Dahl v. Langley Lions Housing Society and others (No. 2), 2025 BCHRT 15
Date Issued: January 24, 2025
File(s): CS-000015 / CS-005740
Indexed as: Dahl v. Langley Lions Housing Society and others (No. 2), 2025 BCHRT 15
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:
Angela Dahl
COMPLAINANT
AND:
Langley Lions Housing Society and Jeanette Dagenais and Ken Brier
RESPONDENTS
REASONS FOR DECISION
NO EVIDENCE MOTION
Tribunal Member: Amber Prince
Legal Advocate for the Complainant: Will Gladman (until June 12, 2020)
Counsel for the Complainant: Alanna Tom (until February 10, 2022), Emily Zarychta (until November 4, 2022), Laura Track (until January 31, 2023)
On their own behalf: Angela Dahl (after January 31, 2023)
Counsel for the Respondents: David G. Wong and Matthew Allard
Date of Hearing: June 12, 13, 14, 20 and 21, 2023; November 21, 22, 23, 24, 2023; and February 1, 2 and 27, 2024
Location of Hearing: By videoconference
I INTRODUCTION
[1] The issue before me is whether to dismiss Angela Dahl’s complaint mid-hearing. Ms. Dahl filed a complaint against her housing provider, Langley Lions Housing Society, [ Society ] and agents for the Society, Jeanette Dagenais and Ken Brier [together, the Respondents ]. She alleges that the Respondents discriminated against her based on her gender identity, expression and sex, in violation of sections 8 and 10 of the Human Rights Code .
[2] Ms. Dahl’s complaint proceeded to a hearing, and I heard all of her evidence in support of her complaint over 11.5 days. At the conclusion of her evidence, the Respondents applied to dismiss her complaint on a no evidence motion and under s. 27(1)(c), (d)(ii) and (e) of the Code [ dismissal application ]. I allowed the Respondents to make the application and heard submissions from both parties in writing. Ms. Dahl opposes the dismissal application, and this is my decision on the application.
[3] For the reasons that follow, I dismiss Ms. Dahl’s complaint based on the Respondents’ no evidence motion. Ms. Dahl’s evidence was critical to proving the events in her complaint, but her evidence was unreliable. As a result, her evidence was not reasonably capable of proving discrimination. In these circumstances, it does not further the just and timely resolution of this complaint to continue the hearing.
[4] I caution the reader that this decision discusses slurs and derogatory language connected with the protected characteristics of gender identity or expression, sexual orientation and sex.
II BACKGROUND
[5] Below, I summarize the background to Ms. Dahl’s complaint for context. I only refer to what is necessary to explain my decision.
[6] The Society provides a range of affordable housing buildings for seniors and people with disabilities. Jeanette Dagenais is the executive director for the Society. Ken Brier is the resident manager for the Society.
[7] In December, 2014, Ms. Dahl became a resident in the Society’s Evergreen Timbers Building [ the Evergreen ]. The Evergreen is an assisted living building. This means that the Society partners with the Fraser Health Authority and BC Housing to provide additional supports to residents. Those supports include: housekeeping services, personal care services and an emergency response system. A resident in an assisted living building, like the Evergreen, must first qualify for assisted living. Assisted living eligibility is assessed by the potential resident’s health care worker or health authority.
[8] On or about August 24, 2018, the Society and Fraser Health wrote to Ms. Dahl stating that she no longer qualified for assisted living because she was not accessing and did not need the supports provided at Evergreen: Exhibit 32.
[9] The Society offered Ms. Dahl a tenancy at its Fir building instead. Ms. Dahl became a tenant at the Fir building on October 1, 2018: Exhibit 2, Tab 16.
[10] Ms. Dahl’s complaint centres on her experiences while living at the Evergreen in 2018 and then in the Fir from 2020 to April 2021.
[11] Ms. Dahl first filed a complaint related to events at the Evergreen. The Tribunal decided that four of Ms. Dahl’s 2018 allegations could proceed against the Society (operating as Evergreen), under s. 8 of the Code : Dahl v. Evergreen Timbers Assisted Living Facility , 2022 BCHRT 31, paras. 45-47, 49, 54, 56.
[12] Ms. Dahl then filed a second complaint related to events at the Fir from 2020 to 2021. By way of a letter decision, the Tribunal decided that Ms. Dahl’s allegations from January 2020 to April 16, 2021 could proceed against the Society, Jeanette Dagenais, and Ken Brier, under sections 8 and 10 of the Code : January 25, 2022 screening decision.
[13] On March 15, 2023, in a letter decision, I decided to join Ms. Dahl’s two complaints, given the overlap between the parties and issues raised by Ms. Dahl’s allegations: Code , s. 21(6). The overlapping issues are whether Ms. Dahl was discriminated against while residing with the Society based on gender identity or expression and sex, contrary to sections 8 or 10 of the Code . When I joined the complaints, Ms. Dahl was eager to proceed to hearing because she had waited “long enough” for her complaint to be heard.
[14] However, when it came to proceeding with the hearing, Ms. Dahl had some difficulties. The Tribunal made extra efforts to address those difficulties, and I am confident that Ms. Dahl was ultimately able to participate fully and fairly in the hearing process. Next, I set out the difficulties Ms. Dahl had with the hearing process, and the Tribunal’s response to explain why I am confident that Ms. Dahl was able to fully and fairly participate in the hearing process.
A. The Prehearing Process
[15] In advance of the hearing, I held two pre-hearing conferences with the parties. At the first prehearing conference on April 5, 2023, Ms. Dahl confirmed that she was ready to proceed to the hearing by videoconference and would secure a computer to participate virtually. She asked that the hearing proceed with patience and understanding because she was limited by stage 4 rheumatoid arthritis. She also indicated that she was self-represented, not by choice but because her legal options were limited. As part of the Tribunal’s usual practice, I sent the parties a letter summarizing our prehearing conference: April 6, 2023, Prehearing Conference letter.
[16] To assist Ms. Dahl with hearing readiness, my letter included:
· A link to the Tribunal’s website link “Who can help”, which includes a referral list for legal advice, other legal support, and technical support;
· a link to the Tribunal’s “Get ready for a hearing” information, which includes a “Hearing Readiness Checklist”;
· guidance about the hearing format and schedule, with a link to a sample opening statement on the Tribunal’s website;
· confirmation that hearing breaks could be adjusted to meet party needs;
· the option for Ms. Dahl to have a support person at the hearing to help take notes, offer moral support, or provide other practice assistance;
· a summary of Ms. Dahl’s allegations that were proceeding to hearing and that she would need to prove;
· how Ms. Dahl could prove her allegations: through witnesses testifying at the hearing; and other evidence that the witnesses could speak to such as photos or emails, texts, video recordings, or documents; and
· specific guidance with respect to Ms. Dahl’s plan to call a lawyer as a witness and rely on medical records.
[17] I held another prehearing conference with the parties on April 25, 2023. This prehearing conference dealt with Ms. Dahl’s application to adjourn the hearing, and the Respondents’ application for disclosure and the exclusion of expert evidence. Ms. Dahl sought to adjourn the hearing in an effort to seek legal support to prepare for the hearing.
[18] The Respondents brought an application for disclosure because Ms. Dahl indicated that she had a box of documents about the complaint. Ms. Dahl said she obtained the box from her former counsel, and that the format and volume made it difficult for her to address. The Respondents also brought an application to exclude expert evidence Ms. Dahl planned to rely on because that evidence did not comply with the Tribunal’s rules for expert evidence: Rule 21.
[19] I addressed these issues in a letter decision following the prehearing conference. I granted Ms. Dahl’s application for an adjournment because the Respondents consented to it (without prejudice to their ability to bring an application for costs). The adjournment also gave Ms. Dahl more time to seek legal help and prepare for the hearing. With respect to the Respondents’ disclosure application, I explained Ms. Dahl’s disclosure obligations and gave her some time to provide any outstanding disclosure. I also explained how Ms. Dahl could seek to call expert evidence.
[20] On May 5, 2023, and based on information from the parties, I advised the parties by letter of the new hearing dates (June 12-14, 20 and 21, 2023).
