Pan v. Schrader (No. 2), 2025 BCHRT 65
Date Issued: March 11, 2025
File(s): CS-002260
Indexed as: Pan v. Schrader (No. 2), 2025 BCHRT 65
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:
Eugene Pan
COMPLAINANT
AND:
Glenn Schrader
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Robin Dean
Counsel for the Complainant: Umar Sheikh
Counsel for the Respondent: Dana G. Quantz
I INTRODUCTION
[1] Eugene Pan and Glenn Schrader are neighbours. Mr. Schrader operates an upholstery and blind business on his property. This is Mr. Schrader’s application to dismiss Mr. Pan’s retaliation complaint against him.
[2] By way of brief background, in a complaint filed in September 2018, Mr. Pan alleges racial discrimination against a number of organizations [ Original Complaint ], including the Kent Road Block Watch Chapter. In order to notify the Kent Road Block Watch Chapter of the Original Complaint, on December 11, 2018, the Tribunal served the Notice of Complaint Proceeding on Mr. Schrader, based on its understanding at the time that Mr. Schrader was the organization’s representative. One month later, on January 9, 2019, the Tribunal learned that Mr. Schrader was not the representative of the Kent Road Block Watch Chapter, and advised the parties to the Original Complaint of the same.
[3] Mr. Pan subsequently filed a complaint against Mr. Schrader, alleging retaliation contrary to s. 43 of the Human Rights Code [ Retaliation Complaint ]. In the Retaliation Complaint, Mr. Pan alleges that Mr. Schrader engaged or threatened to engage in retaliatory conduct against him because of the Original Complaint, as follows:
a. in February or August 2019, installing a security camera and a security light on his home that caused intense light to shine into Mr. Pan’s child’s bedroom;
b. in July 2019, filing a civil nuisance claim in BC Supreme Court naming Mr. Pan as a defendant;
c. in October 2019, “continu[ing] a practice of intimidating” Mr. Pan with excessive and unnecessary noise through car horns, loud speakers, and machinery;
d. on June 21, 2020, installing a wind chime on his home, knowing that Mr. Pan had previously complained about a wind chime in that same area of his home; and
e. in June and July of 2020, building a shed on his property.
[4] Mr. Schrader denies retaliating and applies to dismiss Mr. Pan’s complaint under s. 27(1)(c) of the Code . The issue I must decide is whether there is no reasonable prospect that Mr. Pan’s complaint will succeed. In particular, I must determine whether there is no reasonable prospect of Mr. Pan proving a sufficient connection between the impugned conduct and the Original Complaint.
[5] For the reasons that follow, I find Mr. Pan has not taken his complaint out of the realm of speculation and conjecture, and I dismiss the Retaliation Complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact.
II DECISION
[6] Mr. Schrader applies to dismiss Mr. Pan’s complaint on the basis that it has no reasonable prospect of success: Code , s. 27(1)(c). Mr. Schrader argues that there is no reasonable prospect that Mr. Pan will succeed in establishing that his conduct was retaliatory. He says that the allegation of a sufficient connection between the Original Complaint and the impugned conduct has not been taken out of the realm of speculation and conjecture. I agree.
[7] Section 27(1)(c) allows the Tribunal to dismiss complaints that do not warrant the time and expense of a full hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at paras. 22-26. Under s. 27(1)(c), the threshold for a complaint to proceed to a hearing is low; a complainant need only show that the evidence takes the case out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill , 2011 BCCA 49 at para. 27. The onus is on a respondent to show a complaint does not have a reasonable prospect of success, rather than on a complainant to show discrimination: Stonehouse v. Elk Valley Coal (No. 2) , 2007 BCHRT 305 at para. 11. However, there must be more than a mere possibility of success: Berezoutskaia at paras. 24 and 26.
[8] Section 43 of the Code protects people from retaliatory conduct for participating, or possibly participating, in a human rights complaint process under the Code :
43 A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.
[9] Section 43 is an important part of the Code . It 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: JW v. LS , 2023 BCHRT 30 at para. 55.
[10] To succeed at a hearing Mr. Pan would have to show: (1) Mr. Schrader was aware of the Original Complaint; (2) Mr. Schrader engaged in or threatened to engage in conduct described in s. 43; and (3) there is sufficient connection between the impugned conduct and the Original Complaint: Gichuru v. Pallai , 2018 BCCA 78, at para. 58.
[11] There is no dispute that Mr. Schrader was aware of the Original Complaint at the material time. Nor does Mr. Schrader dispute, for the purposes of this application, Mr. Pan has taken out of the realm of conjecture that the alleged conduct is conduct described in s. 43 of the Code . The application here turns on whether there is no reasonable prospect Mr. Pan will prove that there is a sufficient connection between the impugned conduct and the Original Complaint.
