Gut v. The Owners, Strata Plan NW1799 and another, 2025 BCHRT 187
Date Issued: August 12, 2025
File: CS-006014
Indexed as: Gut v. The Owners, Strata Plan NW1799 and another, 2025 BCHRT 187
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:
Lilianna Gut
COMPLAINANT
AND:
The Owners, Strata Plan NW1799 and Juan Miguez
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c), 27(1)(e), and 27(1)(g)
Tribunal Member: Andrew Robb
On her own behalf: Lilianna Gut
Agent for the Respondents: Juan Miguez
I INTRODUCTION
[1] Lilianna Gut filed a human rights complaint alleging Juan Miguez and the Owners, Strata Plan NW1799 [the Strata] discriminated against her based on her sex. Ms. Gut owned a residential suite in the Strata. She and Mr. Miguez were both members of Strata council. Ms. Gut says that during her time on council, Mr. Miguez sexually harassed her in various ways. She says he made sexist comments about her, he physically harassed her, threatened her, and deliberately punctured her car tire. She also says he falsely accused her of violating Strata bylaws, and he undermined her campaign for re-election to Strata council. The Tribunal accepted her complaint in the areas of employment and services.
[2] The respondents deny discriminating. They say some of Ms. Gut’s allegations are untimely, and all of them are untrue. Even if the allegations are true, the respondents deny that any of Mr. Miguez’s conduct was connected to Ms. Gut’s sex. They say her human rights complaint is a form of revenge for perceived injustices related to the management of the Strata, and she was motivated to file the complaint because she was unsuccessful in her bid for re-election to Strata council.
[3] The respondents apply to dismiss Ms. Gut’s complaint. For the reasons set out below, I allow the application, in part. I find her allegations from more than one year before the complaint was filed are untimely, and I am not persuaded that I should exercise my discretion to proceed with these parts of the complaint. However, Ms. Gut’s remaining allegations require the Tribunal to make determinations about the parties’ credibility on issues that are central to the complaint, and I am not satisfied that Ms. Gut has no reasonable prospect of proving these allegations at a hearing, or that she has no reasonable prospect of proving Mr. Miguez’s conduct was connected to her sex. Nor I am satisfied that she filed the complaint for improper motives or in bad faith, as there is evidence that she made allegations similar to the ones in her complaint, while she was still on Strata council.
[4] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[5] Ms. Gut became a member of Strata council in late 2018. She alleges sexist comments by Mr. Miguez starting in October 2019, when she says he accused her of having a “bordello” in her home. The alleged comment was made in the context of a dispute about whether Ms. Gut’s short-term rental business, in which she rented out a room in her suite, complied with municipal regulations and Strata bylaws. Ms. Gut provided an audio recording of a Strata council meeting related to this incident. The recording appears to show that in discussing Ms. Gut’s rental business, she said, “remember the bordello you accused me of?” and Mr. Miguez responded, “that was a joke”.
[6] In December 2019, Ms. Gut says Mr. Miguez propositioned her to come to his residence for drinks and a “good time.” She provided a statement signed by a friend of hers, PG, saying that in November 2019, Mr. Miguez asked PG if he was dating Ms. Gut. PG says he told Mr. Miguez they were not dating, and Ms. Gut says Mr. Miguez propositioned her shortly after this. She says she declined his offer. Mr. Miguez denies inviting her to his residence, and says she invited him to hers.
[7] Ms. Gut’s complaint refers to threats by Mr. Miguez. She says that in May and September 2020, he sent her notes and pictures of her car, and threatened to fine her for violations of Strata bylaws in relation to her use of the Strata parking lot. The respondents say she violated the bylaws by allowing unauthorised vehicles to park in her assigned stall, and she parked in a stall assigned to other residents. Ms. Gut denies that she violated the parking bylaws.
[8] Ms. Gut says Mr. Miguez stalked her. Among other examples of stalking behaviour, she says she saw him near her balcony, looking into her suite, on several occasions. She provided a witness statement made by her neighbour, who says she also saw Mr. Miguez outside the building, looking up towards Ms. Gut’s balcony, on several occasions. The respondents did not address this allegation, or the suggestion that Mr. Miguez stalked Ms. Gut, in the materials before me.
