Erhardt v. Barefoot Beach Resort Ltd. and another, 2025 BCHRT 205
Date Issued: August 19, 2025
File: CS-006203
Indexed as: Erhardt v. Barefoot Beach Resort Ltd. and another, 2025 BCHRT 205
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:
Kalen Erhardt (by Rhonda Erhardt)
COMPLAINANT
AND:
Barefoot Beach Resort Ltd and Breanna Lindsay
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a)
Tribunal Member: Theressa Etmanski
On their own behalf: Rhonda Erhardt
Agent for the Respondents: Breanna Lindsay
I INTRODUCTION
[1] This is a decision about whether to dismiss Kalen Erhardt’s human rights complaint without a hearing.
[2] Mr. Erhardt lived in a RV park managed by Barefoot Beach Resort. He alleges that he was treated adversely and ultimately evicted based on his mental disability, contrary to s. 10 of the Human Rights Code.
[3] Barefoot denies discriminating. It says it had legitimate reasons for asking Mr. Erhardt to move out of the RV park. It asks the Tribunal to dismiss the complaint without a hearing because it is not within the Tribunal’s jurisdiction. Specifically, it says that Barefoot is located on reserve land and therefore falls within federal jurisdiction.
[4] For the following reasons, the application to dismiss the complaint is denied. The complaint will be scheduled for a hearing.
II BACKGROUND
[5] Barefoot carries out business as an operator of short-term vacation rentals and a RV park. It is incorporated pursuant to the laws of British Columbia. Barefoot operates as a family business. Breanna Lindsay is a director and the president, and she manages the day-to-day operations of the RV park.
[6] Barefoot is located on the Penticton Indian Reserve. It operates under a “Buckshee lease” with the family who owns the land. Occupants of the RV site are required to sign a Licence to Occupy which must be approved by the landowners.
[7] Kalen Erhardt has a diagnosis of Sensory Processing Disorder and struggles with significant anxiety and sensory issues. In 2019, he began residing at Barefoot where he parked his RV, in accordance with the Licence to Occupy.
[8] The parties have presented conflicting versions of events that transpired throughout Mr. Erhardt’s time residing at Barefoot. They ultimately agree that Mr. Erhardt’s Licenence to Occupy the RV park was not extended past October 2020.
III DECISION
[9] Section 27(1)(a) permits the Tribunal to dismiss all or part of a complaint that is not within its jurisdiction.
[10] The Tribunal can determine its own jurisdiction at a preliminary stage where there are “sufficient foundational facts” and a “clear legal question”: HTMQ v. McGrath, 2009 BCSC 180 at para. 64. The Tribunal has the discretion to defer a determination of its jurisdiction when additional evidence or factual inquiry is necessary for that determination: McGrath, at para. 64; Barker v. Hayes, 2008 BCCA 148 at paras. 33-35.
[11] Barefoot says the Tribunal does not have jurisdiction over this complaint because the land in question is part of the Penticton Indian Reserve, which it says falls under federal jurisdiction. Although it does not explicitly say so, I understand Barefoot’s position to be based on s. 91(24) of the Constitution Act, 1867, which provides exclusive federal jurisdiction over “Indians and lands reserved for Indians.” Barefoot therefore raises a constitutional question in this application.
[12] Barefoot was informed by the Tribunal that to raise a constitutional question under s. 27(1)(a), it must give notice to the Attorney General of Canada and the Attorney General of British Columbia under s. 8 of the Constitutional Questions Act: Code, s. 32(j) and Administrative Tribunals Act, s. 46. It did not do so. As a result, the Tribunal cannot decide the constitutional question in this application.
[13] Barefoot may advance its jurisdictional argument again at the hearing, with proper notice to the Attorneys General. To assist the parties moving forward, I briefly comment on Barefoot’s submission on this issue.
[14] Evidence that Barefoot operates on reserve lands will not be sufficient, on its own, to establish that the Tribunal does not have jurisdiction to hear this complaint.
[15] The Penticton Indian Reserve may fall under the jurisdiction of the federal government because of its jurisdiction over “Indians and lands reserved for Indians.” However, it is unclear whether that jurisdiction extends to the activities of Barefoot, a provincially incorporated business operating in the area of short-term vacation rentals and a RV park.
[16] This Tribunal presumptively has jurisdiction to adjudicate human rights complaints in BC. Constitutionally, this jurisdiction is grounded in s. 92(13) of the Constitution Act, 1867, which grants the provinces jurisdiction over “property and civil rights”: Azak v. Nisga’a Nation and others, 2003 BCHRT 79 at para. 23. There is an exception to this jurisdiction where a complaint arises in respect of a matter “coming within the legislative authority of Parliament” for the purpose of triggering the jurisdiction of the Canadian Human Rights Act, s. 2; NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 at para. 12.
[17] To determine whether a complaint involving activities on Indigenous lands or enterprises fall under federal or provincial jurisdiction, the Tribunal regularly applies a “functional test”: NIL/TU,O. This involves examining “the nature, operations and habitual activities of the entity to see if it is a federal undertaking”: NIL/TU,O at para. 3. Only if that assessment is inconclusive as to whether a particular undertaking is federal does the assessment continue to consider whether provincial regulation of that entity would impair the “core” of the federal head of power: NIL/TU,O at para. 3.
[18] This test is primarily employed in labour relations cases; however, the Tribunal has also applied it in the context of services customarily available to the public: D.L. v. BC Ministry of Children and Family Development and others (No. 3), 2021 BCHRT 35 at para. 12. It will be open to the Tribunal, upon hearing arguments from the parties and the Attorneys General, should they choose to participate, to determine whether this legal test should be applied in the tenancy context raised in the current complaint.
[19] As it stands, there are insufficient arguments and evidence before me to determine if Barefoot operates as a federal undertaking. Accordingly, I defer a determination of the jurisdictional question. Barefoot should be prepared to fill in these gaps if it chooses to advance a jurisdictional argument at the hearing.
IV CONCLUSION
[20] Barefoot’s application to dismiss the complaint is denied. The complaint will advance to a hearing.
[21] If Barefoot chooses to advance the constitutional argument at the hearing, it must provide the required notice to the Attorneys General.
Theressa Etmanski
Tribunal Member