Mudaliar v. The Owners, Strata Plan NWS 1348 (Sir Philip) and others, 2025 BCHRT 192
Date Issued: August 15, 2025
File: CS-003757
Indexed as: Mudaliar v. The Owners, Strata Plan NWS 1348 (Sir Philip) and others, 2025 BCHRT 192
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:
Sabrina Mudaliar
COMPLAINANT
AND:
The Owners, Strata Plan NWS 1348 (Sir Philip) and Patrick Prochaza and Alva Cline
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Edward Takayanagi
Advocate for the Complainant: Aleena Sharma
Counsel for the Respondents: Shawn M. Smith
I INTRODUCTION
[1] In this decision, I explain why I deny the Respondents’ application to dismiss Sabrina Mudaliar’s complaint under s. 27(1)(d)(ii) of the Human Rights Code, on the basis that it would not further the purposes of the Code to proceed with a hearing in circumstances where a respondent made a reasonable settlement offer.
[2] Ms. Mudaliar alleges the Owners, Strata Plan NWS 1348, and two of the strata council members, Patrick Prochaza and Alva Cline, discriminated against her in the area of services on the grounds of race, sex, physical disability, and mental disability contrary to s. 8 of the Code. She says the individual Respondents and other strata council members sexually harassed her, made discriminatory comments about her disabilities, and tampered with her utilities. She says the Strata failed to intervene and stop the harassment and it failed to address noise issues in her unit which negatively affected her disabilities.
[3] The Respondents made a with prejudice settlement offer to Ms. Mudaliar to resolve the complaint. Ms. Mudaliar rejected the offer, and the Respondents now apply to dismiss the complaint. Ms. Mudaliar opposes the application and disputes that the offer is reasonable. Specifically, she says the offer is revokable by the Respondents and does not meet the pre-requisite of a reasonable offer to remain open for acceptance regardless of the outcome of the application to dismiss. Ms. Mudaliar also says the monetary amount for injury to dignity, feelings, and self-respect is too low.
[4] For the following reasons, I deny the application to dismiss the complaint. I am not persuaded that the settlement offer is reasonable and find the purposes of the Code are best served by allowing this complaint to proceed.
[5] 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] Ms. Mudaliar is a South Asian woman with Post Traumatic Stress Disorder [PTSD], general anxiety disorder, and brain trauma causing migraines and cognitive issues. She moved into the building operated by the Strata in 2016.
[7] Mr. Prochaza and Ms. Cline were strata council members. Mr. Prochaza was also the caretaker of the building.
[8] Ms. Mudaliar alleges that between 2017 and 2021, she was sexually harassed by Mr. Prochaza who made unwanted advances on her, entered her unit without permission, and peered into her unit. Ms. Mudaliar also alleges that Mr. Prochaza turned off the heat, water, and power to her unit on several occasions which negatively affected her disabilities.
[9] Ms. Mudaliar alleges Ms. Cline harassed her by mocking her disabilities and making disparaging comments about her culminating in a written “hate note” she slid under her door.
[10] Ms. Mudaliar says the Strata failed to prevent the harassment after she reported the incidents. She also says that the Strata failed to address noise complaints she made about neighboring units and the continuing noise worsened her disabilities.
[11] On April 16, 2024, the Respondents made a with prejudice offer to settle the complaint. They said the only item of relief Ms. Mudaliar is seeking appears to be that Ms. Mudaliar wants to move, and made an offer on the following terms:
a. The Respondents will pay up to $5,000 for the costs incurred by Ms. Mudaliar for packing and moving from the unit provided she moves within 6 months of entering into an agreement with the Respondents.
b. The Respondents will pay $5,000 for compensation for injury, dignity, and self-respect.
c. Ms. Mudaliar will withdraw any other proceedings against the Respondents arising from the facts on which the complaint is based and agree (by signing a release) not to commence any other proceedings against the Respondents related to the facts on which the complaint was based.
d. Ms. Mudaliar will withdraw her human rights complaint within seven business days of entering a settlement.
e. The offer is open for acceptance until revoked.
[12] Ms. Mudaliar rejected the offer to settle.
