McCulloch v. Nociar and another (No. 2), 2025 BCHRT 111
Date Issued: May 9, 2025
File: CS-000079
Indexed as: McCulloch v. Nociar and another (No. 2), 2025 BCHRT 111
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:
Catherine McCulloch
COMPLAINANT
AND:
Debbie Nociar and Terry Nociar
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Peter T. Busch
Counsel for the Respondents: Sepideh Alimirzaee, Ajay Aujla
Date of Hearing: November 14, 2023 – November 17, 2023
Location of Hearing: Videoconference
I INTRODUCTION
[1] This is a complaint about a tenancy involving parties who share familial ties. Catherine McCulloch and Terry Nociar are half-siblings who share the same father. Debbie Nociar is Terry’s wife. The parties all live on the same ten-acre property owned by Mr. Nociar. The Nociars live in the main house on the property. Ms. McCulloch lives in a suite in a building on the property.
[2] Ms. McCulloch alleges Mr. and Ms. Nociar discriminated against her in the area of tenancy on the basis of a physical disability contrary to s. 10 of the Human Rights Code , by harassing her as well as permanently disabling her electricity, and septic tank system in 2013. Ms. McCulloch says she has a number of disabilities and environmental sensitivities that prevent her from living in any other housing and makes her particularly vulnerable to negative impacts from the lack of utilities.
[3] The Nociars deny discriminating. They dispute that Ms. McCulloch has a disability under the Code and that Ms. McCulloch experienced an adverse impact in tenancy related to any disability. They say they are justified in disabling the utilities because the suite is illegal. They say that an electrical inspector from the City attended the property, identified serious electrical deficiencies and required the Nociars to hire a licensed electrical contractor perform repairs to the electrical system. They say the health authority came to the property, identified the septic system was a health hazard and required the Nociars take steps to decommission the sewage disposal system. The Nociars say they made multiple suggestions to Ms. McCulloch for alternative ways to connect the suite to utilities, which she has rejected.
[4] In this decision, I must decide whether Ms. McCulloch suffered an adverse effect in her tenancy connected to her physical disability. For the reasons below, I conclude that she did not.
[5] I have reviewed and considered all the evidence admitted at the hearing, which includes witness testimony and documents. After the hearing the parties provided closing submissions in writing. In this decision, I recount only the evidence and arguments required to explain my decision.
[6] I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[7] Catherine McCulloch and Terry Nociar share a father, John Nociar Sr. John Sr. owned a ten-acre property in South Surrey. The property is designated an Agricultural Land Reserve in which agricultural use is recognized as the primary use and only one single family dwelling is permitted on a property.
[8] Terry and Debbie Nociar moved onto the property in 1998 with their children. In 2008, John Sr. made Mr. Nociar a co-owner in joint tenancy of the property. The Nociars currently reside in the main house on the property and operate a business providing topsoil and compost.
[9] In 2009, John Sr. invited Ms. McCulloch to live on the property. John Sr. renovated part of a woodworking shop to create a living space with kitchen and bathroom facilities for Ms. McCulloch. Ms. McCulloch moved in on July 1, 2009, and began residing in the suite.
[10] The suite is connected to a private septic tank system. The suite draws electrical power from an electrical shed on the property.
[11] The suite was created without the necessary permits or approvals from the municipality, or the Fraser Health Authority. Both the City of Surrey and Fraser Health have given notice that the suite is illegal, and the zoning of the property does not permit the use of any secondary residential buildings on it.
[12] On March 2, 2012, an electrician from the City of Surrey’s Planning & Development Department Electrical Section attended the property and identified Ms. McCulloch’s suite as an “unauthorized secondary suite.” They said the property owners needed to have a licensed electrical contractor perform a safety check and inspection of the suite’s electrical system.
[13] On March 15, 2012, an employee of Fraser Health conducted an inspection of the property. They determined that the suite’s septic system was in violation of section 3(1) of the Sewerage System Regulation because sewage was being discharged onto the property and causing a health hazard. Fraser Health issued an order under s. 32 of the Public Health Act stating that the property owners must immediately “cap off and/or discharge the septic tank to prevent any further domestic sewage discharge onto the ground surface.”
[14] On May 6, 2012, the City of Surrey, Legal Services issued a letter stating, “the secondary suite at the Property is an illegal dwelling unit. The illegal dwelling unit must be removed from the Property.”
[15] The Nociars, both directly and through their counsel, provided notice to Ms. McCulloch of the bylaw breaches and the public health order and requested she vacate the property. Ms. McCulloch did not vacate and continued to use her suite and the utilities.
[16] In or about February 2013, the Nociars permanently shut off the electricity to Ms. McCulloch’s suite by turning off the breaker in the electrical shed. In or about 2013, the Nociars disabled the septic system by putting rocks in the septic tank and placing a concrete slab on top of the tank to prevent access.
[17] On March 20, 2013, the City of Surrey, Legal Services sent a letter stating the property zoning does not allow an additional single-family dwelling to be on the property and Ms. McCulloch’s occupation of the suite as a dwelling was not permitted. The City said the property owners are required to stop the illegal use.
