Andruski v. The Owners, Strata Plan LMS2298 (No. 2), 2025 BCHRT 7
Date Issued: January 8, 2025
File(s): CS-003945
Indexed as: Andruski v. The Owners, Strata Plan LMS2298 (No. 2), 2025 BCHRT 7
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:
Heather Andruski
COMPLAINANT
AND:
The Owners, Strata Plan LMS2298
RESPONDENT
REASONS FOR DECISION
APPLICATION FOR RECONSIDERATION
Rule 36
Tribunal Member: Laila Said Alam
On their own behalf: Heather Andruski
Counsel for the Respondent: No Submissions Sought
I INTRODUCTION
[1] Ms. Andruski filed a human rights complaint alleging The Owners, Strata Plan LMS2298 [ Strata ] discriminated against her on the basis of disability, contrary to s. 8 of the Human Rights Code .
[2] The Strata applied to dismiss Ms. Andruski’s complaint under s. 27(1)(c) of the Code . In Andruski v. The Owners, Strata Plan LMS2298 , 2024 BCHRT 240, the Tribunal granted the application and dismissed the complaint [ Decision ].
[3] Ms. Andruski now applies for reconsideration of the Decision. Further, she argues that the Decision gives rise to a reasonable apprehension of bias and asks that another Tribunal member be assigned to decide the reconsideration application.
[4] I have not found it necessary to seek submissions from the Respondent.
[5] For the following reasons, I deny Ms. Andruski’s request to have another member decide the reconsideration application, and I deny the application.
[6] In this decision, I first consider Ms. Andruski’s arguments about bias, which relate to both her request that another member decide the reconsideration application, as well as to the merits of the reconsideration application.
II BACKGROUND
[7] The background to Ms. Andruski’s complaint is set out in the Decision and I will not repeat it here. In brief, Ms. Andruski alleged that the Strata discriminated against her in the provision of services customarily available to the public by failing to adequately and appropriately respond to her complaints regarding laundry odours and nicotine damage in her condo.
III ANALYSIS AND DECISION
A. The Reasonable Apprehension of Bias Allegation
[8] Reconsideration applications at the Tribunal are usually decided by the member who made the original decision. That member is most familiar with the evidence and issues in the complaint, and best placed to efficiently determine whether there is a basis to reconsider the original decision: Karbalaeilali v. BC (Human Rights Tribunal) , 2010 BCSC 1130 at para. 65; see also University of British Columbia v. University of British Columbia Faculty Assn ., 2007 BCCA 201 at para. 84.
[9] An exception arises where the circumstances give rise to a reasonable apprehension of bias. The Supreme Court of Canada set out the test for a reasonable apprehension of bias in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), as follows (at p. 394):
… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would [they] think that it is more likely than not that [the decision maker], whether consciously or unconsciously would not decide fairly.
[10] Tribunal members are presumed to be impartial in the exercise of their duties, and that presumption is not easily displaced: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, at para. 25. In the present case, Ms. Andruski bears the burden of displacing the presumption of impartiality, and the evidence of bias must be substantial: CS v. British Columbia (Human Rights Tribunal) , 2017 BCSC 1268 at para. 155, upheld in 2018 BCCA 264.
[11] Ms. Andruski asserts that aspects of the Decision give rise to a reasonable apprehension of bias. As I understand Ms. Andruski’s submissions, she disagrees with aspects of my reasons and appears to assert that because I did not accept her submissions or weigh her arguments and evidence as she would have preferred, this gives rise to a reasonable apprehension of bias. As I said in the Decision, I considered all of the materials before me in the application to dismiss and my decision set out detailed reasons for why I dismissed the application. The fact that Ms. Andruski disagrees with my reasons, or that the Tribunal rejected her arguments, does not on its own displace the presumption of impartiality: Stein v. British Columbia (Human Rights Tribunal) , 2017 BCSC 1268 at para. 164. To the extent Ms. Andruski takes issue with the substantive findings of the Decision, the proper forum for reviewing those findings is judicial review at the BC Supreme Court.
[12] Ultimately, Ms. Andruski’s evidence and arguments do not persuade me that a reasonable and informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that I did not adjudicate Ms. Andruski’s complaint fairly, or would not adjudicate her reconsideration application fairly.
B. Do the Interests of Fairness and Justice Otherwise Require Reconsideration?
[13] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure. Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141 at para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4) , 2007 BCHRT 206 [ Grant ] at para. 10.
[14] The burden is on Ms. Andruski to show that the interests of fairness and justice demand such an order: Grant at para. 10. Generally, Ms. Andruski seeks to reargue the application to dismiss. This is not a basis upon which the Tribunal may reconsider a decision. I now turn to her reasons for why she says the decision should be reconsidered.
[15] First, she says that the Decision gave no consideration to her efforts to find a solution to the problem or acknowledge what she did to help herself cope in the situation. I note that paragraphs 12, 13, 14, 16, and 20 of the Decision state various steps she took around her apartment and her communications with the Strata to discuss solutions.
[16] Second, Ms. Andruski says that the Decision did not acknowledge that the process for managing her medical information did not meet the guidelines set out in an interim letter decision issued by the Tribunal on August 3, 2022. The Tribunal’s interim decision ordered Ms. Andruski to disclose her medical documents to the Respondents by September 2, 2022, and set out guidelines for whom could see her records. Ms. Andruski alleges in her reconsideration application that the Member then “opened [access of her medical information] to the masses.” That decision was not in the Application to Dismiss materials. The Tribunal considered what was before it, and the chronology of events that influenced the Decision: paras. 13-18 and 30.
