Hughes v. 2-Tone Romain Holdings Inc. and others, 2024 BCHRT 209
Date Issued: July 18, 2024
File: CS-006780
Indexed as: Hughes v. 2-Tone Romain Holdings Inc. and others, 2024 BCHRT 209
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:
Barbara (Tyna) Hughes
COMPLAINANT
AND:
2-Tone Romain Holdings Inc. and Deborah Lecerf and John McLain and
District 69 Society of Organized Services
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO ADD RESPONDENTS
Rule 25(2)
Tribunal Member: Kathleen Smith
Counsel for the Complainant: Alison Moore and Laura Track
Counsel for the Respondents Deborah Lecerf and John McLain and Proposed Respondent 2-Tone Romain Holdings Inc.: Pearl Onyema
Counsel for Proposed Respondent District 69 Society of Organized Services: Chanelle Wong
I INTRODUCTION
[1] Barbara (Tyna) Hughes is a Métis person with disabilities who has experienced homelessness. Ms. Hughes rented an RV on a property with the support of a rental subsidy provided by a program aimed at preventing homelessness. Her human rights complaint arises out of this tenancy. Ms. Hughes’ allegations of discrimination include the poor condition of the property, her inability to access the garbage area at the property, and threats of eviction. Ms. Hughes alleges that her Indigenous identity, mental disability, and source of income were factors in the negative experiences she had in her tenancy, amounting to discrimination contrary to s. 10 of the Human Rights Code.
[2] Ms. Hughes named two individuals as respondents in her original complaint: Deborah Lecerf, the property manager, and John McLain, the property caretaker. The Tribunal screened the complaint against Ms. Lecerf and Mr. McLain [the Individuals] and determined that it could proceed.
[3] One year later, Ms. Hughes applied to add two respondents to the complaint:
a. 2-Tone Romain Holdings Inc. [2-Tone], the owner and corporate landlord of the property, and
b. District 69 Society of Organized Services [SOS], the organization that provided the rental subsidy.
[4] Ms. Hughes says that adding 2-Tone and SOS as respondents will promote the just and timely resolution of her complaint.
[5] 2-Tone and SOS each oppose the application to add them to the complaint. They both say the application is filed late and, in any case, does not include allegations against them that could establish a contravention of the Code. In addition, they both say that they would be prejudiced if added to the complaint.
[6] The Individuals oppose the application to add 2-Tone. They repeat 2-Tones’s position that Ms. Hughes filed the application late and does not allege a contravention of the Code by 2-Tone. The Individuals take no position regarding the application to add SOS.
[7] Ms. Hughes filed an amendment to her complaint together with her reply to the application [First Amendment]. Before I address the application to add respondents, I review Ms. Hughes First Amendment and explain why I have allowed it but not considered it.
[8] After receiving Ms. Hughes’ reply submission, SOS applied to make a further submission, also known as a sur-reply. No party opposed the sur-reply. In this decision, I explain why I have allowed and considered the sur-reply.
[9] Lastly, Ms. Hughes filed a further amendment to her complaint after SOS filed its sur-reply [Second Amendment]. For reasons I will explain below, I find that it was not necessary to file the Second Amendment but allow the complaint to proceed against SOS in the areas of tenancy and services.
II DECISION
[10] For the reasons that follow, I grant the application to add 2-Tone and SOS as respondents.
III PRELIMINARY ISSUE: FIRST AMENDMENT
[11] Ms. Hughes submitted an amendment to her complaint with her reply to the application. The First Amendment adds details to the original allegations as well as new allegations regarding events that occurred since she filed the complaint. Ms. Hughes relies on the First Amendment to argue that the application, as it relates to 2-Tone, is not late-filed.
[12] In the First Amendment, Ms. Hughes says that her complaint allegations regarding the condition of the property, threat of eviction, and inability to access the garbage area were ongoing at the time she filed the complaint and continued past the date she filed the complaint. The new allegations include a one-month notice to end tenancy issued in June 2022, and eviction in December 2022.
[13] For the reasons that follow, I allow the amendment, but have not considered it in reaching my decision about adding 2-Tone.
[14] Rule 24 of the Tribunal’s Rules of Practice and Procedure [Rules] sets out the requirements for amending a complaint.
