BC Human Rights Tribunal

McMillan and another (by McMillan and another) v. British Columbia Housing Management Commission (BC Housing) and another (No. 2), 2025 BCHRT 242

Date Issued: October 9, 2025
Files: CS-006915

Indexed as: McMillan and another (by McMillan and another) v. British Columbia Housing Management Commission (BC Housing) and another (No. 2), 2025 BCHRT 242

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:

Amy McMillan and Mark Skelton (by Sheila McMillan and Stan Skelton)

COMPLAINANTS

AND:

British Columbia Housing Management Commission (BC Housing) and Ladysmith Resources Centre Association

RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Jonathan Chapnick
Counsel for Complainants: Peter Harrison
Counsel for BC Housing: Anne Cochrane and Jonathan Maryniuk
Counsel for LRCA: Tamara Kronis and Shelby Seymour
Date and Location of Hearing: April 7-11, 14-17, and 22-23, 2025, Videoconference
Closing submissions complete: May 23, 2025

I               INTRODUCTION

[1]               In September 2018, the Ladysmith Resources Centre Association [LRCA] submitted a proposal to the British Columbia Housing Management Commission [BC Housing] for funding to develop and operate new rental housing. The stated goal of the LRCA’s proposed project was “to build a home for low and moderate income families, seniors, and persons with developmental disabilities” in Ladysmith. The proposed building was to comprise 36 rental housing units, up to 25 percent of which would be rented by persons with developmental disabilities. Construction of the building, which was later named Heart on Hill [HOTH], completed in or around 2023, after which tenanting commenced. As of April 2025, only one person with intellectual and developmental disabilities [IDDs] was residing at HOTH.

[2]               The complaint before the Tribunal centres on HOTH. The complainants are Amy McMillan and Mark Skelton [collectively, Complainants]. Their authorized representatives in the complaint are their respective parents, Sheila McMillan and Stan Skelton. In this decision, I refer to the Complainants as Ms. McMillan and Mr. Skelton. I refer to their representatives as Sheila and Stan.

[3]               Ms. McMillan is in her mid-40s. She grew up in Port Coquitlam, graduated high school, and attended a work preparation program at Douglas College. In 2004, her family moved to Ladysmith. Ms. McMillan works part-time at a grocery store and a dental office. She also volunteers in her community. In 2007, she moved out of her family home to live with a roommate, receiving supports provided through Community Living British Columbia [CLBC].

[4]               Mr. Skelton is in his late-40s. For many years, he and his family lived in Kimberley, which is where he attended high school. For over a decade in Kimberley, Mr. Skelton lived on his own in a one-bedroom apartment, receiving supports through CLBC. In 2013, Mr. Skelton moved to Ladysmith, where he lives with his parents due to a lack of other suitable housing options. Mr. Skelton works part-time at a pharmacy and volunteers in his community.

[5]               Both of the Complainants have IDDs and applied to be tenants at HOTH. Ms. McMillan was interviewed for a HOTH unit in June 2023, and was subsequently denied tenancy. Mr. Skelton was not interviewed for a unit in 2023 or 2024. He ended up receiving an interview in the weeks prior to the hearing of this complaint, and was subsequently offered a unit.

[6]               The complaint was originally filed in May 2022, and has gone through certain amendments. In advance of the hearing, the Tribunal confirmed with the parties that the time period relevant to the complaint is November 2021 to December 2024.

[7]               The Complainants allege discrimination based on disability by BC Housing and the LRCA [collectively, Respondents] in the areas of services and tenancy. They say the Respondents discriminated in relation to HOTH, including by not prioritizing people with IDDs in tenanting the building, by not interviewing or offering Mr. Skelton tenancy during the time period relevant to the complaint, and by denying Ms. McMillan tenancy following an interview that the Complainants say was itself discriminatory.

[8]               The Respondents deny discriminating and say the complaint should be dismissed.

