Shah v. Oak Tree Foundation and another (No.2), 2025 BCHRT 201
Date Issued: August 19, 2025
File: CS-004239
Indexed as: Shah v. Oak Tree Foundation and another (No.2), 2025 BCHRT 201
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 RECONSIDER A DECISION
RULE 36
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 filed a complaint alleging 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 evicted her from her rental unit.
[2] The Respondents each applied to dismiss the complaint under s. 27(1)(c), (d)(ii), and (f) of the Code. In Shah v. Oak Tree Foundation, 2025 BCHRT 154 [the Original Decision], I denied the applications.
[3] Oak Tree has now filed an application under Rule 36 of the Tribunal’s Rules of Practice and Procedure for reconsideration of the Original Decision.
[4] I have not found it necessary to seek submissions from Ms. Shah or Ms. Milutinovic.
[5] For the following reasons, I deny the reconsideration application.
II BACKGROUND
[6] The background to Ms. Shah’s complaint is set out in the Original Decision and I will not repeat it here: Shah at paras. 7-11. In brief, Ms. Shah was a tenant in a multi-unit strata building managed by Oak Tree. Ms. Shah was issued a notice to end tenancy by the Respondents, because they say Ms. Shah incurred fines from the strata for violating strata rules by letting her dog urinate on the balcony to the floors below.
[7] The issues before me in the Original Decision were whether there was no reasonable prospect Ms. Shah could establish that her protected characteristics were a factor in the Respondents’ decision to end the tenancy; whether it would not further the purposes of the Code to proceed with the complaint; and whether the substance of the complaint had been conclusively dealt with in another proceeding. I was not satisfied that the Respondents had met their burden on the totality of the evidence before me for the dismissal application, and I dismissed the applications.
III Analysis and DECISION
[8] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure. Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141 at para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4), 2007 BCHRT 206 [Grant] at para 10.
[9] The burden is on the person seeking to have a matter re-opened to show that the interests of fairness and justice demand such an order: Grant at para. 10.
[10] The Tribunal does not have authority to reconsider a decision based on an argument that the decision was wrong or unreasonable or because there has been a change of circumstances: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 [Fraser Health] at paras. 135 and 160. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not, or to hear a party reargue its case: Ramadan v. Kwantlen Polytechnic University and another (No. 2), 2018 BCHRT 56 at para. 13. When a party simply disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[11] The Tribunal may reconsider a decision where there is new evidence that was not available at the time the party made its submission: Gichuru v. Vancouver Swing Society and others, 2018 BCHRT 18 at para. 22. Relevant factors include whether the new evidence could affect the result, and whether reconsideration would result in prejudice: Gichuru at paras. 22, 43.
[12] Circumstances where fairness and justice may warrant reconsideration include where a party or their counsel make an error. For example: where counsel did not provide the party’s submission (Zutter v. British Columbia (Council of Human Rights), 1993 CanLII 2582 (BC SC); aff’d. 1995 CanLII 1234 (BC CA); leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 243) or where a party acted on a misunderstanding of the applicable procedures (Rashead v. Vereschagin, 2005 BCHRT 426).
[13] Where a party relies on its own error, relevant factors include the party’s explanation for the error and whether it is reasonable, and any prejudice to another party: Maydak v. B.C. (Ministry of Public Safety and Solicitor General and Ministry of Attorney General) (No. 2), 2007 BCHRT 455 at para. 8.
[14] Here, Oak Tree says it made a mistake in not providing materials to support its dismissal application. It now submits over 300 pages of documents it says supports their dismissal application.
[15] I find that none of Oak Tree’s arguments present circumstances where fairness and justice require intervention in the Original Decision.
[16] First, the materials Oak Tree now submits are all dated 2021. Because submissions on the dismissal application closed on February 18, 2025, all of this material was available to Oak Tree at the time of the original application process. They are not new evidence. Oak tree had the opportunity to submit evidence during the original application process and did not do so. An application for reconsideration is not an opportunity for a party to submit evidence that was available at the time of the original application in an attempt to strengthen their arguments.
[17] Second, Oak Tree has provided no explanation for why it did not submit evidence at the time of the original application. Oak Tree says it made a mistake but have not explained the reason for the mistake. I find it would be unfair to Ms. Shah to consider the materials now submitted with the reconsideration application, because Oak Tree has not explained why it was not included in their original application to dismiss.
[18] For these reasons, I am not satisfied that Oak Tree has met their burden of showing that it would be in the interest of fairness and justice to reconsider the Original Decision.
IV Conclusion
[19] I deny the application for reconsideration.
Edward Takayanagi
Tribunal Member