A complainant may add details to the allegations made in a complaint at any time by filing a Form 3 – Amendment: Rule 24(1).
A new allegation must allege facts that, if proven, could establish a contravention of the Code: Rule 24(3).
[15] I agree with Ms. Hughes that the First Amendment clarifies the particulars of her original complaint allegations and adds new allegations related to events that occurred since she filed the complaint in May 2022. I also agree that the new allegations are arguable contraventions of the Code. Where I am satisfied that the amendment complies with Rule 24 and the Respondents do not, I allow the amendment.
[16] At the same time, I find that the timing of the First Amendment raises issues of procedural fairness. Ms. Hughes filed the First Amendment at the same time as her reply to the application to add respondents. This means 2-Tone filed its response to the application without having an opportunity to know or respond to the new allegations against it. In circumstances where the amendment directly impacts the scope of the complaint as against 2-Tone and they were deprived of the opportunity to respond due to the timing of the First Amendment, I find that fairness requires that I do not rely on it when deciding whether to add 2-Tone to the complaint.
[17] I confirm that the First Amendment does not form any basis for my decision on whether to add 2-Tone to the complaint. I also confirm that going forward, the First Amendment filed on December 6, 2023, forms part of the complaint. 2-Tone will have an opportunity to file an amended response to the complaint.
IV PRELIMINARY ISSUE: FURTHER SUBMISSION
[18] After receiving Ms. Hughes’ reply submission, SOS applied to file a further submission. In brief, SOS says that the reply contains new information and arguments, and fairness requires that it have an opportunity to respond to the new issues. Ms. Hughes takes no position on the sur-reply. 2-Tone and the Individuals did not provide a position.
[19] The Tribunal’s process regarding applications usually involves three rounds of submissions: the application, the response, and the reply: Rule 28(2). However, the Tribunal has discretion to accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in a reply: Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24; Rule 28(5). A party who wants to apply to make further submissions is required to immediately notify the Tribunal and file the application within one week of the reply: Rule 28(5).
[20] The sur-reply application was filed on time, therefore, the only question before me is whether Ms. Hughes raised new issues in the reply and fairness requires that I give SOS an opportunity to make further submissions.
[21] SOS argues that the reply contains three new issues, and I agree. The reply alleges for the first time that SOS perceived Ms. Hughes to have Hoarding Disorder. The reply raises for the first time an argument that the allegations against SOS form a continuing contravention. Lastly, Ms. Hughes argues for the first time that the Tribunal ought to add SOS in the areas of services if it finds it cannot add SOS in the area of tenancy.
[22] In all these circumstances, I am satisfied that the reply raised news issues that require SOS to have an opportunity to respond. I have allowed the sur-reply and considered it in my decision.
V PRELIMINARY ISSUE: SECOND AMENDMENT
[23] Two days after SOS filed its sur-reply application, Ms. Hughes filed the Second Amendment. In the Second Amendment, Ms. Hughes says that she is amending her complaint to add the area of services to her complaint against SOS. Ms. Hughes explains that she is filing the amendment to directly address an argument in SOS’s sur-reply that she would need to amend her initial complaint (which is in the area of tenancy) to include the area of services for SOS to be added in the area of services.
[24] In circumstances where Ms. Hughes directly raised the issue of adding the ground of services in her reply and I allowed the sur-reply to address this issue, I am satisfied that SOS had had a fair opportunity to know and address the issue. For reasons that I will explain below, I have added the ground of services to the complaint against SOS. In all these circumstances, the Second Amendment is not necessary.
VI BACKGROUND
[25] I provide this background information to put this decision in context. This is not a decision on the merits of the complaint, and I make no findings of fact.
[26] Ms. Hughes is Red River Métis. She has a grade seven education and has been diagnosed with ADHD, PTSD, and an intellectual disability. She says that because of her disabilities, she struggles with organization, prioritization, conveying information, and is easily overwhelmed.
[27] SOS is a non-profit organization that provides community programs and services. SOS administers the Homeless Prevention Program [HPP] through a contract with BC Housing. The HPP provides rental subsidies and housing support.
[28] 2-Tone is the owner and corporate landlord of the property at issue in the complaint.