[21] On May 30, 2023, Ms. Dahl applied to adjourn the hearing again because she had not secured legal help. The Respondents opposed the adjournment request on the basis that they had already prepared for the new hearings dates, including scheduling their witnesses.
[22] In a letter decision on June 6, 2023, I denied Ms. Dahl’s second adjournment request. In that letter, I explained that Ms. Dahl had, by this point, years to prepare her case and try to secure legal help. I determined that it was not reasonable to further delay the resolution of the complaint on the possibility that Ms. Dahl may be able to get further legal help at an unknown future date. I explained that the Tribunal frequently conducts hearings where a party is self-represented and takes steps to ensure a fair hearing process whether a party is represented or not. I confirmed that what occurred between Ms. Dahl and the Respondents was within Ms. Dahl’s direct knowledge, and that I could take an active approach, as needed when Ms. Dahl gave her evidence. I also confirmed that I would:
- provide direction as needed for Ms. Dahl’s other witness, and any documents she
- would like to include as evidence;
- ask witnesses questions as necessary;
- allow Ms. Dahl to take hearing breaks as needed;
- answer any questions Ms. Dahl had about the hearing process as we went along; and
- apply my expertise in human rights law to assess the evidence presented.
[23] Finally, I reminded Ms. Dahl that her focus for the hearing should be on proving her allegations of discrimination, as set out in my April 6, 2023, letter.
[24] In addition to the information I provided Ms. Dahl, she was able to contact the Tribunal case manager assigned to her complaint, throughout the Tribunal process, and did so.
B. The Hearing Process
[25] The hearing began on June 12, 2023. At the start of the hearing, I confirmed the issues for hearing and invited the parties to raise any questions or concerns as we went along. Ms. Dahl then presented her case. She called her brother as a witness and testified on her own behalf. In addition to witness testimony, Ms. Dahl relied on many documents, including her sworn affidavit, which she filed at an earlier stage in the complaint process.
[26] Because Ms. Dahl was self-represented, I provided her some latitude in terms of how she gave her evidence, including the format of her documentary evidence. I allowed Ms. Dahl to give evidence that did not, on its face, appear relevant to her complaint in case she was later able to explain its relevance, or helped me understand the context of her complaint. Ultimately it took 11.5 days for Ms. Dahl to present her case, and I admitted 85 documents as part of her evidence.
[27] Having heard all of Ms. Dahl’s evidence, the question before me is whether to now dismiss her complaint.
III ANALYSIS AND DECISION
C. The Usual Hearing Process and the Respondents’ Dismissal Applications
[28] When a complaint proceeds to a hearing, the complainant has the burden to lead evidence to prove their allegations of discrimination. A complainant must prove that they have a characteristic protected by the Code ; they experienced an adverse impact because of a respondent’s conduct; and a protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61, para. 33.
[29] After the complainant has led all of their evidence, and the evidence has been tested through cross-examination, the complainant’s case closes. In the usual course, the respondent then presents their evidence in response to the complainant’s evidence: X v. BC Ministry of Children and Family Development , 2024 BCHRT 333 [ X v. BC ], para. 44.
[30] Here, the Respondents argue that Ms. Dahl’s complaint should be dismissed at the close of her case based on the evidence she gave. The Respondents argue that Ms. Dahl’s complaint should be dismissed on the following grounds:
- A no evidence motion – on the basis that Ms. Dahl’s evidence is not reasonably capable of proving her allegations of discrimination.
- Section 27(1)(c) of the Code – on the basis that Ms. Dahl’s complaint has no reasonable prospect of success;
- Section 27(1)(d)(ii) of the Code – on the basis that proceeding with Ms. Dahl’s complaint does not further the purposes of the Code ; and
- Section 27(1)(e) of the Code – on the basis that Ms. Dahl filed her complaint for improper motives or in bad faith.
D. Decision to Dismiss the Complaint Based on the No Evidence Motion
[31] I have decided to dismiss Ms. Dahl’s complaint based on the Respondents’ no evidence motion. I have concluded that Ms. Dahl’s evidence is not reasonably capable of proving her allegations of discrimination.
[32] I accept, without reservation, Ms. Dahl’s evidence that she is a trans person and a trans woman. She is protected under the Code based on sex, gender identity or expression. However, with respect to the specific allegations before me about the Respondents’ conduct, Ms. Dahl was the only witness on her behalf and her evidence was not reliable. This means that her evidence was not reasonably capable of proving the other criteria to show discrimination: that she was adversely impacted by the Respondents and that her protected characteristics were a factor in any adverse impacts.
[33] Given this decision, it is not necessary for me to consider the Respondents’ other grounds for dismissal. That said, I make two comments. First, because Ms. Dahl’s evidence was not reasonably capable of proving discrimination, I would also dismiss her complaint under s. 27(1)(c) of the Code , on the basis that it has no reasonable prospect of success at this point: Marusyk v. 1180749 Ontario and Marusyk , 2005 BCHRT 346, paras. 5-8; J.J. v. School District No. 43 (Coquitlam) , 2011 BCCA 343 [ JJ ], paras. 33-36.
[34] Second, I would not dismiss Ms. Dahl’s complaint under s. 27(1)(e) of the Code , on the basis that it was filed for an improper motive or in bad faith. I come to this conclusion after considering evidence highlighted in cross-examination that Ms. Dahl filed her complaint after a person working for the Society complained about Ms. Dahl’s conduct in 2017.
[35] The Tribunal dismisses complaints under s. 27(1)(e) cautiously and only in the clearest of cases: Lungu v. British Columbia (Children and Family Development) (No. 2) , 2011 BCHRT 341, para. 105. In my view, this is not one of those cases. While I have found Ms. Dahl’s evidence unreliable with respect to the specific allegations before me, giving unreliable evidence is not the same as filing a complaint for an improper purpose or in bad faith. To dismiss a complaint under s. 27(1)(e), the Tribunal must be convinced that a complainant’s overriding purpose in filing their complaint was improper or in bad faith: Yaniv v. Various Waxing Salons (No. 2) , 2019 BCHRT 222, para. 105.
[36] I am not convinced that Ms. Dahl’s overriding purpose in filing her complaint was improper or in bad faith. Instead, I conclude that she filed her complaint mainly on a sincere belief that her disputes with the Respondents were tainted by discrimination based on her sex, gender identity or expression.
[37] Ms. Dahl’s brother, David Dahl, gave evidence at the hearing that since Ms. Dahl was a child, she has faced a lifetime of bullying in connection with her gender identity and expression. This was consistent with his affidavit evidence, admitted as Exhibit 1. He was unshaken in his evidence on cross-examination, and I did not have any concerns about the reliability of this evidence.
[38] Mr. Dahl also recalled visiting Ms. Dahl at Evergreen on November 1, 2015, and saw photos posted up of her dressed as a woman. Ms. Dahl explained in her evidence why photos of her were posted. Her evidence was that she was dressed as a woman as part of a Halloween party and costume contest. She won the contest, and photos of her dressed as a woman were posted at the Society. Part of her evidence included a photo of her in the costume. Her evidence on this point was not contested and I accept it.
[39] Mr. Dahl recalled that when he saw photos of Ms. Dahl dressed as a woman and posted at Evergreen, someone wrote “homo”, “faggot”, “freak” and “gay” on them. Together, he and Ms. Dahl took the photos down. This evidence was consistent with Mr. Dahl’s affidavit evidence, and his evidence was unshaken on cross-examination. I did not have any concerns about the reliability of this evidence.
[40] Mr. Dahl’s evidence was independent, reliable evidence that Ms. Dahl has faced bullying, since she was a child, for trying to be who she is. He was able to point to an instance at Evergreen in 2015 where Ms. Dahl was subject to slurs based on her gender identity, expression and sex. This is not evidence which could prove Ms. Dahl’s complaint allegations from 2018 and 2020-2021. But it is evidence that Ms. Dahl had a basis to believe she was experiencing discrimination at the Society related to her gender identity, expression and sex.