[9]               For the reasons that follow, I find that part of the complaint is justified and order remedies as a result. Specifically, I find that the LRCA discriminated against Ms. McMillan based on her disabilities in contravention of s. 10 of the Human Rights Code. Because Ms. McMillan was denied the opportunity to participate in a discrimination-free tenant selection process in relation to her application for a unit at HOTH, I order the LRCA to immediately make such an opportunity available to her on an expedited and priority basis. I also order the LRCA to pay Ms. McMillan $18,000 as compensation for injury to dignity, feelings, and self-respect.

[10]           The other parts of the complaint against the LRCA are dismissed. This is not meant to minimize what Mr. Skelton experienced or to diminish the importance of his role in this proceeding. I thank him and Ms. McMillan, and their representatives, for all of their efforts and cooperation in the Tribunal’s process.

[11]           The complaint against BC Housing is dismissed in its entirety.

[12]           To make my decision, I have considered all the evidence and submissions of the parties. In my reasons, I only refer to what is necessary to explain what I decided.

II            Background

[13]           The hearing of this complaint took 11 days. Various affidavits and other documents were entered into evidence and I heard testimony from 10 witnesses. Eight witnesses testified for the Complainants. The Respondents put forward one witness each. I am satisfied that all witnesses testified honestly to the best of their ability. I have assessed the credibility and reliability of the evidence presented, and made findings of fact on a balance of probabilities. In this section, I outline the background to the complaint, setting out some of the evidence and my related findings of fact. I discuss other evidence and make additional findings of fact throughout the decision.

A.    Intellectual and developmental disabilities

[14]           The terms developmental disabilities and IDDs were used interchangeably at the hearing of this complaint and in the parties’ materials. None of the witnesses provided a clear definition of these terms or fully explained what they mean.

[15]           The Community Living Authority Act [Act], which establishes CLBC, and the Community Living Authority Regulation [Regulation] made under the Act, together define “developmental disability” as “significantly impaired intellectual functioning,” which:

a.    manifests before the age of 18;

b.    exists concurrently with impaired adaptive functioning; and

c.     is intellectual functioning that, when tested by a psychologist,

                                                     i.          scores low on standardized intelligence tests, or

                                                   ii.          is determined to be comparable to that of a person who scores low on standardized intelligence tests, because of severe adaptive behaviour problems in social judgement, social understanding, and other areas of adaptive functioning: Act, s. 1; Regulation, s. 2.1.

[16]           “Impaired adaptive functioning” means adaptive functioning that, when evaluated by a psychologist, is determined to be a contributing factor to a diagnosis of intellectual disability (intellectual developmental disorder): Regulation, s. 2.

[17]           CLBC provides for the delivery of supports and services to adults with developmental disabilities: Act, s. 11(a) and s. 1. The Complainants receive CLBC supports, which means they have developmental disabilities within the meaning of the Act and the Regulation. Like the parties, for the purposes of this decision, I use the terms developmental disabilities and IDDs interchangeably.

B.     The Complainants

[18]            The complaint was originally filed by a Ladysmith community member on behalf of six adults with IDDs and their parents who lived in Ladysmith and were seeking a unit at HOTH. Over time, for health and other reasons, most families withdrew from the complaint, leaving only the two Complainants and their respective parent representatives.

[19]           Ms. McMillan and Mr. Skelton each receive provincial income assistance as a designated Person with Disabilities (PWD], which includes a small monthly shelter allowance. They also work, earning roughly $500 each in monthly employment income. During the time period relevant to the complaint, Ms. McMillan lived on her own or with a roommate in a rental unit in an old duplex in Ladysmith owned by her parents, who were her landlords. Mr. Skelton lived in a rental suite in his parents’ home. Each received supports through CLBC or other funding sources, including a number of weekly hours with support workers. The support workers helped each of the Complainants to live independently, by assisting with things like meal planning and preparation, cooking, grocery shopping, laundry, cleaning, banking, and paperwork.

C.     Heart on the Hill

[20]           The LRCA is a non-profit charitable organization that provides resources and services in Ladysmith and the surrounding areas. Its programs include a food bank, an emergency shelter, counselling services, supports for families, victim support services, and services for seniors.

