BC Human Rights Tribunal

Werbowski and another v. CCPR Park Investment Limited Partnership and others (No.2), 2025 BCHRT 210

Date Issued: August 21, 2025
Files: CS-001555, CS-007850

Indexed as: Werbowski and another v. CCPR Park Investment Limited Partnership and others (No.2), 2025 BCHRT 210

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:

Barry Werbowski and Claire Werbowski

COMPLAINANTS

AND:

CCPR Park Investment Limited Partnership and CCPR Park Residence GP Ltd., and Marilyn Fleming

RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Ijeamaka Anika

Counsel for the Complainants: Simon Gray-Schleihauf and Renée Rogers

Counsel for the Respondents: Greg Harney

Date of Hearing: November 4-8 and 21, 2024

Location of Hearing: Via Videoconferencing

I          INTRODUCTION

[1]               Barry and Claire Werbowski [the Werbowskis] are condo owners at the Cherish facility, a seniors’ living community. Both describe themselves as having disabilities – Mrs. Werbowski from hip injuries requiring surgery, and Mr. Werbowski from hip problems following a motor vehicle accident. The Werbowskis filed a complaint against CCPR Park Investment Limited [CCPR], CCPR Park Residence GP Ltd. [GP Ltd.], and Marilyn Fleming [the Respondents], who developed and provide property management and amenity services at the Cherish facility.

[2]               The complaint arises from a parking dispute between the parties. The Werbowskis’ complaint is premised on both Mr. and Mrs. Werbowski having physical disabilities under the Human Rights Code, from which flows their need for two accessible parking spots rather than just one. The Werbowskis owned two vehicles but were assigned only one parking stall in the underground parking lot as part of their condo purchase. Initially, Mrs. Werbowski parked her second vehicle in the surface parking lot, but in 2019 the Respondents told her she could no longer park there and would have to use street parking. The Werbowskis then requested a second underground parking stall as an accommodation for their disabilities, arguing that street parking was difficult for Mrs. Werbowski due to her hip injuries and mobility issues. The Respondents denied this request, saying each unit was entitled to only one parking stall.

[3]               The Werbowskis allege that the Respondents discriminated based on physical disability in the area of service contrary to s. 8 of the Code when they refused to assign the Werbowskis a second parking stall to accommodate their disabilities. The Werbowskis also allege that after filing their human right complaint, the Respondents retaliated against them for filing a complaint, contrary to s. 43 of the Code. Specifically, they allege that the Respondents required them to sign an Owners’ Services Agreement [OSA] – a contract for amenities with CCPR, denied them access to building amenities, and imposed various fines on them, in retaliation for filing a complaint.

[4]               The Respondents deny discriminating. They say that prior to receiving their request for a second parking stall, the Werbowskis had an assigned parking stall which Mrs. Werbowski was entitled to use. They also deny retaliating.  They say their conduct had nothing to do with the Werbowskis filing a human rights complaint. Rather, they say that that the Werbowskis were initially denied access to amenities when the Respondents honestly but mistakenly believed that the Werbowskis had not signed their OSA, and that their access to amenities was reinstated when the OSA was found. Further, they say the fines were imposed by the Strata Council – the governing body elected by the condo owners to manage common property and enforce bylaws at Cherish, and not by the Respondents. Lastly, the Respondents say the second denial of amenities was the result of the Werbowskis’ failure to pay their amenity fees to CCPR and was standard practice in the circumstances. They ask for the complaint to be dismissed.

[5]               I heard this complaint over five days from November 4-8, 2024, and oral closing submissions on November 21, 2024. In that time, I heard evidence from Mr. and Mrs. Werbowski, and their witness, Mike Lucas, another condo owner. From the Respondents, I heard from the individual respondent, Ms. Fleming, and Ms. Fleming’s sister and business partner, Dana Adams. Ms. Adams was also a member of Strata Council from time to time.  I have considered all the parties’ evidence and arguments.

[6]               After hearing this complaint, I dismiss the discrimination complaint. I find that both Mr. and Mrs. Werbowski have established that they had physical disabilities within the meaning of the Code and have assumed without deciding that the denial of parking constituted adverse impact. However, when I considered whether any adverse impact they experienced was connected to their disabilities, I found it was not. The Werbowskis had access to an accessible underground parking stall, and their request for a second stall was based on convenience and preference rather than disability-related needs that could not be met through the existing accessible parking arrangements. Further, I am not persuaded that the Respondents retaliated against the Werbowskis for filing the human rights complaint. While the timing of some events might suggest retaliation, I am satisfied that the evidence establishes that the Respondents’ conduct is explained by legitimate business reasons and pre-existing disputes between the parties, rather than retaliation for the human rights complaint.

[7]               The complaint is dismissed.

II       Witnesses and credibility

[8]               My findings of fact are based on the evidence the parties presented in this hearing. These findings are made on the balance of probabilities, meaning I have found these facts to be more likely than not: FH v. MacDougall, 2008 SCC 53. Where there is a doubt, that doubt is resolved based on which party bears the burden of proof. For the material issues in this complaint, that party is the Werbowskis.

[9]               I am grateful to all the witnesses that gave evidence. I have done my best to reconcile their evidence. However, on some issues, Mr. Werbowski and Ms. Fleming gave conflicting evidence about important events. Where those issues are material to the complaint, I have made findings of credibility and decided which evidence to prefer.

[10]            To do this, I start from the presumption that all of the witnesses are telling the truth: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10. Where a witness’s testimony conflicts with other evidence, I must assess the trustworthiness of their testimony “based on the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides”: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (QL) at para. 186. In some cases, a witness’s evidence may not be trustworthy because they have “made a conscious decision not to tell the truth”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at para. 89. In other cases, a witness may testify honestly but their evidence may not be reliable because of their inability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56 at para. 42; Youyi at paras. 89-90. In that case, I may not safely rely on their testimony where it conflicts with others’ who are better positioned to give accurate testimony.

[11]           To assess the accuracy or trustworthiness of a witness’s testimony, I consider factors such as:

1.      The witness’ ability to observe the events, record them in memory, recall and describe them accurately.

2.      The external consistency of the evidence. Is the testimony consistent with other independent evidence? Which is accepted?

3.      Its internal consistency. Does the witness’ evidence change during direct examination and cross-examination?

4.      The existence of prior inconsistent statements or previous occasions on which the witness has been untruthful.

5.      The “sense” of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it “make sense”?

6.      Motives to lie or mislead the court: bias, prejudice, or advantage.

7.      The attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessing demeanour, a judge should consider all possible explanations for the witness’ attitude, and be sensitive to individual and cultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factor alone.

R v. SAS, 2021 BCPC 69 at para. 25; see also Clarke v. City of Vancouver and another, 2024 BCHRT 298at para. 23.

[12]           In this case, some of the events which the witnesses are testifying about, particularly regarding access to parking, happened six or seven years ago. Memories have understandably faded, shifted, or hardened around a particular version of events. On some issues, I have found that the most reliable evidence is contained in documents created at the time of the events, including emails and the Respondents’ company records. I have used these documents as a “reliable yardstick against which to compare and assess the reliability of the witness’ testimony”: Boschoff v. Inspired Retreats, 2014 BCHRT 6 at para. 8.

[13]           When I prefer some evidence over another, I will explain my reasons.

III     EVIDENCE

[14]           The Werbowskis are an elderly couple. Mrs. Werbowski has hip injuries that have required surgery, and Mr. Werbowski has hip problems arising from a motor vehicle accident. For that reason, in or about 2018, the Werbowski purchased a condo in a strata unit within Strata Plan EPS4585, also known as the Cherish facility or Cherish (I will use “Cherish” to refer to the physical building and community throughout this decision), from the respondent GP Ltd.

[15]            GP Ltd. is the developer of Cherish. GP Ltd. are in a general partnership with the respondent CCPR and owned the Strata Corporation property on behalf of CCPR before individual strata units were sold. The Strata Corporation is comprised of 39 individual units. The owners of the units together comprise the Strata which manages the common property of the Strata Corporation through a Strata Council made up of some of its members. There were also 130 rental units in the Cherish facility.

[16]           Cherish Community Living Ltd. is a company engaged to provide strata management services for GP Ltd. and the Strata Corporation.