[41] Ms. Dahl had a reasonable basis to believe she was being discrimination against in 2015 within Evergreen, well before the Society raised a concern about her own conduct in 2017. It is not a stretch that Ms. Dahl had a sincere belief that such discrimination was an aspect of the Respondents’ conduct in her later disputes with the Society.
[42] For these reasons, I would not dismiss Ms. Dahl’s complaint on the basis that she filed it for an improper motive or in bad faith under s. 27(1)(e) of the Code .
[43] Next, I set out the no evidence motion criteria, then I apply it to Ms. Dahl’s evidence.
E. No Evidence Motion Criteria
[44] The Tribunal has the discretion to consider a no evidence motion at the close of a complainant’s case. The Tribunal’s discretionary power to dismiss a complaint, on a no evidence motion, is an aspect of the Tribunal’s authority to control its own process: JJ , para. 32 ; Brar and others v. BCVMA and Osborne (No. 16) , 2010 BCHRT 182, paras. 36-37.
[45] The Tribunal controls its process to facilitate the just and timely resolution of complaints: Code , s. 27.3. Like any aspect of the Tribunal’s process, the Tribunal will consider whether a no evidence motion serves those twin goals: Brar , para. 165; D.L. v. BC Ministry of Children and Family Development and others (No. 5) , 2022 BCHRT 66 [ DL ], para. 40; X v. BC, para. 43.
[46] On a no evidence motion, the Tribunal does not weigh the evidence and make findings of fact. Instead, it reviews all of the complainant’s evidence, to determine whether that evidence could reasonably support a finding of discrimination : Drobic v. B.C. (Ministry of Employment and Income Assistance) and others , 2007 BCHRT 426, para. 50; The Patient v. The Clinic and another (No. 3) , 2021 BCHRT 3, para. 20; JJ , para. 36; DL , para. 45; X v. BC , paras. 49-50.
[47] The complainant’s evidence is taken at its highest, and assessed on a low threshold: Gerin , para. 22; Croteau v. Canadian National Railway Company , 2014 CHRT 16, para. 19; X v. BC , para. 48. If the complainant’s evidence could reasonably support a finding of discrimination, the no evidence motion will fail, and the hearing will continue: Gerin , para. 24; DL , para. 45.
[48] A complainant’s evidence will not reasonably support a finding of discrimination if it is far fetched, untrustworthy, or unreliable: Gerin , para. 31; Croteau , paras. 18-19; Filgueira v. Garfield Container Transport Inc ., 2005 CHRT 32 (upheld in Filgueira v. Garfield Container Transport Inc ., 2006 FC 785), paras. 41-43; Sime v. Okanagan College (No. 2) , 2008 BCHRT 257, para. 96.
[49] Indicators of unreliable evidence include:
· The witness is unable to accurately recall and recount the events at issue: Edwards v. Stroink , 2015 BCSC 1318, para. 37.
· The evidence is based only on speculation, rather than a witness’ personal knowledge or supported by corroborating evidence, like documents: Brar and others v. B.C. Veterinary Medical Association and Osborne , 2015 BCHRT 151 [ Brar 2015 ], para. 91.
· The evidence is based on a bare assertion without any independent evidence or a reasonable explanation for that lack of independent evidence: C.D. v Mostowy , 2021 BCSC 1920, para. 33.
· The evidence is unsupported or contradicted by other evidence, such as documentary evidence: United States v. Bennett , 2014 BCCA 145, para. 26; R v Ducharme , 2017 MBCA 50, para. 14.
· A material witness retracts their evidence: United States , para. 26.
[50] Unreliable evidence has little probative value: R v Bereznicki , 2015 ABCA 144, para. 24. In other words, unreliable evidence is untrustworthy to prove a fact at issue.
[51] If the complainant does not lead evidence which could reasonably support a finding of discrimination, the respondent has no obligation to answer the complaint. No just or timely purpose is served by the Tribunal or respondent expending further resources where the evidence is too deficient to support a finding of discrimination: Filgueira , paras. 11-13.
[52] Next, I apply the no evidence motion criteria to Ms. Dahl’s evidence.
F. Applying the No Evidence Motion Criteria to Ms. Dahl’s Evidence
[53] As discussed earlier, the Tribunal decided that some of Ms. Dahl’s allegations of sex and gender identity or expression discrimination could proceed to a hearing. Those allegations are four allegations from 2018 when Ms. Dahl lived at the Evergreen, and other allegations from January 2020 to April 16, 2021, when Ms. Dahl lived at the Fir.
[54] Next, I set out Ms. Dahl’s evidence about her allegations, and then I explain why her evidence was unreliable. I begin with her 2018 allegations.
1. August 8, 2018 – Elevator Incident with Nurse RH
[55] In her complaint, Ms. Dahl described an incident involving a nurse working at Evergreen, who I will refer to RH. [1] Ms. Dahl alleged that:
· On or about August 8, 2018, she left her room with her friend Janet.
· She and Janet invited RH to ride the elevator with them.
· RH laughed at the invitation and said, “I don’t ride the elevator with freaks – I’m avoiding you because I don’t like you”.
· When Ms. Dahl asked RH whether her being a trans woman is the reason RH doesn’t like Ms. Dahl, RH responded: “a trans woman? You’re a man in women’s clothing”: September 6, 2018 complaint amendment, p. 2.
[56] In her complaint Ms. Dahl does not mention following up with anyone at the Society about the elevator incident. However, in her affidavit, her evidence was that on the same day as the elevator incident, she reported the incident to three nurses who were at Evergreen at the time. She did not say what the outcome of this report was: para. 20.
[57] In her affidavit, Ms. Dahl said that she was in the elevator but did not mention her friend Janet being present. She did not mention inviting RH into the elevator, having an exchange with RH about being a trans woman, and RH responding: “a trans woman? You’re a man in women’s clothing”: para. 18. In her affidavit, Ms. Dahl also said that on the day of the elevator incident with RH she reported it to the Society by telling three nurses and two staff at the front desk, MJ and KG, to pass the report onto Ms. Dagenais. Her affidavit evidence was that Ms. Dagenais refused to see her: paras. 19-20.
[58] At the hearing, Ms. Dahl’s evidence was different from her complaint allegations. Her direct evidence was different from her complaint as follows:
- she did not say her friend Janet was with her.
- She did not say that she and Janet invited RH into the elevator. Instead, she said RH was in elevator and Ms. Dahl was trying to get on the elevator.
- She did not describe having an exchange with RH about being a trans woman and RH responding “a trans woman? You’re a man in women’s clothing”.
[59] When I asked Ms. Dahl if she raised this incident to anyone at the Society she said no because she “knew it wouldn’t do any good anyway.” However, her direct evidence is in contrast with her affidavit evidence that on the same day as the elevator incident, she had reported it to three nurses, and two front desk staff MJ and KG. She also said in her affidavit that Ms. Dagenais refused to see her after she reported the incident: paras. 19-20.
[60] When Mr. Wong cross-examined Ms. Dahl on these discrepancies she said that she had memory issues about the incident. She could not remember if Janet was with her or not. When Mr. Wong confronted Ms. Dahl about her contradictory evidence about what exactly RH said, she said she couldn’t remember and that it was not clear to her about what took place. She indicated that in general her medications, pain, distress, and sleep deprivation meant that she was “having a heck of time” recalling even what she did the day before.
[61] When Mr. Wong asked Ms. Dahl: “are you saying at this point in time you can’t recall your complaint allegations?”, Ms. Dahl replied, “I can say they are not crystal clear.” When Mr. Wong asked her if she remembered anything from the elevator incident, her answer was no and “I don’t recall.” When Mr. Wong asked Ms. Dahl why she could not remember this event when she could remember earlier events, her evidence was that she remembered traumatic events, and the elevator incident was not traumatic enough.
[62] Ms. Dahl’s evidence about the alleged elevator incident was unreliable for two reasons. First, her evidence conflicted with how she described the incident in her complaint and her affidavit. Second, and most importantly, she did not have a clear memory of the elevator incident at all when testifying. She did not call any other evidence which could corroborate her complaint allegation, such as calling Janet as a witness, if she was indeed present. She did not have any contemporaneous documents about this incident even though she was in the habit of making contemporaneous notes or reports about her interactions and grievances with Society personnel around that time: Exhibits 33, 43-46, 58, 73-74.
