Buchanan v. The Owners, Strata Plan NWS3275 (Whispering Pines) and another, 2025 BCHRT 235
Date Issued: September 17, 2025
File: CS-004701
Indexed as: Buchanan v. The Owners, Strata Plan NWS3275 (Whispering Pines) and another, 2025 BCHRT 235
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:
Melanie Buchanan
COMPLAINANT
AND:
The Owners, Strata Plan NWS3275 (Whispering Pines) and Steadfast Properties Ltd.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Respondents: Jessie N. Ramsay
I INTRODUCTION
[1] Melanie Buchanan is a person with autoimmune disease living in a strata managed multi-unit building. She says the Owners Strata Plan NWS3275 (Whispering Pines) and their property management company, Steadfast Properties Ltd. [together the “Respondents”] failed to reasonably accommodate her disabilities because they took an unreasonable amount of time to address water ingress and mould issues in her unit.
[2] The Respondents made a settlement offer to resolve Ms. Buchanan’s complaint. Ms. Buchanan rejected the offer and the Respondents now apply to dismiss the complaint under s. 27(1)(d)(ii) of the Human Rights Code. They say it would not further the purposes of the Code to proceed with the complaint because they made a reasonable settlement offer.
[3] Ms. Buchanan opposes the dismissal application and disputes the offer presented by the Respondents is reasonable.
[4] In this decision I consider whether the Respondents’ offer is reasonable and if so, whether it would further the purposes of the Code to allow the complaint to proceed where Ms. Buchanan has rejected the offer. For the reasons that follow, I find the offer was not reasonable and dismiss the application.
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II Preliminary issue – grounds of the dismissal application
[6] The Tribunal allowed the Respondents to file an application to dismiss under s.27(1)(d)(ii) of the Code pursuant to the Case Path Pilot. In the dismissal application before me, the Respondents also make arguments under s. 27(1)(c) and (f) of the Code. I decline to consider these arguments, because they were put forward against the instructions of the Tribunal. There is nothing before me to suggest that it would be fair and appropriate to expand the scope of the permitted application. I will only address the application under s. 27(1)(d)(ii).
III BACKGROUND
[7] Ms. Buchanan filed her complaint with the Tribunal on March 8, 2021. In her complaint form she checked off that she is seeking the following kinds of remedies:
a. A declaration that the conduct complained of is discrimination.
b. Compensation for lost wages or other expenses.
c. Compensation for maintenance and repair work in her unit.
[8] She did not check the box that says she wants compensation for injury to dignity, feelings, and self-respect.
[9] On April 5, 2024, the Respondents made a with prejudice offer to settle the complaint on the following terms:
a. The Respondents will pay to Ms. Buchanan the sum of $5,000.
b. Ms. Buchanan will withdraw her human rights complaint.
c. Ms. Buchanan will sign a mutual release. The release includes provisions that Ms. Buchanan agrees to indemnity the Respondents from all claims pertaining to any issue or matter raised in and/or arising out of her complaint, and that she will not make or continue any actions for any losses, damages, costs or expenses connected to any issue or matter pertaining to and/or arising out of her complaint.
[10] The offer remains open for acceptance until two weeks following the Tribunal’s decision in this application to dismiss.
[11] Ms. Buchanan rejected the offer.
IV DECISION
[12] The Respondents argue that it would not further the Code’s purposes to allow the complaint to proceed because it made a reasonable settlement offer: Carter v. Travelex Canada UK (No. 3), 2007 BCHRT 275 at para. 23-25, upheld in 2009 BCCA 180. Ms. Buchanan says the settlement offer is not reasonable for two reasons. First, she says $5,000 is not within the range of what the Tribunal would likely award if her complaint succeeds. Second, she says the release is overly broad for the purposes of s. 27(1)(d)(ii). I turn first to the principles that guide my analysis.
[13] There are two pre-requisites for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: at Dar Santos v. University of British Columbia, 2003 BCHRT 73 para. 64; Carter at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the application to dismiss: Issa v. Loblaw, 2009 BCHRT 264at para. 35. There is no dispute that both prerequisites are met in this case.
[14] Where the prerequisites are met, the Tribunal engages in a two-step analysis to determine whether it furthers the purposes of the Code to proceed. The first step is to determine if the offer is reasonable: Dar Santos at para. 59. If it is, the next step is to address whether allowing the complaint to proceed would serve the purposes of the Code.
