Kupillas v. BC Indigenous Housing Society and another, 2025 BCHRT 68
Date Issued: March 12, 2025
File: CS-004487
Indexed as: Kupillas v. BC Indigenous Housing Society and another, 2025 BCHRT 68
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:
Gary Kupillas
COMPLAINANT
AND:
BC Indigenous Housing Society and Marc Cremer
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(c) and 27(1)(d)(ii)
Tribunal Member: Theressa Etmanski
Advocate for the Complainant: Tanya Lovrich
Counsel for the Respondent: Chanelle Wong and Jennifer Lang-Hodge
I INTRODUCTION
[1] Gary Kupillas was a tenant at a building [ Building ] run by the BC Indigenous Housing Society [ BCIHS ]. He alleges that BCIHS, and the Building Property Manager, Marc Cremer [together, the Respondents ], discriminated against him in tenancy based on his physical disability when they banned his healthcare worker from entering the Building.
[2] The Respondents agree that they banned Mr. Kupillas’s healthcare worker from the Building but deny that his physical disability was a factor in that decision. They apply to dismiss the complaint without a hearing under s. 27(1)(c) of the Code because they say it has no reasonable prospect of success. The Respondents further apply to dismiss the complaint against Mr. Cremer under s. 27(1)(d)(ii) of the Code because they say it would not further the purposes of the Code to proceed against the individual respondent. They say Mr. Cremer was at all times acting within his role as an employee of BCIHS.
[3] The Respondents also raise a preliminary issue regarding the scope of this complaint. They say Mr. Kupillas has inappropriately added new allegations in response to this application which should not be considered by the Tribunal.
[4] The resolution of this application turns on (a) whether Mr. Kupillas has taken out of the realm of conjecture that his physical disability was a factor in the alleged adverse impact he experienced when the Respondents banned his healthcare worker from the Building; (b) whether the Respondents took all reasonable steps to accommodate Mr. Kupillas to the point of undue hardship; and (c) whether it would further the purposes of the Code to proceed with the complaint against Mr. Cremer, the individual respondent.
[5] I deny the Respondents’ application. 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 BACKGROUND
[6] The following summary is taken from the materials filed by the parties. I make no findings of fact.
[7] BCIHS is a not-for-profit organization that provides affordable housing and related support services to Indigenous and non-Indigenous individuals and families living in urban settings.
[8] Mr. Kupillas describes himself as a low-income senior with disabilities who required subsidized housing. He became a tenant of BCIHS on or around January 1, 2015. During his tenancy at the Building, he says he had various health issues which resulted in several extended hospital stays, including in 2020 and 2021. He says he relied on mobility aids including a scooter and crutches.
[9] According to Mr. Kupillas, shortly after moving into the Building, he determined that the living conditions were “deplorable”. He cites concerns with pests, mold, and security, including criminal activity such as attempted break-ins and drug trafficking. He describes the environment as “chaotic”. He says he and another tenant filed a complaint with the Residential Tenancy Branch [ RTB ] about the lack of security in the Building.
[10] Subsequently, Mr. Kupillas says he started receiving what he perceived to be “threatening and harassing letters” from Mr. Cremer that were posted on his door. These letters cited infractions Mr. Kupillas had allegedly committed contrary to the tenancy agreement.
[11] In or around March 2020, in response to the Covid-19 pandemic, BCIHS implemented a policy that restricted tenants from allowing guests or visitors into the Building, with an exception permitting entry only for medical or emergency service personnel [ Visitor Policy ]. BCIHS also implemented a policy that masks had to be worn in common areas of the Building [ Mask Policy ]. These policies were in effect throughout 2020 and 2021.
[12] Mr. Kupillas says he required a healthcare worker to visit him at home as he was recovering from medical issues including heart surgery. He says he met a healthcare worker through friends who was working on establishing her own business. He says this healthcare worker was well known for providing health care and social support to people living in the Downtown East Side community. She would go to support people living in conditions where most people would not go. He says she would routinely check on him to make sure he was taking his medication, eating and sleeping, and would check for infection. He says he did not have any family or other social support, and he relied on his healthcare worker for his medical and health-related needs.
[13] The parties agree that Mr. Kupillas’s healthcare worker was a frequent visitor during his tenancy with BCIHS, including in 2021. The parties also agree that the Respondents issued multiple warning letters to Mr. Kupillas about the conduct of his healthcare worker in the Building between February and March 2021. The issues raised in these letters include allegations that the healthcare worker yelled at staff and security in the Building, littered in common areas, and did not comply with the Mask Policy.