[17]           Ms. Fleming is the President and CEO of GP Ltd., a director of Cherish Community Living Ltd., a representative of CCPR, and a member of the Strata Corporation.

A.    Parking at Cherish

[18]           There are 82 parking spots at Cherish. Of these, 47 parking stalls are in the underground parking lot which are assigned to condo owners and residents. The remaining spots in the surface level parking lot are not assigned parking, but are generally used by Cherish workers, healthcare staff, maintenance workers, and renters. No owner or renter has stalls assigned to them on the surface level lot.

[19]           Residents could access the underground parking lot using two elevators. The Werbowskis’ parking stall was close to one set of elevators.

[20]           The Werbowskis viewed the property on two occasions prior to purchase. At the time of these viewings, the elevators were not operational, and the Werbowskis had to use the stairs to access the unit. Mrs. Werbowski was experiencing mobility issues at the time and required assistance to climb the stairs. A term of the purchase was that the Werbowskis would have the exclusive right of access to one parking stall.

[21]           The Werbowskis moved into Cherish in February 2018. Their unit is on the sixth floor of the facility.

B.     Amenities at Cherish

[22]           The Strata Corporation retained the services of CCPR to provide various “service packages” to the Strata condo owners. An agreement between CCPR and the Strata Corporation sets out the services CCPR would provide and the associated fees. The Strata Corporation has authority under the Strata Property Act to impose fines for bylaw violations. The Strata Corporation is not a respondent in this human rights complaint.

[23]           Under the agreement between the Strata Corporation and CCPR, CCPR agreed to provide various amenity services to condo owners. Individual condo owners could choose different “levels” of service packages from CCPR. The Werbowskis chose “Level 1” and paid $325 monthly to CCPR for access to “Level 1” amenities based on their dual occupancy. The Level 1 package includes benefitting from the following:

a.    Professional management services: a designated full-time, on-site manager to oversee all areas of service and equipment at Cherish and to liaise with the residents and the Strata Corporation’s property manager.

b.    Use and enjoyment of Cherish club facilities and amenities.

c.     Twice daily fresh baked service inclusive of coffee, tea, and baked goods.

d.    Regularly scheduled cultural, arts, educational, recreational, fitness and social programs organised by the Cherish Club leisure director and staff for residents.

e.    Shuttle service for group outings.

C.     Early issues between the parties

[24]           The Werbowskis allege that the Respondents retaliated against them after they filed their human rights complaint. The Respondents deny retaliating and say the conduct the Werbowskis take issue with was the result of ongoing issues between the parties, not the human rights complaint. To assess the retaliation allegations, I must consider the broader context of the relationship between the parties, including issues that predated the human rights complaint. At the hearing, the parties gave evidence of ongoing conflicts between Mr. Werbowski and Ms. Fleming from early in their relationship, which, as I explain below, I find are relevant to determining whether later treatment was sufficiently connected to the human rights complaint or was part of pre-existing disputes.

[25]           Both Mr. Werbowski and Ms. Fleming testified that the parties had a contentious relationship from the beginning. Mr. Werbowski described his relationship with Ms. Fleming as antagonistic, testifying that there were issues dating back to 2018, well before the August 2019 accommodation request. He attributed this to issues with the Strata Council and the introduction of new fees for owners.

[26]           Ms. Fleming also acknowledged the relationship was contentious but testified that it was Mr. Werbowski who antagonized Cherish staff. In her view, it was clear that he did not like taking instructions from a woman, and he interfered with her management of operations at Cherish. Ms. Fleming says Mr. Werbowski contacted engineers working on behalf of the Respondents regarding ongoing construction work at Cherish, without authorization from the Respondents.

[27]           Mr. Werbowski was a member of the Strata Council from approximately 2018 to 2019, and again from May 2021 to November 2022. Ms. Fleming testified that CCPR was a “designated participant” under Strata bylaws, meaning CCPR had the right to attend and participate in all Strata Council meetings. Early conflicts included Mr. Werbowski’s solicitation of legal fees from residents for Strata-related legal challenges, which Ms. Fleming viewed as inappropriate. She testified that residents complained to her about this door-to-door solicitation and asked her to make it stop. Ms. Fleming testified that Mr. Werbowski requested from the Strata Council a $10,000 budget for legal expenses related to challenging Strata bylaws and CCPR’s management of Cherish. Ms. Fleming also viewed the request as inappropriate and felt it reflected a lack of experience on Mr. Werbowski’s part. Ms. Fleming also testified that Mr. Werbowski incorrectly claimed CCPR had overcharged residents on amenity fees, despite CCPR providing relevant financial accounts showing they had not.

[28]           The contentious relationship continued into 2020 during the COVID-19 pandemic, with disputes over mask requirements at Cherish. Mr. Werbowski acknowledged that he did not wear the N95 masks that Cherish required, preferring government-approved surgical masks the Werbowskis had purchased themselves. Email exchanges show Mr. Werbowski was unwilling to pay for masks unless they were provincially mandated and requested financial documents regarding CCPR’s masks purchases.

D.    The parking issue

[29]           The Werbowskis were assigned parking stall number 38, approximately 25 feet from the access elevators. Mr. Werbowski agreed that the spot was easily accessible and was one of the best spots available, in terms of proximity to the access elevators. There was no dispute that this spot was available to the Werbowskis from the day they moved in. Ms. Fleming also testified that a driver could drop a passenger at the front door of the building because the building was “age in place” designed, meaning that it was specifically designed to allow seniors to remain in their homes as they age, with features like accessible entrances and elevators to accommodate mobility limitations.

[30]           When the Werbowskis moved into their unit in early 2018, they had two cars. Mr. Werbowski would park in the underground stall assigned to their unit, while Mrs. Werbowski parked the second car in the surface lot. Mr. Werbowski’s evidence was that there were still a lot of parking spots available in the underground lot at the time they moved in. He says that at that time some owners did not have vehicles and half of the underground parking lot was empty. The surface lot, at that time, was “first come first serve”, and there were no restrictions on who could use it. Mr. Werbowski testified that there were almost no spots available in the surface level lot during the day because of construction workers parking there, but there was lots of room at night.

[31]           Mr. and Mrs. Werbowski testified that Mr. Werbowski parked in the assigned spot because as between the two of them, Mr. Werbowski drove more frequently, running errands and taking his grandchildren to and from school on most days.

[32]           The issue of parking first came up in a meeting between Mr. Werbowski and Ms. Fleming in early February 2019. Based on Mr. Werbowski’s subsequent email, it appears Ms. Fleming raised the parking issue at the meeting, informing Mr. Werbowski that Mrs. Werbowski could no longer park her vehicle in the surface lot and would have to park on the street. Following the meeting, on February 7, 2019, Mr. Werbowski wrote to Ms. Fleming about their discussion. He wrote as follows (as written):

[I] confirmed that each suite can only have one parking spot on the entire property. I confirmed that I had reach that and we would abide. I am assuming then than we must be the only couple who have two vehicles parked on the premises and that we are not being singled out. I again offered to pay for a second spot, preferably downstairs, and you once more denied this request. I also indicated that some staff are still parking on the premises, and this should not be allowed. I know that there have been other complaints tabled at an advisory council meeting in the media room about staff parking on the grounds. Just to put this on record as you were making notes during our discussion.

[33]           Ms. Fleming responded as follows:

Your notes about parking morph into a new conversation which I am happy to address:

With respect to parking, there is ample parking for everyone at present based on one car per residential unit on the property plus churchgoers and employees. Yes, I have confirmed that during your vacation to Mexico the Occupant of Suit #128 will agree to your use of his parking stall from February 15 to March 17, 2019. I have advised [staff] of this. It is Stall #19. And yes, I will reiterate – parking is not for rent regardless of how many times you ask. Please provide Claire’s license plate number to [staff]. I have also let [staff] know that Al Carvalho will be attending your suite for the first two weeks while you are away, and that your family will tend to it for the last two weeks. I have also advised [staff] that Al will have the keys to both cars.