[18] John Sr. passed away in 2014. Mr. Nociar became the sole owner of the property by right of survivorship. Ms. McCulloch continued to reside in her suite.
[19] Mr. Nociar brought an action for trespass in BC Supreme Court to evict Ms. McCulloch from the property. The trial began in September 2013. He was unsuccessful. The Court found that John Sr. had granted Ms. McCulloch a form of license to occupy the property and Mr. Nociar was estopped from revoking the license: Nociar v. Cound , 2014 BCSC 1343. The Court found it was John Sr.’s intention to grant Ms. McCulloch “the right to stay in the structure as long as she was in need, and that while he did not explicitly refer to it being for life, he clearly contemplated an indefinite duration” Nociar at para. 72. The court further said at para. 74: “I do not think that it can be inferred that the father intended to grant any form of estate in the land to her. Even if he had, the requirements of documentation and registration of such an interest have not been made”.
[20] The Court noted that its decision was simply that Ms. McCulloch was not trespassing on the property, and did not bestow any obligations on Mr. Nociar:
91 I suspect that this decision may ultimately be a hollow victory for Ms. McCulloch, since it does not confer any legitimacy on her occupancy in terms of the zoning, health or safety authorities. It simply means that she is not trespassing on the property in relation to Mr. Nociar, and he is not entitled to have her removed on that basis. To be clear, I am not making any findings about the suitability of her structure or her occupation of it in any other context.
[21] Ms. McCulloch filed her complaint with the Tribunal on August 4, 2015, alleging the Nociars were discriminating in tenancy by not providing her with working utilities. The Tribunal initially dismissed the complaint at the screening stage, finding that s. 10 of the Code did not apply to the license arrangement. This decision was set aside by the BC Supreme Court on judicial review in McCulloch v. British Columbia (Human Rights Tribunal) , 2019 BCSC 624. The court remitted the matter back to the Tribunal for reconsideration.
[22] The Tribunal subsequently decided the complaint would proceed, finding that Ms. McCulloch’s license to occupy the suite is a tenancy under a liberal and purposive interpretation of s. 10(1) of the Code : McCulloch v. Nociar and another , 2020 BCHRT 117.
[23] Next, Ms. McCulloch brought a petition against Mr. Nociar, the City of Surrey and Fraser Health, seeking interlocutory relief, pending a hearing of her human rights complaint, that the electricity to her suite and septic system be reconnected. The petition was heard in 2019. The court dismissed the claim as against the City and Fraser Health. The court granted the petition against Mr. Nociar saying:
A licensor has a duty to a licensee to take reasonable care to avoid foreseeable risk of harm from any unusual danger of which he has knowledge of or which he ought to have knowledge because he is aware of the circumstances, Alacia v. City of Toronto (1977), 14 O.R. (2d) 697.
Terry Nociar either knows or ought to know that Ms. McCullogh has a need for non-allergic surroundings, a source of electricity and a system for the removal of sewage, the lack of which may aggravate her health issues.
…
Because of the importance of a source of electricity to a residence and a system for sewage removal, Mr. Nociar should provide and install a temporary power supply and temporary system for sewage removal at Ms. McCullough’s[sic] residence at his cost: McCulloch v. Nociar , 2019 BCSC 1072 at paras. 10-12.
[24] Between February 2019 and June 2020, the Nociars proposed to Ms. McCulloch various ways to supply the suite with temporary power and sewage system, including connecting the suite to a portable generator, using solar power, connecting the suite to electrical supply from another part of the property, and using a portable toilet. The Nociars suggested reconnecting the suite to the electrical system from the electrical shed and the existing septic system provided Ms. McCulloch indemnify them from any issues that may arise from using the systems that the City and Fraser Health have said are unauthorized. The parties were not able to agree on how to restore the electricity and sewage system and the suite has not been reconnected to services.
[25] Ms. McCulloch applied for an order finding Mr. Nociar in contempt of the order to install a temporary power supply and system for sewage removal. In a decision dated February 2, 2023, the court dismissed Ms. McCulloch’s application saying:
The steps the respondent has taken in all of the circumstances to provide and install the Temporary Services demonstrate his clear intention to comply with the Petition Order. The specific means by which the petitioner seeks compliance places the respondent in an impossible position. Her interpretation of the Petition Order would place the respondent in the position of being incapable of complying with the order due to conflicts with municipal and health authority regulation: McCulloch v. Nociar , 2023 BCSC 154 at para. 69.
[26] As at the date of the hearing, Ms. McCulloch continues to reside in the suite which has not been reconnected to services.
III ANALYSIS AND DECISION
A. General Principles
[27] Ms. McCulloch’s complaint can be broadly summarized as follows. She says she has a number of allergies, sensitivities and disabilities which prevent her from living in any other housing because her suite was custom built by John Sr. to accommodate her disabilities. She says that the Nociars disabling her electricity and septic tank system has caused her adverse effects that are related to her disabilities.