[9] Ms. Gut says she called the police about Mr. Miguez’s alleged stalking behaviour after an incident in October 2020, when she found Mr. Miguez outside the door to her suite. She says a police officer advised her to ask him to stop this conduct, and she did so, during a Strata council meeting on October 21, 2020.
[10] During the same meeting, on October 21, 2020, when Mr. Miguez responded to Ms. Gut’s complaints about him, she says he made an inappropriate reference to her body parts, saying “she will say I am looking at her ass”. She provided an audio recording of part of the meeting. On the recording, Mr. Miguez described an incident where he helped Ms. Gut carry a large item into her suite. He said he made sure to walk in front of her, instead of following her in, because “I know how she is,” and he believed that if he followed her in, she would later accuse him of leering at her from behind.
[11] On November 3, 2020, Ms. Gut sent an email to other Strata council members, asking them to prevent “bashing language” within the Strata, including yelling and comments of a sexual nature. She says this was a reference to Mr. Miguez’s inappropriate comments about her. From the evidence before me, it is not clear whether anyone responded to her email.
[12] In February 2021, Ms. Gut says Mr. Miguez punctured her car tire. She provided evidence that the mechanic who repaired the tire found it was punctured by a specific type of blade tool. She also provided evidence that Mr. Miguez purchased the same type of tool, on the Strata’s account, in December 2020. The respondents deny that Mr. Miguez punctured the tire, but they do not deny that he purchased the tool, or explain what he purchased it for.
[13] Ms. Gut alleges that Mr. Miguez undermined her campaign for re-election to Strata council, in April 2021. The Strata consists of multiple multi-unit buildings, and she says that when she attempted to speak to Strata residents in one of the buildings, where Mr. Miguez’s girlfriend lived, Mr. Miguez called the police about her and chased her out of the building. The respondents deny that Mr. Miguez called the police about her; they say his girlfriend was the one who called the police. Ms. Gut provided a video recording of this incident, which appears to show Mr. Miguez’s girlfriend calling the police while Mr. Miguez instructs her about what to say to the police.
[14] Ms. Gut was not re-elected to Strata council, in the 2021 election. After the election, she submitted a complaint to council about Mr. Miguez sexually harassing her in 2020, based on some of the same allegations she makes in her human rights complaint. According to a letter to Ms. Gut from the Strata’s property manager, council discussed the allegations and “by unanimous approval have determined the complaint [of] harassment is not accurate.” The respondents did not provide any further evidence or information about council’s finding that her harassment allegations were inaccurate.
[15] The parties provided evidence of subsequent email correspondence between Mr. Miguez and Ms. Gut, from after the complaint was filed, in which they exchanged insults and angry accusations of misconduct. Ms. Gut accused Mr. Miguez of mismanaging the Strata’s financial affairs, while he accused her of violating Strata bylaws. The Strata fined her based on the alleged bylaw violations. These claims were eventually heard by the Civil Resolution Tribunal [CRT]: Gut v. The Owners, Strata Plan NW1799, 2021 BCCRT 1050 and Gut v. The Owners, Strata Plan NW1799, 2024 BCCRT 1066. In the first CRT decision, the CRT dismissed Ms. Gut’s allegations of financial mismanagement, and in the second the CRT revoked the fines imposed against her by the Strata. The CRT decisions do not address Ms. Gut’s allegations of sexual harassment, and the parties do not suggest the CRT’s findings are determinative of the issues in Ms. Gut’s human rights complaint.
[16] Ms. Gut moved out of the Strata in 2023.
III DECISION
A. Section 27(1)(g) – timeliness of 2019 allegations
[17] The respondents seek to dismiss two of Ms. Gut’s allegations under s. 27(1)(g) of the Code, on the basis that they are untimely: the allegations that Mr. Miguez accused her of having a “bordello” in her home in October 2019, and that he propositioned her in December 2019 [together, the 2019 Allegations].
[18] Under s. 22 of the Code, there is a one-year time limit for filing a human rights complaint. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[19] Section 27(1)(g) of the Code permits the Tribunal to dismiss a late filed complaint. The respondents argue that the 2019 Allegations are late filed and should be dismissed. I must decide whether the 2019 Allegations are late filed, and if so, whether to exercise my discretion to accept them because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3), School District v. Parent obo the Child, 2018 BCCA 136 at para. 68.