[21]           In 2015, a study was done that raised the issue of housing needs for people with IDDs. In light of that study, the LRCA and a group of parents of adults with IDDs, including Stan, established a “Supported Housing Committee” to advise the LRCA board. In 2016, the LRCA applied for funding to build an affordable housing project in Ladysmith, with 12 units to be allocated on a priority basis to people with IDDs. The application was unsuccessful.

[22]           Another opportunity for the LRCA to apply for funding arose in April 2018.

1.      Request for proposals

[23]           BC Housing is an agency of the provincial government, established in 1967 to manage provincial and federal-provincial housing and property. On April 18, 2018, BC Housing issued a request for proposals under its Community Housing Fund [CHF] program, inviting non-profit housing providers and other organizations “interested in developing and operating new rental housing units for independent seniors and families” to propose “mixed-income projects, with rents affordable for a range of low and moderate-income households” [RFP].

[24]           The RFP indicated that the CHF program did not fund projects that “include housing with support services or residential care components.” It stated that all residents of the proposed housing project were expected to be “persons with the ability to live independently without the need for on-site support services.” During cross-examination, BC Housing’s witness, Erin Harron, confirmed that these restrictions and requirements did not preclude people receiving third-party supports (through CLBC or other funding sources) from residing at housing projects under the CHF program. At the time of the hearing, Ms. Harron worked as BC Housing’s executive director of Lower Mainland operations. Previous to that role, she had been involved in developing the CHF program and related documentation, including the program’s standard form operating agreement for housing providers.

[25]           The RFP stated that project proposals needed to reflect a specific mix of rents and incomes within a single building:

a.    Market rents. Thirty percent of the proposed units needed to be rented at market rents to households below a “moderate income limit” threshold set by BC Housing. This meant that rents for 30% of the units would depend on market averages as determined by BC Housing.

b.    RGI rents. Fifty percent of the proposed units needed to be rented at below-market “rent-geared-to-income” [RGI] rents to households below the applicable “Housing Income Limit” [HIL] threshold set by BC Housing. These units are often referred to as RGI Units. A rent-geared-to-income rent is a below-market rent that is calculated as a percentage (typically 30%) of gross household income.[1]

c.     Deep subsidy rents. Twenty percent of the proposed units needed to be rented at below-market, “deep subsidy” rents, to households receiving provincial income assistance or whose RGI rent was less than or equal to the income assistance shelter allowance. Seniors receiving only federal Old Age Security [OAS] and the Guaranteed Income Supplement [GIS] would be eligible for deep subsidy rents.

2.      LRCA proposal

[26]           In response to the RFP, the LRCA submitted a project proposal on September 17, 2018 [Proposal]. The undisputed evidence of a former LRCA board member who testified at the hearing, Guido Weisz, was that, in developing the Proposal and prior to its submission, the LRCA decided that HOTH would be “an equal proportioned building with 1/3 of the units being for families, 1/3 for seniors, and 1/3 for persons with developmental disabilities.”

[27]           In the Proposal, the LRCA committed to the 30/50/20 mix required under the RFP, stating that, based on a needs assessment, it was “expected that the majority of deep subsidy units [would] be occupied by persons with developmental disabilities,” with the remainder of such units going to seniors on OAS and GIS. Other tenants paying below-market rents were expected to be “a combination of families, seniors and persons with developmental disabilities.”

3.      HOTH operating agreement

[28]           BC Housing accepted the Proposal and entered into certain agreements with the LRCA for a new, 36-unit subsidized housing building. The various agreements included a standard form CHF operating agreement, which was dated December 30, 2020 and signed by LRCA representatives on May 30, 2021 [Operating Agreement]. The Operating Agreement established the same 30/50/20 mix of rents and incomes that was set out in the RFP. The LRCA was required to make all reasonable efforts to maintain this target mix by selecting tenants with a blend of incomes.