If I may also add, for the record, so to speak, which was not discussed yesterday, but last week-ish. I received two complaints that you are attempting to solicit legal fees from other residents to secure [a former resident’s] access to my private property. I brought this to your attention in the Courtyard Lounge outlining how highly disruptive this behaviour is, and unwelcome here by both me and the people who live here. You indicated that you had not undertaken that behaviour since trying to raise legal fees to have the Air Space Parcel subdivision set aside.

[34]           Mrs. Werbowski testified sometime in August 2019, she came home one day, and the surface lot was full of the cars of workers and contractors. Despite the earlier email regarding parking on the street, Mrs. Werbowski says the only place to park was at the far end of the lot, so she parked there. She could not remember the date and nothing in this decision turns on it. After parking, she went into the lobby and on her way in, she went to Ms. Fleming to say that employees were parking near the front door, particularly in the first stall near the front door. Ms. Fleming did not respond. Shortly thereafter, Ms. Fleming then went over to the table where a group of residents were having tea, including the Werbowskis, and informed the residents that no condo owners were allowed to park on the surface lot. Mr. Werbowski says they accepted Ms. Fleming’s statement and looked at their contract. Upon reviewing their purchase agreement, they acknowledged that they were entitled to only one assigned parking stall underground and accepted that this meant they could only park one car anywhere on the Cherish property.

[35]           At the hearing, Ms. Fleming testified that under the terms governing the development, owners with second vehicles had to park their second vehicle off the premises. Ms. Fleming testified that this rule had always been in place, and it meant that owners with a second vehicle could not park the vehicle in the underground lot or the surface lot, it had to be somewhere else. Ms. Fleming also testified that when the parking issue arose with the Werbowskis, she told Mr. Werbowski that he could not rent a second stall and could not buy a second stall.

[36]           On August 13, 2019, the Werbowskis requested a second parking stall from the Respondents. Mr. Werbowski sent an email to Ms. Fleming with the subject “Accommodation Requirement”. In the email, Mr. Werbowski wrote as follows (as written):

We are formally requesting accommodation due to our disability to have our assigned parking stalls moved to the underground parking garage, closest to our unit. Please find enclosed our doctor’s medical opinion that such accommodation is required. I trust that you will make every effort to accommodate us shortly and I would kindly ask you to respond within seven days.

A failure to respond or a denial of this accommodation may result in us bringing a claim against you under the Human Rights Code for a failure to accommodate.

When Claire politely approached you, advising that some staff members, with no apparent disabilities, were parking near the front entrance nearly every day thus forcing her to park at the far side of the lot. You did not take any steps to provide accommodation and appeared to favor your staff over residents. This decision has been creating added aggravation to her hip which she brought to your attention during this dialogue.

Instead of addressing her disability, you implemented a one vehicle on the property and forced us to try and find parking accommodations off the premises. However, you still permitted your staff members to use the parking lot. We feel this was a retaliation for our request, which is contract to the Code.

As you know, there are other condo owners with two vehicles as well as renters with no physical signs of a disability being assigned underground parking. There are parking spots available underground. There is no hardship on the building for this accommodation.

[37]            Mr. Werbowski attached two doctor’s notes dated July 23, 2019. Both notes are brief and state only: “Patient requires a parking spot as close as possible to their home as accommodation for their disability.”

[38]           At the hearing, Mr. Werbowski testified that he observed other owners using more than one parking stall in the underground lot. Mrs. Werbowski says there were spaces available in the surface lot. Mr. Lucas also testified that there were a number of empty spots in the underground parking lot in or around 2018 and 2019. Ms. Fleming testified that all the parking stalls in the underground parking lot were assigned to residents and put evidence of the assignments before me.

[39]           In response to Mr. Werbowski’s email, Ms. Fleming wrote (as written):

I am unaware that any other unit has two cars parked on the property. If there are people that have circumvented our controls, please advise who these people are and we will ensure this is rectified.

The parking stalls designated for our condo purchasers were included in their Contract of Purchase and Sale. I am unsure of the legal ramifications of breaching this Contract because most of our residents have some sort of physical impairment.

For clarity when Claire pulled me aside in the hallway to complain about not being able to park at the front door, I asked why she wouldn’t park in the underground stall designated for your unit. She advised that you were parking in it. As you are aware, the Agreements in place allow one vehicle per unit on site. Perhaps you would permit Claire to use the underground designated parking stall for your unit?

[40]           Mr. Werbowski responded that he and Mrs. Werbowski both had disabilities and were requesting a second stall.

[41]           Mr. Werbowski named two residents who he claimed had two parking spots in the underground parking lot. He took photos of the underground parking lot in late 2018 or 2019 showing condo owners parking in what he asserted were unassigned spots. During cross-examination, Mr. Werbowski accepted that he had no knowledge of whether these were assigned spots.

[42]           The parties testified that street parking was also available perpendicular or “nose-in” to the surface parking lot. Mr. Werbowski testified that the street parking was not hard but inconvenient for him. It was no more than 150-200 feet from the entrance. He says it was an uphill climb and there is a slight incline on the Cherish property. However, Mr. Werbowski accepted that he could access the street parking easier than Mrs. Werbowski due to her more significant mobility limitations from her hip injuries.

[43]           Mr. Werbowski testified that when he requested a second parking spot, he did not specify any particular spot underground, he was just looking for a spot even if it was not close to the door. He says he asked for a second spot because both he and Mrs. Werbowski had disabilities that made it difficult to walk long distances, and having to park on the street rather than in the underground parking lot created barriers for them to access their home, particularly Mrs. Werbowski who had significant hip mobility limitations from her hip injuries.

[44]           Ms. Fleming disputes Mr. Werbowski’s account. Her testimony at the hearing was that no condo had two stalls assigned to them. Ms. Fleming testified that she was unaware of anyone using two stalls until Mr. Werbowski reported that he thought some residents were using two stalls. She says she sent out letters to inform residents that each unit was only entitled to one stall; staff conducted inspections; and additional signage was put up to remind owners that it was one stall per unit. Ms. Fleming testified that she did not see anyone using two stalls and had not seen the trailer in the underground parking lot until she saw the photograph Mr. Werbowski took that is in the evidence.

[45]           Ms. Fleming testified that staff were allowed to park on the property, and this was known to everyone. She stated that the far side of the surface lot – about 150 feet from the entrance – was street parking. Street parking was free and unlimited: there were no meters and no parking signs. Ms. Fleming testified that there are 18 stalls in the street parking, and some were closer to the building than some of the surface lot stalls lot – about “75 steps” from the door. She says that in 2019 when the Werbowskis requested a second parking stall, street parking was always available.

[46]           Mr. Werbowski says he did not approach other residents to ask if he could park in their spot. He testified that he filed his complaint because the Respondents told them Mrs. Werbowski was not to park on the premises.

[47]           During cross examination, Mr. Werbowski agreed that the underground parking stall assigned to them, parking stall 38, was a great spot for someone with a disability. In 2019 when they were requesting the second parking stall, Mrs. Werbowski used a cane.

[48]           After the conversation with Ms. Fleming, Mrs. Werbowski began parking on the street parking. She testified that because of the incline from the street parking to the Cherish entrance, and the gravel on the street parking, using the street parking was challenging for her. Mr. Werbowski began parking on the street and Mrs. Werbowski in the Werbowskis’ underground parking lot. Mr. Werbowski testified that they switched back because parking in the street parking was exacerbating his hip issues (from the motor vehicle accident), and he was the more frequent driver.

[49]           The Werbowskis sold Mrs. Werbowski’s car sometime in 2022. The Werbowskis testified that Mrs. Werbowski was not driving much prior to the sale. According to Mr. Werbowski, Mrs. Werbowski stopped driving sometime around the spring or summer of 2020, as a result of issues with her hips. There is no evidence that Mrs. Werbowski stopped driving due to the parking arrangement, and nothing in this decision turns on it. I simply add this detail for context. Up to the sale, they parked Ms. Werbowski’s car in the adjacent street parking.

[50]           There was no further communication between the parties regarding the parking issue after Mr. Werbowski’s August 2019 accommodation request and Ms. Fleming’s denial of a second parking stall.

E.     Further issues after human rights complaint filed

[51]           In December 2019, the Werbowskis filed their human rights complaint. The Tribunal notified the Respondents of the complaint on January 14, 2020. However, the Respondents were aware of the prospect of a human rights complaint as early as August 2019, when Mr. Werbowski’s accommodation request email warned that denial “may result in us bringing a claim against you under the Human Rights Code.”