[29] Ms. Lecerf is the manager of the property, and acts as a representative of the landlord, 2-Tone. Mr. McLain is the caretaker of the property. 2-Tone employs both.
1. The complaint
[30] Ms. Hughes filed her complaint on May 3, 2022. At the time, she was self-represented.
[31] The complaint is brought in the area of tenancy and names the Individuals as respondents. I summarize the events listed in the complaint here:
a. The HPP (operated by SOS) ended their funding because of Ms. Hughes disability, leaving her scrambling to pay her rent.
b. Ms. Lecerf made a comment to Ms. Hughes about “her kind.”
c. Ms. Lecerf did not give Ms. Hughes a key to the garbage area.
d. Ms. Lecerf and Mr. McLain talked badly about Ms. Hughes to other renters, impacting her reputation in the community.
e. The Individuals did not fix problems with the RV including mold, a rat infestation, sewer backup in the tub, no stove, no hot water, leaky roof, bugs chewing on the walls, and no screens in the windows.
f. The Individuals blamed Ms. Hughes for the issues with the RV, and she is scared to say anything because there is no other housing she can afford.
g. It is hard for Ms. Hughes to organize her stuff.
h. Ms. Lecerf yelled at her and threatened her with eviction for not complying with the demands to organize her stuff.
i. Ms. Hughes’ doctor diagnosed her in January 2022 and said that with therapy she can overcome her issues with organization. (Ms. Hughes does not say what the diagnosis was.)
j. Ms. Lecerf and the HPP did not care about Ms. Hughes’ barriers and just wanted her to “get it done,” meaning to organize her stuff.
k. The HPP terminated the funding agreement the same week Ms. Hughes’ doctor diagnosed her.
l. Ms. Hughes does not have money to move and will become homeless.
[32] At the end of the complaint, Ms. Hughes apologizes and states that she is “not very good at this stuff” and is scared.
2. The response
[33] The Individuals filed a response to the complaint in July 2022. They are represented by counsel.
[34] In the response, the Individuals confirm that they are employed by 2-Tone and that 2-Tone is the landlord.
[35] The Individuals say that 2-Tone sometimes receives and approves tenancy applications from prospective tenants recommended by SOS under the HPP. They say this is how Ms. Hughes came to sign a tenancy agreement with 2-Tone. Ms. Hughes began her tenancy on April 1, 2020.
[36] In response to the specific allegations, the Individuals say:
a. The complaint relates to a “fall out” between Ms. Hughes and SOS. They do not have an employment relationship with SOS and SOS is not a respondent.
b. Ms. Lecerf denies making the alleged comments.
c. Ms. Lecerf provided Ms. Hughes with keys and denies preventing Ms. Hughes from accessing the garbage area at any point during the tenancy.
d. They deny speaking badly about Ms. Hughes within or outside the property.
e. They attempted to address complaints about repairs.
f. Ms. Hughes prevented and hampered their efforts by cancelling scheduled inspections and failing to keep the RV Pad free of hoard.
g. Certain repair issues raised in the complaint have been remedied. Any outstanding repairs are due to Ms. Hughes delay and failure to cooperate.
h. Ms. Hughes hoarded material in the RV pad that made the premises unsanitary and difficult to conduct inspections.
i. Ms. Hughes’ personal characteristics had no bearing on her tenancy or the alleged delay in undertaking repairs.
j. They were unaware of any diagnosed disability and Ms. Hughes did not provide them any medical information regarding a correlation between the hoard in the RV Pad and her alleged mental disability. They were unaware of Ms. Hughes Indigenous identity.
k. Ms. Hughes rejected offers of assistance and Ms. Lecerf issued a notice to end the tenancy in June 2022, strictly based on non-compliance with the tenancy agreement and not for any discriminatory reason.
VII APPLICATION TO ADD RESPONDENTS
[37] Ms. Hughes seeks to add 2-Tone and SOS to the complaint.
[38] A person seeking to add a respondent to a complaint must establish that there are facts alleged against the proposed respondent that, if proven, could establish a contravention of the Code, and that adding the proposed respondent will further the just and timely resolution of the complaint: Rule 25(2).
[39] If the application is brought after the one-year time limit for filing a complaint, they must also explain why it is in the public interest to accept the complaint and why no substantial prejudice would result to any person because of the delay: Rule 25(2); Code, s. 22(3).