[63] Since Ms. Dahl’s evidence is unreliable, it cannot be depended upon to prove her allegation about RH. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing RH’s conduct, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. I move next to Ms. Dahl’s second 2018 allegation of discrimination.
2. August 20, 2018 – Clothing Incident with Care Aides DA and MA
[64] Ms. Dahl’s second complaint allegation was that on August 20, 2018, two care aides laughed at her while she explained that she was undergoing voice therapy in connection to her gender identity and expression. I will refer to these care aides as DA and MA. Ms. Dahl alleged that the care aides made discriminatory comments such as “you look like a man wearing women’s clothing” and joked about her choice of underwear. She alleged that she reported this incident to “management” but never received any confirmation that the issue would be investigated: September 6, 2018 complaint amendment, p. 2.
[65] In her affidavit, Ms. Dahl’s evidence was that:
· In August 2018, she was in her room waiting for assistance to get dressed in the morning. Care aides DM and MA arrived to help her.
· The care aides would not help her dress in her chosen female attire, but they chose jeans and a more masculine shirt and told her this clothing was “more appropriate.”
· She asked them why she had to continue proving herself as a woman and told them that she spent a lot of money on the female clothes and wanted to wear them.
· The care aides told her she had to dress herself or wear the men’s clothing: paras. 21-23.
[66] Ms. Dahl’s affidavit evidence was inconsistent with her complaint allegations in four respects. In her affidavit she did not allege that (1) DM and MA laughed at her while she underwent voice therapy; (2) they said “you look like a man wearing women’s clothing”; (3) they joked about her choice of underwear; (4) or she reported this August, 2018 incident to management.
[67] In her direct evidence at the hearing, Ms. Dahl had difficulty recalling the names of the care aides who assisted her with getting dressed. She said in general terms that they were “ones that said ‘I won’t dress you in that … You can’t, you identify as a male, you’re a man. Here’s your male clothing, wear the jeans’.” With respect to care aide DM, Ms. Dahl’s evidence was that DM was the only one at Evergreen who didn’t “make a laughingstock” out of her. This contrasted with her complaint allegation that DM was one of the care aides who laughed at her while she underwent voice therapy and joked about her choice of underwear.
[68] At the hearing Ms. Dahl did not give any evidence about her allegation that DM and MA laughed at her when she explained that she was undergoing voice therapy related to her gender identity or expression. She did not give evidence about her allegation that DM and or MA commented “you look like a man wearing women’s clothing”, or that either joked about her choice of underwear.
[69] In contrast to her complaint allegation that she reported the incident to “management”, Ms. Dahl’s evidence at the hearing was that she reported the incident to a care aide on duty but could not recall who the care aide was or the outcome of her report.
[70] In cross-examination, Ms. Dahl added entirely new details to her August 20, 2018, complaint allegations, that were not set out in her complaint, affidavit or evidence given in direct. For example, she described wearing a blue tank top, and having a cream-coloured dress and flats set out to wear. She added that after DM and MA left she took off the men’s clothes they put her in, put the women’s attire on, and then put the men’s clothes over top.
[71] When Mr. Wong asked Ms. Dahl how she could remember these new details and level of detail, her evidence was that the event was traumatic and therefore burnt into her memory. When Mr. Wong confronted Ms. Dahl with the discrepancies between her complaint allegations and her evidence at the hearing, her evidence was that she has a learning disability and forgets details.
[72] Ms. Dahl’s evidence about the August 20, 2018, incident was unreliable for three reasons. First, in her direct evidence, she had difficulty identifying DM and MA as the care aides involved with her care on August 20, 2018.
[73] Second, and critically, her evidence at the hearing, and in her affidavit, was fundamentally different from how she described the event in her complaint. Her complaint was accepted on the basis of the specific allegations she set out in her complaint amendment. Rather than give evidence at the hearing about those allegations, Ms. Dahl gave a different account of what happened and added new details under cross-examination.
[74] Third, Ms. Dahl’s explanation for the discrepancies is itself contradictory. Ms. Dahl’s testimony was that she forgot to include details about the August 20, 2018, incident, in connection with a learning disability. But she filed her complaint amendment just a few weeks after the alleged August 20, 2018 incident. And she had the help of a legal advocate at that time. It does not make sense that Ms. Dahl “forgot” details so close in time to the alleged incident, particularly when she had the help of a legal advocate.
[75] I cannot reconcile Ms. Dahl’s evidence that she had better recall of the incident a few years later at the hearing than when she filed the amendment. This is especially so, since Ms. Dahl repeatedly gave evidence about her declining memory on account of her rheumatoid arthritis, medications, stress and sleep deprivation. Her evidence about her memory problems included that she struggled to remember events from even the day before.
[76] Ms. Dahl was the sole witness on her behalf about the alleged August 20, 2018, incident. She did not call any other evidence which could corroborate this allegation, such as any contemporaneous documents about this incident. She did not have any contemporaneous documents about this incident even though she was in the habit of making contemporaneous notes or reports about her interactions and grievances with Society personnel around that time: Exhibits 33, 43-46, 58, 73-74.
[77] What I am left with is a lack of reliable evidence about Ms. Dahl’s August 20, 2018, complaint allegation. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing DM and MA’s conduct, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. I move next to Ms. Dahl’s third 2018 allegation of discrimination.
3. September, 2018, Accommodation Request to MJ
[78] In her complaint, Ms. Dahl alleged the following:
· On March 28, 2018, a health navigator at a health organization wrote a letter stating her needs as a transwoman and explained the Society’s duty to accommodate people with gender dysphoria. I will refer to the health navigator as LW.
· Shortly after getting this letter, she handed a copy of it to an administrative staff working at Evergreen’s front desk. I will refer to this staff person as MJ.
· MJ said that she would see what she could do, however Ms. Dahl later saw the letter in the trash at the front desk.
· The Society staff took no steps to assist Ms. Dahl’s social transition as a woman at Evergreen: September 6, 2018 complaint amendment.
[79] In Ms. Dahl’s affidavit she indicated that LW’s letter was actually dated September 6, 2018, and not March 28, 2018 [ letter ]. She said that it was a surgical readiness form, completed by Dr. T [ form ] that she provided to MJ sometime in March 2018 rather than LW’s letter: paras. 14 and 15 and Exhibit 25. Ms. Dahl also said in her affidavit that it was in the Fall of 2018 that she provided LW’s September 6, 2018, letter to MJ: paras. 16-17, and Exhibit 24. In her affidavit, Ms. Dahl did not indicate whether she saw the February 1, 2018, form from Dr. T or the September 6, 2018, letter from LW in the trash after handing it to MJ.
[80] At the hearing, Ms. Dahl’s evidence was that it was the September 6, 2018, letter from LW and a Trans Care BC poster (Exhibit 39) that she handed to MJ at the Evergreen Office, around September 11, 2018, and then saw MJ put the letter and poster in in the garbage. When I asked Ms. Dahl if she said anything to MJ about putting the letter and the poster in the garbage, her response was: “It wouldn’t have done any good anyway because I assumed that’s probably what she would’ve done. And sure enough. It was obvious she would, and she did.”
[81] Ms. Dahl’s evidence on this point is unreconcilable. If it was obvious to her that the letter would go straight in the trash, why did she hand the letter to MJ as a means to seek an accommodation from the Society? Why not take steps to have an independent record of providing a letter of this import, such as having a witness present, mailing or faxing the letter, having an advocate send the letter, or having LW send the letter directly? Further, after observing MJ throw her letter in the garbage, why did Ms. Dahl not take other steps to get the letter to Ms. Dagenais?
[82] When I asked Ms. Dahl what she did next after leaving the Evergreen office on September 11, 2018, her evidence was that she went back to her apartment because she was “being wrongfully evicted” on October 1, 2018, and had to “get busy packing.” This evidence could possibly have explained Ms. Dahl’s actions after observing MJ throw her letter in the garbage. However, Ms. Dahl’s evidence about the circumstances of her eviction fell apart under scrutiny.