[28] She also says that throughout her residence in the suite, the Nociars have used the property in a manner designed to harass her. She says the harassment takes many forms including: the noise of activities and vehicles on the property; cutting trees on the property; failing to cut trees and maintain the property; using the woodworking shop in the structure next to her suite; hostile comments made by Ms. Nociar; Ms. Nociar not speaking to her; vandalizing her vehicle annually on April 1 st ; and parking vehicles on the property so Ms. McCulloch has to go around them.
[29] Section 10 of the Code applies to tenancies. Section 10(1) says:
A person must not
(a) deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant, or
(b) discriminate against a person or class of persons regarding a term or condition of the tenancy of the space,
because of the…physical or mental disability…of that person or class of persons.
[30] To prove discrimination, Ms. McCulloch must establish that: (1) she has a protected characteristic, in this case a physical disability; (2) she experienced an adverse impact regarding a term or condition of her tenancy; and (3) her physical disability was a factor in the adverse impact: Moore v. BC (Education) , 2012 SCC 61 at para. 33.
[31] If Ms. McCulloch establishes her complaint, the burden shifts to the Nociars to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[32] I begin with a consideration of the Moore factors.
B. Does Ms. McCulloch have a disability under the Code ?
[33] Disability is not defined in the Code . The Tribunal interprets the term broadly so as to better achieve the purposes of the Code : British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. Disability generally indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life: DeMedeiros v. Rovalution Automotive Ltd. and another , 2023 BCHRT 182 at para. 23.
[34] Medical evidence is not required for a person to prove they have a disability under the Code: Gichuru v. Purewal , 2017 BCHRT 19 at para. 275. However, while a formal medical diagnosis is not always necessary, the complainant must still prove they have a disability: Byrne v. BC Emergency Health Services, 2019 BCHRT 256 at para. 25.
[35] Ms. McCulloch says she suffers from a number of allergies to common substances and auto-immune disorders. In her complaint she says she has environmental hypersensitivity disorder, multiple chemical sensitivities disorder, Raynaud’s syndrome, rheumatoid arthritis, fibromyalgia, dysfunctional immune system and cacosmia.
[36] In support of her position, Ms. McCulloch submitted a medical-legal report prepared by Dr. Gurdeep Parhar on August 13, 2023. Dr. Parhar was called as a witness, and gave evidence on his opinion about Ms. McCulloch’s disabilities. Dr. Parhar is a medical doctor with experience in the areas of family medicine, occupational medicine and disability medicine. He examined Ms. McCulloch virtually on August 10, 2023, to prepare his report.
[37] In addition, Ms. McCulloch submitted medical records and clinical notes from various physicians she saw between 2005 and 2019.
[38] The Nociars dispute that Ms. McCulloch has a physical disability. They say Dr. Parhar’s report cannot be relied upon because he has no specialized training to diagnose environmental allergies or sensitivities, and he did not examine Ms. McCulloch to prepare his report. I agree for the following reasons.
[39] First, Dr. Parhar’s examination of Ms. McCulloch consisted of a single telemedicine call. Based on his report Dr. Parhar’s examination consisted of assessing Ms. McCulloch’s range of motion and an interview where Ms. McCulloch answered Dr. Parhar’s questions. Dr. Parhar admitted that he assumed the truthfulness and accuracy of what Ms. McCulloch reported about her symptoms and medical history. Second, Dr. Parhar’s report does not include a list of documents reviewed and relied upon. When questioned he said he reviewed “thousands of pages of documents” but could not recall which medical records were presented to him. Consequently, I do not know what information was presented to Dr. Parhar about Ms. McCulloch’s disabilities. Finally, Dr. Parhar has no specialized training as a diagnostician or allergist and no specialized training in diagnosing patients with environmental allergies or sensitivities. While I found Dr. Parhar to be a forthright witness, the fact that he was repeating either what Ms. McCulloch reported or what was in another physician’s records while conducting only one telemedicine examination, means I cannot rely on Dr. Parhar’s evidence about what disabilities Ms. McCulloch has.
[40] I approach the other medical records submitted with a degree of caution. This is because none of the other practitioners who examined Ms. McCulloch were called as witnesses to test their evidence through cross-examination. Most of the documents are clinical records which do not state what examination the authors conducted in order to make their diagnosis, or information on which they base their conclusions.
[41] Nevertheless, I am satisfied on the balance of the evidence that Ms. McCulloch has conditions that fall within the ambit of disability under the Code . Ms. McCulloch was seen by a number of medical professionals and there is consensus that she has allergies and sensitivities to environmental factors. Ms. McCulloch testified that when exposed to certain materials she experiences headaches, coughing, sneezing, difficulties breathing, skin irritation, and burning eyes. The Tribunal has held that allergies may be a disability within the meaning of the Code : Mr. S v. Cannae Holdings , 2018 BCHRT 47 at para. 76. Further, the evidence supports Ms. McCulloch’s evidence that her conditions limit her ability to carry out activities of daily living, including preventing her from participating in the workforce.