[15] In assessing whether an offer is reasonable, the Tribunal assumes that the complainant will prove their allegations. At the same time, the settlement offer does not have to mirror exactly what the Tribunal would order and does not need to contain an admission of liability: Carter at para. 30. Rather, the offer must fully address the allegations and provide reasonable remedies, both monetary and non-monetary, the Tribunal would likely order if the complaint were to proceed to a hearing and be successful: Heitner v. BC Provincial Renal Agency and others (No. 3), 2020 BCHRT 134 at para. 48.
[16] For the following reasons, I find the offer is not reasonable.
[17] First, I understand the amount of $5,000 is solely to compensate Ms. Buchanan for her out-of-pocket expenses. The Respondents say the amount is compensation for Ms. Buchanan’s accommodation costs when she was unable to reside in her unit and the cost of a mould assessment.
[18] Ms. Buchanan says the amount is not reasonable and has put before me evidence of her out-of-pocket expenses totaling approximately $8,000.
[19] In my view the settlement offer of $5,000 is not within the reasonable range that the Tribunal might award if the complaint was found to be justified. The amount offered is approximately 40% less than what Ms. Buchanan is seeking for her expenses. This is a significant difference. The Respondent has not argued, and I am not persuaded, that the Tribunal is likely to make such a significant deduction of an award.
[20] Second, the offer does not include an award for injury to dignity. The Respondents say Ms. Buchanan did not indicate that she is seeking an award for injury to dignity in her complaint form. They say their offer fully compensates Ms. Buchanan for the remedies she indicated she is seeking in her complaint.
[21] Ms. Buchanan says she is seeking an award for injury to dignity and says it was an inadvertent omission that she did not check off the box for injury to dignity remedies in her complaint form because she was self-represented.
[22] I am persuaded that Ms. Buchanan intended to seek an award for injury to dignity. Ms. Buchann describes in her complaint, the effects of the alleged discrimination, saying it caused her “physical distress, a marked reduction in mobility as well as having an adverse effect on my mental health.” She says the Respondents “caused me anxiety, depression and difficulty dealing with people and ordinary situations.” It is clear to me that Ms. Buchanan was describing injury to her dignity, feelings, and self-respect. I acknowledge that Ms. Buchanan did not check off the box in her complaint form to indicate that she was seeking an injury to dignity award. However, in my view, on the whole of the materials, it was clear that Ms. Buchanan was seeking or would seek such an award. Her failure to check off the box on the complaint form is not determinative particularly where she was self-represented and the complaint was at the very earliest stages of the Tribunal’s process.
[23] Further, while an award for compensation for injury to dignity is not automatic. There is a presumption that a breach of the Code will give rise to a compensable injury to a complainant’s dignity: Ingenthron v. Overwaitea Food Group and Van Pelt (No. 2), 2006 BCHRT 556 at para. 78. In these circumstances I am not persuaded that the settlement offer is reasonable because it fails to address Ms. Buchanan’s allegations and the remedies available.
[24] Finally, the settlement offer requires Ms. Buchanan to waive her rights to pursue remedies in other forums through the release. The Tribunal has stated an offer is not reasonable if it requires the complainant to agree to something that the Tribunal could not order, like waiving their rights in another forum: Lowther v. Vancouver Island Health Authority, 2013 BCHRT 20 at paras. 40-41.
[25] The Respondents say the mutual release merely prevents Ms. Buchanan from pursuing further claims against the Respondents arising from the same facts as the human rights complaint. They say the circumstances here are distinguishable from Lowther and more similar to those in Moiceanu v. BC Hydro and Power Authority and another, 2009 BCHRT 275 and Pasutti v. Best Buy Canada and Bowal, 2008 BCHRT 56 where the Tribunal found that the inclusion of a release of all claims preventing the complaint from pursuing any further claims against respondents arising from a complaint is reasonable.
[26] I do not agree. In Lowther, the Tribunal considered the reasoning in Moiceanu and Pasutti but found that a settlement term requiring a complaint to release the respondent from claims arising under other legislation is not something the Tribunal has the jurisdiction to order and is overly broad. Here, the release requires Ms. Buchanan to not make any claims “arising out of, or in any way connected to any issue or matter raised in, pertaining to and/or arising out of the [human rights complaint].” I find the language of the release to be overly broad, requiring Ms. Buchanan to waive her right to claims under legislation if they have any connection to an issue raised in her human rights complaint. In my view such a blanket release is not reasonable as it requires Ms. Buchanan to agree to something the Tribunal could not order as the result of a hearing.
V CONCLUSION
[27] I deny the Respondents’ application to dismiss the complaint.
[28] I encourage the parties to take advantage of the Tribunal’s mediation services and explore the possibility of resolving this complaint through mutual agreement.
Edward Takayanagi
Tribunal Member