[20] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57at para. 23; School District at para. 50.
[21] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps in time between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length of the gap and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[22] Ms. Gut filed the complaint on May 11, 2021. Other than the 2019 Allegations, there is no dispute that the allegations in the complaint were timely, in that they are from less than one year before the complaint was filed. The 2019 Allegations are from more than one year before the complaint was filed, so they are late filed unless they are part of an alleged continuing contravention along with the timely allegations.
[23] Ms. Gut says all her allegations are related because they were all about Mr. Miguez humiliating and controlling her, making unwelcome sexual advances, and depriving her of opportunities. She says the gaps between her allegations can be explained because she complained about Mr. Miguez, to Strata council and to the police, and his behaviour stopped for a while, but he later resumed harassing her.
[24] For the following reasons, I find the 2019 Allegations are not part of a continuing contravention of the Code.
[25] In my view, the allegation that Mr. Miguez propositioned Ms. Gut, in December 2019, does not set out facts which, if proven, could establish a contravention of the Code. I understand that Ms. Gut objected to the alleged proposition, but there is nothing in her materials that could establish this incident was discriminatory. She does not suggest that Mr. Miguez was in a position of authority over her—they were both members of Strata council at the time—or that he persisted in making sexual advances after she rejected his proposition. In any event, this allegation has a different character than her other allegations, which suggest that Mr. Miguez targeted her for poor treatment. She does not suggest that he propositioned her on any other occasion. Since this allegation is unlike her other allegations, and does not establish an arguable contravention of the Code, it cannot be part of a continuing contravention.
[26] Turning to the alleged “bordello” comment, in October 2019, Ms. Gut suggests this was part of a pattern of sexist comments by Mr. Miguez. However, I find she has not explained how it could be seen as part of a continuing contravention of the Code, in light of the gap in time between this allegation and her timely allegations of a similar character. Ms. Gut’s next allegation of a sexist comment by Mr. Miguez is from October 2020, when he allegedly made reference to her body parts, and suggested she would falsely accuse him of leering at her from behind. This gap of approximately one year is significant, in the context of her complaint.
[27] Ms. Gut says the gaps in time between her allegations can be explained because Mr. Miguez temporarily stopped his discriminatory conduct when she complained about him to Strata council and the police. But she does not suggest, and there is no evidence before me, that she made any such complaints before October 2020. Without any explanation for the gap in time between October 2019 and October 2020, I am not satisfied that the October 2019 allegation is part of a continuing contravention.
[28] Since the 2019 Allegations are not part of a continuing contravention, I find they are late filed. Since they are late filed, I now consider whether to proceed with these allegations under s. 22(3) of the Code. The burden is on Ms. Gut to persuade the Tribunal to proceed with the allegations. I must consider two things: whether it is in the public interest to proceed with the 2019 Allegations, and whether no substantial prejudice will result to any person because of the delay in filing this part of the complaint.
[29] The Tribunal assesses the public interest in a late filed complaint in light of the purposes of the Code, which include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against. The Tribunal may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria), 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152. The inquiry is always fact and context specific.
[30] In her complaint, Ms. Gut says sexual harassment is hard to report, and proceeding with her complaint is in the public interest because it will help women to work in a harassment-free environment. She does not explain why she did not file the complaint sooner.
[31] For the following reasons, I am not satisfied that it is in the public interest to proceed with the 2019 Allegations.
[32] The complaint was filed approximately 17 months after the date of Ms. Gut’s allegation that Mr. Miguez propositioned her, and 19 months after the date when he allegedly referred to her “bordello”. This means the 2019 Allegations were late filed by five to seven months. While a delay of five to seven months is not insurmountable, under s. 22(3) of the Code, Ms. Gut has provided limited information about why it is in the public interest to proceed with the 2019 Allegations. I accept her submission that sexual harassment is hard to report, but she does not explain why she was able to file a complaint in May 2021, but not sooner. Ms. Gut filed the complaint shortly after she stopped being a member of Strata council, but she does not suggest that she had to wait until she was no longer on council before filing a complaint.