III DECISION
[13] The Respondents argue that it would not further the Code’s purposes to allow the complaint to proceed because it made a reasonable settlement offer: Carter v. Travelex Canada, 2007 BCHRT 275 at para. 23-25, upheld in 2009 BCCA 180.
[14] There are two pre-requisites for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: at Dar Santos v. University of British Columbia, 2003 BCHRT 73 para. 64; Carter at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the application to dismiss: Issa v. Loblaw, 2009 BCHRT 264at para. 35.
[15] Here, the offer is with prejudice satisfying the first pre-requisite. Ms. Mudaliar says the offer is open until revoked which means that the Respondents reserve the right to revoke the offer at anytime. Therefore, she argues, the offer does not meet the second requirement that a reasonable settlement offer must remain open for the complainant’s acceptance even if rejected and regardless of the outcome of this application.
[16] The Respondents argue there is no requirement that a reasonable settlement offer be irrevocable, and the offer currently remains open for acceptance.
[17] I agree with the Respondents that Issa does not provide that a reasonable settlement offer must be irrevocable. However, an offer must remain open for the complainant’s acceptance even if rejected and even if the Tribunal were to dismiss the application to dismiss. There is nothing in the offer to suggest that it will remain open regardless of the outcome of the dismissal application. I cannot consider a settlement offer that is subject to the Respondents’ ability to revoke at any time to be open for acceptance as required. In my view, it must be clearly set out in a settlement offer that it will remain open for the complainant’s acceptance regardless of the outcome of the dismissal application to satisfy the pre-requisite for a reasonable settlement offer.
[18] As this settlement offer is subject to the Respondents’ right to revoke it, I am not satisfied that it clearly remains open for acceptance by Ms. Mudaliar regardless of the outcome of the application to dismiss. Therefore, the Respondents have not shown their settlement offer meets the pre-requisite for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. Accordingly, I decline to exercise my discretion to dismiss the complaint pursuant to s.27(1)(d)(ii) of the Code.
[19] Even if I had exercised my discretion and considered dismissing the complaint in light of the Respondents’ settlement offer, I would reach the same conclusion. This is because I find the settlement offer is not reasonable for the following reasons.
[20] First, the settlement offer does not fully address the allegations and the available remedies. The Respondents say the only relief Ms. Mudaliar seeks is to move. This is incorrect. In her complaint form Ms. Mudaliar says she is seeking the following remedies:
a. Order to stop the discrimination.
b. Declaration that the conduct is discrimination.
c. Steps or programs to address the discrimination.
d. Compensation for injury to dignity, feelings, and self-respect.
e. Compensation for lost wages or expenses.
f. To move out of her unit.
[21] It is not necessary for a settlement offer to mirror exactly what the Tribunal would order: Carter at para. 30. However, the offer must fully address the allegations and available remedies, both monetary and non-monetary, including whether the respondents’ remedial actions adequately remedied the alleged violation and are consistent with the types of orders the Tribunal might make if the complaint was successful: Issa at para. 35. Here, the Respondents only address the portions of Ms. Mudaliar’s complaint dealing with injury to dignity and to move out of her unit. I find the offer does not fully address Ms. Mudaliar’s allegations or the remedies she seeks.
[22] Second, the settlement offer requires Ms. Mudaliar to move out of her home within six months of accepting the offer and requires her to withdraw all other proceedings and waive her right to commence any other proceedings. An offer is not reasonable if it requires the complainant to agree to something that the Tribunal could not order, like waiving their rights in another forum: Lowther v. Vancouver Island Health Authority, 2013 BCHRT 20 at paras. 40-41.
[23] Third, I find the Respondents’ offer of $5,000 for injury to dignity to be below the range of what the Tribunal might award if Ms. Mudaliar proves her allegations.
[24] The Tribunal has the discretion to award compensation for injury to dignity: Code, s. 37(2)(d)(iii). The purpose of these awards is compensatory, not punitive. The amount of compensation depends on the specific facts and circumstances in a given case and relevant factors: Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185, aff’d in 2014 BCCA 396 at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases. In making an injury to dignity award the Tribunal often considers several factors including the nature of the discrimination; the complainant’s vulnerability; and the effect on the complainant: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 225.
