Howard obo Howard v. BC Housing (No. 2), 2025 BCHRT 128
Date Issued: May 30, 2025
File: CS-006145
Indexed as: Howard obo Howard v. BC Housing (No. 2), 2025 BCHRT 128
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:
Grant Neal Howard on behalf of Constance Doreen Howard
COMPLAINANT
AND:
British Columbia Housing Management Commission
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Andrew Robb
Representative for the Complainant: Grant Neal Howard
Counsel for the Respondent: Anne Cochrane
I INTRODUCTION
[1] Constance Doreen Howard is an elderly person with disabilities. She received a rent subsidy from British Columbia Housing Management Commission [ BC Housing ], under a program designed to provide financial support for low-income seniors. Her subsidy was reduced when her son, Grant Neal Howard, moved in with her. Ms. Howard says Mr. Howard moved in with her because she required care and support, due to her age and disabilities. She filed a human rights complaint alleging that BC Housing’s decision to reduce her subsidy was discrimination, contrary to s. 8 of the Human Rights Code . The Tribunal accepted the complaint on the ground of family status.
[2] BC Housing denies discriminating. BC Housing says the rent subsidy program considers the number of people in the subsidy recipient’s household, and Ms. Howard’s subsidy was reduced solely because the number of people in her household increased, when Mr. Howard moved in. BC Housing says the program allows recipients to have a live-in caregiver, without any effect on their rent subsidy, but only if the caregiver is employed to live with them, and the caregiver’s services are paid for by a government health authority. Since Mr. Howard did not meet these conditions, his presence in Ms. Howard’s household led to a reduction in her subsidy.
[3] BC Housing applies to dismiss the complaint on the basis that it has no reasonable prospect of success. For the reasons set out below, I deny the application. On the materials before me, there is evidence that Ms. Howard required live-in care services in order to live in her home, and it does not appear she could obtain those services from anyone other than a family member. In these circumstances, I am not satisfied that she has no reasonable prospect of proving a connection between her family status and the reduction of her subsidy.
[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[5] Based on the materials provided by the parties, it appears the following facts are not disputed.
[6] BC Housing is a crown agency that develops, manages, and delivers rental assistance programs and housing. One of its rental assistance programs is the Shelter Aid for Elderly Renters program [ SAFER ]. SAFER provides a monthly subsidy to help make rent more affordable to seniors with a low to moderate income. Ms. Howard is not a tenant of BC Housing, but she received a SAFER rental subsidy.
[7] BC Housing has a policy that includes a formula for determining the amount of a SAFER subsidy to which a recipient is entitled [the Policy ]. The formula considers, among other things, the number of people in a recipient’s household. Generally, as the number of people in the household increases, the subsidy decreases. The Policy uses the term “sharer” to mean adults who occupy the same residence as a SAFER recipient, where a single tenancy agreement is in place. Under the Policy, sharers are deemed to pay a portion of the SAFER recipient’s rent, and the recipient’s subsidy is reduced accordingly.
[8] The Policy includes exceptions for certain classes of people who do not count as sharers. These include children under age 19 and other dependents, and live-in caregivers for whom residing with the subsidy recipient is a condition of their employment, and whose services are paid for by a government health authority (including a regional health authority or Community Living BC). A recipient’s spouse is not considered a sharer, but a spouse’s income may affect the recipient’s subsidy.
[9] Mr. Howard does not qualify for any of these exceptions. He is not a dependent of Ms. Howard. He provides live-in care services to her, but he is not employed to do so, and his services are not paid for by a government health authority.
[10] In August 2019, Mr. Howard notified BC Housing that he had moved in with Ms. Howard, to provide care for her. BC Housing then recalculated the amount of Ms. Howard’s SAFER subsidy. Since Mr. Howard does not qualify for any of the exceptions set out in the Policy, he was considered a sharer, and the amount of Ms. Howard’s subsidy was reduced by approximately $260 per month.
[11] Mr. and Ms. Howard appealed BC Housing’s decision to reduce her subsidy. In January 2020, a BC Housing appeal adjudicator denied the appeal. The adjudicator confirmed that Mr. Howard was a sharer, so Ms. Howard’s subsidy had to be reduced.
III DECISION
A. Adding new allegations to the complaint
[12] As a preliminary matter, BC Housing argues that Ms. Howard has improperly added new allegations in her response to the application to dismiss. The allegations which BC Housing says are new, and not within the scope of the complaint, are:
a. BC Housing never assessed Mr. Howard’s skills and qualifications as a caregiver; and
b. BC Housing prevented Mr. Howard from qualifying and being hired as a caregiver for Ms. Howard.