[42] There is some disagreement in the medical evidence whether Ms. McCulloch’s sensitivities to environmental factors is properly characterized as environmental hypersensitivity disorder, multiple chemicals sensitivity, or allergies to a wide variety of substances. Some of Ms. McCulloch’s medical evidence suggests that environmental hypersensitivity disorder and multiple chemical sensitivity are regarded as psychosomatic conditions that are not widely recognized as distinct diagnosable disorders. I am not convinced that for the purpose of my analysis, whether these conditions are recognized as distinct diagnoses, is material. My conclusion is based not on a diagnosis of a specific condition but rather the preponderance of evidence which supports that Ms. McCulloch has a permanent involuntary physiological condition that makes her suffer negative effects from substances she encounters which limits her ability to carry out the activities of daily life.
[43] Similarly, I find there is consistent documentary evidence that supports that Ms. McCulloch has fibromyalgia. The documentary materials include clinical records from physicians to whom Ms. McCulloch reported ongoing physical pain. There is also a medical report prepared by Dr. Armstrong, a chronic pain specialist, in 2010 for a personal injury claim. I find the report to be helpful because Dr. Armstrong sets out his qualifications, the facts and assumptions he relies upon, the medical documents he reviewed, and the examination he conducted of Ms. McCulloch. Dr Armstrong observes that Ms. McCulloch has symptoms consistent with a diagnosis of fibromyalgia including chronic widespread pain. The documentary evidence is consistent with Ms. McCulloch’s testimony that she suffers pains and aches in her joints and muscles. She said the pain is ongoing and limits her activities. I accept Ms. McCulloch’s evidence that she has fibromyalgia which is a chronic condition with symptoms including physical pain which limits Ms. McCulloch’s ability to carry on the activities of daily life.
[44] I reach a different conclusion regarding Ms. McCulloch’s assertion about the other conditions she says she has. Specifically, I find there is insufficient evidence to support her assertion that she has Raynaud’s syndrome, arthritis, a dysfunctional immune system, and cacosmia. There is little mention of these conditions in the clinical records and where there are, it is simply to say that Ms. McCulloch says she has previously been diagnosed with the conditions. Ms. McCulloch testified that she believes she was diagnosed with these conditions at some point but was unable to recall when or who diagnosed her. She was also unable to provide much information on her understanding of what the disorders are and how they affect her ability to perform activities.
[45] Based on the evidence, I find that Ms. McCulloch has established the first part of the test for discrimination: she has fibromyalgia as well as allergies and sensitivities to environmental factors which I find, in this case, are disabilities under the Code .
[46] Next, I consider if Ms. McCulloch experienced an adverse impact in her tenancy.
C. Was Ms. McCulloch adversely impacted regarding a term or condition of her tenancy?
[47] Under section 10(1)(b) of the Code a person must not discriminate against a person regarding a term or condition of the tenancy of the space.
[48] The Nociars do not dispute that there is a tenancy relationship under the Code . They concede that the Tribunal determined that Ms. McCulloch’s license to occupy the suite on the Nociars’ property constitutes a tenancy under s. 10(1) of the Code in the Tribunal’s second screening decision.
[49] The Nociars dispute that their conduct has adversely impacted Ms. McCulloch regarding a term or condition of the tenancy. They say that they are not responsible for maintaining the suite or providing electricity and sewage services. They say the requirement to provide Ms. McCulloch with a temporary power supply and system for sewage removal comes from the court’s order in the petition action and is not an element of the tenancy relationship. As I understand their argument, they say even if the relationship between the parties is a tenancy under a liberal and purposive interpretation of the Code , it does not grant Ms. McCulloch rights to the property beyond occupation of the suite. They say they do not owe any additional duty to provide Ms. McCulloch with electrical or sewage services when they did not do so before.
[50] Ms. McCulloch argues that a licensor has a duty to maintain the terms and conditions of the original license. She says that electricity and sewage system is normally part of the terms and conditions of a tenancy.
[51] In order to determine if Ms. McCulloch was adversely impacted regarding a term or condition of her tenancy, I must first determine what are the terms and conditions of this tenancy.
[52] The Tribunal is not bound by the definition of tenancy in the Residential Tenancy Act : Stephenson v. Sooke Lake Modula Home Co-operative Association (No. 3) , 2008 BCHRT 161 at para. 46. In this case, the Court found John Sr.’s intention was to grant Ms. McCulloch an indefinite license to occupy the suite. The Tribunal accepted that this license to occupy is a tenancy under the Code . Neither decision states that the RTA applies to the living arrangement between the parties. It is clear from the conduct of the parties – and John Sr. when the living arrangement was first made – that they did not contemplate the RTA applying to this relationship. The parties did not prepare a written tenancy agreement, discuss the terms of Ms. McCulloch’s occupation, and no rent or consideration was ever paid by Ms. McCulloch for her occupation of the suite. Because the evidence supports that the parties did not intend for their living arrangement to be governed by the RTA , I find I cannot now attribute rights or obligations to the parties under the RTA .
