Brathwaite v. Lu’ma Native Hosing Society, 2025 BCHRT 181
Date Issued: August 7, 2025
File: CS-007968
Indexed as: Brathwaite v. Lu’ma Native Hosing Society, 2025 BCHRT 181
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:
Shanna (Lee) Brathwaite
COMPLAINANT
AND:
Lu’ma Native Housing Society
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Robin Dean
Counsel for the Complainant: Sohrab Rezaei
Counsel for the Respondent: M. Ashley Mitchell
I INTRODUCTION
[1] Shanna (Lee) Brathwaite [Lee Brathwaite], a Black, Jamaican immigrant who identifies as non-binary, lived in a shelter operated by the Lu’ma Native Housing Society [Lu’ma] for approximately two years during the COVID-19 pandemic. On December 20, 2021, they filed a complaint alleging that Lu’ma discriminated against them in tenancy, or alternatively, services, based on their race, colour, ancestry, and place of origin contrary to ss. 8 and 10 of the Human Rights Code. In particular, Lee Brathwaite says that during their stay in the shelter, Lu’ma:
a. failed to prevent and adequately respond to repeated incidents of racial harassment from both staff and other tenants, including the use of racial slurs and physical abuse;
b. breached their privacy when a staff member shared their personal information without their consent, used a racial slur, and treated them with suspicion; and
c. created and allowed a hostile, discriminatory living environment, where they faced ongoing racial discrimination, which Lu’ma failed to address.
Lee Brathwaite says that as a result, they experienced a sense of vulnerability, anxiety, and fear in their living situation, which resulted in significant harm to their well-being and mental health.
[2] Lu’ma denies discriminating. It applies to dismiss the complaint under s. 27(1)(c) and s. 27(1)(g) of the Code.
[3] I find that I can resolve Lu’ma’s application under s. 27(1)(c) of the Code, which requires me to decide whether the complaint has no reasonable prospect of success. In particular, I must determine whether Lee Brathwaite has taken their allegations of adverse impact out of the realm of conjecture.
[4] For the following reasons, I am persuaded by Lu’ma’s arguments that it is reasonably certain to prove that it appropriately addressed the allegations of discrimination it was aware of. I dismiss Lee Brathwaite’s complaint as having no reasonable prospect of success. To make this decision, I have considered all the information filed by the parties. In these reasons, I refer only to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] Lu’ma is a non-profit housing society. Lu’ma provides affordable housing and offers a wide range of programs, services, and initiatives, which it says aim to alleviate poverty, improve the overall health of the urban Indigenous community, and respond to the evolving needs of Indigenous peoples.
[6] During the pandemic, Lu’ma partnered with BC Housing to operate shelter units in a hotel. Lu’ma says Lee Brathwaite lived in one of those units from May 2020 until the fall of 2022, when Lu’ma stopped operating the shelter units.
[7] During their time in the shelter, Lee Brathwaite says they experienced racial harassment that Lu’ma failed to meaningfully address.
[8] First, Lee Brathwaite says in an unsworn statement submitted in response to the application to dismiss that in July 2020, a Lu’ma employee, R, asked them whether they “belonged” at the shelter and then shared information from their personal file externally with another person R knew with the same last name as Lee Brathwaite, breaching Lee Brathwaite’s privacy. They say that when they confronted R about it, R said, “What’s the big deal? She’s just a [N-word]. Remember, we don’t need you. You need us.” They also say that R asked for their room number during another encounter. Lee Brathwaite says they gave R the wrong room number, room 523, because they felt unsafe around R. They say they saw R later trying to enter room 523. Lee Brathwaite says that R was later angry and called them a “motherfucker” for giving him the wrong room number.
[9] Lee Brathwaite says they reported R to Lu’ma. They say they spoke with the program manager at Lu’ma who told them R admitted to sending their file out to an external contact. They say they requested a meeting with R and Lu’ma to discuss R’s alleged use of the N-word as well as the alleged privacy breach. Lee Brathwaite says the meeting never occurred because a new program manager came into the role before the meeting could be scheduled.
[10] However, Lu’ma denies that Lee Brathwaite reported concerns at the time about R breaching their privacy or using the N-word. Lu’ma says the allegations against R included:
a. asking Lee Brathwaite if they were related to another person R knew with the last name Brathwaite, who was also Black and who lived elsewhere in Canada;
b. asking Lee Brathwaite if they belonged at the shelter when they came to the shelter’s office and met R for the first time;
c. yelling at Lee Brathwaite; and
d. performing a room check on the room that Lee Brathwaite said they were occupying without knocking or calling.