4.      Construction, concerns, and opening of HOTH

[29]           The progression of the HOTH project was delayed due to the COVID-19 pandemic. Construction of the building began in 2021.

[30]           Stan testified that, after the project was approved by BC Housing, “everything became backroom meetings” and the community was not receiving information from the LRCA or BC Housing. Mr. Weisz testified that, after the “COVID lockdowns, the families of persons with IDD were starting to hear messaging from the LRCA, that persons with IDD may not be prioritized” at HOTH. These rumblings started in or around late 2021 and continued through 2022 .

[31]           A letter from the Supported Housing Committee to the provincial government (dated May 27, 2022) outlined committee members’ views and concerns regarding HOTH during this period. The committee said that, when they started working with the LRCA in 2016, the organization agreed to prioritize people with IDDs for one-third of any future social housing project. The committee said their vision for HOTH was communicated in the Proposal and in communications with BC Housing. However, with construction of the building approaching completion, it had come to their attention that the “one-third commitment” would not be honoured. They said they had solutions that could work within the general parameters of the CHF program with limited cost implications. They said they had reached out to BC Housing, but to no avail, as BC Housing representatives seemed to misunderstand their concerns.

[32]           The construction of HOTH completed in or around 2023. It was a 36-unit apartment building, which included four studio units, 27 one-bedroom units, and five two-bedroom units. According to a post on the LRCA website, eight of the 27 one-bedroom units were wheelchair accessible, with lowered countertops and controls, and other modifications. The other 19 one-bedroom units were said to be “adaptable,” which meant they could “be efficiently and inexpensively modified as per tenant needs.” In a post on its website dated January 12, 2023, the LRCA stated that the HOTH building was “completed and being tenanted.” It stated that tenancy applications “were actively being accepted and a waitlist [was] forming.” A subsequent post describes the “grand opening” of the building on March 25, 2023.

III          Nature of complaint and preliminary matters

[33]           In this section, I discuss the nature of the complaint and address certain preliminary matters raised by BC Housing.

A.    Group complaint

[34]           The complaint is a “group complaint,” meaning it is a complaint filed on behalf of a group of individuals who are identifiable or could be identified (by name) relatively easily for the dates relevant to the complaint: National Automobile, Aerospace, Transportation and General Workers of Canada (CAW – Canada) Local 111 v. Coast Mountain Bus Company (No. 7), 2005 BCHRT 478 at para. 18. The group in the present complaint is comprised of two identifiable individuals: Ms. McMillan and Mr. Skelton.

B.     Systemic discrimination

[35]           The complaint alleges discrimination against Ms. McMillan and Mr. Skelton as individuals. The complaint is also, in the words of the Complainants, “pleaded as systemic discrimination.” The concept of systemic discrimination relates to when a practice or attitude has an unjustifiably adverse impact systemically on members of a protected group: see Moore v. British Columbia (Education), 2012 SCC 61 at para. 58.

[36]           Regardless of whether a complaint alleges discrimination against an individual or systemically, the analysis is the same. The focus is always on whether the person or people in question have experienced unjustifiable adverse impacts based on their protected characteristics: Moore at paras. 59-60. The inquiry in every case is “into whether there is discrimination, period”: Moore at para. 60. Further, the outcome of the inquiry will always turn on the evidence before the Tribunal: see generally Pivot Legal Society v. Downtown Business Improvement Association and another (No. 6), 2012 BCHRT 23 at paras. 633-661, aff’d Vancouver Area Network of Drug Users v. Downtown Vancouver Business Improvement Association, 2018, BCCA 132.

C.     Convention on the Rights of Persons with Disabilities

[37]           In addition to characterizing the complaint as systemic in nature, the Complainants submit that the Tribunal should consider the United Nations Convention on the Rights of Persons with Disabilities, Can. T.S. 2010 No. 8 [CRPD] in deciding the complaint. The CRPD was ratified by Canada in 2010.

