Salib v. The Owners, Strata Plan NW386, 2025 BCHRT 119
Date Issued: May 13, 2025
File: CS-004130
Indexed as: Salib v. The Owners, Strata Plan NW386, 2025 BCHRT 119
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:
Edward Salib
COMPLAINANT
AND:
The Owners, Strata Plan NW386
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Beverly Froese
Advocate for the Complainant: Aleena Sharma
Counsel for the Respondent: Lauren Shenkar
I INTRODUCTION
[1] In May 2021, Edward Salib made a complaint against The Owners, Strata Plan NW386 alleging discrimination regarding the Strata’s services based on physical and mental disability contrary to s. 8 of the Human Rights Code . In his complaint, Mr. Salib alleges that the Strata discriminated against him when it did not allow him to have an emotional support dog.
[2] The Strata denies discriminating. The Strata says Mr. Salib does not have a disability that requires accommodation. The Strata also says that Mr. Salib did not provide sufficient medical and other documentation to support his request for an emotional support dog.
[3] Under its Case Path Pilot, the Tribunal sent this complaint directly to a hearing. The Tribunal subsequently granted the Strata’s request to make an application to dismiss the complaint based on new information or circumstances. The Tribunal allowed the Strata to make a dismissal application under s. 27(1)(c) on the basis that the complaint has no reasonable prospect of success.
[4] In this application, the Strata argues that Mr. Salib has no reasonable prospect of proving any of the elements of his case. The Strata also argues that the complaint should be dismissed because it is reasonably certain to establish at a hearing that its actions were justified.
[5] For the following reasons, the Strata’s application is denied. Based on the materials before me, I am not persuaded that Mr. Salib has no reasonable prospect of proving his case at a hearing. I am also not persuaded it is reasonably certain the Strata will be able to prove its actions were justified.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II Preliminary issue
[7] In its submission, the Strata argues that the complaint cannot proceed because Mr. Salib alleged discrimination in the area of tenancy contrary to s. 10 of the Code , and he has never been a tenant. The Strata says the defect in the complaint was brought to the attention of Mr. Salib’s advocate, but the complaint has never been amended.
[8] In his response, Mr. Salib applies to amend the complaint to change the area of discrimination from tenancy to services. He says that at the time he made the complaint, he was not represented. He says he was confused about which area to select and checked the box marked “tenancy” in error.
[9] It is not necessary for me to decide Mr. Salib’s application. Although Mr. Salib mistakenly checked off “tenancy” as the area of discrimination on the complaint form, the Tribunal accepted the complaint for filing on the basis that it alleged discrimination in the area of accommodation, services, and facilities contrary to s. 8 of the Code . The Notice of Complaint Proceeding [ NOCP ] the Tribunal sent to the Strata in July 2022 expressly states that the complaint alleges discrimination in the area of accommodation, services, and facilities.
[10] Further, in an email to the parties sent after this application was made, the Tribunal confirmed that the complaint was accepted in the area of accommodation, services, and facilities. The Tribunal also apologized for not including an additional paragraph in the NOCP that would have explained that the complaint was accepted in the area of accommodation, services, and facilities based on the information in the complaint.
[11] I recognize that the absence of the additional paragraph in the NOCP may have caused some confusion in terms of the area of discrimination in which the complaint proceeded. However, I am satisfied that it did not result in any unfairness to the Strata. The Strata was aware of the allegations in the complaint since it received the NOCP and made submissions in this application under both ss. 8 and 10 of the Code .
[12] As the complaint is only proceeding under s. 8, I only consider the parties’ submissions in that regard.
III BACKGROUND
[13] The following background is taken from the materials filed by the parties. I make no findings of fact.
[14] The Strata operates a building located in New Westminster. Mr. Salib owns and resides in a unit in the building.
[15] The Strata’s bylaws do not allow owners or tenants to have dogs.
[16] Sometime in the 1990’s, Mr. Salib was diagnosed with Type 2 diabetes. Since then, he has experienced a number of complications associated with his condition. In December 2020, Mr. Salib was hospitalized for an abnormal heart rhythm that required a pacemaker. Around the same time, Mr. Salib was also struggling with grief after the loss of several close family members. Mr. Salib says that since early 2021, his mental health has deteriorated, and he was formally diagnosed with major depressive disorder in March 2023. Mr. Salib says his depressive symptoms were exacerbated by the COVID-19 pandemic, leading him to feel “lonely, isolated and empty”.
[17] Mr. Salib says that when he was in the hospital in December 2020, medical staff told him that an emotional support dog could help improve his depressive symptoms. He says that after he was discharged from the hospital and started taking regular walks in a local park, he found that interactions with dogs helped mitigate his depressive symptoms. Mr. Salib says that being around dogs improves his mood because they offer companionship and comfort, and he believes an emotional support dog could help with his depression.