[33] Ms. Gut does not explain her claim that accepting the complaint will help women to work in a harassment-free environment. In particular, she does not explain how it applies to the 2019 Allegations. Without any explanation for why Ms. Gut did not file the complaint sooner, I find her delay in filing outweighs her arguments about the public interest in proceeding with the 2019 Allegations.
[34] Since Ms. Gut has not established that it is in the public interest to proceed with the 2019 Allegations, it is unnecessary for me to consider whether doing so would cause substantial prejudice to any person.
[35] I dismiss the 2019 Allegations under s. 27(1)(g) of the Code.
[36] Although I have dismissed the 2019 Allegations, that does not mean they are irrelevant to Ms. Gut’s complaint. Evidence about incidents outside the scope of a complaint may still be relevant to the complaint if, for example, it supports an inference that an incident within the scope of the complaint was connected to a complainant’s protected characteristic: Clarke v. City of Vancouver and another (No. 3), 2023 BCHRT 126 at para. 36. I refer to the 2019 Allegations below, not as allegations of discrimination, but as evidence to be considered in the assessment of whether Ms. Gut has no reasonable prospect of proving a connection between her sex and Mr. Miguez’s conduct described in her timely allegations.
B. Section 27(1)(c) – no reasonable prospect of success
[37] The respondents apply to dismiss the remainder of Ms. Gut’s allegations under s. 27(1)(c) of the Code, on the basis that they have no reasonable prospect of success. Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to dismiss complaints which do not warrant the time and expense of a hearing. The onus is on the respondents to establish the basis for dismissal.
[38] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[39] 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.
[40] 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.
[41] To prove her complaint at a hearing, Ms. Gut will have to prove she has a characteristic protected by the Code, she was adversely impacted in the area of employment and/or services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[42] The respondents say Ms. Gut cannot prove any of these elements. They say no harassment or sexist comments occurred, and none of Mr. Miguez’s conduct was connected to her sex as a woman. I understand their argument to be that she has no reasonable prospect of proving the facts alleged in her complaint, and that even if she does prove those facts, she has not brought the connection between the respondents’ conduct and her sex beyond the realm of conjecture.
[43] For the following reasons, I am not satisfied that Ms. Gut’s complaint has no reasonable prospect of success.
[44] I begin my analysis by noting that the parties’ arguments in the application to dismiss do not address which section of the Code applies to the complaint. As noted above, the Tribunal accepted the complaint in the areas of services, under s. 8 of the Code, and employment, under s. 13.
[45] The Tribunal has addressed discrimination by strata councils under s. 8 of the Code, but a strata’s obligation under s. 8 is grounded in the services it provides to owners. Some of Ms. Gut’s allegations appear to engage the services provided by the Strata, including the administration of bylaws and the administration of Strata council elections, but much of her complaint is about Mr. Miguez’s conduct towards her as a fellow member of Strata council.
[46] I am not aware of any previous Tribunal decisions about whether a member of a strata council is an “employee” within the meaning of s. 13 of the Code. Members of Strata council are volunteers, as the respondents point out, but volunteer positions may constitute “employment” under s. 13: Mamela v. Vancouver Lesbian Connection, 1999 CanLII 31595 (BCHRT) at para. 63.
[47] Without any arguments on this issue, I make no finding about whether Ms. Gut has no reasonable prospect of proving that the conduct she complains about falls within the scope of ss. 8 and 13. In this decision I will assume, without deciding, that she will establish that both sections apply. But I note that, at a hearing, the burden will be on Ms. Gut to prove not only that the respondents treated her negatively, and her sex was a factor in that negative impact, but also that the negative treatment occurred in the context of her employment by the Strata and/or in the services she received from the Strata, or from Mr. Miguez in his role as a member of Strata council.
[48] I now turn to the respondents’ arguments. The respondents’ denial of any harassment or sexist comments, in the face of Ms. Gut’s allegations, gives rise to issues of credibility. In my view these issues are foundational to the complaint. Since I cannot resolve them in a preliminary application to dismiss the complaint, the respondents’ application under s. 27(1)(c) cannot succeed.
[49] In any event, I am not satisfied that Ms. Gut has no reasonable prospect of proving that sexist comments occurred. She provided an audio recording that appears to corroborate her claim that Mr. Miguez referred to her body parts and suggested she would falsely accuse him of leering at her, in October 2020. These comments address Ms. Gut’s sexuality, and her alleged propensity to make false allegations of harassment. The Tribunal could find, after a hearing, that they were sexist.