[38]           The Respondents take issue with the Complainants’ reliance on the CRPD, and raise jurisdictional issues. I am satisfied that I can and must interpret the Code in a manner consistent with Canada’s international legal obligations, including as reflected in the CRPD: see RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116 at para. 46; First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 at paras. 431-434.

D.    Preliminary matters raised by BC Housing

[39]           BC Housing raises “threshold issues” related to the Tribunal’s jurisdiction, the complaint’s justiciability, and the grounds of discrimination. It argues that these issues should lead to the complaint’s dismissal. I will deal with the jurisdiction and justiciability issues together, followed by the grounds issue.

1.      Jurisdiction and justiciability

[40]           In the remedies part of their closing argument, the Complainants ask the Tribunal to order the LRCA to prioritize applicants with IDDs for 10 of the units at HOTH, and to order BC Housing to formally agree to such prioritization. Largely in relation to this request, BC Housing argues that the complaint is not within the Tribunal’s jurisdiction and is non-justiciable (i.e., not suitable for Tribunal determination). BC Housing says the complaint against it attacks government policy and the adequacy of government funding, and seeks to create a benefit that does not exist. It says the complaint is not about discrimination; rather, the “Complainants are asking the Tribunal to wade into, and create, new government policy.”

[41]           I disagree with BC Housing’s characterization of the matter before me. The complaint properly alleges discrimination in tenancy and in the services provided by the Respondents. Among other things, the Complainants say they experienced disability-related adverse impacts in their access to a unit at HOTH, and they say that both Respondents are implicated in what happened to them. It is properly for the Tribunal to decide whether these claims are justified and whether the orders requested are appropriate. Such matters are suitable for my determination and are within the Tribunal’s jurisdiction.

2.      Grounds of discrimination

[42]           BC Housing’s other threshold issue relates to its characterization of the “true nature” of the complaint as pertaining “to ‘economic barriers,’ not inferior treatment based on disability.” BC Housing argues that, if the Complainants could afford higher rents, the complaint against it “would disappear.” It argues that the complaint should be dismissed because level of income is not a protected ground. I am not persuaded by these arguments.

[43]           Again here, I disagree with BC Housing’s characterization of the matter before me. The Complainants properly allege that their IDDs were a factor in the adverse impacts they say they experienced in the areas of services and tenancy. Insofar as the Complainants allege economic barriers, they do so in relation to their protected characteristics of physical and mental disability. I do not agree with BC Housing that the connections to “economic considerations” in this complaint put it “outside the Code’s purview.”

[44]           In sum, I reject BC Housing’s threshold arguments for the complaint’s dismissal.

IV         Issues

[45]           There are two broad issues in this complaint. The first is whether the Respondents discriminated in the area of services: Code, s. 8. The second is whether they discriminated in the area of tenancy: Code, s. 10.

[46]           My initial task in deciding the first issue is to: identify the service in question; determine whether it is “customarily available to the public” under s. 8; define the “public” for the service; and determine whether the Complainants were part of it: see J and J obo R. v. B.C. (Ministry of Children and Family Development) and Havens (No. 2), 2009 BCHRT 61 at paras. 255-266; see generally University of British Columbia v. Berg, [1993] 2 SCR 353 at paras. 54-55; Gould v. Yukon Order of Pioneers, [1996] 1 SCR 571 at paras. 57-58. In the present case, I have decided that the part of the complaint under s. 8 does not make it past this initial hurdle.

[47]           With respect to the second issue (i.e. whether the respondents discriminated in the area of tenancy), I have decided that the Complainants have proven part of their case under s. 10. Specifically, they have made out the part of their case that relates to the LRCA’s denial of Ms. McMillan’s application for a unit at HOTH. I have also decided that the LRCA has not established its justification defence regarding what happened to Ms. McMillan.

[48]           My reasons are set out in the following sections.

V            Did the respondents discriminate in the area of services?

[49]           The Complainants allege that the Respondents discriminated in the area of services in contravention of s. 8 of the Code. To make their case, they need to prove a disability-related adverse impact in the services in question: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Their submissions under s. 8 focus primarily on BC Housing.