[83] On one hand, Ms. Dahl’s evidence was that on September 11, 2018, she had to get busy packing after leaving the Evergreen office because she was being wrongfully evicted. However, later in her evidence she said that she had not received any eviction notice until the last four days of September. She gave this evidence about a late eviction notice to show that the Society was being unfair to her, and did not give her enough time to pack. However, in doing so she contradicted her earlier evidence about packing on September 11, 2018, and undermined her evidence about what she did after leaving the Evergreen office, including the reasonableness of her actions.
[84] On cross-examination Ms. Dahl acknowledged receiving the eviction notice on August 24, 2018, which was consistent with her own documentary evidence. When Mr. Wong asked Ms. Dahl to confirm what document she had actually provided to MJ, she indicated that it was a September 14, 2023, letter from Dr. JK – a completely different letter in Ms. Dahl’s documentary evidence: Exhibit 83. Obviously, it is impossible that on September 11, 2018, Ms. Dahl provided MJ with a September 14, 2023, letter. This evidence calls into question Ms. Dahl’s recollection of what, if anything, she handed to MJ on September 11, 2018.
[85] Even if Ms. Dahl did hand MJ the September 6, 2018, letter, she contradicted her earlier evidence that she saw MJ put the letter in the trash. Under cross-examination Ms. Dahl’s evidence was that she did not see the letter and poster in the garbage. Instead, she said that she assumed the letter was in the garbage because she no longer saw it in MJ’s hands. When Mr. Wong confronted Ms. Dahl about contradictions in her evidence, she explained the contradictions by repeatedly pointing to her “major” memory challenges.
[86] Ms. Dahl’s evidence about what, if anything she handed to MJ, when she did it, and what MJ did in response, is unreliable for several reasons.
[87] First, it is a bare assertion without any independent evidence or a reasonable explanation for that lack of independent evidence: C.D. v Mostowy , 2021 BCSC 1920, para. 33. Second, Ms. Dahl gave contradictory evidence on what she observed in handing the letter to MJ, and what Ms. Dahl did afterwards. Third, she recanted her evidence about when she received the eviction notice in the face of her own documentary evidence.
[88] Lastly, by her own admission, Ms. Dahl’s poor memory impacted her ability to recall the alleged MJ incident. She was the sole witness on her behalf about this incident. She did not call any other evidence which could corroborate her allegation, such as any contemporaneous documents about this incident. She did not have any contemporaneous documents about this incident even though she was in the habit of making contemporaneous notes or reports about her interactions and grievances with Society personnel around that time: Exhibits 33, 43-46, 58, 73-74.
[89] Ms. Dahl’s allegation that the Society staff took no steps to assist her social transition as a woman at Evergreen rested on what, if anything she handed to MJ, and what happened after that. Her evidence about the MJ incident was unreliable and could not reasonably support her allegation that she requested and was refused accommodation by the Society.
[90] In the end, I do not have evidence from Ms. Dahl that is reasonably capable of showing MJ’s conduct, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. I move next to Ms. Dahl’s fourth 2018 allegation of discrimination.
4. October 1, 2018 – Hair Incident with KG
[91] In her complaint, Ms. Dahl alleged the following:
· On October 1, 2018, she was moving out of the Evergreen to the Fir Building. She was moving household items on a dolly and was near the elevator at Evergreen.
· At 4pm, a Society staff person touched Ms. Dahl’s body, shoulders, hair and the toque she was wearing. I will refer to this staff person as KG.
· She told KG to leave her alone, that its “sexual assault and unwanted touching”. KG “laughed it off” in response and told Ms. Dahl she “had great looking tits” and that her long hair was “beautiful to touch”.
· In response, Ms. Dahl pushed KG’s hands away.
· Ms. Dagenais condoned such behaviour at Evergreen, which allowed it to occur and continue: July 10, 2019 Complaint, p. 6-8.
[92] In her affidavit, Ms. Dahl’s version of events about this incident did not include any of the alleged comments from KG except that KG told her that she had a hair out of place: Exhibit 49, para. 26. In her affidavit, Ms. Dahl did not allege that she told KG that touching her hair was “unwanted sexual touching” or “sexual assault.” Further, in her affidavit, Ms. Dahl added that she tried to tell Ms. Dagenais about the hair incident, and why it was upsetting but that Ms. Dagenais would not listen, and no action was taken: paras. 27-28.
[93] At the hearing, Ms. Dahl’s evidence about the hair incident was different from both her complaint allegations and her affidavit evidence on key aspects.
[94] In her direct evidence, Ms. Dahl testified that KG approached her and said words to the effect of: “when you are done moving boxes, come back into the dining room at Evergreen to sign your tenancy agreement for the Fir Building.” This evidence about the start of her interaction with KG was not in her complaint or affidavit.
[95] In her complaint Ms. Dahl described herself as wearing a toque but did not mention wearing a hoodie. In her direct evidence, Ms. Dahl described wearing a hoodie but not a toque. Her evidence in direct was that: (1) KG adjusted her hoodie while touching the back of her head and hair; and (2) when Ms. Dahl turned around KG said “oh, your hair was out of place, I thought I’d put it back into place and I was adjusting your hoodie.”
[96] In Ms. Dahl’s version of events in her direct evidence, KG did not say, as alleged in her complaint, that Ms. Dahl “had great looking tits” and that her long hair was “beautiful to touch”.
[97] In contrast to her affidavit evidence, Ms. Dahl’s direct evidence was that she never followed up the incident with KG to anyone else. Her evidence was that she did not follow-up with anyone because “I knew it wouldn’t do any good anyway. They didn’t listen to me before, they wouldn’t listen to me now.”
[98] In cross-examination, Ms. Dahl could not recall if she was wearing a toque as she stated in her complaint. On cross-examination, she described wearing a jacket rather than a hoodie. She said she did not recall wearing a hoodie and that she usually wore hoodies inside and only on certain days. When Mr. Wong confronted Ms. Dahl about her evidence in direct that she was wearing a hoodie, her evidence changed. She suggested that her jacket had a hood, and that made it a hoodie.
[99] In cross-examination, Ms. Dahl confirmed that the date of the hair incident was October 1, 2018. Her evidence was after the hair incident, later in the day on October 1, 2018, she met with KG to sign her tenancy agreement for her new unit at the Fir.
[100] In cross-examination, Ms. Dahl’s evidence was that after the hair incident and later in the day on October 1, 2018, she met KG in the Evergreen dining room to sign her tenancy agreement for the Fir. Her evidence was that she was “fairly sure” about the sequence of events with KG on October 1, 2018. However, when she was confronted with evidence that she signed the tenancy agreement on September 28, 2018, she acknowledged that she must have signed her tenancy agreement on September 28 and not October 1, 2018 – as she stated in her complaint, affidavit and evidence at the hearing.
[101] Ms. Dahl’s evidence about the alleged KG incident is unreliable for three reasons. First, her evidence at the hearing, and in her affidavit, was fundamentally different from how she described the incident in her complaint. Her complaint was accepted on the basis of the specific allegations she set out in her complaint. Rather than give evidence at the hearing about those allegations, Ms. Dahl gave a different account of what happened, contradicting both her complaint and affidavit.
[102] Second, even Ms. Dahl’s evidence at the hearing was not consistent. In her direct evidence, she described wearing a hoodie but not a toque. In cross-examination, she could not recall if she was wearing a toque and described wearing a jacket rather than a hoodie.
[103] Third, Ms. Dahl recanted an aspect of her evidence about the alleged KG incident. When confronted with her own evidence about signing her tenancy agreement on September 28, 2018, she recanted her evidence that she signed her tenancy agreement with KG on October 1, 2018, following the alleged hair incident. Her recantation puts her recollection of the sequence of events on October 1, 2018 into question.
[104] Ms. Dahl was the sole witness on her behalf about the alleged October 1, 2018, incident. She did not call any other evidence which could corroborate her complaint allegation, such as any contemporaneous documents about this incident. She did not have any contemporaneous documents about this incident even though she was in the habit of making contemporaneous notes or reports about her interactions and grievances with Society personnel around that time: Exhibits 33, 43-46, 58, 73-74.