[13] The Tribunal described the scope of the complaint in a letter to the parties dated October 11, 2023: it consists of the allegation that BC Housing discriminated against Ms. Howard based on her family status by reducing her subsidy because Mr. Howard moved in with her and is considered a sharer.
[14] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure , Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others , 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37.
[15] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz , 2004 BCHRT 350 at para. 23 . It is not uncommon, or a violation of the Rules , for a complainant to add new details or particulars of their complaint in response to an application to dismiss.
[16] I now turn to whether the impugned allegations are properly characterized as further particulars or an amendment to the complaint. I begin with the first allegation that BC Housing says is new: the claim that BC Housing never assessed Mr. Howard’s qualifications as a caregiver. I do not agree that this is a new allegation. Ms. Howard’s response submission appears to suggest that BC Housing did not consider whether Mr. Howard might count as a live-in caregiver, such that he would be exempt from the definition of “sharer” under the Policy. I understand the complaint to argue that the exceptions from the Policy’s definition of “sharer” are overly restrictive, and do not consider Ms. Howard’s need for live-in care from a family member. The allegation that BC Housing did not assess Mr. Howard’s qualifications as a caregiver is material to this argument. In my view this should be seen as a particular detail of the complaint, not a new allegation.
[17] Turning to the second allegation that BC Housing says is new, it is not clear to me that the response submission alleges that BC Housing prevented Mr. Howard from qualifying and being hired as Ms. Howard’s caregiver for Ms. Howard. The response submission is lengthy and sometimes difficult to understand, and BC Housing does not say where this allegation can be found in the response submission. The response submission cites other decisions by the Tribunal in which respondents were alleged to have prevented people from being hired to provide care for family members, but I do not read it as alleging that BC Housing did this to Mr. Howard.
[18] If the response submission did allege that BC Housing prevented Mr. Howard from qualifying and being hired as a caregiver for Ms. Howard, I would agree with BC Housing that this is not within the scope of the complaint. The scope of the complaint includes BC Housing’s finding that Mr. Howard was a sharer, based on the fact that he does not meet the criteria of being employed to provide live-in care and being paid by a government health authority, but it does not include an allegation that BC Housing prevented him from meeting those criteria.
B. Section 27(1)(c) – No reasonable prospect of success
[19] BC Housing applies to dismiss Ms. Howard’s complaint under s. 27(1)(c) of the Code , on the basis that it has no reasonable prospect of success. Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to dismiss complaints which do not warrant the time and expense of a hearing. The onus is on BC Housing to establish the basis for dismissal.
[20] 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. 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 .
[21] 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 at para. 27 .
[22] To prove her complaint at a hearing, Ms. Howard will have to prove she has a characteristic protected by the Code , she was adversely impacted in the services she received from BC Housing, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to BC Housing to justify the impact as a bona fide reasonable justification. However, BC Housing does not argue in this application that it is reasonably certain to establish at a hearing that it has a bona fide and reasonable justification for its decision (i.e. that the Policy is reasonably necessary, and BC Housing cannot accommodate Ms. Howard without incurring undue hardship).
[23] BC Housing does not appear to dispute, for the purposes of this application, that Ms. Howard is entitled to the protection of the Code , on the ground of family status, based on her relationship to Mr. Howard. Nor does BC Housing deny she experienced an adverse impact when her SAFER subsidy was reduced. Rather, BC Housing says she has no reasonable prospect of proving a connection between her family relationship with Mr. Howard and the reduction in her subsidy. BC Housing says the decision that Mr. Howard was a sharer, and the consequent reduction in Ms. Howard’s subsidy, had no connection with her family relationship with Mr. Howard. BC Housing says Mr. Howard would still be considered a sharer even if he was not related to Ms. Howard, and he would not be considered a sharer if his services were paid for by a government health authority and he lived with her as a condition of his employment, even though he is related to her. Put another way, BC Housing argues that it is reasonably certain to establish at a hearing that its decision to reduce Ms. Howard’s subsidy was made for solely non-discriminatory reasons, namely following the terms of the Policy.
[24] BC Housing says the complaint effectively seeks preferential treatment based on Ms. Howard’s family status, in that Mr. and Ms. Howard want the benefit of live-in caregiver status, under the Policy, even though Mr. Howard is not paid by a government health authority, and does not live with Ms. Howard as a condition of employment. BC Housing says this is not a benefit provided by the SAFER program, and cites Auton (Guardian ad litem of) v. British Columbia (Attorney General) , 2004 SCC 78, to the effect that while government benefits must be provided in a non-discriminatory manner, there is no positive obligation on government to provide a particular benefit.