[25] Any discrimination is serious; however, the egregiousness of the discriminatory conduct varies depending on the specific facts of the case: Cyncora v. Axton Inc., 2022 BCHRT 36 at para. 114. Here, the nature of the alleged discrimination is serious consisting of persistent harassment and disruption in Ms. Mudaliar’s home. Ms. Mudaliar says that over a period of three years she faced repeated sexual harassment from Mr. Prochaza which escalated to unwanted physical contact and trespassing into her home. The Tribunal has recognized sexual harassment is a profound affront to the dignity of those forced to endure it and will attract a relatively high injury to dignity amount: Ms. K v. Deep Creek Store and another, 2021 BCHRT 158 at para. 128-129. The Tribunal has also said because a person has a right to quiet enjoyment of their home free from fear and trepidation, discrimination in respect of a person’s home can be particularly egregious: Smith v. Mohan (No. 2), 2020 BCHRT 52 at paras. 283-284.
[26] In this case, in addition to the sexual harassment by Mr. Prochaza, Ms. Mudaliar says Ms. Cline made repeated discriminatory remarks about her and slid a “hate note” under her door, the Respondents tampered with her utilities so that she was without heat, electricity, and hot water in her home and the Strata failed to take action when she complained about noise coming into her unit, which is an ongoing issue.
[27] Ms. Mudaliar has numerous vulnerabilities, including her mental and physical disabilities and being a racialized woman living alone after fleeing domestic violence. Ms. Mudaliar says her history of traumatic abuse made her particularly vulnerable to the harassment and discrimination she experienced. The Tribunal has acknowledged that pre-existing vulnerabilities may support a higher award: Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 at paras. 135.
[28] Ms. Mudaliar alleges that the effect of the discrimination is very severe and ongoing. She says the discrimination aggravated her preexisting anxiety and post traumatic stress disorder and has negatively affected her mental and physical health. She reports feeling unsafe in her own home, experiencing panic attacks, poor sleep, and social isolation.
[29] The Respondents say $5,000 is within the reasonable range of what the Tribunal might award. They refer me to the following cases they say support their position: McDaniel and McDaniel v. Strata Plan LMS 1657 (No. 2), 2012 BCHRT 167 ($4,500); Salanguit v. Parq Vancouver and another, 2024 BCHRT 119 ($4,000); MacDonald v. Najafi and another (No. 2), 2013 BCHRT 13 ($4,000).
[30] The cases the Respondents rely on do not persuade me that their offer is reasonable. First, I note that two of the cases the Respondents rely upon are over ten years old. The Tribunal’s trend for injury to dignity awards is tending upwards: Benton v. Richmond Plastics, 2020 BCHRT 82 at para 78.
[31] Next, the nature of the discrimination in the cases cited are discrete compared to the present complaint. McDaniel is a case about a strata’s failure to respond and accommodate when the complainants reported second-hand smoke ingress in their unit. Salanguit is a case about an employer’s response to the complainant reporting bullying and harassment by another employee. MacDonald also deals with discrimination in employment where another employee made insulting comments about the complainants’ sex. In contrast, Ms. Mudaliar’s complaint alleges ongoing sexual harassment, derogatory comments about her protected characteristics, and the Strata’s failure to respond to her requests.
[32] Further, in Salanguit where the Tribunal found the settlement offer was reasonable, it considered evidence of the employer’s corrective and remedial actions which appropriately addressed the impact of the discrimination on the complainant. Here, in contrast, Ms. Mudaliar alleges, and there is evidence in support, that she continues to be adversely impacted by the noise in her unit.
[33] In light of the above, I do not need to decide whether it would not further the purposes of the Code to proceed with the complaint in the face of the settlement offer, as I am unable to conclude that the Respondents’ settlement offer has met the pre-requisite of being open for acceptance regardless of the outcome of the application to dismiss. Nor am I persuaded that the offer is reasonable.
IV CONCLUSION
[34] I deny the Respondents’ application to dismiss.
[35] I encourage the parties to take advantage of the Tribunal’s mediation services and explore the possibility of resolving this complaint through mutual agreement.
Edward Takayanagi
Tribunal Member