[17] Similarly, Ms. Andruski says the Tribunal claimed that she was uncooperative because she “waited months to provide” medical records to the Strata (italics in original). She offered to show one counsel member and the president, but they refused. The delay in providing medical records was due to her inability to have her privacy guaranteed, which was made worse by the Tribunal Member in the interim decision.
[18] There is no such accusation in the Decision. In paragraph 31 of the Decision, the Tribunal referred to the time frame as being “many weeks” between having the medical note in her possession and giving it to the Strata.
[19] She also says that the Decision did not “refer to [her] case law that [she] presented which rendered her an accommodation for the same reasons in another condo Andruski v. Strata LMS 199.”
[20] Paragraph 8 of the Decision’s background section summarizes a statement she included in the Form 1.1 Individual Complaint: “she said her previous strata covered the cost of purchasing and installing an H-VAC system after she made a human rights complaint”. In the application to dismiss, Ms. Andruski cites Andruski v. Strata Plan LMS3199 (No. 3) , 2018 BCHRT 124 on pages 1 and 7 of the document containing her written arguments opposing the application to dismiss. In that decision, the Tribunal dismissed her complaint under s. 17 of the Administrative Tribunals Act because the parties had advised the Tribunal that they had reached a Settlement Agreement. Together, I understood Ms. Andruski’s Form 1.1 to refer to her experiences with Strata Plan LMS3199, and the outcome of her complaint against it. Respectfully, the decision that Ms. Andruski cites was an application to dismiss based on a different set of facts, with a different strata corporation, the outcome of which is subject to settlement privilege and not disclosed in the decision. That decision was not salient or persuasive to the facts at issue in her complaint against the Strata.
[21] Next, she argues the Tribunal did not acknowledge that she “provided the Strata with suggested accommodations shortly after moving into [her] suite,” or that the Strata disregarded her suggestions.
[22] Paragraph 8 of the Decision refers to her suggested accommodation. Outlined in paragraphs 9-10, are communications between Ms. Andruski and the Strata based on external, contemporaneous documentation that highlighted “the Strata’s efforts to remedy [the issue] and Ms. Andruski’s assessment of the efficacy of the Strata’s efforts.”
[23] Similarly, Ms. Andruski argues that the Tribunal did not appropriately consider her evidence that “show[s] that even prior to filing the claim, and later, in July, I provided a very simple solution by suggesting an HVAC system/air purifier, and later, suggesting the window casements and screens be replaced. My low-cost suggestions were not taken into consideration, and while the member accuses me of not complying, participating, or cooperating, it was indeed the strata not doing so. I was told to buy my own air purifier.”
[24] In paragraphs 8, 12, 13, and 20 of the Decision, the Tribunal takes these arguments into account. The Tribunal did not find that the Strata told Ms. Andruski to buy her own air purifier. Paragraph 15 of the decision summarizes the Strata’s response to her request to buy her a medical grade air purifier, which included a request for medical documentation setting out her need for a medical grade air purifier.
[25] Next, she argues that the Decision said she was looking for her “perfect” accommodation but did not substantiate that with any evidence.
[26] The Decision referred to the legal test that says a Respondent is obligated to provide a reasonable accommodation, not a perfect one. The Tribunal provided its analysis of the legal test in paragraphs 29 to 33.
[27] Ms. Andruski says that the Decision concluded that the Strata acted in a prompt fashion, which she says was not true. She frames her experience as 11 months of not getting any results, so she bought her own medical grade air purifier. Lastly, Ms. Andruski emphasized, the following (underline in original):
They did nothing to address my complaint of the odours wafting not my suite from outside, nor did they do anything regarding the nicotine saturation within the suite .
[28] I understand these statements to all go toward Ms. Andruski’s argument that the Tribunal did not consider her argument that the Respondents did nothing to accommodate her. In paragraphs 8-20, the Decision summarized the Strata’s efforts to address her complaints about laundry odors in her suite and nicotine saturation around her windows. I found, on a review of the whole of the materials before me, that the Strata was reasonably certain to prove that Ms. Andruski rejected its reasonable accommodation proposals, thus bringing their obligations to an end.
[29] The exercise under s. 27(1)(c) does not entail making findings of fact, but it does necessarily entail evaluating the evidence submitted by the parties. The Tribunal can only consider the evidence that it has before it on an application to dismiss, not what might be put before it at a hearing. Ms. Andruski’s arguments on reconsideration about why the weighing of evidence in the Decision is incorrect, or why the decision is otherwise wrong focus on the substantive elements of the Decision. Ms. Andruski’s arguments make clear that she does not agree with the analysis or ultimate disposition. This is not a basis upon which the Tribunal may reconsider a decision. The Tribunal does not have authority to reconsider a decision based on an argument that the decision was substantively wrong or unreasonable: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 at paras. 135 and 160. When a party simply disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[30] The record before me is what I based my decision on, and it would be inappropriate to reconsider the Decision on the basis of Ms. Andruksi’s disagreement with my findings in relation to the very arguments and evidence that were before me at the time the Decision was made. In all the circumstances, Ms. Andruski has not persuaded me that it would be in the interests of fairness or justice to reconsider the Decision. Insofar as Ms. Andruski may be of the view that I erred in my findings in that Decision, the appropriate recourse is an application for judicial review.
IV CONCLUSION
[31] Ms. Andruski’s request to have her application for reconsideration decided by a different member is denied, and her reconsideration application is denied.
Laila Said Alam
Tribunal Member