[11] Lu’ma says that after investigating the allegations and speaking with R, it determined that:
a. R did ask Lee Brathwaite whether they were related to another Brathwaite, but this was an attempt by R to build rapport and to connect with Lee Brathwaite;
b. R did not ask Lee Brathwaite whether they “belonged” at the shelter. Although R did not recall the conversation Lee Brathwaite reported, he said he would have asked instead whether they were “part of the program”;
c. R asked shelter residents their room numbers so he could get to know them and mark them off the health and wellness sheet, which Lu’ma confirms was proper protocol at the shelter; and
d. R did not recall doing a heath and wellness check alone and did not recall doing one on the room Lee Brathwaite said they were staying in.
[12] Lu’ma says the first time it learned about the alleged privacy breach is when it received a letter from Lee Brathwaite’s advocate in November 2021. Lu’ma says that at that time, R denied the allegation. It also says it could find no evidence that Lee Brathwaite’s personal information was transferred to anyone outside of Lu’ma.
[13] Next, Lee Brathwaite alleges that in March 2021, they and another tenant got into a verbal altercation during which the other tenant called Lee Brathwaite a “fucking bitch” and “a fucking [N-word]” in front of Lu’ma staff. Lu’ma says that in response to this incident, it called the police and asked the other tenant to leave the shelter the next day. Lee Brathwaite says that after this altercation, no one from Lu’ma followed up with them about the incident or addressed the other tenant’s actions.
[14] Finally, Lee Brathwaite says that in July 2021 another tenant called them the N-word, damaged their scooter, and injured them when he rammed a bench into them and their scooter. They say they reported the incident to Lu’ma staff and asked them to call the police and an ambulance. Lu’ma says it called the police; but denies that Lee Brathwaite asked for an ambulance. According to Lee Brathwaite, neither the police nor an ambulance ever arrived. Lee Brathwaite says that after the incident, Lu’ma did not follow up with them, investigate, or check on their wellbeing.
[15] Lee Brathwaite says that they were the only Black tenant at the shelter and that racial harassment was a regular occurrence, but they did not report any other incidents to Lu’ma because they were too frequent. They also say that because the other incidents were not addressed by Lu’ma, they did not see the point in continuing to report what was happening to them.
[16] According to Lee Brathwaite, they moved out of the shelter as soon as they found alternative housing in March 2022.
III Preliminary issues
[17] Lee Brathwaite applies to file further submissions, or a sur-reply. They say the further submissions are necessary to address new issues raised in Lu’ma’s reply submissions, they submit an additional unsworn statement in support of their application to file further submissions. It is my understanding that Lu’ma takes no position on the application.
[18] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Tribunal Rules of Practice and Procedure [Rules], Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, para. 21.
[19] Lee Brathwaite says the sur-reply is necessary to explain why their statement is unsworn. However, they explained in their response to the application to dismiss why their statement is unsworn. The sur-reply contains additional explanation as to why Lee Brathwaite’s response to the application to dismiss was supported by an unsworn statement only, not an affidavit. I do not consider the further submissions with respect to this issue. These further explanations for why they provided an unsworn statement could have been given in Lee Brathwaite’s response to the application to dismiss, but were not.
[20] In any event, there is no hard and fast rule that an application response be supported by an affidavit, and I decline Lu’ma’s invitation to disregard the unsworn statement. To the extent that Lee Brathwaite’s statement contains inconsistencies, the proper place to consider any arguments about those inconsistencies is below in the s. 27(1)(c) analysis.
[21] Next, Lee Brathwaite says they should be permitted to file further submissions on an argument raised for the first time in reply, namely that Lee Brathwaite’s unsworn statement contains new allegations not referenced in the Complaint. As this was a new argument put forward by Lu’ma in their reply, I will consider Lee Brathwaite’s sur-reply on this issue.
[22] Lu’ma suggests in its reply submissions that the Complaint did not allege that Lee Brathwaite asked for a meeting with R. It says that this is therefore a new allegation that should not be considered. Lee Brathwaite says that what Lu’ma calls a new allegation is additional detail, or further particulars, which give context to the allegations in the complaint. I agree with Lee Brathwaite.