[14] Mr. Kupillas says he felt these letters were threatening. He says this caused him additional stress during his recovery period, and he had frequent anxiety and panic attacks. He says his healthcare worker was concerned about him being alone in this state, and he relied on her to keep him alive.
[15] According to the Respondents, the healthcare worker’s behaviour in the Building did not improve despite their repeated warnings. As a result, the Respondents notified Mr. Kupillas that his healthcare worker was no longer permitted entry into the Building. However, the Respondents say Mr. Kupillas continued to allow the healthcare worker into the Building. The Respondents subsequently documented further instances where the healthcare worker caused problems in the Building, including not following the Mask Policy.
[16] Mr. Kupillas says that if his healthcare worker’s conduct was causing problems, it was because she was not being allowed into the Building to care for him.
[17] Mr. Kupillas’s tenancy at the Building ended following an order of possession by the RTB, dated May 4, 2022. His healthcare worker is now deceased.
III ADDING NEW ALLEGATIONS TO COMPLAINT
[18] As a preliminary matter, the Respondents argue that Mr. Kupillas has improperly added new allegations in his response to the application to dismiss without applying to amend his complaint. Specifically, the Respondents say that Mr. Kupillas’s complaint, as accepted by the Tribunal, is limited to the allegation that the Respondents discriminated against him regarding his tenancy by denying him access to his healthcare worker. However, Mr. Kupillas now alleges that the Respondents’ Visitor Policy was discriminatory against him and other tenants based on their disabilities. The Respondents say Mr. Kupillas has also included other new allegations regarding his tenancy, which do not allege a contravention of the Code , do not have any relevance to the complaint, are not supported by evidence, and appear to have only been included for the purpose of making “extremely damaging” statements about the Respondents before the Tribunal.
[19] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure [ Rules ], Rule 24(4)(b). The purpose of this rule 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 an application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37.
[20] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz , 2004 BCHRT 350 at para. 23 . It is not uncommon, or a violation of the Rules , for a complainant to add new particulars of their complaint in response to an application to dismiss. The distinction between particulars and new allegations was set out in Powell v. Morton , 2005 BCHRT 282 at para. 20 :
… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.
[21] I agree with the Respondents that most of Mr. Kupillas’s new allegations are properly characterized as an expansion of the complaint’s allegations, rather than further particulars. Mr. Kupillas has made new serious allegations regarding the conditions of the Building, allegations related to his eviction from the Building, and specific allegations about Mr. Cremer’s conduct towards his healthcare worker and others in the Building. I have not included the specific details of these allegations as I agree with the Respondents that they are highly prejudicial to the Respondents. These are new allegations that were not included in the complaint or were expressly screened out by the Tribunal at an earlier stage of proceedings. The nature of these allegations is clearly distinct from the allegation accepted by the Tribunal.
[22] However, Mr. Kupillas’s allegation that the Visitor Policy was discriminatory based on disability is similar in nature to the allegation in the complaint. In his response to this application, Mr. Kupillas alleges the Visitor Policy was discriminatory because tenants with disabilities relied on the social and emotional support of other Downtown East Side community members and the Visitor Policy banned them. Therefore, he alleges, he and other tenants were deprived of support they needed to manage their disabilities. I accept that this allegation, as it applies to Mr. Kupillas’s circumstances, is a further particularization of his complaint. He has described why he believes this policy is connected to the ban of his healthcare worker. However, to the extent that the allegation extends to other tenants who are not included in this complaint, I find it would broaden the scope of the complaint beyond that which the Respondents were given notice.
[23] Mr. Kupillas did not apply to amend his complaint as required by Rule 24(4)(b). Nevertheless, the Tribunal may allow an amendment under Rule 24(4)(b) if it would be procedurally fair to do so, and further the purposes of the Code: Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250 at para. 86. In this case, I am not persuaded that there is a compelling basis on which to allow the amendment.
[24] The onus is on Mr. Kupillas to persuade the Tribunal to exercise its discretion to allow the amendment. Mr. Kupillas was given the opportunity at the screening stage of this complaint to provide additional information to explain how his allegations could amount to contraventions of the Code , but upon consideration of the additional information he provided, the Tribunal was not satisfied that he had done so.