[52]           The Werbowskis allege that after filing their human rights complaint, the Respondents retaliated against them in a variety of ways. For instance, the retaliation complaint alleges that after learning of the prospect of a human rights complaint, the Respondents ignored the Werbowskis’ requests and inquiries regarding deficiencies in their units. Mr. Werbowski testified that in January 2020, he emailed Ms. Fleming regarding “outstanding deficiencies” in the Werbowskis condo unit. He testified that Ms. Fleming did not respond. Specifically, Mr. Werbowski requested an update on two mirrored bypass doors in their unit which were not properly aligned and raised issues concerning light switch and receptacle fixtures in their unit which he said was impacting the heat in their unit. Ms. Fleming did not respond to the email and on February 4, 2020, Mr. Werbowski followed up with another email to ask if Ms. Fleming knew when these “last remaining deficiencies” would be resolved. Ms. Fleming responded on February 12, 2020, with “Nope.”

[53]           Ms. Fleming says that despite her curt response to Mr. Werbowski’s email, she facilitated a response by ensuring the deficiencies in the Werbowskis’ unit were resolved. She testified that CCPR provides care, hospitality services, and care for owners and most if not all tenants through the amenity services agreement.

[54]           The Werbowskis also allege that the Respondents retaliated by restricting Mr. Werbowski’s access to Cherish staff. Ms. Fleming’s evidence was she had concerns about how Mr. Werbowksi spoke to and treated Cherish staff, that she raised her concerns with him, and that her concerns had nothing to do with the prospect of a human rights complaint. In January 2020, Ms. Fleming and Mr. Werbowski exchanged emails regarding Ms. Fleming’s concern that Mr. Werbowski was giving directions to Cherish staff. Ms. Fleming told Mr. Werbowski that she had been informed that he was attempting to give directions to Cherish staff and advised that he could only contact front desk staff and teatime servers related to tea service.  Ms. Fleming testified that sometimes he would go to staff and “berate” them. Ms. Fleming says that she would sometimes work in the reception area and that was when she observed Mr. Werbowski’s attitude with Cherish staff, which she described as “dictatorial”.

F.      The OSA issue and denial of access to amenities

[55]           At the onset of the COVID-19 pandemic, the Respondents’ evidence, which was not contested, was that they needed to ensure residents adhered to COVID-19 health and safety protocols established by CCPR. Ms. Fleming testified that they did this by making sure all residents had signed their OSAs – the contracts between individual condo owners and CCPR for amenity services – so they could enforce the rules around mask wearing, social distancing, use of shared amenities, etc.

[56]           Both Ms. Fleming and Ms. Adams testified that the issue with the Werbowskis’ OSA arose in June 2020 because the Respondents needed to ensure all owners understood and complied with the COVID-19 protocols. Ms. Fleming says that they discovered another resident did not sign their OSA, which prompted a search of all owners’ files to verify that they had all signed their OSAs. Ms. Fleming testified that the Werbowskis were not the only condo owners whom CCPR believed did not sign the OSA. She says she discovered that two other owners, including the Werbowskis, did not sign the OSA. Regarding the two others who did not sign the OSA, Ms. Fleming’s evidence was that one sold their condo and moved out and another signed after the unsigned OSA was brought to their attention. Mr. Werbowski testified that he may have been the only resident who did not sign the OSA after it was brought to his attention.

[57]           On June 25, 2020, Ms. Fleming emailed the Werbowskis regarding the issue of the OSA (as written):

When going through your file today, I note that you have not signed your Owner’s Services Agreement. The Owners Services Agreement was provided to you in the Marketing Disclosure Statement and prior to your purchase. The last request for you to sign came from one of our Executive Directors, shortly after your purchase in 2018.

I have attached a copy for your signatures. May I ask that this be returned to the Front Desk to my attention before July 3, 2020. Entering into the Owners Services Agreement is a requirement of the Strata Bylaws of EPS4585.

[58]           Section 35(2) of the Strata Bylaws states: “An owner shall at all times retain the services of a support services company upon terms and conditions substantially in the form set out in Schedule ‘B’ attached hereto.” Schedule ‘B’ was the OSA.

[59]           The following day, Ms. Fleming emailed the Strata Council, copying Mr. Werbowski, to notify them that the Werbowskis had not signed the OSA, which she characterized as an infraction of Bylaw 35(2). Ms. Fleming says she “probably” informed the Strata Council members the following day to be efficient. Ms. Fleming maintained that although the Werbowskis were still paying for their amenities, they were not adhering to the strata bylaw requirement to have a signed OSA on file. In her view, paying for services without a signed agreement meant the bylaw was still being violated.

[60]           Mr. Werbowski did not sign the OSA when requested by Ms. Fleming on June 25, 2020. He testified that because he could not recall whether he had signed it at the time he bought the condo, he sought advice from his lawyer. At the hearing, Mr. Werbowski was asked why he did not just sign the copy of the OSA that Ms. Fleming sent. He testified that he did not believe in signing a legal document without consulting his legal counsel, especially since they had been living at Cherish for two and a half years before the issue arose. Mr. Werbowski also testified that he could not remember whether he signed the OSA at the time he bought the condo but assumed he did because he signed everything relating to the property transaction.

G.    Fines and first denial of access to amenities during COVID-19

[61]           The Werbowskis alleged that they were denied access to certain amenities, including the “Bubble Club”, during the COVID-19 pandemic, and that the denial was in retaliation for filing a human rights complaint. The “Bubble Club” was a group of Cherish residents who had all confirmed that they understood and would follow the COVID-19 safety protocols at Cherish. During the COVID-19 pandemic, certain amenities including the Billiards room and social gatherings were restricted to Bubble Club members only.

[62]           On October 30, 2020, Mr. Werbowski emailed Ms. Fleming about the Werbowskis being denied access to the Bubble Club. Ms. Fleming replied that they could not join because the Werbowskis had not signed the OSA and were “still in breach of the bylaws.”

[63]           Mr. Werbowski testified that they were denied access to the Billiards room, social gatherings, and COVID-19 and flu vaccinations. Mr. Werbowski says he believed that locking the Billiards room was a retaliation against him, but he also admitted that he did not know if the Billiards room was locked because of COVID-19 restrictions. Mrs. Werbowski also testified that she had been using the exercise room regularly until she broke her hips. After her hip surgery, she also went to physiotherapy, and it took her about three to four months before she could walk again. When she was ready to return to exercising at the gym, the Werbowskis were no longer allowed to use the amenities due to the OSA issue, and the resulting exclusion from the Bubble Club. She says she should have been able to resume exercising daily but was prevented from doing so.

[64]           There is no dispute that in the meantime, the Werbowskis continued to have access to other amenities that were not limited to the “Bubble Club”, including daily tea service to go, movie nights, fitness classes, choir, daily outdoor walks and live outdoor music performances. The evidence before me is that in November 2020, counsel for the Respondents wrote to the Werbowskis confirming the same. The letter also reiterated the requirement to sign the OSA to ensure compliance with COVID-19 protocols.

[65]           Ms. Fleming testified that access to amenities never stopped, but rather the format changed due to COVID-19 restrictions. She testified that all amenities spaces were closed to everyone in early COVID-19 until Cherish could comply with the provincial mandate and when the spaces reopened, access to certain amenities including the Billiards room and social gatherings was limited to Bubble Club members, and the Werbowskis were not part of it. Ms. Fleming says all residents, including Mr. Werbowski, were denied access to the Billiards room because the space was not sanitised, and they could not be supervised.  

[66]           Regarding the issuing of fines against the Werbowskis, there is no dispute that fines were issued, but the Respondents say not by them. Rather, they say the fines were issued by the Strata Corporation (through its Strata Council), which is not a party to the complaint. The Strata Council’s interest in OSA compliance related to enforcement of strata bylaws, while the Respondents’ interest related to their ability to provide and enforce amenity services. Ms. Adams also testified that all the fines were issued by the Strata Corporation to the Werbowskis and had to do with the failure to sign the OSA. She testified that at the time, Mr. Werbowski said he had not signed, so the wording of the fine said failure to sign the OSA.