[40] I begin with 2-Tone.
A. 2-Tone
[41] Although no party provided a copy of the Residential Tenancy Agreement, there is no dispute that 2-Tone was Ms. Hughes’ landlord, and her complaint relates to that tenancy. There is also no dispute that the Individuals are 2-Tone’s employees.
[42] Ms. Hughes argues that 2-Tone is an appropriate respondent because it was the landlord, and the allegations relate to actions take by the Individuals and the landlord. She also highlights that principles of vicarious liability may apply to some actions of the Individuals and adding 2-Tone will not affect any participant’s ability to present their case.
[43] 2-Tone objects to the application to add it. 2-Tone argues that the complaint against it is out of time and does not allege a contravention of the Code by 2-Tone. 2-Tone makes other arguments about the merits of the complaint which I have not considered since they are more appropriately advanced at the application to dismiss or hearing stage of the Tribunal’s process.
1. Does the complaint allege facts that, if proven, could establish a contravention of the Code by 2-Tone?
[44] To prove her case against 2-Tone, Ms. Hughes would need to prove that she experienced an adverse impact in her tenancy, in which her Indigenous identity, mental disability or source of income was a factor: Moore v. BC (Education), 2012 SCC 61 at para. 33. At the screening stage, Ms. Hughes is not required to prove her case. Rather, she must only meet the low threshold of alleging facts that if proven could be a contravention of the Code.
[45] 2-Tone argues that there are no actions, facts, or allegations against it that, if proven, could establish a contravention of the Code. 2-Tone asserts that the only basis advanced by Ms. Hughes is the fact it is the corporate landlord of the property.
[46] In circumstances where Ms. Hughes has brought her complaint in the area of tenancy and raised issues directly connected to the tenancy, I am not persuaded by 2-Tone’s argument. Ms. Hughes’ allegations include allegations about the condition of the rental property and threats of eviction which directly relate to the actions, omissions, and/or decisions of a landlord.
[47] I also find it significant that the original complaint allegations were already screened by the Tribunal. This means that the Tribunal has already assessed that the allegations meet the low threshold required to proceed at the Tribunal. Ms. Hughes, as a self-represented party, named the landlord’s representatives but not the corporate landlord at the time of filing her complaint. By now clarifying that she intended to also name the corporate landlord does not change the screening decision, since the alleged conduct in the area of tenancy is the same.
[48] I am satisfied that Ms. Hughes has alleged facts that, if proven, could establish a contravention of the Code by 2-Tone.
2. Does adding 2-Tone support the just and timely resolution of the complaint?
[49] Where 2-Tone is the landlord and the complaint concerns actions taken by the Individuals and the landlord, I am satisfied that adding it would further the just and timely resolution of the complaint. In general, an employer is responsible for their employee’s conduct when they are acting as employee, and the employer can fulfill any remedies that the Tribunal might order if there is a finding of liability. Here, there is no dispute that the Individuals were employees representing 2-Tone in their interactions with Ms. Hughes. It will be up to the Tribunal to determine at a later stage whether Ms. Hughes has proven her allegations and, if so, which respondent is liable for which discriminatory conduct. As set out above, most often it is the corporate respondent who is responsible for the discrimination. For this reason, I find it entirely appropriate to add 2-Tone to the complaint.
3. Is the complaint against 2-Tone out of time?
[50] The parties disagree on whether the complaint against 2-Tone was filed outside the Tribunal’s one year time limit: s. 22 of the Code.
[51] Ms. Hughes filed her original complaint on May 3, 2022. She listed May 1, 2022, as the date of the most recent conduct. To be timely, Ms. Hughes would need to bring her application to add 2-Tone within one year. Ms. Hughes brought her application exactly one year later, on May 1, 2023.
[52] 2-Tone argues that to be timely Ms. Hughes had to file her application by April 30, 2023, which makes her application one day late. 2-Tone did not explain how, or on what basis, it interprets the calculation of the Tribunal’s one year time limit. Even if I had not rejected this argument, I would have allowed the application in circumstances where it was filed one day late, and 2-Tone already had notice of the complaint. 2-Tone would have been aware of the allegations when the Tribunal issued the notice of the complaint proceeding against two of its employees. The lawyer who prepared the response to the complaint on behalf of the Individuals is the same lawyer who has now prepared the responses to the application on behalf of the Individuals and 2-Tone. In these circumstances, I am satisfied that 2-Tone would have been aware of the allegations throughout.
