made for him, he said, “Esther, I don’t pay you $15/hour to produce garbage” and “Go back to Mexico”. In making its determination, the Tribunal considered the employer’s comments in the context of the situation at the time. The Tribunal held that although the comments were “inappropriate and offensive”, they were “not sufficiently egregious to amount to a contravention of the Code or to require state-imposed sanction”: at para. 42.
[41] Ms. Ralph argues that this part of her complaint should not be dismissed because the Strata has an obligation to maintain a healthy and safe environment for owners and residents, even when there are disputes between individuals. She says that negative comments made by owners or residents that occur on the Strata’s common property constitute harassment that adversely affects residing in the complex. With respect to the Alleged Comment, Ms. Ralph argues that it should proceed to a hearing so the Tribunal can consider all the circumstances. In support of her argument, Ms. Ralph cites Pardo v. School District No. 43 , 2003 BCHRT 71, where the Tribunal stated that relevant factors when determining whether one alleged incident constitutes discrimination include “the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against”: at para. 12.
[42] In my view, with the exception of the Alleged Comment and the Criminal Record Allegation, Ms. Ralph has no reasonable prospect of proving that this part of her complaint relates to an accommodation, service, or facility the Strata customarily provides to the public. Specifically, Ms. Ralph does not allege that she experienced any adverse impacts related to “management services” the Strata provides such as upkeep or maintenance of the property. Nor does she allege she experienced any adverse impacts regarding the manner in which Council meetings were held, for example by changing the location or not conducting meetings in English: Kargut ; Oostlander . Rather, these allegations relate primarily to disagreements Ms. Ralph had with actions Council took or did not take when she was a member and incidents that occurred between her and her spouse and certain Council members. Based on the materials before me, I am convinced Ms. Ralph has no reasonable prospect of establishing that s. 8 of the Code is engaged in this case.
[43] If I am wrong, I am also of the view that Ms. Ralph has no reasonable prospect of proving a nexus between these allegations and a protected characteristic. The evidence before me indicates that separate and apart from that of her spouse, Ms. Ralph’s relationship with at least some Council members deteriorated during the material time. For instance, the evidence indicates that after her spouse’s employment was terminated, Ms. Ralph circulated a petition to overthrow Council. Further, the evidence supports the Strata’s argument that it sought legal advice about Ms. Ralph’s eligibility to serve on Council for legitimate reasons given potential conflicts of interest that could arise.
[44] With respect to the Criminal Record Allegation, I am persuaded on the evidence before me that Ms. Ralph has no reasonable prospect of proving this allegation at a hearing. The evidence does not support her allegation that she was the only Council member required to provide a criminal record check. The evidence indicates that a proposed amendment to the Strata’s bylaw requiring criminal record checks for all newly elected Council members was not approved at the Strata’s June 2021 annual general meeting. However, text messages that appear to be between at least two Council members in July 2021 indicate that criminal record checks were requested of Council members. It also indicates that Ms. Ralph was not the only Council member to provide a criminal record check.
[45] With respect to the Alleged Comment, I am also persuaded on the evidence before me as a whole that even if Ms. Ralph proved it was made, there is no reasonable prospect the Tribunal would find it constitutes discrimination. In my view, based on the Pardo factors and the evidence regarding the circumstances at the time, it is reasonably certain the Tribunal would not find the Alleged Comment was a breach of the Code . Specifically, I am persuaded it is reasonably certain the Tribunal would find that in the context of what appears to be prior disputes or conflicts between Ms. Ralph and at least some Council members, the egregiousness and virulence of the Alleged Comment is on the low end of the spectrum. In my view, this allegation falls into the category of complaints alleging a single comment or conduct during a single incident was discriminatory that the Tribunal has dismissed before a hearing: Williams v. Gateway Property Management Corporation and another , 2024 BCHRT 169; Blaine v. Office of the Ombudsperson , 2024 BCHRT 216; Akinbiyi v. Community Builders Benevolence Group and another , 2024 BCHRT 287.
V CONCLUSION
[46] The Strata’s application to dismiss the complaint under s. 27(1)(c) of the Code is granted.
Beverly Froese
Tribunal Member