Cardinal and another v. The Owners, Strata Plan KAS 112, 2025 BCHRT 152
Date Issued: June 25, 2025
File: CS-002627
Indexed as: Cardinal and another v. The Owners, Strata Plan KAS 112, 2025 BCHRT 152
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:
Mathieu Cardinal and David Sutch
COMPLAINANTS
AND:
The Owners, Strata Plan KAS 112
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
On their own behalf: Mathieu Cardinal, David Sutch
Counsel for the Respondent: Amanda Groves
I INTRODUCTION
[1] Mathieu Cardinal and David Sutch are a married couple who reside in a strata building operated by the Respondent Strata Plan KAS 112. They allege that the Strata discriminated against them in the area of service on the basis of sexual orientation, contrary to s. 8 of the Human Rights Code. They say the Strata failed to respond appropriately to their complaints about being harassed by a resident of the Strata who shouted a homophobic slur at Mr. Cardinal.
[2] The Strata denies discriminating and applies to dismiss the complaint under s. 27(1)(c) of the Code. It says the complaint has no reasonable prospect of success because it took the complainants’ allegation of harassment seriously and responded reasonably. It says it held a hearing about the allegations and issued a warning letter to the resident of the strata unit alleged to have harassed the complainants.
[3] For the following reasons, I allow the Strata’s application and dismiss the complaint. I am persuaded that the complaint has no reasonable prospect of success at a hearing because the Strata is reasonably certain to establish a defense.
[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 Preliminary issue – new allegations
[5] In their response to the dismissal application, the Complainants make a number of new allegations against the Strata. They say Mr. Cardinal was not allowed to participate in a Strata Annual General Meeting (AGM), the Strata held them responsible for water leaks from their unit, and the Strata told them their air conditioning unit was in breach of the Strata’s bylaws. The Strata argues that these are new allegations and that the Tribunal should not consider them in deciding their application to dismiss.
[6] If a complainant wants to add new allegations to their complaint while an application to dismiss is pending, they must first file an application under Rule 24(4)(b) of the Tribunal’s Rules of Practice and Procedure to amend the complaint. The purpose of Rule 24(4)(b) is to prevent a moving target for respondents who have filed a dismissal application by placing an onus on the complainant to persuade the Tribunal to exercise its discretion to allow the complaint to be amended at this late stage: Jamali and another v. The Owners, Strata Plan No. VR732, 2023 BCHRT 151 at para. 7. Since the Complainants did not apply to amend, I decline to consider the new allegations and have not considered them in adjudicating this application.
III BACKGROUND
[7] Mr. Sutch and Mr. Cardinal moved into the strata building on February 26, 2019. The building consists of multiple residential strata lots in a three-story building.
[8] On March 25, 2019, the Complainants met a neighbour [the Neighbour], when he came to their unit to complain about a visitor bringing a dog to their unit. The Neighbour alleged this was a contravention of the Strata’s bylaws.
[9] The Complainants say the Neighbour would come to their unit regularly to complain about the level of noise from their unit. They say they eventually told the Neighbour to take up further complaints with the Strata. They say the Neighbour then complained to the Strata about the noise. They also say the Neighbour complained to the Strata about the Complainants installing a security camera. The Neighbour alleged that the security camera installed by the Complainants was on common property and a breach of the Strata’s bylaws.
[10] On November 27, 2019, Mr. Cardinal and the Neighbour were in a stairwell on the common strata property. Mr. Cardinal says he bumped into the Neighbour as he was passing him, and the Neighbour got angry and ranted at him. He says the Neighbour used a homophobic slur during this interaction.
[11] On November 28, 2019, the Complainants made a written complaint to the Strata about the incident in the stairwell. In their complaint they asked the Strata to “seek a court order to vacate [the Neighbour]” and impose fines on him.
[12] On December 9, 2019, the Strata convened a Strata council meeting to discuss the complaint. The Neighbour was not present at the meeting. The Strata decided to issue a letter to the Neighbour setting out the allegations against him and giving him an opportunity to respond or request a hearing on the allegations.