[53] In the circumstances, I find the complaint against 2-Tone is filed in time. I now turn to SOS.
B. SOS
[54] I begin with an overview of the evidence about the relationship between Ms. Hughes and SOS.
[55] As set out above, SOS administers the HPP. The HPP provides rental subsidies for individuals and families who are homeless or at immediate risk of homelessness. The HPP provided a rental subsidy to Ms. Hughes between May 1, 2020, and January 20, 2022. The subsidy was for her occupancy of the RV on the RV pad on the property, all of which is owned by 2-Tone.
[56] SOS provided an affidavit from the HPP Coordinator and attached the following documents related to the subsidy provided to Ms. Hughes. I summarize the documents to put this part of the application in context.
[57] Landlord/Resident Subsidy Agreement [the Subsidy Agreement]. The HPP Coordinator, Ms. Hughes, and Ms. Lecerf (for the landlord) signed the Subsidy Agreement on March 30, 2020. The Subsidy Agreement sets out terms including home visits by an HPP outreach worker, certain resident behaviour and conduct requirements, and grounds for terminating the agreement. The Subsidy Agreement also notes that it is “in addition to the Resident’s Tenancy Agreement and is not meant to replace the Tenancy Agreement.”
[58] HPP Client Support Agreement [the Support Agreement ]. The Support Agreement states that as part of the Subsidy Agreement, the resident agrees to work towards agreed goals and that the outreach worker will support the resident. Ms. Hughes signed the Support Agreement on December 2, 2020. She identified one of her goals as “organize and tidy.”
[59] Warning letter. The letter dated December 15, 2021, indicates that Ms. Hughes is in breach of the conditions required to receive rent and housing supports through the HPP. The letter refers to multiple conversations and efforts to assist her with cleanliness and organization of the unit, and a home inspection by the landlord on January 6, 2022. The letter closes by telling Ms. Hughes that if the issue is not addressed, SOS will end the Subsidy and Support Agreements on January 31, 2022.
[60] Termination letter. The letter to Ms. Hughes from the HPP Coordinator confirms the end of the Subsidy Agreement due to non-compliance. The letter also indicates that 2-Tone has been informed of the ending of the Subsidy Agreement. The letter is undated but includes a handwritten note indicating that it was delivered to Ms. Hughes on January 20, 2022.
1. Does the complaint allege facts that, if proven, could establish a contravention of the Code by SOS?
[61] Ms. Hughes argues that the complaint contains allegations in relation to SOS even though she did not initially name them as a respondent. She points specifically to the allegation that the HPP ended her funding becauseof her disability, leaving her scrambling to pay her rent. In reply, Ms. Hughes clarifies her allegations against SOS. She says that it perceived her to have Hoarding Disorder. She further says that the decision to withdraw the rent subsidy and outreach worker services negatively affected her by making it difficult to pay her rent, and not having the support to maintain her residence in an acceptable condition. Ms. Hughes argues that there is a sufficient connection to the tenancy context for the relationship with SOS to be captured by s. 10 of the Code. She also argues that the allegations against SOS can be captured by s. 8 of the Code, i.e. services.
[62] SOS argues that the complaint does not allege a contravention of Code against it for several reasons. First, it argues that it was not in a tenancy relationship with Ms. Hughes and s. 10 of the Code does not apply. Second, it argues that Ms. Hughes did not experience an adverse impact because she continued to reside at the property after the Subsidy Agreement ended and by her own information found another source of funding. Third, it says Ms. Hughes’ allegation that SOS ended the Subsidy Agreement because of her disability is a bald assertion and based on conjecture which does not meet the Tribunal’s screening threshold.
[63] I begin with SOS’s argument that the area of tenancy does not apply. SOS says that it was not the landlord, did not exercise any control or authority over the property where Ms. Hughes resided, and had no ability to affect the terms and conditions of the tenancy. Ms. Hughes disagrees, arguing that SOS was sufficiently involved in the tenancy to be captured by s. 10. She relies on McCulloch v. British Columbia (Human Rights Tribunal) , 2019 BCSC 624, where the court found the Tribunal had made an error of law by adopting a narrow and formalistic interpretation of the scope of s. 10, rather than engaging the necessary contextual analysis focused on the purposes of the Code: at para. 124.