[25] Ms. Howard is not represented by legal counsel and the materials filed on her behalf are somewhat challenging to understand and analyse. She says the Policy’s definition of “sharer”, and the criteria for the live-in caregiver exception to that definition, are discriminatory because they restrict who can provide live-in care to SAFER recipients. She says the Policy is connected to her family status because it means her family member—Mr. Howard—cannot provide in live-in care without affecting her subsidy. I understand her argument to be that the relationships exempted from the Policy’s definition of “sharer” are too restrictive, and that regardless of BC Housing’s intentions, the Policy has an adverse impact on her, and people like her, who are cared for by family members.
[26] For the following reasons, I am not satisfied that Ms. Howard has no reasonable prospect of proving a connection between her family status and the reduction in her SAFER subsidy.
[27] There is no dispute that Ms. Howard provides care for Ms. Howard. Based on the information in her complaint, it appears that she requires support around the clock, and she would be unable to live in her own home without extensive, frequent care services. BC Housing does not deny this, in this application.
[28] The Policy provides that SAFER recipients may receive live-in care services without any effect on their subsidy, but only if those services are delivered by a caregiver who must live with the recipient as a condition of the caregiver’s employment, and paid for by a government health authority. However, there is no evidence before me about whether this option—a live-in caregiver paid for by a government health authority—was available to Ms. Howard.
[29] In the materials before me, there is evidence that supports Ms. Howard’s claims that she required live-in care services in order to live in her home, and there is no evidence that she could obtain those services from anyone other than a family member. It appears that Mr. Howard moved in with her for two reasons: 1) because she needed live-in care services, to continue living in her home, and 2) because there was no one else available who could provide those services. While the first reason appears to be a function of Ms. Howard’s disabilities, I am not satisfied that she has no reasonable prospect of proving the second reason is connected to her family status.
[30] There is no dispute that Mr. Howard would be considered a sharer, under the Policy, even if he was not related to Ms. Howard, and he would not be considered a sharer if his services were paid for by a government health authority and he lived with her as a condition of his employment, even though he is related to her. But in the circumstances of this case, I am not satisfied that the neutrality of the Policy, regarding family status, means Ms. Howard has no reasonable prospect of proving an adverse impact connected to her family status. It appears Ms. Howard’s subsidy was reduced not just because she needed live-in care, but because she could not get that care from anyone other than a family member. In this sense, her family relationship with Mr. Howard could be seen as a factor in the Policy’s impact on her.
[31] BC Housing’s application to dismiss focuses on the intentions of the Policy, and not its impact. In my view, BC Housing has not discharged its onus to show that Ms. Howard’s argument—that the Policy has a disproportionate and discriminatory impact on people who receive live-in care from their family members—has no reasonable prospect of success.
[32] BC Housing says that if Ms. Howard’s subsidy was not reduced, when Mr. Howard moved in with her, that would provide an unjustified financial and housing benefit to Mr. Howard, but this submission is not supported by the evidence before me. While the complaint acknowledges that a family caregiver can be more cost-effective than other care options, there is no evidence that Mr. Howard received a financial benefit from moving in with Ms. Howard, or that he moved in with her for any reason other than to care for her.
[33] BC Housing argues that the complaint seeks a benefit, or a form of preferential treatment, based on the family relationship between Mr. and Ms. Howard. In my view, what Ms. Howard is seeking could be defined as the ability to live in her own home, without a reduction in her subsidy.
[34] In an application under s. 27(1)(c), the threshold to proceed to a hearing is low, and the complainant need only take their allegations out of the realm of conjecture, on the whole of the evidence. I find that Ms. Howard has done so. The evidence before me suggests that she could not live in her home without a live-in caregiver, and she does not have access to a live-in caregiver other than a family member. But when her family member took on the role of her live-in caregiver, her subsidy was reduced. I find this is sufficient to bring the connection between her family status and the reduction of her subsidy out of the realm of conjecture.
IV CONCLUSION
[35] The application to dismiss is denied. The complaint will proceed to a hearing.
[36] The Tribunal previously decided to fast-track the complaint process, due to Ms. Howard’s advanced age and health conditions. The Tribunal will continue to fast-track the process, and will expect the parties to prepare for a hearing expeditiously.
Andrew Robb
Tribunal Member