[105] Ms. Dahl’s evidence about her October 1, 2018, allegation is not reliable. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing KG’s conduct, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. Next, I address Ms. Dahl’s evidence about her 2020 allegations.
5. February 24, 2020 – Alleged Screwdriver Incident
[106] In her complaint, Ms. Dahl alleged the following:
· On February 24, 2020, at the Fir Building, Mr. Brier was waiting at the end of the hallway and positioned himself in between the open fire escape doors.
· As Ms. Dahl was ready to leave through the lobby Mr. Brier ran “full speed” towards her holding a screwdriver in his left hand in a stabbing motion. Ms. Dahl was afraid for her life.
· Mr. Brier said “Scared you yet? Yeah what are you going to do?” Ms. Dahl replied: “you are breaking the law, I am going to call the police.” Mr. Brier then said: “scared you yet? Just wait until tonight.”
· Ms. Dahl reported this incident to the police and victim services. She informed Ms. Dagenais about this incident, but she did nothing to stop the harassment: April 16, 2021 complaint, p. 17.
[107] At the hearing, Ms. Dahl described the February 24, 2020, incident as burnt in her memory. However, her evidence at the hearing about this incident did not match her complaint allegation in several ways.
[108] First, in the complaint, Ms. Dahl indicated that Mr. Brier held the screwdriver in his left hand. In her direct evidence she said the screwdriver was in Mr. Brier’s right hand, and she added that it was “the largest industrial screwdriver I’ve ever seen in my life.” When Mr. Wong confronted Ms. Dahl about this inconsistency she said her mental stress impacted her ability to remember whether the screwdriver was in Mr. Brier’s left hand or right hand.
[109] Second, in her direct evidence, Ms. Dahl said that Mr. Brier called her “a faggot” during this incident, but when Ms. Dahl described this incident in her complaint she did not say anywhere that Mr. Brier uttered this slur.
[110] Third, in her direct evidence Ms. Dahl testified that her friend Janet was with her during this incident. In her complaint there is no mention of Janet being present. In her direct evidence Ms. Dahl said that Janet has not corroborated this incident as a witness because “under pressure she would probably remain silent even though she seen what she seen.”
[111] Fourth, in her complaint, Ms. Dahl said that she told Ms. Dagenais about the February 24, 2024, incident. However, her evidence at the hearing was that she did not report the incident to Ms. Dagenais.
[113] In the email, Ms. Dahl described Mr. Brier as holding the screwdriver in his left hand, in contradiction with her direct evidence that Mr. Brier held the screwdriver in his right hand. In the email, Ms. Dahl did not mention that Janet was present in contrast to her evidence at the hearing. In the email, Ms. Dahl did not set out that Mr. Brier uttered any homophobic or transphobic slur, in contrast to her evidence at the hearing. Further in her complaint, Ms. Dahl alleged that Mr. Brier said “scared you yet? Just wait until tonight.” In her email version of events, Mr. Brier did not say “just wait until tonight.” Also different from her complaint, Ms. Dahl said in her email that she called Mr. Brier “a dangerous person”, that he “laughed it off” and then Ms. Dahl told him that “one day soon he will be in prison”: Exhibit 10.
[114] Ms. Dahl’s evidence was that she reported the February 24, 2020, incident to the RCMP. Although Ms. Dahl had legal help to request any RCMP record about this incident, she had no RCMP documentation at the hearing to corroborate this.
[115] In cross-examination, Mr. Wong questioned Ms. Dahl about the inconsistencies in her complaint, testimony and documentary evidence about the February 24, 2020, event. Her response was that she was under mental stress and “what can I say, limited memory.”
[116] Ms. Dahl’s evidence about the alleged February 24, 2020, screwdriver incident was unreliable for two reasons. First, her evidence conflicted with how she described the incident in her complaint and her own documentary evidence. Second, she was unable to resolve these inconsistencies in her evidence and attributed this to her limited memory. She was the sole witness on her behalf about this incident. She did not call any other evidence which could corroborate her complaint allegation, such as calling Janet as a witness, if she was indeed present.
[117] Since Ms. Dahl’s evidence is unreliable, it cannot be depended upon to prove her allegation about the screwdriver incident. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing Mr. Brier’s conduct on February 24, 2020, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. I move next to Ms. Dahl’s second 2020 allegation of discrimination.
6. March 28, 2020 – Alleged Entry Without Notice
[118] In her complaint Ms. Dahl alleged the following:
· At 8:30pm she was watching a movie, and Mr. Brier illegally entered her apartment. She heard her door handle moving and looked and Mr. Brier was staring down at her holding a large screwdriver in his left hand.
· She said, “get out of my apartment and I am going to call the Langley RCMP.” As she was dialing 911, Mr. Brier laughed, and jumped toward her and said “do you think that the police are going to help you, you faggot? They won’t. And remember I have a key for your apartment. I am not afraid of the police.”
· Then as Mr. Brier was leaving her apartment he said, “I can do whatever I want to you because Jeanette will protect me.” After he left, Ms. Dahl felt afraid for her life, and was scared that she would be physically attacked in or outside her home: April 16, 2021 complaint, p. 17-18.
[119] Ms. Dahl’s evidence at the hearing about this incident did not match her complaint allegation in several ways.
[120] At the hearing, Ms. Dahl’s evidence was that this incident occurred on February 23, 2020, at 7pm and not March 28, 2020, at 8pm. In her complaint, Ms. Dahl said she saw the door handle move. In her direct evidence she said she heard the door rattle.
[121] In her complaint Ms. Dahl said that Mr. Brier entered her apartment and stared her down with a large screwdriver in his left hand. In her direct evidence, there is no mention of Mr. Brier holding a screwdriver or staring her down. Instead, Ms. Dahl’s evidence in direct was that Mr. Brier laughed at her and said, “scared of me yet?” She replied, “get the hell out of my apartment” and locked the door behind him as he ran out of her apartment.
[122] In her complaint, Ms. Dahl said that Mr. Brier uttered a slur at her, told her he had a key to her apartment, was not afraid of the police, and that he could do what he wanted because Ms. Dagenais would protect him. When Ms. Dahl recounted this incident in her direct evidence, there was no mention of Mr. Brier uttering a slur, telling her that he had a key to her apartment, was not afraid of the police, or he could do what he wanted because Ms. Dagenais would protect him.
[123] In her direct evidence, Ms. Dahl relied on the December 2, 2020, email she sent to her advocate NC as part of her documentary evidence: Exhibit 10. In the email, Ms. Dahl’s version of events differs from both her complaint and testimony in some respects.
[124] First, in the email version this incident occurred on February 23, 2020, at 7pm. This is consistent with Ms. Dahl’s direct evidence but inconsistent with her complaint, placing this incident on March 28, 2020, at 8pm.
[125] Second, in the email version Ms. Dahl described the sequence of events as follows: Ms. Dahl told Mr. Brier to get the hell of her apartment, to which Mr. Brier laughed and said, “scared you yet?”; and Mr. Brier left when Ms. Dahl said she was going to call the police. In her direct evidence Ms. Dahl said it was Mr. Brier who first said, “scared of me yet?” and then Mr. Brier ran out of her apartment when she said, “get the hell out of my apartment.”
[126] Third, nowhere in Ms. Dahl’s email version of this incident does she say that Mr. Brier uttered a slur, told her he had a key to her apartment, that he was not afraid of the police, or that he could what he wanted because Ms. Dagenais would protect him. This is inconsistent with Ms. Dahl’s complaint allegation.
[127] Fourth, Ms. Dahl also said in her email version that she called Ms. Dagenais after calling the police but hung up because she no longer trusted Ms. Dagenais or her staff. She did not mention calling Ms. Dagenais in her complaint.
[128] Ms. Dahl’s evidence was that she reported this incident to the RCMP. Although Ms. Dahl had legal help to request any RCMP record about this incident, she had no RCMP documentation at the hearing to corroborate this.