[67]           Mr. Werbowski says that around this time the OSA was still with his lawyer for legal advice on whether he should sign the OSA. He wrote to Ms. Adams at the time (as written):

[…] this document is still with my lawyer as I have, on several occasions, indicated this to you and will advise once I receive a decision from him. I do not understand the urgency in this matter that you feel you cannot wait for my lawyer to advise me accordingly but instead, implying that I will be fined for not signing the OSA in 7 days. Again, reemphasising that I am not refusing to sign the OSA but wish to exercise my legal right for an opinion from my lawyer.

I will not tolerate pressure tactics in an attempt to dissuade me from pursuing legal advise.

I would further advise that you read the Strata Property Act in regard to dispute resolution procedures that a Strata Council must follow once they receive a complaint from another party, in this case CCPR GP Ltd.

[68]           On January 19, 2021, Ms. Adams emailed another resident and property manager at Cherish that of the three residents who had not signed their OSAs, the others have since signed and the Werbowskis were the only ones who had not signed. She stated that Mr. Werbowski did not want to sign and was claiming he needed to seek legal advice.

[69]           At the same time, Mr. Werbowski also continued to request financial records and statements from the Respondents. On February 12, 2021, Mr. Werbowski emailed Ms. Fleming stating that he had not received a reply to his July 14, 2019, requests for financial records and statements. Ms. Fleming replied that she would not correspond with Mr. Werbowski until he signed the OSA, and his emails would remain unanswered until that time. She stated that “the OSA is the document that creates an obligation for CCPR to communicate with you.”

[70]           On February 25, 2021, Ms. Fleming emailed Mr. Werbowski advising that in her view he was still in breach of Strata bylaws and had had ample time to seek legal advice. She stated that Mr. Werbowski was using legal advice as an excuse not to sign the agreement. The email also stated that Strata members would have to pay higher Strata fees in the next fiscal year for a lawyer to deal with Mr. Werbowski’s “uncooperative behaviour.” She stated that the best option for Mr. Werbowski was to sign the OSA which will remedy his breach of the bylaws.

[71]           On April 1, 2021, Ms. Adams emailed another fine to the Werbowskis. At the time, Ms. Adams was the President, EPS 4585 Strata Council and sent the email in that capacity.

[72]           On May 13, 2021, another condo owner emailed Ms. Fleming advising of their view that people who refuse to sign the OSA should not be eligible to sit on the Strata Council. This email appeared to be in response to a communication from Ms. Fleming which was not before me. Ms. Fleming agreed with the owner, adding that owners who did not sign their OSA should also not have other privileges. Mr. Werbowski says that, around this time, he was planning to run for Strata Council. He testified that others were aware of his intention to run for Strata Council.

[73]           Ms. Fleming blocked Mr. Werbowski’s email address in August 2021, citing his failure to sign the OSA. This occurred after Mr. Werbowski emailed Ms. Fleming with a letter from the Strata Council in relation to a Cherish employee who had a criminal record. Mr. Werbowski testified that the employee should not have been allowed to work at Cherish because of the nature of his criminal record. Ms. Fleming replied to Mr. Werbowski that she would be blocking his email address on the basis that he had not signed the OSA. She stated that any further communication about Mr. Werbowski’s concerns would be made with the rest of the Strata Council. Ms. Fleming says she did not have the mandate to explore the issues raised in Mr. Werbowski’s emails when he did not sign the OSA. She says Mr. Werbowski could have signed the OSA at any point. She says her business has incurred increased costs from dealing with Mr. Werbowski.

H.    Discovery of the signed OSA

[74]           In October 2021, the Respondents’ legal counsel obtained a signed copy of the OSA from the Werbowskis’ lawyer. The Respondents’ legal counsel subsequently provided a copy to Ms. Adam, who shared with it with Ms. Fleming. The signed OSA was dated December 29, 2017. Following the discovery of the signed OSA, the Werbowskis’ access to amenities was reinstated.

I.       Further issues between the parties

[75]           As further evidence of the deteriorating relationship between the parties, in July 2020 and again in July 2021, GP Ltd., through Ms. Fleming, offered to purchase the Werbowskis’ condo unit. The second offer was conditional on Mr. Werbowski agreeing to cease disparaging the Respondents and releasing them from liability for the human rights complaint. Ms. Fleming testified that she wanted to end the ongoing disputes and that it was her desire for the Werbowskis to leave the building.

[76]           Ms. Fleming testified that she did not want Mr. Werbowski living at Cherish anymore. She says that how Mr. Werbowski treated her was difficult to accept. As she told it, he raised his voice at her in a professional meeting and tried to tell her how to run her business. Her concern was that even when Mr. Werbowski was president of the Strata Council, his official position did not prevent him from what she viewed as inappropriate behaviour towards other residents, including allegedly going door-to-door soliciting legal fees from residents to fund legal challenges to strata matters. Ms. Fleming testified that residents complained to her about this solicitation and asked her to make him stop. She viewed this as disruptive to the community. She felt that his continued presence in the building was disruptive to the Cherish community.

[77]           The Werbowskis declined the purchase offers, stating they had no reason to move. Mr. Werbowski testified that they still want to continue living at Cherish.

J.       Second denial of amenities

[78]           Ms. Fleming testified that the Werbowskis are currently denied access to the amenities because they have not paid their amenities fees to CCPR since June 2022. The Werbowskis say that this ongoing denial is retaliation for filing a human rights complaint.

[79]           In September 2022, CCPR changed its payment collection method, requiring condo owners to pay amenities fees directly to CCPR rather than through the Strata Council. The Strata Council previously collected the funds in trust for CCPR. By September 2022, however, the Strata Council stopped remitting the funds to CCPR. Mr. Werbowski was the Strata Council President at this time. Ms. Fleming testified that, as a condo owner, she asked for her money back from the Strata Council. She says the rest of the condo owners now pay their fees directly to CCPR.

[80]           The Werbowskis continued to make payments to the Strata Council rather than directly to CCPR. Mr. Werbowski says that when the management company decided to bill owners directly, it did so without an amendment to para. 14 of the Agreement between CCPR and the Strata Corporation to reflect the change. Mr. Werbowski’s position was that until the agreement was properly amended, he was not obligated to change his payment method and would continue paying though the Strata Council.

[81]           Ms. Fleming testified that the reason CCPR changed its payment collection method was because it allowed CCPR to keep track directly of who had paid their CCPR fees, rather than having to rely on the Strata Council’s representations about who had and had not paid.

[82]           As a result, the Werbowskis were again denied access to amenities, this time for non-payment of fees. Clause 19 of the OSA allows CCPR to restrict access to some amenities in certain circumstances, including non-payment of fees.

[83]           Ms. Fleming testified that when some residents had not paid CCPR for three months – from May to July 2022 – CCPR’s lawyer sent a letter to the owners to say that the Strata Council no longer had the authority to collect fees on behalf of CCPR. The Strata Council did not respond. Ms. Fleming says 32 owners responded but did not start paying CCPR directly because Mr. Werbowski told them to continue paying the Strata Council. Ms. Fleming testified that the notice to the owners that the Strata Council’s permission to collect fees was terminated was given in July 2022.

[84]           In the fall of 2022, CCPR reduced services at Cherish to all owners as a result of withholding of funds by the Strata Council. Residents were told they needed to pay for amenities directly to CCPR or access to amenities would be denied. This was communicated to all owners.

[85]           By December 2022, a new Strata Council was elected. The evidence is that the newly constituted Strata Council paid what was owed ($70,000) to CCPR, and CCPR reinstated its services. At that time CCPR wrote to residents that privileges that were temporarily suspended due to non-payment of amenity fees had been reinstated to condo owners because of the payment by the Strata Council. The evidence was that after that, owners started paying directly to CCPR. The individuals who refused to pay directly to CCPR after this date did not have access to amenities.

[86]           The Werbowskis have not paid amenity fees to CCPR since August 2022 and continue to pay directly to the Strata Corporation. Ms. Fleming testified that Mr. Werbowski has been making payments to the Strata accounts but not identifying them as payments for CCPR amenity fees specifically, making it difficult to reconcile what portion was intended for CCPR versus Strata Corporation expenses.

