Shah v. Oak Tree Foundation and another, 2025 BCHRT 154
Date Issued: June 25, 2025
File: CS-004239
Indexed as: Shah v. Oak Tree Foundation and another, 2025 BCHRT 154
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:
Yoshnika Shah
COMPLAINANT
AND:
Oak Tree Foundation and Zorica Milutinovic
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT, APPLICATION FOR COSTS
Section 27(1)(c), (d)(ii) and (f) and Section 37(4)
Tribunal Member: Edward Takayanagi
On their own behalf: Yoshnika Shah
On their own behalf: Zorica Milutinovic
Agent for Oak Tree Foundation: Michael Redekop
I INTRODUCTION
[1] Yoshnika Shah alleges she was discriminated against in tenancy on the basis of physical and mental disability contrary to s. 10 of the Human Rights Code when Oak Tree Foundation and Zorica Milutinovic [the “Respondents”] evicted her from her rental unit.
[2] The Respondents deny discriminating. They say Ms. Shah was evicted because of her conduct, not because of a disability. Oak Tree Foundation says it is the owner of the suite Ms. Shah was occupying, and that it incurred strata fines because of Ms. Shah’s breaches of strata bylaws. Ms. Milutinovic says she was an employee of the property management company that issued the eviction notice, and that the property management company evicted her because of repeated and unaddressed strata bylaw infractions and complaints from neighbours.
[3] The Respondents each apply to dismiss the complaint under s. 27(1) of the Code. Specifically, they both apply under s. 27(1)(c) on the basis that the complaint has no reasonable prospect of success; s. 27(1)(d)(ii) on the basis that it would not further the purposes of the Code to proceed with the complaint; and s. 27(1)(f) on the basis that the substance of the complaint has been appropriately dealt with in another proceeding.
[4] Ms. Shah did not respond to the applications. The Tribunal set a schedule for submissions by a letter dated December 9, 2024. Ms. Shah did not file a response by the deadline of February 18, 2025. Ms. Shah filed an application for costs against the individual respondent on April 16, 2025. In her costs application Ms. Shah says she wishes to continue with her complaint. In these circumstances, I am satisfied Ms. Shah had notice of the dismissal application and an opportunity to file a response but has not done so. I do not find it necessary to seek submissions from the Respondents on the cost application. I find there is no unfairness in making this decision on the materials before me.
[5] For the following reasons, I dismiss the applications. The Respondents have provided insufficient information to support dismissal on any of the grounds they advanced. I also find Ms. Shah has provided no information on which I could base an order for costs. 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
[6] I take the background facts from the parties’ materials. I make no findings of fact.
[7] Ms. Shah was a tenant in a rental unit owned by Oak Tree. The rental unit is in a multi‑unit strata building. Ms. Milutinovic was an employee of the property management company hired by Oak Tree to manage the tenancy.
[8] Ms. Shah has a dog. Shortly after the tenancy started in November 2020, the neighbors in the unit below Ms. Shah complained of dog urine dripping down from Ms. Shah’s patio. The Respondents say the strata investigated the issue, determined that Ms. Shah was allowing dog urine to drip onto the unit below in contravention of a strata bylaw, and issued a fine to Oak Tree as the property owner. Oak Tree provided the violation letter to Ms. Shah.
[9] Ms. Shah does not dispute that the strata found she was violating bylaws but says the strata’s findings were “fabricated.” She denies that she let dog urine fall onto her neighbors’ unit.
[10] In or about February 2021, Oak Tree issued a notice to end the tenancy. Ms. Shah disputed the notice, and the matter was heard by the Residential Tenancy Branch [RTB] and subsequently on judicial review by the BC Supreme Court. The Respondents say the notice to end tenancy was upheld and Oak Tree was given an order of possession.
[11] Ms. Shah says the Respondents’ decision to evict her is discriminatory because she has mental health issues, and her dog is a service animal.
III DECISION
A. Application to Dismiss
[12] The onus is on the Respondents to establish the basis for dismissal. In my view, the Respondents provided insufficient evidence to support their applications. Consequently, I find they have not met their onus.
1. Section 27(1)(c) – Is there no reasonable prospect the complaint will succeed?
[13] 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.
[14] 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.
[15] To prove her complaint at a hearing, Ms. Shah will have to prove that she has a physical or mental disability protected by the Code, she was adversely impacted in tenancy, 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 the Respondents to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[16] The Respondents say the complaint has no reasonable prospect of success because their decision to evict Ms. Shah was based solely on the strata violation and fines. I understand their argument to be that there is no reasonable prospect Ms. Shah will prove at a hearing that there is a connection between her protected characteristic and the termination of her tenancy.