[53] Ms. McCulloch refers me to the Tribunal’s decision in Tenant A v. Landlord and Manager (No. 2) , 2007 BCHRT 321, where the Tribunal contemplated the types of discrimination that would be covered under this part of the Code , saying at para. 12:
Discrimination proscribed under s. 10 will include discrimination in respect of services rendered by a landlord as an incident of the landlord – tenant relationship. For example, it is common for landlords to provide services to tenants such as maintenance, security or garbage removal. The provision of such services is a term or condition of the tenancy, and any discrimination in respect of them would be caught by s. 10(1)(b).
[54] I find this case to be of limited assistance in my analysis because I cannot look at common aspects of tenancies generally to determine if services such as maintenance, security or garbage removal are terms and conditions of this particular tenancy. My analysis must be contextual and based on the evidence.
[55] Here, because there is no documentary evidence about the parties’ intentions, I look at the surrounding evidence, specifically the conduct of the parties to determine what are the terms and conditions of this tenancy.
[56] First, I consider whether provision of utilities and related services is a term of this tenancy. Ms. McCulloch’s evidence is that when she took possession of her suite on July 1, 2009, it was not functional. She says the suite was without working appliances and electricity. She found a retired electrician whom she hired to install appliances and connect the suite to the property’s electrical power. All of the electrical breakers for the property are located in an electrical shed. One of the power lines from the shed provides power to the woodworking shop. Ms. McCulloch says her worker configured the electrical line so she could draw power to her suite.
[57] Mr. Nociar says that in or about 2012, when he saw that the electrical bill for the property had increased since Ms. McCulloch began residing in her suite, he asked her to contribute payment for electrical utilities. Mr. Nociar said he was previously paying $260 every two months. Therefore, he attributed any increase in the electrical bill to Ms. McCulloch’s usage. Ms. McCulloch says she contributed $200 monthly to the property’s electricity bill. Mr. Nociar denies he ever received any payment from Ms. McCulloch for electricity usage. Mr. Nociar said one of the reasons he cut electricity to Ms. McCulloch’s suite was because there was no payment for her electrical usage.
[58] In my view, the evidence that Mr. Nociar was aware that Ms. McCulloch was using electricity on the property, drawing it from the common power source, and asked her to pay for her usage supports a finding that providing the suite with electrical power was a term of the tenancy.
[59] Next, I consider whether a working septic system was a term of the tenancy. Based on the evidence, I find that it was.
[60] Ms. McCulloch’s septic system was installed by John Sr. and is not connected to the main residence. It was provided for Ms. McCulloch’s exclusive use and is connected to her suite. Ms. McCulloch was solely responsible for its maintenance and upkeep. I find that a septic system that was connected to the suite by John Sr. is a clear indication of his intention that Ms. McCulloch would have a working sewage system in her suite.
[61] Based on the evidence, I find that the terms and conditions of this tenancy were that:
a. Ms. McCulloch could use the electricity on the property. Ms. McCulloch was responsible for connecting her suite to the property’s electrical grid.
b. Ms. McCulloch’s suite is connected to a septic system. Ms. McCulloch is responsible for its upkeep and maintenance.
[62] Having found these to be the terms and conditions of this tenancy, I next consider whether the Nociars’ actions caused an adverse impact in the terms and conditions. For the reasons below I find that they did.
[63] The Nociars do not dispute they turned off the breaker in the electrical shed supplying electricity to Ms. McCulloch’s suite and they disabled her septic system by placing rocks in the septic tank and placing a concrete slab on top of the tank.
[64] I find that Ms. McCulloch has established that she experienced an adverse impact in a term of her tenancy. Because a term of this tenancy is that Ms. McCulloch has access to electricity and a septic system, preventing her from accessing these utilities is an adverse impact.
[65] Finally, I consider Ms. McCulloch’s allegation that the Nociars use of the property and their conduct was harassment which had an adverse impact on the tenancy. Ms. McCulloch says the Nociars and their guests ride recreational vehicles on the property causing noise, park their vehicles on paths forcing her to navigate around them, use the woodworking shop, and operate their business which involves the smell of compost and vehicles coming and going. She says Ms. Nociar harassed her by driving by without saying anything to her. She says on one occasion Ms. Nociar approached her and said, “that is not how you use a shovel” and “there is glass there you will get cut” when she was weeding. Ms. McCulloch says that annually on April 1 st , her vehicle has been vandalized.
[66] The issue I must decide is whether the conduct of the Nociars had an adverse impact on Ms. McCulloch’s tenancy. Under the Code , a tenant’s right to quiet enjoyment of their residence includes the right to be free from discriminatory harassment: Friedmann v. MacGarvie , 2012 BCCA 445 at para. 28. In cases where an alleged adverse impact is based on negative comments or harassment, the Tribunal will consider all the circumstances to determine whether it violates the Code : Brito v. Affordable Housing Societies and another , 2017 BCHRT 270 at para. 43.
[67] The Nociars do not dispute that they engaged in some of the conduct Ms. McCulloch says was harassment. They say they have used the property for its ordinary purposes. They do not dispute that they ride vehicles on the property, use the woodworking shop, and operate their business on the property. They dispute that they vandalized Ms. McCulloch’s vehicle and deny that Ms. Nociar’s interactions with Ms. McCulloch is harassment.