[50] Nor am I satisfied that Ms. Gut has no reasonable prospect of proving harassment by Mr. Miguez. Based on the undisputed evidence that he purchased the same type of tool that was used to puncture her car tire, and that he was seen on multiple occasions outside the building, looking up towards her balcony, I find Ms. Gut has taken this allegation beyond conjecture.
[51] Finally, I am not satisfied that Ms. Gut has no reasonable prospect of proving the respondents’ conduct had no connection to her sex. On their own, the allegations that Mr. Miguez falsely accused her of violating Strata bylaws, and that he attempted to stop her from campaigning for re-election in the building where his girlfriend lived, may appear to be based on interpersonal problems between Strata council members, unrelated to their sex. However, considering the entire context of the allegations and evidence, including the evidence that he referred to her “bordello” and propositioned her in 2019, I am satisfied that Ms. Gut has taken the connection between Mr. Miguez’s conduct and her sex beyond the realm of conjecture.
[52] For these reasons, I deny the application to dismiss under s. 27(1)(c) of the Code.
C. Section 27(1)(e) – Complaint made for improper purposes or in bad faith
[53] The respondents apply to dismiss the complaint under s. 27(1)(e) of the Code, on the basis that it was filed for improper motives or in bad faith. Dismissal under this section requires a finding of wrongdoing: Mokhtari v. Hain-Celestial Canada and others, 2007 BCHRT 196 at para. 7. This is a difficult standard to meet on a preliminary application, where parties are not subject to cross-examination.
[54] To establish an improper motive or bad faith, a respondent must do more than present a different version of events and say the complainant is wrong: Crosby v. Dairyland Fluid Division Ltd. and others, 2004 BCHRT 1 at para. 35. They must show that the complainant did not have an honest belief that the Code was violated, or was motivated by some “ulterior, deceitful, vindictive, or improper” purpose that is inconsistent with the Code: Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 2), 2005 BCHRT 359 at para. 13. This issue is assessed objectively, because it is rarely possible to know the mind of the complainant: Johnson v. Cheng and another, 2012 BCHRT 408 at para. 57.
[55] The respondents say Ms. Gut did not honestly believe that they violated the Code, and she filed this complaint for vindictive, improper reasons. They say the complaint continues a pattern of false accusations against Mr. Miguez, and Ms. Gut filed it because she was aggrieved that she was not re-elected to Strata council, in 2021.
[56] I am not satisfied that Ms. Gut filed the complaint for improper purposes or in bad faith. I acknowledge that there is ample evidence of ill will between Ms. Gut and Mr. Miguez: I have noted the insults and accusations of misconduct in their email correspondence, and Ms. Gut’s CRT claim about Mr. Miguez. But it is not unusual for people who believe they have been discriminated against to have negative feelings towards those they hold responsible for the discrimination. Evidence of ill will, on its own, is not sufficient to prove that Ms. Gut filed the complaint for improper purposes.
[57] I do not accept the respondents’ submission that Ms. Gut’s allegations have no factual foundation. I have found there is at least some evidence in support of her allegations. As set out above, I am not persuaded that her allegations against Mr. Miguez have no reasonable prospect of success.
[58] More importantly, there is evidence before me showing that Ms. Gut called the police about Mr. Miguez’s conduct in early October 2020, complained about this conduct during a Strata council meeting on October 21, 2020, and sent an email to Strata council about his sexual comments on November 3, 2020. At these times, she was still a member of council. The respondents’ application under s. 27(1)(e) does not address this evidence, which contradicts their assertions that she did not have an honest belief that her rights under the Code were violated, and that she was only motivated to file the complaint because she was angry about Strata council decisions and because she was not re-elected to Strata council. In light of this evidence, I am not satisfied that Ms. Gut only filed the complaint because she disagreed with council decisions and she was not re-elected.
[59] I deny the application to dismiss under s. 27(1)(e) of the Code.
IV CONCLUSION
[60] I allow the application to dismiss in part. I dismiss the 2019 Allegations under s. 27(1)(g) of the Code. Ms. Gut’s other allegations, from 2020 and 2021, will proceed to a hearing.
Andrew Robb
Tribunal Member