[18] In January 2021, Mr. Salib spoke to his doctor, who agreed that his mental health could benefit from getting a dog. In late February 2021, Mr. Salib emailed the Strata’s property manager and requested permission to have an emotional support dog to improve his health condition. Mr. Salib provided a brief note from his doctor to support his request.
[19] In early March 2021, the Strata’s property manager sent Mr. Salib’s request to the Strata’s council [ Council ]. The property manager told Council that it was not required to grant Mr. Salib’s request because the provincial government does not consider emotional support animals to be “service animals”. The Council agreed and the property manager sent a letter to Mr. Salib the next day denying his request. The letter says that “[o]nly a certified service dog, complete with training and certificates for the many levels of training recognized by the Government of BC, would be exempt from the Strata’s bylaws”.
[20] About a week later, Mr. Salib saw an endocrinology and internal medicine specialist and discussed whether an emotional support dog could help his mental health. Mr. Salib says they also talked about how an emotional support dog could be trained to sense when his blood sugar is too high or too low and alert him before his glucose levels become dangerous. Mr. Salib says he cannot afford a professionally trained diabetic alert dog, but he could train an emotional support dog to perform diabetic alert functions with guidance from online materials.
[21] Mr. Salib subsequently emailed the Strata and provided a note from the specialist and a note from his psychiatrist. Mr. Salib told the Strata that if his request for an emotional support dog was denied, he would make a human rights complaint. In his email, Mr. Salib included an excerpt from an article about a Tribunal decision regarding a strata’s obligations under the Code relating to emotional support animals.
[22] A few days later, the Council discussed Mr. Salib’s request. The minutes of that meeting state that the Strata will grant exemptions to its bylaw if a resident requesting a service dog has a “doctors order and the dog is a trained ‘service dog’”. The minutes state that an exemption will be granted “only if there is no other possible solution for the resident’s health issues”.
[23] The day after the meeting, the Council’s president told the property manager that Mr. Salib would be allowed to have a “service animal” if he provided verification that “the dog is in fact a service dog with the ability to detect insulin levels”. The president also asked the property manager to ask Mr. Salib if he had explored other options, specifically devices that send a message to a person’s cell phone if their glucose levels are too high or too low.
[24] At the end of March 2021, the property manager wrote to Mr. Salib and said the Strata would grant his request if he provided “proof of training and certification that your requested diabetes alert service dog is an authorized Service Dog as recognized by the Province of BC”.
[25] Around mid-May 2021, the property manager followed up with Mr. Salib about his request. In her email, the property manager said the letter sent to Mr. Salib denying his request had been returned and she attached a copy to her email. Nothing in the materials before me indicates that there has been any further communication between the parties.
IV DECISION
[26] The Strata applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Strata to establish the basis for dismissal.
[27] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[28] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[29] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[30] To prove his complaint at a hearing, Mr. Salib will have to prove that at the material time, he had a disability protected by the Code , he was adversely impacted with respect to services the Strata provides, and his disability was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he does that, the burden will shift to the Strata to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
A. Mr. Salib’s case
[31] The Strata argues that Mr. Salib has no reasonable prospect of proving any of the three elements of his case. I consider each in turn.
1. Protected characteristic
[32] The Strata argues that Mr. Salib has no reasonable prospect of establishing that he has a physical or mental disability protected by the Code . The Strata says that the documentation Mr. Salib disclosed in this proceeding does not indicate what specific mental or physical disability he has.
[33] The term “disability” is not defined in the Code and whether a complainant has established this element is determined on a case-by-case basis. The term “disability” is not to be narrowly defined, and generally “includes an involuntary physical or mental condition that has some degree of permanence, and impairs an individual’s ability, in some measure, to carry out the normal functions of life”: Beckett and Kuan v. The Owners, Strata Plan NW 2603 , 2016 BCHRT 27 at para. 120; Naser v. Zellers and McNally (No. 2) , 2006 BCHRT 427 at para. 95. When determining whether a complainant has proved this element of their case, the Tribunal considers any functional limitations resulting from the complainant’s physical or mental impairment. The Tribunal also considers the social, legislative, or other response to the complainant’s impairment or limitations: Morris v. BC Rail , 2003 BCHRT 14 at para. 214; Wutke v. Mageria Holdings , 2006 BCHRT 340 at para. 83.