[68] For the following reasons I find Ms. McCulloch has not established that the conduct of the Nociars is harassment that had an adverse impact on the tenancy. First, some of the alleged incidents are disputed and there is insufficient evidence to support they occurred. The Nociars deny vandalizing Ms. McCulloch’s vehicle annually on April 1 st . Ms. McCulloch provided little evidence about the vandalism and did not tender any evidence to suggest that any vandalism was attributable to the Nociars.
[69] Second, viewed in context I am not satisfied that Ms. Nociar’s comments or her driving by had an adverse impact on Ms. McCulloch. Ms. Nociar is alleged to have said “that is not how you use a shovel” and “there is glass there you will get cut” to Ms. McCulloch. The impugned words do not appear to have any negative connotations and in the case of warning Ms. McCulloch about glass, would ordinarily be seen as helpful. Ms. McCulloch did not explain why she believes these words are harassment. Similarly, based on the evidence I cannot say that Ms. Nociar passing by without interacting with Ms. McCulloch is harassment. It is not suggested that Ms. Nociar was ignoring Ms. McCulloch when she was attempting to engage. I am unable to find that two parties passing each other wordlessly constitutes harassment in these circumstances.
[70] Third, much of Ms. McCulloch’s allegations appear to be general complaints and she has not explained how they are harassment. Insofar as Ms. McCulloch is alleging that the Nociars are engaging in direct discrimination by using the property in a manner that causes her an adverse impact, the undisputed evidence is that the Nociars’ have not changed how they use the property after Ms. McCulloch moved into her suite. The Nociars have been using the property for their business, driving vehicles on the property, and using the woodworking shop since 1998 and did not change their use of the property when Ms. McCulloch moved into her suite in 2009. Ms. McCulloch has not explained why she believes the Nociars’ ordinary use of the property in the same way they had used the property before she moved into her suite is harassment, nor has she explained what the adverse impact is that this conduct had on her tenancy.
[71] I understand Ms. McCulloch to also be arguing that the Nociars’ activities, including operating their compost business, landscaping, and driving vehicles on the property negatively affects her health because allergens enter the air. I find that Ms. McCulloch has not established on the evidence that the activities of the Nociars constitute an adverse impact in tenancy. The evidence before me is that Ms. McCulloch has allergies and sensitivities to a wide variety of substances including dogs, cats, smoke, mold, weeds, tree branches, and grass. The undisputed evidence of the parties is that the property on which they reside contains trees, grass, weeds, and animals. While Ms. McCulloch attributes any negative health impact to the activities of the Nociars, given the large number of potential causes on the property I am unable to find on a balance of probabilities that any negative health effects Ms. McCulloch experiences are attributable to the Nociars’ activities.
[72] Considering all the circumstances, I am not satisfied that the Nociars’ conduct on the property has had an adverse impact on the tenancy.
[73] I have found that Ms. McCulloch has established that she has been adversely impacted regarding a term or condition of her tenancy when her utilities were cut off. I next consider whether her physical disability was a factor in the adverse impact.
D. Connection between physical disability and adverse impacts
[74] The issue I must consider is whether the Nociars turning off the electricity and disabling her septic system was a factor in the adverse impact she experienced. I find that it was.
[75] I accept that having working utilities would be beneficial to Ms. McCulloch’s health as it would be for most people. However, in order to establish that there is a nexus between her physical disabilities (allergies and sensitivities to environmental factors and fibromyalgia) and the loss of electricity and septic system, she must take her circumstances “out of the general context of seeking something that might be generally good for human health and into the specifics of requiring something because of a disability, the deprivation of which leads to a specific adverse impact.”: Judd v. Strata Plan LMS 737 , 2010 BCHRT 276 at para. 36.
[76] Ms. McCulloch says that due to the lack of electricity in her suite, her air purifier and air conditioner do not work, and she is unable to avoid the ingress of allergens into her suite. She says electricity was the main source of heat inside her suite and because she does not have heat her physical pain has worsened. She says she is unable to cook or store food because of the lack of electricity and she must dispose of her waste because her suite is not connected to a working septic system.
[77] Ms. McCulloch’s assertion that the lack of electricity has caused a disability related adverse impact on her health is supported by the medical report and testimony of Dr. Parhar. Dr. Parhar says that the lack of electricity in the suite, and consequently no working air purifier or air conditioner, has worsened Ms. McCulloch’s allergies and environmental sensitivities. He says that because Ms. McCulloch’s hot water tank is electric, she is unable to use hot water to bathe or wash her hands which causes worsening joint pains.
[78] Based on the evidence I am satisfied that Ms. McCulloch has established that the lack of electricity to her suite has caused a disability-related adverse impact on her health. Specifically, I accept that the lack of electricity and electric heat has worsened her allergies, environmental sensitivities, and fibromyalgia.