[50]           The Complainants say that, “at its core,” the “service provided by BC Housing is affordable housing.” More specifically in this case, they say the service in question “is the role of BC Housing in providing resources so that affordable housing can be built.” The Complainants say BC Housing provided funding for the construction of HOTH, which was allocated by BC Housing following the “fully public” RFP process. They say the “allocation of funds is also a service customarily available to the public.”

[51]           The Complainants argue that BC Housing discriminated in providing the service in question. They say they “experienced an adverse impact because of BC Housing’s refusal to allow the LRCA to give priority to intellectually and developmentally disabled persons for some units at Heart on the Hill,” and their “intellectual and developmental disability was a factor in the adverse impact.” In addition, they argue that the “LRCA is also culpable” under s. 8. They say the LRCA “could have invoked the Dispute Resolution clause in the Operating Agreement (Schedule A, Section G) to pursue a mediation and arbitration to resolve the issue of giving priority, however, the LRCA did not do so.”

[52]           For the purposes of this decision, I accept the Complainants’ characterization of the service as being the allocation of funds and provision of resources to build affordable housing. I also assume, without deciding, that this is a service customarily available to the public. However, even so, I find that s. 8 is not engaged in this case because I am not satisfied that the Complainants or other individuals with IDDs were the “public” for this particular service. The service of allocating funds and providing resources for affordable housing in this case was not a service that BC Housing provided to the public at large. The “public” for the funds and resources in question were institutional proponents that were “a non-profit organization, housing co-op, or municipal housing provider” (RFP, s. 2.3.2).

[53]           The Complainants acknowledge that a “limitation on [the RFP] process was that the entity submitting the proposal must be a society, charitable organization or cooperative.” Further, they do not dispute Ms. Harron’s evidence that “BC Housing does not enter into funding or operating agreements with individuals such as the Complainants” or provide “direct funding or benefit … to individuals (applicants for housing or otherwise) through [its] housing fund programs, or the CHF Program in particular.” Taking a “relational approach” to the service in question, then, the public for the service did not include individuals with IDDs: see generally Berg. As a result, the s. 8 part of the complaint against BC Housing must be dismissed. It must also be dismissed against the LRCA, since BC Housing has no culpability to share with the LRCA under s. 8.

[54]           I find that this result would be the same even if the service in question was characterized more broadly as “affordable housing.” Discrimination in the provision of housing (whether affordable or not) is dealt with under s. 10 of the Code. Where a respondent is alleged to have discriminated in providing a tenancy or living space, the complaint is properly brought under s. 10, not s. 8: see Tenant A v. Landlord and Manager (No. 2), 2007 BCHRT 321 at paras. 7-11; see also McCulloch v. British Columbia (Human Rights Tribunal), 2019 BCSC 624 at paras. 120-134.

[55]           For these reasons, the s. 8 part of the complaint against the Respondents is dismissed. I now move on to consider the s. 10 part of the complaint.

VI         DID THE RESPONDENTS DISCRIMINATE IN THE AREA OF tenancy?

[56]           Section 10 of the Code prohibits discrimination in the area of tenancy, providing in relevant part:

10 (1) A person must not

(a) deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant, or

(b) discriminate against a person or class of persons regarding a term or condition of the tenancy of the space,

because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age or lawful source of income of that person or class of persons, or of any other person or class of persons.

[57]           The Complainants allege that the Respondents discriminated as follows:

a.    Ms. McMillan experienced discrimination when she was denied tenancy at HOTH, following an applicant interview that was itself discriminatory.

b.    Mr. Skelton experienced discrimination when he was not interviewed for or offered tenancy at HOTH during the time period relevant to the complaint.

c.     People with IDDs were not prioritized in the tenanting of HOTH. BC Housing did not allow the LRCA to prioritize applicants with IDDs. This was individual discrimination and systemic discrimination.

d.    Under the Operating Agreement – and under BC Housing’s standard form CHF operating agreement more generally – people receiving provincial income assistance were only eligible for units rented at deep subsidy rents. This was discrimination against people with IDDs, including the Complainants.

e.    BC Housing discriminated by not recognizing “that it is exponentially more difficult for intellectually and developmentally disabled persons than for others to relocate to a new community in search of secure, long-term housing.”