IV    Analysis and decision

[87]           I now explain my reasons for finding that the Respondents did not discriminate against Mr. or Mrs. Werbowski in the area of services based on their physical disability. I then explain my reasons for finding that the Respondents did not violate s. 43 of the Code.

A.    Did the Respondents discriminate against Mr. or Mrs. Werbowski in the area of services based on their physical disability?

[88]           The Werbowskis have brought their complaint under s. 8 of the Code in the area of services, based on physical disability. To prove their complaint, they must each demonstrate that:

a.    They had a disability within the meaning of the Code;

b.    They experienced an adverse impact in the area of services; and

c.     Their protected characteristics were at least a factor in the adverse impact they experienced.

Moore v. British Columbia (Education), 2012 SCC 61, at para. 33.

[89]           I begin by considering whether the complainants have established that they have a physical disability within the meaning of the Code.

1.      Has Mr. Werbowski established that he has a physical disability within the meaning of the Code?

[90]           The Code does not define “physical disability”. The Tribunal interprets the term liberally to achieve the purposes of the Code: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. The purposes of the Code are to remove barriers that people face in certain areas of social life because of their disabilities. Those barriers may arise from actual functional limitations associated with a disability, or society’s response to the disability. People with disabilities have long faced exclusion and marginalization based on stereotype, ignorance and fear: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC). It is that exclusion and marginalization, founded on generalizations and prejudice, which the Code seeks to eliminate.

[91]           To decide whether a condition is a “disability”, the Tribunal generally considers the degree of impairment and any functional limitations, and any social construction of disability: Morris v. BC Rail, 2003 BCHRT 14 at para. 214. It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”: Viswanathapuram v. Canadian Alliance of Physiotherapy Regulators, 2017 BCHRT 29 at para. 40. “Disability” does not capture every medical problem. Specifically, it does not include conditions that are temporary and treatable, like a cold or flu, or a broken bone: Morris at para. 209. The Supreme Court of Canada explains that these types of conditions are excluded because “there is not normally a negative bias against these kinds of characteristics or ailments”: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 at para. 82.

[92]           For the following reasons, I find that Mr. Werbowski has established that he has a physical disability within the meaning of the Code.

[93]           Mr. Werbowski testified that he was involved in a motor vehicle accident in which he was rear-ended and developed hip issues that were aggravated by arthritis. He testified that he experiences daily pain for which he takes medication and engages in physiotherapy and kinesiology. Mr. Werbowski testified that he had difficulty walking long distances, experiences severe pain in the evenings, and walks up stairs with some difficulty. He is on the waitlist to have his hip replaced. He also testified that street parking exacerbated his hip issues leading him and Mrs. Werbowski to switch parking arrangements.

[94]           The Tribunal has recognized arthritis as a disability in previous decisions such as Khan v Strata Plan VR127, 2016 BCHRT 43 and Obrand v. FirstService Residential and another, 2019 BCHRT 219 at para. 16. Being on a surgery waitlist also indicates that Mr. Werbowski had significant hip problems requiring medical intervention. While Mr. Werbowski maintained substantial functional capacity in many daily activities and describes the impact of street parking as “not hard but inconvenient,” this does not negate the existence of a disability. A person does not have to be completely incapacitated to have a disability. I consider the issue of whether his disability impacted his ability to access street parking later.

[95]           On this basis, I find that Mr. Werbowski’s hip condition and arthritis constitute an involuntary, permanent physiological condition that impairs his ability to carry out normal functions of life and support a finding of disability under the Code. Mr. Werbowski’s daily pain, need for medication, difficulties with longer distances, and the fact that he requires hip replacement surgery all support a finding of disability. Although the medical note provided to the Respondents was brief, the Tribunal has stated that medical evidence is not required to prove disability under the Code: Gichuru v. Purewal and another, 2017 BCHRT 19 at para. 275. Further, I also note that although Mr. Werbowski describes himself as “not disabled” but “uncomfortable,” self-identification is not determinative. The legal test focuses on whether condition meets the criteria established in case law, and I find that it does.

2.      Did Mrs. Werbowski have a disability within the meaning of the Code?

[96]           The Respondents do not dispute that Mrs. Werbowski had a disability. Based on the evidence given at the hearing, I find Mrs. Werbowski has established she has a physical disability.

[97]           Mrs. Werbowski testified that she broke her right hip in 2016 and left hip, possibly in 2018. She has had surgery on both hips, which has impaired her mobility. She uses a walker and is unable to walk far. In 2019, Mrs. Werbowski used a cane and bought the walker in the summer of 2020. Mrs. Werbowski now uses a walker which she has used for the past one and a half to two years.

[98]           Mr. Werbowski testified that Mrs. Werbowski has been classified as disabled since 2016, as confirmed by a Canada Revenue Agency letter regarding her disability benefits. Mrs. Werbowski testified that she qualified for disability tax credit from 2016 onwards. While classification under other schemes is not determinative of disability under the Code, this evidence provides context for Mrs. Werbowski’s condition.

[99]           I also note that Ms. Fleming acknowledged that Mrs. Werbowski had mobility issues at the time the Werbowskis viewed the property and purchased their unit. She recalls that when she met the Werbowskis during the viewing, she discussed Mrs. Werbowski’s health condition with the Werbowskis. She testified that Mrs. Werbowski was not using a cane at the time but was moving slowly. She testified that at the second viewing, Mrs. Werbowski was using a cane.  

[100]       Based on the evidence, I find that Mrs. Werbowski has established, on the balance of probabilities, that she had a physical disability within the meaning of the Code. Mrs. Werbowski’s hip injuries resulting in fractures are involuntary and permanent physiological conditions. The evidence is that these injuries substantially impaired her ability to carry out normal life functions – she requires mobility aids (cane and walker), has undergone multiple surgeries, and has significant limitations in walking and mobility. These indicators, including her use of mobility aids, multiple surgeries, and observable limitations that the Respondents acknowledged, support a finding of disability under the Code.

3.      Did the Werbowskis experience an adverse impact in services?

[101]       There is no dispute that the Respondents denied the Werbowskis’ request for a second parking stall. Although Ms. Fleming testified that parking is owned by CCPR, the parties did not seriously dispute that the allocation and management of parking stalls constitutes a service within the meaning of the Code.

[102]       I will assume without deciding that the denial of the requested service constitutes an adverse impact. The determinative issue is whether this denial created a barrier related to the Werbowskis’ disabilities.

4.      Has Ms. Werbowski established a connection between the denial and her disability?

[103]       To establish discrimination, a person’s protected characteristic must be a factor in the adverse impact they have experienced. To put it in another way, a complainant must prove a disability-related barrier to accessing the service at issue: Moore, at para. 33.

[104]       In this case I am not satisfied that the denial of the request for a second parking created a disability-related barrier for the Werbowskis. My reasons follow.

[105]       First, Mr. and Mrs. Werbowski already had access to disability appropriate parking. Mr. Werbowski testified, and there is no dispute, that their unit was assigned underground parking stall 38, which was located approximately 25 feet from the access elevators. Mr. Werbowski acknowledged during his testimony that this was “one of the best spots” and that the stall was “easily accessible.” This spot met both of their disability-related needs.

[106]       However, importantly, I am not persuaded that Mr. Werbowski requiredunderground parking because of his disabilities. Street parking was located approximately 75-150 feet from the Cherish entrance according to the testimonies of Mr. Werbowski and Ms. Fleming. Mr. Werbowski described it as “not hard but inconvenient” for him to park in the street parking. He could use the street parking when necessary but often elected – as a matter of preference- not to. This falls short of supporting a disability-related barrier.

[107]       In contrast, I accept that Mrs. Werbowski’s disabilities did require close and accessible parking. However, I am not persuaded that it was the Respondents’ decision to deny her a second parking stall that created a disability-related adverse impact for her. In fact, she had access to disability-appropriate parking throughout the relevant period. Rather, it was the Werbowskis’ decision to have Mr. Werbowski primarily use the accessible stall that led her to have to use street parking on occasion. This decision was made by them, based on their preference and convenience. During their testimonies, the Werbowskis acknowledged that they decided that Mr. Werbowski would use the underground parking stall while Mrs. Werbowski would park on the surface lot. Mr. Werbowski testified that they made this decision because he drove more frequently, did the school runs for their grandchildren, and he would not have to clean the frost from the windshield. This decision cannot be attributed to the Respondents, and nor can the disability-related consequences that may have flowed from it.