[64] For the purposes of this application, I am satisfied that Ms. Hughes alleges a sufficient connection to tenancy for this complaint to proceed against SOS in the area of tenancy. Ms. Hughes says that SOS supported her in securing and maintaining her tenancy at the property. Ms. Hughes argues that SOS effectively set the terms of tenancy by requiring her to comply with the Subsidy and Support Agreement. In addition, Ms. Hughes alleges that when SOS withdrew the subsidy and support, she was unable to maintain the tenancy and was evicted some months later. In other words, Ms. Hughes says that SOS’s decisions negatively affected her tenancy.
[65] When I apply a broad and purposive interpretation of s. 10 and consider the low screening threshold, I am satisfied, based on the information before me on this application, that the allegations against SOS may fall within the area of tenancy. I am also satisfied, based on the materials before me, that it is appropriate to add the area of services. The Tribunal may ultimately decide that either, both, or neither area applies; however, that determination is better left for an application to dismiss or a hearing where the parties can make fulsome arguments on this point.
[66] Next, I turn to the allegations themselves. Ms. Hughes alleges that SOS withdrew funding and support because of her disabilities, which negatively impacted her ability to pay her rent. As above, she clarifies that SOS perceived her to have Hoarding Disorder.
[67] SOS asserts that the complaint does not allege any facts that could establish a connection between Ms. Hughes protected characteristics and the ending of the Subsidy Agreement. SOS says that this allegation is a bald assertion, and the Tribunal ought not to add a proposed respondent where the allegation is based on speculation. SOS also asserts that based on Ms. Hughes own information, there was no adverse impact since she continued to reside at the property after the Subsidy Agreement ended. SOS also denies that it perceived Ms. Hughes to have Hoarding Disorder. It says that it had concerns about cleanliness and organization which is distinct and separate from a perception of Hoarding Disorder.
[68] In my view, Ms. Hughes allegation against SOS is sufficient to meet the low screening threshold. Ms. Hughes alleges that SOS ended her funding due to her disabilities, including a perception of Hoarding Disorder, and this negatively impacted her ability to maintain her tenancy. She argues that this perception is clear from the response filed by SOS. If proven, this could be a breach of the Code. It may well be that SOS can establish that it had entirely non-discriminatory reasons for its decision; however, those arguments are more appropriately addressed in an application to dismiss or at a hearing.
2. Is the complaint against SOS out of time?
[69] The allegations against SOS relate to the termination of the Subsidy Agreement. SOS says, and Ms. Hughes does not dispute that this occurred on January 20, 2022. Therefore, the application to add them, filed on May 1, 2023, is three months after the one-year time limit. The parties disagree whether the allegations against SOS constitute a continuing contravention.
[70] A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50. A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child, 2018 BCCA 136 at para. 68.
[71] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17.
[72] For the following reasons, I do not find that Ms. Hughes alleges a continuing contravention against SOS.
[73] Ms. Hughes argues there is a continuing contravention based on the fact she was not served with an eviction notice until June 2022, and not evicted until December 2022. Her argument is premised on the allegation that she was ultimately evicted due to SOS’s withdrawal of services and funding.
[74] As set out by SOS, Ms. Hughes does not allege any further instances of discrimination after SOS terminated the Subsidy Agreement. Instead, Ms. Hughes asserts that she later had difficulty paying her rent. Ms. Hughes does not provide any details about when and how her financial difficulties occurred. She also does not dispute that she secured another source of funding, at least temporarily. I also find it persuasive that Ms. Hughes does not challenge 2-Tone’s assertion that it issued the one month notice to end tenancy issued in June 2022 based on the condition of the property, including the presence of hoard. Based on the material before me, it appears that Ms. Hughes was unable to pay her full rent to 2-Tone between June and November 2022.
[75] Based on the information before me in this application, I am not persuaded that Ms. Hughes has alleged a continuing contravention. Instead, it appears that she is alleging an act that had subsequent effects or consequences.