[23] I am satisfied that any new details concerning the requested meeting with R contained in the response to the application to dismiss are grounded in the complaint allegations, which included that Lee Brathwaite “wanted a meeting with additional managers, [R], and other staff who were present” to discuss what Lu’ma could do to make Lee Brathwaite feel safer in their living situation. It is not improper or uncommon to include additional details in the response to the application to dismiss: Ramstead v. Rocky Mountain Riders Snowmobile Tours and Rentals Ltd. and another, 2025 BCHRT 71 at para. 14. Lu’ma had a chance to respond to any new particulars in its reply. I have therefore considered these additional details, or further particulars, in deciding this application to dismiss.
IV DECISION
[24] The essence of Lee Brathwaite’s complaint is that Lu’ma failed to respond to the harassment and discrimination they say they experienced from Lu’ma staff and other residents at the shelter units. Lee Brathwaite says they felt insecure and unsafe in their housing situation because of the discrimination they faced at the Lu’ma shelter, which they say Lu’ma failed to meaningfully address.
[25] Lu’ma 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 Lu’ma to establish the basis for dismissal.
[26] 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.
[27] 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.
[28] 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.
[29] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67. Where a credibility issue is central, the Tribunal will consider whether it can resolve the issue on the basis of corroborative affidavit and contemporaneous documentary evidence: Evans, at para. 37.
[30] To prove their complaint at a hearing, Lee Brathwaite will have to prove that they have a characteristic protected by the Code, they were adversely impacted in tenancy or services, and their protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. The Tribunal has recognized that a complainant may independently experience adverse impacts because of an inadequate response to discrimination: Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2), 2022 BCHRT 129 at para. 54.
[31] Lu’ma does not dispute that Lee Brathwaite has characteristics protected under the Code. Rather, it says that there was no tenancy within the meaning of the Code. It further argues that there is no adverse impact, or no adverse impact attributable to Lu’ma. Lu’ma says it adequately responded to the incidents by investigating them and taking the appropriate steps to mitigate the impact on Lee Brathwaite.
[32] Since the parties do not dispute the applicability of s. 8 of the Code, I find I do not need to determine whether Lee Brathwaite had a tenancy within the meaning of s. 10 of the Code. Therefore, I turn to the question of whether there is no reasonable prospect of Lee Brathwaite proving an adverse impact.
1. Inadequate response to discrimination from staff and tenants
[33] Lee Brathwaite alleges that Lu’ma failed to prevent and adequately respond to incidents of racial harassment from staff and other tenants. I am satisfied that this allegation has no reasonable prospect of success. The materials before me indicate that for the incidents it was aware of, Lu’ma is reasonably certain to prove that it took these incidents seriously, investigated them, and took action where appropriate.
[34] First, on the evidence before me, I am satisfied that Lu’ma is reasonably certain to prove at a hearing that regarding the incidents involving the alleged use of the N-word, to the extent Lu’ma knew or reasonably ought to have known about them, Lu’ma took each incident seriously and responded to them appropriately in the circumstances.
[35] Lee Brathwaite alleges that R referred to the other Brathwaite he knew as an N-word when Lee Brathwaite confronted him about the alleged privacy breach. However, the materials before me do not indicate that Lee Brathwaite told Lu’ma that R had said the N-word to them. While Lee Brathwaite says in their unsworn statement that they told Lu’ma about this incident, Lu’ma denies that it was told. Generally, foundational credibility issues must go to a hearing. However, in the materials before me is a contemporaneous email between Lu’ma staff discussing what had occurred between Lee Brathwaite and R, including that R allegedly asked Lee Brathwaite if they “belonged” at the shelter. The email, which is detailed, does not mention Lee Brathwaite’s allegation that R had used the N-word. I find, based on this email, that I can resolve the credibility issue before me in Lu’ma’s favour. I am satisfied there is no reasonable prospect of Lee Brathwaite proving an inadequate response to this incident given that the evidence before me indicates that Lu’ma had no knowledge of it at the time.
[36] Second, Lee Brathwaite alleges that they were called a “fucking [N-word]” by another tenant in March 2021. There is no dispute that this incident occurred; Lu’ma staff witnessed it. In response, Lu’ma asked the other tenant to leave the shelter units the following day. While Lee Brathwaite says that no one followed up with them after this incident or otherwise addressed this behaviour, I am satisfied that Lu’ma is reasonably certain to prove that this response was reasonable and appropriate. The evidence indicates that it took the complaint seriously, addressed it promptly and appropriately an in a way that ensured the alleged discrimination did not occur again.