[108]       Even if I had found that Mr. Werbowski had a disability-related need for an underground parking stall, I would have dismissed the complaint. The accessible parking stall remained available to both Mr. and Mrs. Werbowski when their disability required it. Mr. Werbowski testified that, after the conversation with Ms. Fleming on the parking issue, he switched parking spots with Mrs. Werbowski for approximately six weeks, with Mrs. Werbowski using the underground parking stall and Mr. Werbowski parking outside. This demonstrated that the assigned accessible parking stall was available to whichever spouse who needed it for disability-related reasons. Further, I note that the building was designed to be “age in place” with accessible entrances, and residents could be dropped off at the front door if needed.

[109]       The Werbowskis’ complaint that the Respondents discriminated against them in services on the ground of physical disability is dismissed.

[110]       I now turn to whether the Respondents violated s. 43 of the Code.

B.     Did the Respondents retaliate against the Werbowskis for filing a human rights complaint?

[111]       Section 43 of the Code prohibits retaliation against a person who has made a complaint under the Code as follows:

A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.

[112]       Section 43 is an important part of the Code. It protects the integrity of the complaint process and is aimed at ensuring that people can exercise their rights under the Code without fear of prejudicial consequences: JW v. LS, 2023 BCHRT 30 at para. 55.

[113]       To establish retaliation, the Werbowskis must demonstrate that: (1) the Respondents were aware of their discrimination complaint or the prospect of it; (2) the Respondents engaged in or threatened to engage in the conduct described in s. 43; and (3) there is a sufficient connection between the impugned conduct and the discrimination complaint: Gichuru v. Pallai, 2018 BCCA 78, at para. 58 [Pallai].

[114]       The Werbowskis argue that the Respondents retaliated against them after they filed their human rights complaint by: (1) requiring them to sign an OSA; (2) imposing fines for not signing the OSA; and (3) denying them access to amenities during the OSA dispute in 2020-2021, and again in 2022 when payment methods changed. I refer to all of these as the impugned conduct.

[115]       Before I consider whether the impugned conduct amounted to retaliation, I situate it in the wider context of the poor relationship between Mr. Werbowski and Ms. Fleming prior to the filing of the human rights complaint: see e.g. Ferland and Burochain v. City Edge Housing Co-operative and others (No. 2), 2007 BCHRT 388, at para 119; Birchall v. BCS 61 Strata Corporation and another, 2018 BCHRT 29, at para 78.

[116]       Mr. Werbowski described his relationship with Ms. Fleming as antagonistic. He testified that there were issues with Ms. Fleming from early in their relationship, dating back to his involvement in the first Strata Council sometime around May 2018, well before the August 2019 accommodation request that led to the human rights complaint. Mr. Werbowski testified that this was due to the issues with the Strata, and issues with the introduction of expenses for owners. He explains that it was the Werbowskis’ first time living in a strata, and he had no knowledge of how Strata Corporations worked prior to this. The evidence shows that Mr. Werbowski was the primary spokesperson for the Werbowskis in their dealings with the Respondents, handling correspondence about parking, OSA issues, and other disputes. Ms. Fleming on the other hand testified that she never had an issue with Mrs. Werbowski, and it was Mr. Werbowski who antagonized staff and made it clear that he did not like taking instructions from a woman. Ms. Fleming testified that Mr. Werbowski interfered with the running of her business and wrote a letter in that regard. Ms. Fleming says Mr. Werbowski contacted engineers working on construction projects at Cherish without her authorization, attempting to give them directions or obtain information about ongoing work. She viewed this as inappropriate interference with contractors under her supervision and outside the scope of his role as a resident or Strata Council member. Ms. Fleming and Ms. Adams also testified that Mr. Werbowski alleged that CCPR had overcharged residents on amenity fees even though they provided him with the relevant financial accounts.

[117]       This pre-existing antagonistic relationship between Mr. Werbowski and Ms. Fleming provides context for understanding the Respondents’ treatment of the Werbowskis. I turn now to the elements that the Werbowskis must prove to establish their claim of retaliation.

1.      Were the Respondents aware of the original complaint?

[118]       There is no dispute that the Respondents were aware of the Werbowskis’ human rights complaint at the time of the impugned conduct. Ms. Fleming testified to this during the hearing. I also note that the Respondents were aware of the prospect of a human rights complaint as early as August 2019, when Mr. Werbowski’s accommodation request warned that denial “may result in us bringing a claim against you under the Human Right Code.” The complaint was filed in December 2019, and the Tribunal notified the Respondents in January 2020.  Ms. Fleming says that by February 2020, the Respondents knew of the complaint.

2.      Did the Respondents engage in or threaten to engage in the conduct described in s. 43?

[119]       For the purpose of this analysis, I will assume without deciding that the following conduct, which is not in dispute, could constitute conduct described in s. 43:

a.    Requiring the Werbowskis to sign an OSA (potential coercion),

b.    Imposing fines (imposing a penalty),

c.     Denying access to amenities (denying a benefit),

d.    Refusing to provide requested documents (denying a benefit),

e.    Blocking Mr. Werbowski’s email communication (potential coercion/intimidation),

f.      Making purchase offers conditional on releasing liability for the human rights complaint (potential coercion),

g.    Agreeing that owners who do not sign OSAs should not sit on Strata Council when Mr. Werbowski planned to run (potential intimidation/denying a benefit).

[120]       The determinative issue is whether there was sufficient connection between the impugned conduct and the human rights complaint.

3.      Is there a sufficient connection between the impugned conduct and the original complaint?

[121]       My analysis turns on whether the Werbowskis have established a sufficient connection between the impugned conduct and the original complaint. Unlike the discrimination analysis that applies to other sections of the Code, the legal test is not whether a human rights complaint was “a factor” in the conduct: Brooks v. Skyacres Turkey Ranch Ltd. and others (No. 2), 2022 BCHRT 73, at para. 234; Gichuru v. Pallai, 2012 BCHRT 327 at paras. 76-90, upheld by the BCCA in Pallai. The connection must be “sufficient” to prove or infer retaliation: Pallai at para. 54.The Court in Pallai explained that there are two ways to establish a “sufficient connection” between the conduct and the complaint:

a.    By proving the respondent intended to retaliate; or

b.    By inference, where the respondent can reasonably have been perceived to have engaged in the conduct as retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct: para. 58.

[122]       Because retaliation will rarely be acknowledged as such by a respondent, it often must be inferred from a review of all the evidence: C.S.W.U. Local 1611 v. SELI Canada (No. 3), 2007 BCHRT 423 at para. 17. A “reasonable perception” which can arise by inference, is assessed from the point of view of “a reasonable complainant, apprised of the facts, at the time of the impugned conduct,” and not exclusively from the point of view of the complainant who alleges retaliation: Pallai at paras. 58 and 66.

[123]       While s. 43 does not contain a justification clause, meaning that the Code does not set out a statutory defense for retaliation, a respondent’s evidence is important for assessing the context of the alleged retaliation. In particular, the respondent’s explanation for their conduct must be considered with all of the evidence to determine if the requisite connection has been established: Pallai at para 59.

[124]       In assessing whether there is sufficient connection between the impugned conduct and the human rights complaint, I have considered all the evidence, including: the timing of the original complaint and the subsequent impugned conduct, the pre-existing relationship between the parties, the Respondents’ explanations for their conduct, the Werbowskis’ evidence about how they were treated, whether the Werbowskis were treated differently than other residents in similar circumstances, and the overall context of the parties’ interactions.

[125]       I start by acknowledging that the timing of events could support an inference of retaliation. The Werbowskis filed their human rights complaint in December 2019, and the Tribunal notified the Respondents of the complaint on January 14, 2020. The Werbowskis also added Ms. Fleming as respondent to the complaint on June 8, 2020, and the Tribunal notified the Respondents of this amendment on June 12, 2020.  The OSA issue arose two weeks later on June 25, 2020. This timing could support an inference that the OSA enforcement was connected to the human rights complaint.