[79] I reach a different conclusion regarding the impact of the lack of a septic system. Ms. McCulloch has not pointed to how the lack of a septic system worsens her specific disabilities. Her evidence is that she finds it unpleasant to have to dispose of her waste. I appreciate that it is inconvenient to not have a working septic system but there is no evidence before me of how this has exacerbated her allergies, environmental sensitivities, and fibromyalgia. Further, Dr. Parhar simply says that Ms. McCulloch reported that her mood and health have worsened. He does not suggest in his report that the lack of a septic system has exacerbated Ms. McCulloch’s disabilities. I find that Ms. McCulloch has not established a nexus between the lack of a septic system and the adverse impacts she alleges.
[80] I find that Ms. McCulloch has established a nexus between her allergies, environmental sensitivities, and fibromyalgia and the Nociars cutting off electricity to her suite. Next, I consider if the Nociars have established that there is a justification defense for their conduct.
E. Justification
[81] There is no dispute that respondents can justify their conduct in tenancy complaints, pursuant to the test set out in 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 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20, and Alexander v. PAL Vancouver (No. 4) , 2006 BCHRT 461 at para. 44.
[82] To establish a bona fide reasonable justification, the Nociars must establish three criteria on a balance of probabilities:
a. They adopted the standard for a purpose rationally connected to the function being performed;
b. They adopted the standard in an honest and good faith belief that it was necessary for fulfillment of the purpose; and
c. The standard is reasonably necessary to accomplish the purpose, including that the Nociars cannot accommodate Ms. McCulloch without incurring undue hardship.
Grismer at para. 20.
[83] Accommodation requires that a housing provider take all reasonable and practical steps to avoid a discriminatory impact: Biggings obo Walsh v. Pink and others, 2018 BCHRT 174 at para. 79. Reasonable accommodation is satisfied where the service provider “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at para. 5. This is the point at which a respondent has reached the undue hardship threshold. What constitutes undue hardship is fact specific and will turn on the specific circumstances of each case: Central Okanagan School District No. 23 v. Renaud , 1992 CanLII 81 (SCC), [1992] 2 SCR 970 [ Renaud ].
[84] A tenant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection: Renaud at 994–995 . The standard for accommodation is reasonableness, not perfection: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425.
[85] Ms. McCulloch argues that the Nociars made no attempt to accommodate her or acknowledge their responsibility to do so. She says there was no legal obligation for the Nociars to turn off the electricity. She disputes that the Nociars explored alternate ways to provide her suite with electricity.
[86] The Nociars argue that they could not have done anything else reasonable or practical to avoid the negative impacts on Ms. McCulloch because her suite is an illegal use of the property, and they needed to disconnect the electricity to comply with City by-laws and orders.
[87] The parties focused their arguments on the third element of the Grismer analysis. I accept that complying with statute, including municipal zoning by-laws is rationally connected to being a property owner. I also accept that the Nociars have an honest and good faith belief that complying with the law is required of a property owner. Therefore, my analysis focuses on whether the Nociars discharged their duty to reasonably accommodate Ms. McCulloch.
[88] For the following reasons I find that the Nociars could not have done anything else reasonable or practical to provide Ms. McCulloch with electricity in her suite.
[89] First, the Nociars testified they observed in 2012 that the electrical wiring connecting Ms. McCulloch’s suite to the property’s electrical system was sparking, wires were frayed and burnt out, and it appeared to be unsafe. They say there was intermittent dimming electricity on the property. They say they initially shut off the power because they believed it posed an imminent danger to the property.
[90] Ms. McCulloch disputes that there was a reason to shut off the electricity because she says the electrical system showed no signs of fire or smoke.
[91] I accept the Nociars’ testimony on this point. Their version of events is consistent with the surrounding circumstances and the documentary evidence. Specifically, the Nociars contacted and requested an electrician from the City attend the property to inspect the wiring. I find this conduct is consistent with a property owner who believes that there are safety issues with the electrical system on their property. Further, the observations of the City’s electrician, documented in his contemporaneous notes dated March 2, 2012, states there were “open splices, loose wires, etc.” Based on the evidence, I accept that the reason the Nociars shut off the electricity and requested an inspection by the City was because they observed sparks and fraying wires which they believed posed an imminent danger to the property.
[92] When a landlord observes conditions on a property that they reasonably believe to be an imminent hazard to people’s health and safety or the preservation or use of the property, they are justified in taking appropriate action to limit that risk: Pearse by Dean and Dean v. British Columbia Housing Management Commission and others , 2020 BCHRT 23 at paras. 54-55.
[93] The undisputed evidence is that Ms. McCulloch refused to allow the City electrician or the Nociars access to examine the electrical wiring inside her suite. In the context of this case where the evidence is that the parties’ relationship had deteriorated and Ms. McCulloch refused to grant access to her suite or communicate meaningfully with the Nociars, I accept that the Nociars could do nothing further to limit the risk other than shutting off the electricity to the suite and calling an electrician to inspect the wiring.