[37] Finally, Lee Brathwaite alleges that Lu’ma failed to adequately respond to their concerns in July 2021, when another tenant called them the N-word and pushed a bench into them, damaging their scooter and injuring them. Lee Brathwaite says they reported the incident to Lu’ma, who reviewed the video footage and questioned the other tenant. Lee Brathwaite seems to suggest that an adequate response to the situation would have been to call the police and an ambulance. They say they asked for Lu’ma to call the police and an ambulance but neither arrived at the scene.
[38] Lu’ma says it called the police. Any suggestion that the police were not actually called because they never arrived is speculation and conjecture, which is not enough to survive a s. 27(1)(c) application. In terms of the ambulance, regardless of whether one was called or not, there is no evidence before me indicating that calling an ambulance would have been reasonable and appropriate under the circumstances.
[39] I appreciate that Lee Brathwaite is disappointed by the outcome of Lu’ma’s response to the incident. However, my task is not to dictate a particular outcome. Rather, it is to look at the evidence of the process of investigating and responding to a complaint of discrimination and determining whether, on the materials before me, the allegation has been taken beyond the realm of speculation and conjecture.
[40] I am satisfied that Lu’ma is reasonably certain to prove it responded in a reasonable and appropriate manner by reviewing the video footage of the incident and questioning the other tenant. In light of Lu’ma’s evidence of the steps they took to respond to Lee Brathwaite’s complaint, I am not satisfied that Lee Brathwaite’s assertion that Lu’ma did not respond in a meaningful way has been taken out of the realm of conjecture. Lee Brathwaite’s allegation that Lu’ma did not respond to their complaint in a meaningful way is not supported in the evidence.
2. Further Incidents
[41] Next, Lee Brathwaite says that apart from the specific instances discussed above, they were subject to ongoing racial harassment from the other tenants throughout their time living in the shelter units, which Lu’ma did not address. However, they acknowledge that they did not report these incidents to Lu’ma. Lee Brathwaite says they were too frequent to report. If these incidents occurred in Lee Brathwaite’s living space, that is very unfortunate. However, I find that this allegation also has no reasonable prospect of success against Lu’ma.
[42] I am satisfied on the material before me that Lu’ma is reasonably certain to prove at a hearing that it could not have done anything to address these alleged incidents because it was not aware, or could not reasonably have been aware, of them. Further, Lu’ma is not liable for the behaviour of the other tenants of the shelter units: Code, s. 44(2). While it can be liable for an inadequate response to that behaviour, Lu’ma can only respond to allegations of discrimination that it is aware, or reasonably ought to have been aware, of.
3. Breach of Lee Brathwaite’s Privacy
[43] Finally, Lee Brathwaite alleges that R breached their privacy by sharing their file with an external contact. Generally, the Tribunal does not have jurisdiction under the Code to consider privacy issues: Stein v. Vancouver Coastal Health Authority and another, 2013 BCHRT 145 at para. 12. Because there is no standalone right to privacy, Lee Brathwaite must still take their discrimination complaint vis-à-vis the privacy breach out of the realm of speculation and conjecture.
[44] Here, Lee Brathwaite alleges that the privacy breach itself was an act of discrimination. They argue that taking all the allegations about R together, an inference can be drawn that R’s conduct was based on “racial assumptions and the Complainant’s colour”. They reference the allegations that R shared their personal file outside of the shelter with a Black friend and used the N-word when Lee Brathwaite confronted him about the privacy breach.
[45] Lu’ma responds that there is no reasonable prospect of Lee Brathwaite proving adverse impact, arguing that the privacy breach allegation does not rise above speculation and conjecture.
[46] Lee Brathwaite says R told them he shared their file outside of the organization. Lu’ma says R denied this and that there was no other evidence that the file had been shared. It also relies on the same contemporaneous email outlining Lee Brathwaite’s complaint against R, written at the time the incidents with R occurred. The email mentions that R asked Lee Brathwaite if they knew another Black person with the same last name. Significantly, the email does not mention the allegation that R had told Lee Brathwaite that he sent their file out of province. Rather, Lu’ma points out, the first time the alleged privacy breach is mentioned is several months later, in the letter from Lee Brathwaite’s advocate. Again, I find, based on this contemporaneous email, that I can resolve the credibility issue before me in Lu’ma’s favour. I am satisfied there is no reasonable prospect of Lee Brathwaite proving that the privacy breach occurred given the email evidence before me.
V CONCLUSION
[47] I dismiss the complaint under s. 27(1)(c) of the Code. The complaint will not proceed.
Robin Dean
Tribunal Member