[34] The medical and affidavit evidence before me indicates that Mr. Salib has Type 2 diabetes with related complications such as diabetic retinopathy, peripheral sensory neuropathy, and ventricular tachycardia for which he has a pacemaker. It indicates that since early 2021, Mr. Salib has experienced symptoms of the major depressive disorder he was formally diagnosed with in 2023. It indicates that before he requested permission to have an emotional support dog, Mr. Salib was hospitalized for an abnormal heart rhythm that caused him fear and anxiety and he was also struggling with grief after the loss of several family members. Last, it indicates that Mr. Salib’s mental condition was exacerbated by the COVID-19 pandemic, and he had difficulty performing day to day functions.
[35] In my view, this evidence is sufficient to take this element of Mr. Salib’s complaint out of the realm of speculation. For that reason, I am not persuaded he has no reasonable prospect of proving that at the material time, he had physical and mental disabilities protected by the Code .
[36] I note here that the Strata also argues that the complaint has no reasonable prospect of success because Mr. Salib had not been diagnosed with a mental disability protected under the Code at the time he requested an emotional support dog. I am not persuaded by that argument. The Tribunal has recognized that a diagnosis is not required to prove a complainant has a disability protected by the Code , and the duty to accommodate may arise before a disability has been diagnosed: Gordon v. Service Corporation International (Canada) ULC and another , 2019 BCHRT 91 at paras. 43 and 60.
2. Adverse impact
[37] The Strata argues that because it told Mr. Salib an exemption to the bylaw would be granted if he provided adequate medical documentation and evidence of the service dog’s training and certification, he has no reasonable prospect of establishing that he experienced an adverse impact regarding its services. In my view, this argument is better considered as part of the Strata’s justification defence. At this stage, I only consider the likelihood of Mr. Salib proving he experienced an adverse impact from the Strata’s decision not to allow him to have an emotional support dog.
[38] Mr. Salib’s affidavit evidence indicates that after he was discharged from the hospital in December 2020, he started going to a local park two or three days a week. His evidence is that when at the park, he often interacted with dogs and found those interactions helped him deal with his depressive symptoms. Mr. Salib says that dogs improved his mood because they offer companionship and comfort. The note from Mr. Salib’s psychiatrist states that a “therapeutic pet as a companion” would improve Mr. Salib’s “clinical condition”.
[39] Based on this evidence, in my view it would be open to the Tribunal member hearing this complaint to find that the Strata’s denial of Mr. Salib’s request for an emotional support dog constitutes an adverse impact: Lylack v. The Owners, Strata Plan Number LMS1755 and others , 2022 BCHRT 16 at para. 46.
3. Nexus
[40] The Strata argues that Mr. Salib has no reasonable prospect of establishing a nexus between any alleged adverse impact and his alleged disabilities because he was told that his request would be considered if he provided sufficient information. The Strata further says the complaint should be dismissed because Mr. Salib has not provided any information about the severity of his medical conditions and their impact on his functioning, or that demonstrates his need for a service dog. The Strata says the medical information Mr. Salib has provided consists solely of “scant medical notes” that are “extremely vague” about the beneficial impacts of an emotional support dog on his alleged disabilities.
[41] In support of its argument, the Strata relies on Judd v. Strata Plan LMS 737 , 2010 BCHRT 276. In that case, the complainants alleged discrimination by the strata because it would not allow them to get a small pet on medically related “compassionate grounds”. The Tribunal dismissed the complaint because the complainants had not provided any information about the severity of their medical conditions and how they affected their functioning, or how having a pet would have a beneficial impact on any of their conditions: at para. 34. The medical evidence before the Tribunal consisted of two brief doctors’ notes and a report that focused mainly on the beneficial impacts of pet ownership in general. The Tribunal concluded that the complaint had no reasonable prospect of success because the link between the beneficial impacts of having a small pet and the complainants’ specific disabilities was “extremely vague” and “too tenuous”: at paras. 34 and 36.
[42] The Strata also relies on Lylack , where the Tribunal dismissed a complaint against a strata that alleged discrimination by refusing the complainant’s request for an emotional support dog. The strata in that case made exceptions to its no-pet bylaw for emotional support animals, but the Tribunal dismissed the complaint because the complainant had not provided the medical information required for an exception to be made.
[43] If the medical evidence before me consisted only of the two brief notes that Mr. Salib obtained from his doctor in mid-January 2021 and his psychiatrist in March 2021, I would be inclined to dismiss the complaint based on the reasoning in Judd and Lylack . In my view, however, the medical information before me is more extensive than in those cases and is sufficient to take this element of Mr. Salib’s case out of the realm of conjecture. Specifically, the specialist’s note from March 2021 explains how a diabetic alert dog would benefit Mr. Salib with respect to his Type 2 diabetes. The note from Mr. Salib’s doctor dated February 2023 confirms his medical conditions and says that Mr. Salib “requires a support dog to help improve his mood and reduce stress”. The undated note Mr. Salib obtained from his psychiatrist after he was diagnosed with a major depressive disorder explains how the benefits of a support dog would impact Mr. Salib’s medical condition, and the negative impacts Mr. Salib would experience without one.