[25] I appreciate that Mr. Kupillas has been mostly self-represented in this process; however, he did have the assistance of a legal advocate in preparing his response to this application. He has not provided any information or argument to explain why the Tribunal should accept these amendments now, without an amendment application. I find that the proposed amendment would create a moving target for the Respondents and cause delays in the processing of this complaint. I therefore do not allow the amendment and will not consider the new allegations in the current application to dismiss, other than for contextual background purposes.
IV DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[26] The Respondents apply to dismiss Mr. Kupillas’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.
[27] 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.
[28] 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 .
[29] 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 .
[30] 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 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[31] To prove his complaint at a hearing, Mr. Kupillas will have to prove that he has a characteristic protected by the Code , he was adversely impacted in tenancy, and his protected characteristic was 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 fide reasonable justification. If the impact is justified, there is no discrimination.
[32] The Respondents accept that Mr. Kupillas has a physical disability, but say he has no reasonable prospect of proving that he experienced an adverse impact, or if he did, he would have no reasonable prospect of proving that his protected characteristic was a factor in the Respondents’ conduct. For the reasons that follow, I disagree.
[33] I am not persuaded by the Respondents’ submissions that Mr. Kupillas’s allegation that he experienced an adverse impact when they banned his healthcare worker from entering the Building is mere conjecture. To take the question of whether he experienced an adverse impact out of the realm of conjecture, Mr. Kupillas must provide information that describes the Respondents’ alleged conduct and the impact the alleged conduct had on him. He is not required to demonstrate, as the Respondents suggest, that he was unable to obtain appropriate healthcare outside his home, or that his healthcare worker was the only person who could provide Mr. Kupillas with the care he required.
[34] It is evident from the materials before me that the Respondents were skeptical about whether Mr. Kupillas required support for his disabilities and that the healthcare worker was providing this care, rather than visiting him as a personal guest. However, Mr. Kupillas has stated that he required healthcare support for his various medical conditions, including recovery from heart surgery, but he could not afford to pay for private care. He has explained that his healthcare worker provided care to people in the Downtown East Side during the pandemic, when he says access to health care was scarce. He has described how his healthcare worker provided him specific health care services, as well as social and emotional support during her visits. He has provided evidence that he informed the Respondents of her healthcare credentials. The Respondents do not dispute that they banned the healthcare worker from the Building. Based on this information, I am satisfied that Mr. Kupillas has taken out of conjecture that the Respondents’ decision to ban his healthcare worker from entering the Building caused him an adverse impact.
[35] That his healthcare worker did not adhere to the Respondents’ ban does not change my conclusion on adverse impact. Mr. Kupillas says the “constant flow of letters” from the Respondents caused him stress and negatively impacted his recovery. Further, he has described confrontations between staff at the Building and both he and his healthcare worker following the ban, when she tried to enter to provide him care. Accordingly, it is beyond speculation that the ban put Mr. Kupillas into the position of either adhering to the ban and foregoing the services he says he needed from the healthcare worker, or disregarding the ban and exposing himself to the risks associated with failing to comply with his housing provider’s directives. For all the above reasons, I do not accept that there is no reasonable prospect Mr. Kupillas could prove he experienced an adverse impact.
[36] Next, I must consider whether Mr. Kupillas has taken out of the realm of conjecture that his physical disability was a factor in the adverse impact he experienced. Importantly, the question at this stage is not whether Mr. Kupillas’s physical disability was a factor in the Respondents’ decision to ban the healthcare worker from the Building; rather, the focus of the analysis is whether there was a discriminatory impact. The Respondents’ justification for their decision is considered at a later stage of analysis.
[37] The information before me is that the healthcare worker attended Mr. Kupillas’s home to assist him with his disability-related needs at a time when access to such care was scarce. The Tribunal could reasonably conclude that the Respondent’s decision to ban her from the Building put Mr. Kupillas in a position of choosing between receiving disability-related care from his healthcare worker, and facing consequences from the Building for failing comply with their ban. This would support a conclusion that Mr. Kupillas’s physical disability was a factor in the adverse impact he experienced. I find that this information is sufficient to take the question of nexus out of the realm of conjecture.
[38] If Mr. Kupillas succeeds in establishing his case, the burden will shift to the Respondents to show that banning Mr. Kupillas’s healthcare worker from the Building for her alleged conduct was bona fide and reasonably justified.
[39] The Tribunal may consider a justification defence in an application under s. 27(1)(c): Trevena v. Citizens’ Assembly on Electoral Reform and others , 2004 BCHRT 24 at para. 67. If it is reasonably certain that the respondent will establish a defence at a hearing, then there is no reasonable prospect the complaint will succeed: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50. At a hearing, the burden of establishing the elements of a justification defence is on the respondent.