3. Is it in the public Interest to accept the complaint against SOS?
[76] Under s. 22(3) of the Code, the Tribunal may accept a complaint filed more than one year after the alleged contravention where it determines that it is in the public interest to do so, and no substantial prejudice would result to any person because of the delay. The same considerations apply to an application to add a respondent outside of the one-year time limit.
[77] When considering whether it is in the public interest to add a respondent outside of the time limit, the Tribunal will consider a non-exhaustive list of factors, including the length of the delay, reasons for the delay, and the public interest in the complaint itself: British Columbia (Minister of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 53. These factors are important, but not necessarily determinative. The inquiry is fact and context specific and assessed in accordance with the purposes of the Code: Brelecic v. Mike’s No Frills, 2021 BCHRT 168 at para. 13. While the principle of discoverability does not extend the time limit, it is also relevant to the determination of public interest: Fullerton v. Rogers Foods, 2015 BCHRT 49 at para. 24.
[78] In considering the length of the delay, the starting point is that the purpose of the time limit is to ensure that complainants pursue their human rights remedies with some diligence, and that it is in the public interest for them to identify appropriate respondents to a complaint within the time limit: Buchanan v. Providence Health Care (c.o.b. St. Paul’s Hospital), 2023 BCHRT 50 at para. 33. This is so respondents can take remedial steps if appropriate, and to protect respondents from having to address dated complaints: School District v. Child (Litigation guardian of), 2018 BCCA 136 at para. 79; Kamloops (City) v. Spina, 2021 BCSC 723 at para. 80.
[79] Ms. Hughes argues that it is in the public interest to allow the late complaint as against SOS for several reasons.
[80] Ms. Hughes argues that her former counsel’s inadvertence weighs heavily in favor of adding SOS. She provides an affidavit from the former counsel who states that, due to her inadvertence, she was not aware that SOS had ended their rent subsidy and outreach support agreement with Ms. Hughes in January 2022, until she received a copy of SOS’s response submission.
[81] Ms. Hughes also highlights the significant challenges and barriers she has faced since she filed the original complaint, including contesting her eviction and attempting to avoid homelessness. She was self-represented until December 2022, and lives with multiple disabilities that impact her ability to organize and prioritize.
[82] In circumstances where Ms. Hughes has provided evidence of lawyer inadvertence, as well has significant personal challenges and barriers, I am persuaded that this weighs heavily in favour in the public interest where the complaint against SOS is three months late.
4. Will SOS face substantial prejudice as result of the delay?
[83] SOS says it would suffer real and substantial prejudice if added due to Ms. Hughes’ delay in bringing the application. Ms. Hughes disputes this assertion and argues that SOS would not be significantly prejudiced and the public interest in the complaint outweighs any prejudice it may face.
[84] SOS asserts that that memories can fade over time, witnesses can move away or die, and that documents can be misplaced or destroyed, and prejudice can be inferred from delay. At the same time, SOS has not asserted any specific example of how it says it would be prejudiced in its ability to respond to and defend the complaint. For example, SOS does not dispute Ms. Hughes assertion that the records relating to Ms. Hughes Subsidy Agreement are still available, based on its response to the application.
[85] It is not enough to just say there is prejudice. A respondent must give facts and details about what the prejudice is, and why it is substantial: Rezaei v. University of Northern British Columbia and another, 2009 BCHRT 406, para. 80. In some cases, the Tribunal may infer substantial prejudice from a long delay in filing a complaint: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 31. In these cases, the delay is usually measured in years, not in months: Alford and another v. B.C. (Ministry of Social Development and Social Innovation), 2016 BCHRT 64 at para. 64
[86] Where the delay is three months, and there is no evidence beyond the passage of time, I am satisfied that the public interest in allowing the complaint to proceed outweighs any prejudice that SOS may face.
VIII CONCLUSION
[87] I grant the application to add respondents. The case name has been updated to include 2-Tone and SOS.
[88] The complaint against SOS is proceeding in the areas of tenancy and services: s. 10 and s. 8 of the Code.
[89] Ms. Hughes’ amendment filed on December 6, 2023, now forms part of her complaint.
[90] The Tribunal will now set dates for the respondents to file their responses to the complaint, including any amended response by the Individuals.
__________________________________
Kathleen Smith, Tribunal Member