[44] Based on the medical evidence as a whole, I am not persuaded that Mr. Salib has no reasonable prospect of proving a nexus between the Strata’s denial of his request for an emotional support dog and his disabilities. In my view, it would be open to the Tribunal to find that Mr. Salib does not simply wish to have a dog as a “lifestyle choice”, but because of the benefits an emotional support dog would have on his physical and mental health: BH obo CH v. Creekside Estates Strata KAS1707 and another , 2016 BCHRT 100 at para. 99.
B. The Strata’s justification defence
[45] The Strata argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove a bona fide reasonable justification defence at a hearing.
[46] The Tribunal may consider a defence in an application to dismiss under s. 27(1)(c) of the Code : Trevena v. Citizens’ Assembly on Electoral Reform and others , 2004 BCHRT 24 at para. 67. A complaint has no reasonable prospect of success if it is reasonably certain that the respondent will establish a defence at a hearing: Purdy v. Douglas College and Others , 2016 BCHRT 117 at para. 50. At a hearing, the burden of establishing the elements of a justification defence is on the respondent.
[47] To justify its decision to refuse Mr. Salib’s request for an emotional support dog, the Strata will have to prove at a hearing that: (1) it adopted the standard for a purpose rationally connected to the function being performed; (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses its duty to accommodate Mr. Salib to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868 [ Grismer ] at para. 20.
[48] I accept for the purposes of this application that it is reasonably certain the Strata would be able to establish the first two elements of the Grismer test at a hearing. There is no evidence before me indicating that the bylaw is not rationally connected to the Strata’s stated goals, including preserving the interests of owners who relied on the bylaw when deciding to purchase their unit and maintaining the cleanliness of the building. There is also no evidence before me indicating that the bylaw was not adopted in good faith and in the belief it was necessary to fulfill those legitimate purposes.
[49] I am not, however, convinced that it is reasonably certain the Strata will be able to prove it accommodated Mr. Salib’s disabilities to the point of undue hardship.
[50] The bylaw does not expressly state when the Strata will consider and approve disability-related exemptions. The evidence indicates that after meeting to discuss Mr. Salib’s request, the Council chose to limit exemptions only for dogs certified as either a “guide dog” or “service dog” under The Guide Dog and Service Dog Act . There is no evidence before me indicating why the Strata adopted this standard or why it would be an undue hardship to consider and approve exemptions for dogs that are not certified under the legislation but nonetheless provide disability-related benefits to an owner or tenant.
[51] I am also not persuaded it is reasonably certain the Strata would be able to prove that allowing exemptions for non-certified dogs would be an undue hardship because it would place an “undue strain” on the Strata’s obligations to other owners, “set an unwanted precedent”, “be contrary to the purpose and goal” of the bylaw or “expose itself to alternate complaints” at the Civil Resolution Tribunal or this Tribunal. I say this because the Tribunal has dealt with cases where strata allow exemptions to a no pet bylaw for emotional support animals: Lylack , Kallstrom v. Strata Plan BCS1437 and others , 2019 BCHRT 215.
[52] I am not aware of, nor has the Strata referred me to, any cases where the Tribunal has held that it would be an undue hardship for a strata to make disability-related exemptions to a no-pet bylaw for animals other than a certified guide dog or service dog. To the contrary, in Kallstrom the Tribunal set out helpful guidance to strata and individuals requesting disability-related accommodation, including for an emotional support dog: at para. 52.
[53] Finally, I am not persuaded it is reasonably certain the Strata will be able to prove it met its duty to accommodate Mr. Salib because he did not participate in the accommodation process by providing the medical and certification documentation it requested. In support of that argument, the Strata cites Coelho v. Lululemon Athletica Canada Inc. , 2021 BCHRT 156, where the Tribunal dismissed a complaint because the complainant “thwarted the accommodation process in all the circumstances”. In my view, Coelho is of limited assistance and distinguishable on the facts. In that case, the respondent offered reasonable accommodation options that the complainant refused to consider. In this case, the evidence indicates that the Strata would not consider an exception to the bylaw unless the dog was certified under The Guide Dog and Service Dog Act, and the only alternative offered to Mr. Salib was for him to use a blood sugar monitoring device to assess his glucose levels. There is no evidence before me indicating what other practical steps the Strata took to accommodate Mr. Salib’s physical and mental disabilities or that it ever considered whether allowing him to have an emotional support dog would be an undue hardship.
V CONCLUSION
[54] For the reasons set out above, the Strata’s application to dismiss the complaint under s. 27(1)(c) of the Code is denied. The complaint will proceed to a hearing.
Beverly Froese
Tribunal Member