[40] To establish a justification defence, the Respondents would have to prove that: (1) they adopted the standard for a purpose rationally connected to the operation of the tenancy, (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate Mr. Kupillas to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance) , [1999] 3 SCR 3 [ Meiorin ] at para. 54 ; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20; Alexander v. PAL Vancouver (No. 4), 2006 BCHRT 461 at para. 44.
[41] For the purposes of this decision, I accept, without finding, that the Respondents will establish the first two elements of this legal test. Accordingly, in this application the third element is the focus of the analysis.
[42] The Respondents say that BCIHS has statutory obligations as a landlord under the s. 28(d) of the Residential Tenancy Act to ensure all tenants have access to quiet enjoyment of common areas, without interference, and to remediate situations where this has been breached. Further, BCIHS has obligations to ensure the health and safety of its employees under the Workers Compensation Act , including taking steps to prevent workplace harassment, where possible. The Respondents say they were at all times acting in accordance with these obligations. I understand the Respondent’s position to be that the standard they applied when banning Mr. Kupillas’s healthcare worker was based on these legal obligations, as well as the terms of the tenancy agreement.
[43] The Respondents say they were justified in issuing warnings about the healthcare worker’s conduct and ultimately banning her from the Building. The contemporaneous evidence provided by the Respondents in support of this rationale includes the following letters they posted on Mr. Kupillas’s door regarding her conduct:
a. February 3, 2021: she threw a partially eaten apple on the lobby floor and refused to pick up the apple when asked by staff.
b. February 9, 2021: she “never wears a mask” in the common area of the Building, and aggressively yelled at Mr. Cremer, the Property Manager, with allegations of “a personal vendetta against young women” and threatened to call the police on staff.
c. February 10, 2021: she confronted Mr. Cremer while he was speaking to another person in the hallway and threatened that he would “be fired”.
d. February 18, 2021: she snuck into the outside front lobby with another individual, and they sat on a bench and made a “scene” yelling and crying. When the security guard asked them to move on, she screamed and threatened to call the police.
e. March 3, 2021: multiple tenants complained that she walked through the common areas without wearing a mask, making them feel unsafe during the pandemic.
f. March 3, 2021: she shook a comforter out in the common hallway, and garbage came off it. She did not attempt to pick it up.
[44] The letters indicate that this behaviour was contrary to the tenancy agreement signed by Mr. Kupillas, which states:
The tenant agrees that if any occupant or guest causes unreasonable and/or excessive noise or disturbance the landlord may end the tenancy. This includes activity that has or is likely to adversely affect the quiet enjoyment, security, safety or physical wellbeing of another occupant or landlord.
And,
The tenant must take all reasonable steps to ensure that the use of common areas of the residential property […] by the tenant, occupant or guest of the tenant will (a) be prudent, safe and equitable; and (b) comply with all notices, rules or regulations posted on or about the residential property concerning the use of such common areas […]
[45] The Respondents also provide the following contemporaneous evidence:
a. March 24, 2021: A letter to Mr. Kupillas stating that his healthcare worker “is banned indefinitely” from the Building. It states that the healthcare worker “has caused too much disturbance in this building towards staff, contractors and other tenants and you are responsible for her behaviour.”
[46] In his complaint, Mr. Kupillas denied his healthcare worker engaged in such conduct, stating that the letters from the Respondents are “lies, intimidation and harassment.” In his response to this application, he further says that the security guards also did not follow the Mask Policy, and if his healthcare worker was being “disruptive” it was because she was being denied access to the Building. He describes an argument between Mr. Cremer and his healthcare worker on one occasion which included “yelling from both parties.”
[47] I understand the Respondents’ position to be that they accommodated Mr. Kupillas to the point of undue hardship because it was open to him to engage a different healthcare provider, who would not “harass BCIHS’s workers or create hazardous conditions” at the Building. However, they say that allowing his healthcare worker to continue accessing the Building and engaging in disruptive and unsafe behaviour would have created an undue hardship because it would have directly conflicted with their legal obligations.