[129] Ms. Dahl’s evidence about Mr. Brier’s alleged entry to her unit is unreliable for two reasons. First, her evidence at the hearing was fundamentally different from how she described the event in her complaint, including the date the incident occurred, and whether Mr. Brier uttered slurs. Her complaint was accepted on the basis of the specific allegations she set out in her complaint. Rather than give evidence at the hearing about those allegations, Ms. Dahl gave a different account of what happened and added new details.
[130] Second, Ms. Dahl’s evidence about this incident was contradicted by her own documentary evidence – her account of the incident in an email to advocate NC. She had no other corroborating evidence to support her version of events, including any record that she reported this incident to the RCMP.
[131] Since Ms. Dahl’s evidence is unreliable, it cannot be depended upon to prove her allegation about Mr. Brier’s entry without notice to her unit. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing Mr. Brier’s conduct, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. I move next to Ms. Dahl’s third 2020 allegation of discrimination.
7. April 22, 2020 – Alleged Slurs and Threats by Mr. Brier
[132] In her complaint Ms. Dahl alleged:
· She had an ongoing issue with a loud banging noise by her upstairs neighbour. At 9:50 a.m. she went up to knock on the upstairs tenant’s door because the noise was very loud. While she was standing there, waiting for the upstairs tenant to open the door, Mr. Brier arrived in the hallway and started to take pictures of her on his cell phone.
· Mr. Brier then said, “fuck you, I am taking pictures of you, you faggot, and we are going to evict you today.” She asked if Ms. Dagenais was in on this plan to evict her today as well. Mr. Brier said yes she was. Ms. Dahl was really worried about this verbal eviction threat.
· Then, more of the housing society staff came and began taking pictures and videos of Ms. Dahl too, including MJ, and two Society caretakers, Julius and William.
· Mr. Brier then said “you are going to be out on your ass, we are going to change your locks and throw your stuff out on the street. So, get the fuck out of here you faggot. Your days are numbered.” Ms. Dahl said, “are you threatening me?” Mr. Brier said “you are goddamn right I am.”
· Ms. Dahl called 911. The police came, took her statement, and she told them about the existing file and the threat of eviction. Police told her that the Society could not force her out of her home during COVID-19. The Police came to her unit later and said that they had talked with Mr. Brier, and that they weren’t going to evict her: April 16, 2021 complaint, p. 18-19.
[133] Ms. Dahl’s evidence at the hearing about the April 22, 2020, incident did not match her complaint allegation in several ways.
[134] First, in her complaint Ms. Dahl referred to knocking on the neighbour’s door. In her direct evidence she said that she was ready to knock on the door but that it was already propped open.
[135] Second, in her complaint, Ms. Dahl said she stood outside her neighbours door, waiting for her neighbour to answer the door, when Mr. Brier arrived. There is no mention of any interaction with her neighbour, or anyone in her neighbour’s suite. In her direct evidence, she said that since the neighbour’s door was propped open she could see two care aides inside. Then her evidence was that she told her neighbour that it’s “extremely noisy, I would appreciate it if you’d keep the noise down”, to which the care aides inside replied “we can do what we want.” Ms. Dahl’s evidence was that she further replied, “please because I live below you, it’s extremely noisy, I’m just asking for peace and quiet.”
[136] Third, nowhere in Ms. Dahl’s complaint does she mention having a friend with her during the April 22, 2020, incident. In her direct evidence she was standing with her friend Janet when five Society staff appeared in the hallway. Then, in her version of events in direct, Ms. Dahl said to Janet, “I think I might go back down in the elevator.”
[137] Fourth, in her complaint, Ms. Dahl only named four staff appearing in the hallway: Mr. Brier, MJ, Julius and William. In her direct evidence she said that five staff appeared in the hallway: Mr. Brier, MJ, Julius, William, and KG.
[138] Fifth, in her complaint, Ms. Dahl said that Mr. Brier appeared in the hallway first and then more staff. In her evidence at the hearing, she said all the staff came together and started taking pictures of her.
[139] Sixth, in her direct evidence, Ms. Dahl relied on her own contemporaneous notes to corroborate what Mr. Brier said to her. Her notes differed from both her complaint and testimony in direct. In the version of events set out in Ms. Dahl’s notes, Mr. Brier did not make any slurs based on Ms. Dahl’s gender identity or expression. Instead, in her notes, Ms. Dahl’s evidence was that Mr. Brier said: “I fucking mean it, your stuff and your ass will be out on the sidewalk”: Exhibit 4. In her notes, Ms. Dahl also only refers to four staff during the incident and not five. In her note, she named the four staff as Mr. Brier, MJ, Julius and William, and did not include KG. There is no mention in Ms. Dahl’s note of her friend Janet being present at the incident.
[140] As part of her evidence at the hearing, Ms. Dahl also relied on the RCMP’s record of this incident: Exhibit 6. The RCMP record described Ms. Dahl reporting to the police that the “head caretaker and the admin staff” were taking pictures of her and trying to evict her. The RCMP report also reflected Ms. Dahl reporting that she was upset over the noise the upstairs tenant was making and took matters into her own hands by going upstairs and “pounding on the tenant’s door.”
[141] Nothing in the police record corroborates Ms. Dahl’s version of events that Mr. Brier uttered slurs and threats to her. Nothing in the police record indicated that Janet was present as a potential witness to the April 22, 2020, event.
[142] As part of her evidence at the hearing. Ms. Dahl relied on a December 2, 2020, email she sent to advocate NC about the April 22, 2020, event: Exhibit 10. Ms. Dahl’s version of events in the email is different from both her complaint and testimony at the hearing. In the email, Ms. Dahl said that four staff rather than five appeared in the hallway. She described noticing all four staff in the hallway, rather than just Mr. Brier. In her version of events emailed to her advocate, Ms. Dahl did not mention any transphobic or homophobic slurs uttered by Mr. Brier. She did not mention that her friend Janet was present during the April 22, 2020, event.
[144] When Mr. Wong asked whether Janet was with Ms. Dahl or not, Ms. Dahl’s evidence was that Janet was there “to the best of my knowledge.” When Mr. Wong asked Ms. Dahl why she did not call Janet as a witness, Ms. Dahl’s evidence was that Janet told her she couldn’t remember the event clearly.
[145] Ms. Dahl’s evidence about the April 22, 2020, incident was unreliable for three reasons. First, her evidence at the hearing was fundamentally different from how she described the event in her complaint. Her complaint was accepted on the basis of the specific allegations she set out in her complaint. Rather than give evidence at the hearing about those allegations, Ms. Dahl gave a different account of what happened and added new details.
[146] Second, her evidence at the hearing was at odds with her own documentary evidence – her account of the incident in an email to advocate NC, and her own contemporaneous notes of the incident: Exhibits 4 and 10.
[147] Third, when questioned about these discrepancies, Ms. Dahl pointed to her faded, limited and hampered memory. Ms. Dahl was the sole witness on her behalf about the alleged April 22, 2020, incident. She did not call any other evidence which could corroborate her complaint allegation, such as calling Janet as a witness, if she was indeed present.
[148] What I am left with is a lack of reliable evidence about Ms. Dahl’s April 22, 2020, complaint allegation. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing Mr. Brier’s conduct, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. I move next to Ms. Dahl’s fourth 2020 allegation of discrimination.
8. 2020 to April 20, 2021 – Alleged Misgendering
[149] In her complaint, Ms. Dahl alleged that in 2020 onwards, Ms. Dagenais, Mr. Brier and other staff consistently referred to her as Andrew and male, even though she repeatedly explained that she wanted to be called Angela because she is trans. She said that Ms. Dagenais, Mr. Brier, and other staff ignored her requests to be called by a name that aligns with her gender and laughed at her when she asked to be called Angela: April 16, 2021 complaint, p. 19.
[150] Ms. Dahl’s evidence could not reasonably prove that she was consistently misgendered by Ms. Dagenais, Mr. Brier, and other staff after repeatedly explaining that she wanted to be called Angela. I come to this conclusion for four reasons.