[58]           To make their case regarding an allegation of individual discrimination, the Complainants must prove they had a disability, experienced an adverse impact in the area of tenancy, and their disability was a factor in the adverse impact: Moore at para. 33. To make their case regarding an allegation of systemic discrimination, they must prove that a practice or attitude had a disability-related adverse impact systemically on a group of people in the area of tenancy: Moore at para. 58. If the Complainants make their case against the Respondents, the burden shifts to the Respondents to establish a justification defence.

[59]           The Respondents do not dispute that the Complainants have IDDs. Nor do they dispute that IDDs are disabilities for Code purposes in this case. However, they say the Complainants have failed to prove the other elements of their case. Alternatively, they argue that any IDD-related adverse impact was justified in the circumstances. The questions before me, then, are whether the Complainants have proven an IDD-related adverse impact in the area of tenancy, and, if so, whether the Respondents have made out their defence. I will address these questions in relation to the five allegations set out above.

A.    Interview of Ms. McMillan and denial of tenancy at HOTH

[60]           Ms. McMillan applied to BC Housing’s registry [Housing Registry] for tenancy at HOTH in December 2021. Sheila helped her complete and submit the application online [Application]. Sheila also spoke to BC Housing every six months to keep the Application up-to-date.

1.      Application

[61]           BC Housing’s record of the Application was put into evidence at the hearing. There are inaccuracies in it. For example, Ms. McMillan had a one percent registered interest in the property where she lived, but this is not reflected in the Application.[2] The LRCA characterizes the inaccuracies in the Application as “misrepresentations.”

[62]           At the hearing, Sheila was unable to explain the inaccuracies. She denied intentionally omitting information from the Application, but accepted that the evident omissions were errors on her part. She testified that she was not given a copy of the Application when she originally submitted it online, and she had never seen BC Housing’s record of the Application until recently. She said she could not remember if BC Housing ever inquired about Ms. McMillan’s assets during their periodic phone calls to update the Application. She said she would have disclosed the missing information if BC Housing had asked about it.

[63]           During cross-examination, Sheila was asked about Ms. McMillan’s assets, including the one percent property interest, a Registered Disability Savings Plan [RDSP], and Ms. McMillan’s bank account balances. The LRCA’s articling student, Ms. Seymour, questioned Sheila about why these items were not listed in the Application. The following is the exchange, in relevant part:

Q: How can you say that none of those assets were listed in her application …

A: … I have no idea why it’s not listed. I obviously missed that or whatever initially, and then I was never asked about them or I would have disclosed it had I been asked, but I didn’t even – I couldn’t even remember what was on the form when I updated every time.

Q: But the BC Housing people did ask you questions, prompting you for information that’s similar to what’s on the form?

A: Yes they did. I don’t remember all of these being asked, but if – like I said, if they would have been asked I would have disclosed any information, I had no reason to hide it.

Q: … But at the time when this application was submitted, you didn’t disclose her – the assets that she had at the time?

A: And I can’t explain why I didn’t. I don’t know.

…

[Ms. Seymour suggests to Sheila that BC Housing could have cancelled the Application because of the missing information.]

A: Had I been aware that there was information missing, I wouldn’t have let that go. I would have made sure that the information was given to make sure she was eligible.

Q: Yes, but at the time when you did the application on the online form and these questions were asked to you, you did not disclose these assets?

A: And I can’t explain that, I don’t know how I missed those questions. But had I been aware of that, I would have filled them in. I’m not sure why I didn’t. I don’t know how I ended up missing that. It was an error on my part.

Q: Yes, but you did miss it?