[12] The Court of Appeal in Gichuru explained that there are two ways that a “sufficient connection” between the conduct and the complaint can be established:
a. by proving the respondent intended to retaliate for the complaint; or
b. by inference, where the respondent can reasonably have been perceived to have engaged in the conduct as retaliation for the complaint (at para. 58).
[13] The first way of establishing a sufficient connection, “proving the respondent intended to retaliate”, can be difficult. As observed in C.S.W.U. Local 1611 v SELI Canada (No. 3) , 2007 BCHRT 423 at para. 17, “[r]etaliation will rarely be acknowledged as such by a respondent, and will most often need to be inferred from a review of all the evidence”.
[14] With respect to the second way of establishing a sufficient connection, the Court of Appeal in Gichuru at paras. 58 and 66 explained that the “reasonable perception” is assessed from the point of view of “a reasonable complainant, apprised of the facts, at the time of the impugned conduct”, and not from the point of view of the particular complainant who alleges retaliation.
[15] Applying these principles, I am satisfied that Mr. Pan has not taken his complaint out of the realm of speculation and conjecture. In particular, I find that there is no reasonable prospect of Mr. Pan proving a sufficient connection between the impugned conduct and the Original Complaint.
[16] Mr. Pan says that the Tribunal will be able to infer the connection between the conduct complained of and the Original Complaint because the evidence shows that Mr. Schrader’s behaviour escalated after Mr. Schrader was notified of the Original Complaint. He says that Mr. Schrader engaged in a clear pattern of behaviour that is indicative of his intent to retaliate.
[17] For his part, Mr. Schrader says there is no link, and no evidence that could establish a link, between the impugned conduct and the Original Complaint. He says that Mr. Pan has complained to various authorities about activities on the Schrader property since approximately 2015, three years before the Original Complaint was filed. He says that these complaints are ongoing and continuous, and have been since 2015, and that he receives three to four notices a month of such complaints. As evidence of the longstanding conflict between the neighbours, Mr. Schrader says that Mr. Pan filed a civil claim against him in June 2016, alleging that Mr. Schrader committed the tort of nuisance by interfering with the quiet enjoyment of Mr. Pan’s property.
[18] Further, Mr. Schrader says that he has taken steps to respond to the complaints lodged by Mr. Pan over the years and even prior to being notified of the Original Complaint . After being notified of the Retaliation Complaint, he says he removed the light that shone into Mr. Pan’s child’s bedroom and moved the wind chimes. He says the camera is unplugged. Regarding the Notice of Civil Claim, he says it was filed in response to Mr. Pan’s nuisance claim against him and is, in effect, a counterclaim. Finally, he says that the time between the original complaint was filed and some of the impugned conduct were too attenuated for a reasonable person to perceive the requisite connection between them.
[19] In terms of the activities on Mr. Schrader’s property, contrary to Mr. Pan’s argument, the evidence before me does not appear to support the assertion that Mr. Schrader’s behaviour escalated after Mr. Schrader learned of the Original Complaint. Mr. Schrader says the Pans have complained about activities on the Schrader property since they moved in next door, dating back to 2015. I do not have any evidence before me that supports the assertion that the activities escalated or intensified after notice of the Original Complaint was given. At best, on the evidence before me, Mr. Schrader’s activities appear to show a continuation of behaviour, which Mr. Schrader says he has taken seriously and addressed. This apparent consistency leads me to conclude that Mr. Pan has not taken this aspect of his complaint out of the realm of speculation and conjecture.
[20] In terms of Mr. Schrader filing a nuisance claim against Mr. Pan and his spouse in 2019, I am satisfied on the materials before me that Mr. Pan has no reasonable prospect of success on this aspect of his complaint. Again, Mr. Pan asserts that there is a connection between the original complaint and the civil action. While an inference could be drawn from the timing between the original complaint and the impugned conduct, I am not satisfied that the timing here is sufficiently close to support the possible inference of retaliation given the context in which the civil claim was filed. That context is the history of a long dispute between the parties, and a notice of civil claim alleging nuisance arising from the Pans’ complaints dating back to 2016. Any inference that could be drawn from the timing is overshadowed by the evidence before me which shows a longstanding, consistent dispute between the neighbours, including litigation. This is not to say that filing a notice of civil claim could never be retaliation, just that I am persuaded that Mr. Pan has no reasonable prospect of proving that it was on the materials before me.
[21] I am satisfied there is no reasonable prospect that Mr. Pan will persuade the Tribunal that a reasonable complainant apprised of all the facts would perceive Mr. Schrader’s conduct as retaliation. The Tribunal must have evidence from which it can conclude that the allegation of a sufficient connection has been taken out of the realm of conjecture. In my view, on the whole of the evidence before me, I am not satisfied that the allegation has been taken out of the realm of conjecture.
III CONCLUSION
[22] I dismiss Mr. Pan’s retaliation complaint. The complaint will not proceed.
Robin Dean
Tribunal Member