[151] First, Ms. Dahl’s evidence could not reasonably prove that she repeatedly told Ms. Dagenais, Mr. Brier, and other staff to call her Angela prior to 2020.
[152] The documentary evidence that Ms. Dahl relied on to show that she told Ms. Dagenais to call her Angela, was the September 6, 2018, letter from health navigator LW. While LW did not expressly state that Ms. Dahl was asking to be called Angela, the letter does refer to her as Angela. However, as I found earlier, Ms. Dahl’s evidence that she attempted to provide Ms. Dagenais with this letter at the Evergreen office, but couldn’t because MJ threw the letter away, was unreliable.
[153] Second, even if Ms. Dahl’s evidence about this letter was reliable, it is not proof that she told Ms. Dagenais, Mr. Brier or other staff to call her Angela at that time. Ms. Dahl’s evidence, if I accepted it, was that MJ put the letter in the garbage and Ms. Dahl did not attempt to provide the letter to Ms. Dagenais by other means.
[154] Ms. Dahl did not point to any other documentary evidence where she asked Ms. Dagenais, Mr. Brier or other staff to call her Angela. The documentary evidence that Ms. Dahl produced for October 2018 to December 2019, included correspondence with Ms. Dagenais and other staff with the Society but in none of them did Ms. Dahl ask that she be called Angela instead of Andrew. Rather the correspondence relates to Ms. Dahl’s other tenancy grievances including alleged noise by her neighbour, and a concern about mice in her suite: Exhibits 8, 9 and 14.
[155] Third, when I asked Ms. Dahl to explain how her interactions with Ms. Dagenais, Mr. Brier and other staff about her tenancy grievances related to her gender identity, expression, or sex, she did not provide any specific examples of being referred to as Andrew by Ms. Dagenais, Mr. Brier or other staff. She did not point to any specific examples where she requested that Ms. Dagenais, Mr. Brier or other staff call her Angela.
[156] Fourth, by 2020, Ms. Dahl referred to herself as Angela in her communications with Ms. Dagenais and others at the Society. In turn, the documentary evidence shows that Ms. Dagenais and others at the Society referred to Ms. Dahl as Angela from February 10, 2020 onwards: Exhibit 2; Tabs 19-22.
[157] Ms. Dahl’s allegation that she was misgendered by Ms. Dagenais, Mr. Brier and other staff rests on evidence which I have already determined is unreliable; specifically, that she attempted to provide LW’s September 6, 2018, letter to the Society. Even if I found that evidence reliable, it is not evidence that Ms. Dahl asked Ms. Dagenais, Mr. Brier and other staff to call her Angela.
[158] Ms. Dahl could not point to any other evidence of expressly telling Ms. Dagenais, Mr. Brier or other staff that she wanted to be called Angela, and that Ms. Dagenais, Mr. Brier or other staff then insisted on calling her Andrew after that point. She could not point to any contemporaneous documents about requesting to be called Angela and then being misgendered. This is at odds with Ms. Dahl’s habit of making contemporaneous notes or reports about her interactions and grievances with Society personnel around that time: Exhibits 2 at Tabs 19 and 20, 4, 8, 10-12, and 14.
[159] In the end, Ms. Dahl provided a lack of reliable evidence about being misgendered by Ms. Dagenais, Mr. Brier and other staff from 2020 to April 20, 2021. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing that she was adversely impacted by Ms. Dagenais, Mr. Brier or other Society staff because of misgendering. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it. I move next to Ms. Dahl’s fifth and last 2020 allegation.
9. 2020 – Alleged Jiggling of the Doorknob as a Scare Tactic
[160] In her complaint, Ms. Dahl said that Mr. Brier was disinfecting doorknobs in the building during the Covid-19 pandemic. She alleged that while disinfecting the doorknobs, Mr. Brier also jiggled her doorknob a lot to scare her: April 16, 2021 complaint, p. 19.
[161] At the hearing, Ms. Dahl testified that during Covid, while wiping doorknobs with disinfectants in 2020 someone from the Society was “fiddling around with the door handle on the outside my apartment door, it would be rattling.” Her evidence was that:
· she knew it was Mr. Brier because he was doing the maintenance for the Society, and because Ms. Dahl quickly opened the door and noticed him running down the hallway.
· she knew Mr. Brier was trying to scare her because her door would rattle more than the door handles of any other tenants.
· You don’t have to rattle a door handle to clean it and concluded that Mr. Brier was using tactics to threaten and scare her.
· Mr. Brier rattled her door repeatedly.
[162] Ms. Dahl’s evidence that Mr. Brier excessively jiggled or rattled her doorknob as scare tactic is too speculative to reasonably prove this allegation of discrimination. On cross-examination, Ms. Dahl acknowledged that Mr. Brier had to touch all the suite doorknobs in order to disinfect them. While she insisted that Mr. Brier rattled her doorknob more than at other suites, she had no evidence, beyond speculation, that Mr. Brier was rattling her doorknob more than at other suites. Her evidence was not based on any of her actual observations, or corroborating witnesses or documents.
[163] She did not have any contemporaneous documents about this incident even though she was in the habit of making contemporaneous notes or reports about her interactions and grievances with Society personnel around that time: Exhibits 4, 8, 10-12, and 14.
[164] Speculation alone is inherently unreliable: Brar 2015 , para. 91. It is not evidence which is reasonably capable of proving an allegation.
[165] Ms. Dahl’s allegation that Mr. Brier used tactics to threaten and scare her rests on her speculative and unreliable allegation that Mr. Brier excessively rattled her doorknob. Further, any connection to Ms. Dahl’s protected characteristics and Mr. Brier’s alleged conduct is also based solely on Ms. Dahl’s speculation.
[166] Ms. Dahl’s evidence about this allegation is not reliable. This means that I do not have evidence from Ms. Dahl that is reasonably capable of showing Mr. Brier’s conduct, that it had an adverse impact on her, or that whatever occurred had any connection with Ms. Dahl’s sex, gender identity or expression. In other words, Ms. Dahl’s evidence about this allegation was not reasonably capable of showing discrimination and I am prepared to dismiss it.
IV CONCLUSION AND ORDERS
[167] In conclusion, the burden of proving discrimination rested with Ms. Dahl. She was unable to prove her allegations of discrimination because her evidence was unreliable. At best, the issues with her evidence could be attributed to her stated memory problems.
[168] I acknowledge Ms. Dahl’s evidence that her memory has been impacted by her declining health, and her submission that it is not her fault that she can’t remember. But that doesn’t transform her evidence into reliable evidence reasonably capable of proving her complaint.
[169] I dismiss Ms. Dahl’s complaint in its entirety.
[170] Both parties have raised the issue of costs. At the hearing, I indicated that I would pause any applications for costs until I issued this decision. Now that the parties have this decision, they have the option to apply for costs, based on the criteria to do so. If any party brings a costs application, the Tribunal will set down a submission schedule, and I will make a decision about costs.
V FINAL REMARKS
[171] While I have found that Ms. Dahl’s evidence was unreliable with respect to the specific allegations before me, I acknowledge her evidence that living her true gender identity is the “most brave thing” she ever did in her life because trans people are subject to hatred, violence and even killed on the basis of their gender identity or expression.
[172] Ms. Dahl’s general evidence that trans people face specific and systemic forms of discrimination and violence is recognized in law: Oger v. Whatcott (No. 7) , 2019 BCHRT 58, paras. 60-65; T.A. v Manitoba (Justice) , 2019 MBHR 12, paras. 23-30; Hansman v. Neufeld , 2023 SCC 14, paras. 84-89. I commend Ms. Dahl for her bravery.
[173] Ms. Dahl has resided with the Society since 2014. Since that time Ms. Dahl and the Respondents have had some disputes, including this one. I don’t know if this decision will provide any closure to them, but I wish the parties the best in their ongoing relationship.
Amber Prince
Tribunal Member
[1] I have used initials for third parties, or first names only where I do not know a third party’s last name. There is no public interest in publishing the full names of these third parties: Campbell v. Vancouver Police Board (No. 4 ), 2019 BCHRT 275, para. 7.