[48] To discharge their duty to accommodate, the Respondents must show that they explored alternative approaches and “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Moore at para. 29. At a hearing, respondents must prove undue hardship, and the threshold is a high one: Hydro-Quebec v. Syndicat des Employees de Technique Professionels et de Bureau d’Hydro-Quebec , 2008 SCC 43 at para. 12; Armstrong v. Craigflower Housing Cooperative , 2021 BCHRT 12 at para. 24. Justifications that rest on impressionistic evidence or assumptions are generally suspect: Grismer at para. 31. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Central Okanagan School District No. 23 v. Renaud , [1992] 2 SCR 970.
[49] I am not persuaded that the Respondents have established that they are reasonably certain to prove that they met their duty to accommodate Mr. Kupillas to the point of undue hardship. Specifically, I am not satisfied based on the information provided that the Respondents are reasonably certain to prove that it would have caused them undue hardship to continue to allow Mr. Kupillas’s healthcare worker to enter the building, or that there was no other reasonable manner her alleged conduct could have been addressed that would not have caused an adverse impact to Mr. Kupillas. The Respondents have not provided evidence to show what alternatives they explored to accommodate Mr. Kupillas before banning the healthcare worker from the Building. The Respondents have also not sufficiently addressed how the healthcare worker’s conduct was so egregious that it is reasonably certain to meet the undue hardship threshold. At the same time, Mr. Kupillas has stated that the security guards also did not follow the Mask Policy, and there were unaddressed security concerns in the building. Based on this information, it would be open to the Tribunal to conclude after a hearing that there was discretion in how the Respondents interpreted their legal obligations, as well as inconsistency in their tolerance for “disruptive” conduct, which could undermine their assertion of undue hardship in these particular circumstances.
[50] It may be open to the Tribunal to determine after a hearing that the Respondents were required to do more to avoid an adverse impact before they barred his healthcare worker from entering the Building. I am not saying the Respondents will not succeed in providing a justification defence at a hearing, I am only saying that a hearing is required to decide the merits of the complaint.
B. Section 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[51] 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: 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.
[52] The Respondents argue that it would not further the Code’s purposes to proceed against Mr. Cremer: Daley v. BC (Ministry of Health) , 2006 BCHRT 341 .
[53] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 56 . This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley at para. 53 .
[54] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54 . Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code , s. 44(2); Robichaud v. Canada , [1987] 2 SCR 84. In those situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[55] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
iii. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley at paras. 60-62 .
[56] I will address these factors in turn.
[57] The Respondents say, and I accept, that BCIHS is named as an institutional respondent in this matter and acted as both Mr. Kupillas’s landlord and Mr. Cremer’s employer at all material times. BCIHS further says that it has the capacity to fulfill any remedies which the Tribunal might order with respect to Mr. Cremer’s conduct.
[58] BCIHS further says Mr. Cremer’s actions were dictated by BCIHS’s policies and it acknowledges the decision to ban Mr. Kupillas’s healthcare worker from the Building as its own. BCIHS says it acknowledges its responsibility to satisfy any such orders which the Tribunal might make with respect to Mr. Cremer’s conduct.
[59] Finally, BCIHS says that all the alleged conduct took place within the regular course of Mr. Cremer’s employment, rather than his personal capacity. However, I am not persuaded at this stage that the Respondents are reasonably certain to prove that there is no element of individual culpability to Mr. Cremer’s actions. Mr. Kupillas’s allegations include that Mr. Cremer sent him letters that he considered harassing or threatening. Further, it appears that several of the “disturbances” allegedly caused by the healthcare worker were conflicts she specifically had with Mr. Cremer, and Mr. Kupillas has provided information that calls into question the Respondents’ version of these events. Mr. Cremer also acknowledges that it was him who made the ultimate decision to ban the healthcare worker from the building. Finally, while BCIHS says that Mr. Cremer was acting in accordance with their policies, they have not provided any policy for the purposes of this application which describes circumstances in which healthcare personnel can be prohibited from entering the Building.
[60] I note that Mr. Cremer and BCIHS are represented by the same counsel, so I do not anticipate that a decision for the complaint to proceed against the individual respondent will create delays or inefficiencies in the Tribunal’s process.
[61] On balance of all these considerations, I am not persuaded that the purposes of the Code will not be furthered by proceeding with the complaint against Mr. Cremer. Accordingly, I deny the application to dismiss the complaint against him without a hearing.
V CONCLUSION
[62] I deny the Respondents’ application under s. 27(1)(c) and s. 27(1)(d)(ii) of the Code .
[63] I encourage the parties to make use of the Tribunal’s mediation services to try to resolve the issues giving rise to this complaint.
Theressa Etmanski
Tribunal Member