[13] The Strata sent the letter to the Neighbour on December 13, 2019, advising that the Strata has received allegations of harassment and aggressive behaviour by the Neighbour. The Strata advised that the alleged behaviour may have contravened Article 3(1) of the Strata’s bylaws by unreasonably interfering with the rights of others to use and enjoy the property. The Strata said that the Neighbour could respond to the allegations or request a hearing. The Strata said if the Neighbour did not respond or request a hearing the Strata may make a determination on whether there has been a bylaw contravention based on the information they had.
[14] The Neighbour denied the Complainants’ allegations of the encounter in the stairwell. Because there were no other witnesses to the interaction between the Neighbour and Mr. Cardinal, the Strata determined that there was insufficient evidence to issue a fine against the Neighbour. The Strata took no further action against the Neighbour.
IV DECISION
[15] The Strata applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Strata to establish the basis for dismissal.
[16] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[17] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[18] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[19] To prove their complaint at a hearing, the Complainants would have to prove that the Strata’s response to their complaint about their Neighbour’s homophobic slur adversely impacted them in respect of a service, and that their sexual orientation was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If they did that, the burden would shift to the Strata to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[20] The Strata argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove a defence at a hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50. It says it took all reasonable steps to respond to the complaint about the Neighbour by convening a meeting and issuing a warning letter to the Neighbour in accordance with its bylaws and governing legislation.
[21] In order to establish its justification defense, the Strata must prove that: (1) it adopted the standard for a purpose rationally connected to the function being performed, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose, in that the Strata cannot accommodate the Complainants without incurring undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20.
[22] The Strata argues that its power to enforce its bylaws and issue fines are set out in s. 135 of the Strata Property Act which provides that a strata must not impose fines without giving particulars of the complaint to a person in writing and providing the person a reasonable opportunity to answer the complaint.
[23] I understand the Complainants do not dispute that the Strata is reasonably certain to establish the first two elements required by Grismer but say the Strata ultimately failed to take reasonable action against the Neighbour. Specifically, they say the Strata should have issued bylaw infraction fines against the Neighbour and evicted them from the property or ordered the Neighbour to have no contact with the Complainants.
[24] On the materials before me, I am persuaded that the Strata is reasonably certain to establish at a hearing that they could have done nothing more, without incurring undue hardship.
[25] Before me is evidence of the Strata’s response to the complaint about the Neighbour. The Complainants’ complaint was received and reviewed by the Strata council, Strata manager, and lawyer for the Strata corporation. The Strata convened a meeting on December 9, 2019, to deal with the Complainants’ allegation of harassment. A copy of the minutes from that meeting was put before me. The materials show that the Strata council decided to issue a bylaw letter pursuant to the Strata Property Act, allowing the Neighbour an opportunity to respond to the allegations. A copy of the bylaw letter of December 13, 2019, shows the Neighbour was given details of the complaint and given an opportunity to respond. The materials also support the Strata’s position that the Neighbour denied the allegations of the stairwell interaction and there was no additional evidence to support the Complainants’ allegations.
[26] I appreciate that the Complainants believe the Strata could have taken further action by fining the Neighbour, ordering the Neighbour to have no contact with the Complainants, or forcing a sale of the Neighbour’s property. However, the Strata has put before me documentary materials including statute and legal advice from their lawyer which supports their position that they do not have the authority to take such actions. The evidence shows the Strata was advised “the council has no authority to issue a no contact order.” Further, s.135 of the Strata Property Act provides that the Strata’s powers in respect of a contravention of a bylaw or rule is to impose a fine or penalty. There is nothing before me to support the Complainant’s assertion that the Strata could have ordered no contact or forced a sale of the Neighbour’s property. I am also persuaded by the Strata’s evidence of their bylaws and dispute resolution processes that it would have contravened their own bylaws and rules to issue fines against the Neighbour when the allegations were disputed and they had no evidence other than the Complainant’s allegations. On the materials before me I am persuaded that the Strata could take no further action in response to the Complainants’ allegations about their Neighbour without contravening the Strata Property Act and their own bylaws which would have been an undue hardship.
[27] In my view, the complaint has no reasonable prospect of success because the Strata is reasonably certain to establish a defense at a hearing. As such I dismiss it under s. 27(1)(c) of the Code.
V CONCLUSION
[28] I allow the Strata’s application under s. 27(1)(c) of the Code and dismiss the complaint.
Edward Takayanagi
Tribunal Member