[94] Next, I find that after the inspection, the Nociars were required to comply with the order of the City regarding Ms. McCulloch’s suite. The inspection report dated March 2, 2012, orders that a licensed electrical contractor must perform safety checks and repairs of the electrical system. A follow up letter on May 6, 2012, from the City’s Legal Services, By-Law and Licensing Section states that Ms. McCulloch’s suite is an illegal dwelling and orders that the dwelling must be removed by removing the electrical breaker for the suite. I find the orders of the City to be clear and unequivocal.
[95] Ms. McCulloch says the City took no further steps to enforce their orders through a court order. She also says the City’s power is discretionary. I understand Ms. McCulloch is not disputing that the City issued the orders to repair the electrical system and remove the electrical breaker, or that the City had the authority to do so. Instead, I understand Ms. McCulloch to be arguing that the Nociars did not need to shut off the electricity to the suite because there were no consequences for non-compliance with the City’s orders. In effect she says that it would not be an undue hardship to disobey an order which the City may not enforce. I do not agree. In my view, requiring a landlord to violate an explicit and legitimate order that a property owner comply with governing by-laws is not reasonable.
[96] I find that the Nociars did the only reasonable and practical thing when the City issued the order, which was to abide by it to the best of their ability. They did so by shutting off the electricity to the suite.
[97] Next, I accept that after they shut off the electrical power to Ms. McCulloch’s suite, the Nociars explored all reasonable and practical ways to provide electricity. The Nociars provided evidence of their attempts through their testimony and documentary materials. I am satisfied on a balance of probabilities that they have made all reasonable attempts to the point of undue hardship to provide electricity to Ms. McCulloch’s suite.
[98] On July 3, 2019, the Court ordered Mr. Nociar to install a temporary power supply. On the same day, Mr. Nociar went to city hall to apply for permits to have a licensed electrical contractor to perform repairs to the electrical system. Mr. Nociar says because the property is designated an Agricultural Land Reserve, he was told he could not be issued electrical or building permits to perform work on the electrical system of the suite.
[99] Ms. McCulloch says the Nociars have not tendered expert opinion evidence about the permitted use of an Agricultural Land Reserve. She disputes that the Nociars went to city hall or were denied permits. She says that if they went, because there is a housing and homelessness crisis, the Nociars could have done more to persuade the City to exercise its discretion and issue permits.
[100] I am not persuaded by Ms. McCulloch’s arguments. First, the City’s zoning by-laws and regulations are clear that property in an Agricultural Land Reserve is permitted only one single family dwelling. Copies of the relevant regulations and bylaws were before me. Expert opinion evidence is not necessary on this point. Second, the Nociars provided documentary evidence, including contemporaneous notes from their meeting at city hall, which supports their position that they went to city hall and inquired about having electricity restored to the suite. Third, I find the evidence of their efforts to obtain permits to be reasonable under the circumstances. The Nociars testified they inquired about permits and were informed that the city does not issue permits for non-approved usage of land. There is no evidence that the City’s practice is open to appeal. I find that the Nociars took all reasonable and practical steps in their inquiries with the City.
[101] The Nociars’ evidence is that they explored multiple methods of providing electricity to the suite both before and after the Court ordered them to do so on July 3, 2019. They communicated with Ms. McCulloch through emails and letters sent by their counsel on February 25, April 11, November 7, November 25, December 4, December 11, December 17, December 24, 2019, and on February 12, March 4, March 12, March 20, 2020. The Nociars proposed supplying electricity using a generator. Ms. McCulloch rejected this due to fumes. The Nociars proposed a battery powered generator which Ms. McCulloch initially agreed to but eventually rejected. The Nociars proposed reconnecting Ms. McCulloch to electrical power from the electric shed provided she indemnify them from any liability arising from breaching the City’s order to decommission the electricity to the suite. Ms. McCulloch did not agree. Finally, the Nociars proposed connecting the suite to electrical cords run from another part of the property. Ms. McCulloch rejected this proposal due to safety concerns. The Nociars then purchased electrical cord intended for outdoor use, encased it in PVA tubes and ran the cord underground to Ms. McCulloch’s suite. Ms. McCulloch rejected this proposal and threw the cord away.
[102] The duty to accommodate requires reasonable efforts to find a solution. Here, I find the Nociars made reasonable efforts to provide electricity to Ms. McCulloch’s suite. They communicated with Ms. McCulloch and sought information from her about alternate methods of providing electricity, proposed a variety of methods to provide electricity, and went so far as to propose violating an order of the City to decommission the electricity to the suite. The only solution that Ms. McCulloch was prepared to accept was for the Nociars to reconnect her suite to electricity in direct breach of the City’s orders. Under the circumstances, I find that doing so would have exposed the Nociars to the legal and financial liability for breaching the City’s order which amounts to undue hardship.
[103] For these reasons, I find that the Nociars conduct was justified in all the circumstances. Where the respondents’ conduct is justified, there is no discrimination, and I must dismiss the complaint.
IV CONCLUSION
[104] I find that Ms. McCulloch has not made out a case of discrimination, on a balance of probabilities, therefore I dismiss the complaint pursuant to s. 37(1).
Edward Takayanagi
Tribunal Member