[17] Based on the materials before me I am not persuaded the complaint has no reasonable prospect of success. I understand the Respondents to be arguing that their decision to end the tenancy was based on wholly non-discriminatory reasons. What is missing is any evidence to support the Respondents’ assertion that Ms. Shah violated strata bylaws and that was the sole basis for the Respondents’ conduct. There is nothing before me but the Respondents’ assertion to support their version of events. Without more, I can not say that Ms. Shah’s complaint has no reasonable prospect of succeeding at a hearing. Consequently, I deny the application under s. 27(1)(c).
2. Section 27(1)(d)(ii) – Does it further the purposes of the Code to proceed with the complaint?
[18] Under s. 27(1)(d)(ii) the Respondents argue that it would not further the purposes of the Code to proceed because they did not discriminate.
[19] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. University of British Columbia, 2003 BCHRT 73, at para. 59, Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125, at paras. 113-118.
[20] I am not persuaded that the Respondents have established that it would not further the purposes of the Code to proceed with the complaint in the circumstances. Whether the Respondents’ termination of the tenancy was discriminatory is the ultimate issue to be determined. In my view, the Respondents disagreeing with the merits of the complaint is not a basis to dismiss the complaint under s. 27(1)(d)(ii).
[21] Ms. Milutinovic also says she was an employee following procedures and instructions from her employer. I understand her to be arguing that it would not further the Code’s purpose to proceed against her as an individual respondent: Daley v. B.C. (Ministry of Health) and others, 2006 BCHRT 341.
[22] I am not persuaded that it would not further the purpose of the Code to proceed against Ms. Milutinovic for the following reasons. Ms. Milutinovic says she was an employee for a property management company but does not identify her employer. I understand from the submission that Ms. Milutinovic was not an employee of Oak Tree, but no other institutional respondent is named. Oak Tree has not acknowledged the responsibility to satisfy any remedial order which the Tribunal might make in respect of Ms. Milutinovic’s conduct. In these circumstances, if the complaint is dismissed as against Ms. Milutinovic, and the Tribunal finds that discrimination occurred, there is the risk that Ms. Shah would be left without a remedy which would be contrary to the purposes of the Code.
[23] Consequently, I deny the application under s. 27(1)(d)(ii) of the Code.
3. Section 27(1)(f) – Has the matter been conclusively dealt with in another proceeding?
[24] Under s. 27(1)(f) the Respondents argue that this matter has been conclusively dealt with by the RTB and upheld on judicial review.
[25] The Tribunal may dismiss a complaint under s. 27(1)(f) of the Code if the substance of the complaint has been appropriately dealt with in another proceeding. The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack, and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, at paras. 25 and 36.
[26] I have not been provided with a copy of the RTB decision or the Court’s decision on judicial review, or even a neutral citation for the decisions. On the limited materials before me, I am not persuaded that another proceeding has dealt with the complaint. The Respondents’ submission consists of bare assertions that there were other proceedings without any evidence to support their submission. Because there is no evidence before me from which I could conclude that another proceeding has dealt with the substance of the complaint-that Ms. Shah was discriminated against on the basis of her mental disability-I deny the application under s. 27(1)(f) of the Code.
B. Costs Application
[27] Ms. Shah applies for an order of costs against Ms. Milutinovic for improper conduct in the course of a complaint: Code, s. 37(4). She says Ms. Milutinovic is “hacking her emails” and harassing her. I deny the cost application for the following reasons.
[28] The Tribunal may award costs “against a party to a complaint who has engaged in improper conduct during the course of the complaint”: Code, s. 37(4). The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3 at para. 102. It aims to deter conduct that has a significant and detrimental impact on the integrity of the Tribunal’s process: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 246.
[29] Ms. Shah’s allegation of improper conduct is not supported by any evidence. She has provided no details about the alleged email hacking and harassment and has not stated why she believes it is connected to Ms. Milutinovic or Ms. Milutinovic’s conduct in this proceeding. In short, Ms. Shah has provided no information from which I can find that Ms. Milutinovic has engaged in any improper conduct. Accordingly, I dismiss the cost application.
IV CONCLUSION
[30] The applications to dismiss are denied. Ms. Shah’s application for costs is denied.
Edward Takayanagi
Tribunal Member