[126]       The Werbowskis argue that over the 16 months that followed after adding Ms. Fleming as a respondent, “Ms. Fleming used the allegedly unsigned OSA to ban the Werbowskis from joining the COVID-19 “Bubble Club,” prevent them from using amenities […], and use (sic) it as a basis for refusing to speak to Barry or respond to his concerns.”

[127]       The difficulty with this argument is that it rests on the premise that there were no issues between the parties prior to the OSA issue. I accept that filing the human rights complaint against Ms. Fleming was likely a breaking point in an already antagonistic relationship. The issue is whether this is a “sufficient” connection to trigger the protection of s. 43: Brooks at para. 237. I find two decisions particularly useful to my analysis.

[128]       In Gichuru v. Vancouver Swing Society, 2020 BCHRT 1 [Vancouver Swing Society], Mr. Gichuru complained to the Swing Society about the online conduct of one of its members. This then prompted the Swing Society to consider Mr. Gichuru’s own conduct, some of which had made other members uncomfortable. The Swing Society banned Mr. Gichuru from some upcoming events and was considering a permanent ban. Ongoing discussion with Mr. Gichuru grew increasingly heated and unproductive. Mr. Gichuru then advised that he intended to file a human rights complaint against the Swing Society. The Swing Society interpreted this to mean that Mr. Gichuru was not willing to take responsibility for his behaviour and permanently banned him from their events.

[129]       The Tribunal accepted that the threat of a human rights complaint was connected to the decision to ban Mr. Gichuru, because it supported the Swing Society’s assessment that he was not responding appropriately to the issues it had raised. However, it found that the connection was not “sufficient” to prove retaliation because “it was not Mr. Gichuru’s stated intention to file a human rights complaint that was the problem for VSS; it was his response on matters that concerned them that led to the conclusion to extend the ban”: para. 184. The Tribunal reasoned that, to find retaliation in these circumstances would:

…  mean that any person who stated an intention to file a complaint would be insulated from any negative impact – no matter its cause – simply by virtue of making the statement and that statement being in the mind of the respondent. The temporal connection between adverse treatment and an intention to file a complaint may give rise to a reasonable inference that the conduct is retaliatory, but it does not necessarily prove a sufficient connection. [at para. 183]

[130]       Similar reasoning supported the Tribunal’s decision in Pallai that Mr. Pallai had evicted Mr. Gichuru for non-retaliatory reasons, notwithstanding that Mr. Gichuru had filed a human rights complaint and several other legal actions against Mr. Pallai at the time.

[131]       Here, I am similarly not satisfied that the Werbowskis have established a sufficient connection between the human rights complaint and the impugned conduct. I am satisfied that the Respondents provide a credible explanation for their conduct that rebuts any inference from the timing alone. Regarding the OSA requirement and fines, the Respondents’ explanation for requiring the OSA to be signed in 2020 was that they discovered during a COVID-19 compliance review that a few residents, including the Werbowskis, had not signed their OSAs. Ms. Fleming testified that this review was prompted by discovering another resident’s unsigned OSA. She testified that the timing was coincidental – the Respondents needed signed OSAs to enforce COVID-19 protocols and discovered the missing OSAs during their file review.

[132]       As in Vancouver Swing Society, to accept the Werbowskis’ argument would mean that they could use a human rights complaint to “immunize” themselves from the Respondents’ efforts to have all residents sign the OSA which they required to enforce COVID-19 protocols. This would put the Werbowskis in a better – not equal – position than other residents who had not signed the OSA. Ms. Fleming testified that the Werbowskis were treated the same as other residents who had not signed OSAs, with each being asked to sign the OSA. I accept Ms. Fleming’s evidence here in light of the evidence that the Werbowskis were provided a copy of the OSA and given time to sign the document before any fines were imposed. Further, once it was brought to the Respondents’ attention that the Werbowskis may have in fact signed the OSA, the Respondents sought to clarify this from their lawyers and ultimately obtained the signed OSA from the Werbowskis’ legal counsel. Once the Respondents located the Werbowskis’ signed OSA in October 2021, the fines stopped, and the amenities access was restored.

[133]       Regarding the first denial of amenities, the evidence before me was that this was directly tied to the OSA issue and ended when the OSA issue was resolved. Regarding the second denial in 2022, the evidence before me was that this resulted from the Werbowskis’ decision to continue paying the Strata Corporation rather than CCPR directly, despite clear notice of the payment method change. Therefore, Ms. Fleming’s testimony, which I accept, established that the second denial of amenities was the natural consequence of not paying the fees directly to CCPR, and that this policy was applied to all owners who failed to pay CCPR directly after the payment method change.

[134]       Regarding the fines specifically, I find no sufficient connection to the human rights complaint. While the Werbowskis suggested that the Respondents caused or influenced the Strata Council to issue retaliatory fines, particularly given Ms. Adams’ dual role as both CCPR representative and Strata Council President, the fines were imposed by the Strata Corporation, through the Strata Council acting under their authority pursuant to the Strata Property Act to enforce bylaw compliance. The Strata bylaws required residents to sign OSAs, and the fines were imposed for non-compliance with this requirement. On the evidence and argument before me, this was a standard enforcement mechanism available to the Strata Corporation for conduct it viewed as bylaw breaches. Further, the timing and cessation of fines supports the Respondents’ explanation. The fines began in 2020 when the unsigned OSA was discovered and continued until October 2021 when the signed OSA was discovered. The fines stopped immediately upon discovery of the signed document, signaling that they were tied to the bylaw violation, not the human rights complaint. Importantly, the evidence shows that other residents who had not signed their OSAs were subjected to the same requirements and consequences demonstrating consistent application of the bylaws to all owners rather than targeting based on the human rights complaint.

[135]       The email blocking incident in August 2021, while temporally proximate to the human rights complaint, is best explained by the ongoing OSA dispute and Ms. Fleming’s stated business concerns. Ms. Fleming testified that she blocked Mr. Werbowski’s emails because he had not signed the OSA, which she viewed as necessary for her mandate to communicate with owners. She also testified that her business had incurred increased costs from dealing with Mr. Werbowski, unrelated to the human rights complaint. This provides a credible explanation that rebuts any inference of retaliation.

[136]       Next, regarding the purchase offers, particularly the July 2021 offer which was conditional on the Werbowskis releasing the Respondents from liability for the human rights complaint, while the timing of this offer and the release condition could support an inference of retaliation, I find there is insufficient connection between this conduct and the human rights complaint to establish retaliation under s. 43. Ms. Fleming testified that her motivation was to end the ongoing disputes and contentious relationship between the parties. She wanted Mr. Werbowski to leave the building because she viewed his behaviour as disruptive towards staff and other residents and detrimental to the Cherish community. The evidence shows this desire to end the relationship was based on the pre-existing antagonistic relationship and operational concerns which were likely not helped by the filing of the human rights complaint. In this context, a reasonable complainant apprised of all the facts would not reasonably perceive the settlement offers as retaliation for the complaint, but rather as an attempt to end the broader ongoing disputes between the parties.

[137]       I also considered Ms. Fleming’s agreement that owners who do not sign OSAs should not sit on the Strata Council when Mr. Werbowski planned to run, and I find this comment relates to the ongoing OSA compliance issue rather than retaliation for the human rights complaint. The comment was made in the context of enforcing strata bylaws and was consistent with the Respondents’ position throughout regarding the requirement of a signed OSA for all condo owners.

[138]       I do not find it reasonable to infer retaliation. A reasonable complainant, apprised of all the facts, would not reasonably perceive that the Respondents were acting out of retaliation for the human rights complaint. Rather, in the full context of this relationship it is apparent that the parties had an existing antagonistic relationship, quite apart from – albeit not assisted by – the human rights complaint: Brooks at para. 242.

[139]       Based on the totality of the evidence, I find that the Werbowskis have not established a sufficient connection between the impugned conduct and their filing of the human rights complaint. As a result, I am not satisfied that the Respondents retaliated against the Werbowskis for filing the human rights complaint and I dismiss the complaint of retaliation under s. 43 of the Code.

V       CONCLUSION

[140]       The Werbowskis have not proven that the Respondents violated s. 8 or s. 43 of the Code. The complaint is dismissed.

Ijeamaka Anika

Tribunal Member