A: Yes, it’s obvious I missed it. If this [i.e., the BC Housing record of the Application] is a reflection of what I did online, it’s not there.

Q: Yes, and whether or not you meant to not put them on, you did not disclose information that is requested of you on the BC Housing Registry form – application form?

A: On the initial form – no, I missed it.

Q: Yes, but these questions were still asked of you?

A: All of these questions were not asked of me on my – on my every six months. I relied on BC Housing to update my form – that’s why I was phoning in every six months to have my form updated.

[64]           Sheila’s answers in this exchange reflect her overall testimony in this area.

[65]           The LRCA argues that Sheila was not a credible witness and says I should give little weight to the entirety of her evidence as a result. This challenge to Sheila’s credibility is important because she was the only witness at the hearing who had first-hand knowledge of both Ms. McMillan’s tenancy interview and the subsequent phone call denying her a unit at HOTH.

[66]           The LRCA argues that Sheila’s testimony regarding the Application is directly contradicted by Ms. Harron’s. Ms. Harron testified that the “Assets” section of the online application form was a mandatory field, which could not be skipped because an applicant needed to either input the value of any assets or check a box if there were none. Ms. Harron also said that it was her understanding that the semi-annual calls between applicants and BC Housing were “to ensure that their income and asset verification and information is up to date … as well as housing circumstances … and from time to time folks are also offered to review their preferences … .”

[67]           The LRCA says there were “inconsistencies in [Sheila’s] testimony, which reduced her overall credibility. It argues that, as a result of these inconsistencies – and because Sheila “has a pecuniary interest in the outcome of the complaint” – the Tribunal should prefer Ms. Harron’s evidence over Sheila’s. The LRCA further argues that Sheila’s “inconsistencies on cross-examination,” her “unreasonable and elusive answers” in her testimony regarding Ms. McMillan’s ability to live independently, and the “impossibility of her explanation for misrepresentations on [the Application] call into question her ‘veracity or sincerity … and the accuracy of the evidence’ she provided to this tribunal” (reproduced as written).

[68]           For the following reasons, I do not accept the LRCA’s arguments.

[69]           First, to my knowledge, Sheila has no “pecuniary interest” in the outcome of the complaint. The monetary relief sought by Ms. McMillan in this proceeding is to be paid to her, not her mother. I appreciate that Sheila wants the complaint to succeed, but she does not stand to profit from such an outcome. Second, beyond its submissions regarding the differences between Sheila’s testimony and Ms. Harron’s, the LRCA has not particularized any “inconsistencies” in Sheila’s evidence. I do not know what inconsistencies it is referring to. Overall, I found that Sheila’s material evidence was internally consistent and harmonized with the other relevant information before me. I acknowledge that her testimony regarding some of her family’s property and finances was unclear, uncertain, and equivocal. However, I found Sheila to be very candid about what she did not know, could not remember, or could not explain. She owned up to her mistakes when they were put to her, and was open to reviewing documentary evidence to refresh her memory or correct information she might have gotten wrong.

[70]           Third, the LRCA has not provided any support for its bald assertion that Sheila gave unreasonable and elusive answers regarding Ms. McMillan’s ability to live independently. In any event, I found Sheila’s testimony regarding Ms. McMillan’s independence to be appropriate and helpful. I acknowledge that, in response to repetitive questioning during cross examination, Sheila was sometimes curt and even occasionally recalcitrant. But I found this to be understandable in the circumstances. I gave all counsel a lot of latitude in their questioning of witnesses. Overall, Sheila was a respectful and cooperative witness.

[71]           Fourth, I do not agree that Sheila and Ms. Harron gave contradictory evidence. To start, Ms. Harron’s testimony regarding the mechanics of the online application form was never put to Sheila. She was not given an opportunity to respond to BC Housing’s evidence about mandatory fields and checkboxes. I did not hear from Sheila regarding such matters. I have no way of knowing what her evidence would have been, or whether it would have been directly contradictory to Ms. Harron’s testimony.

[72]           I note that the sample “Housing Registry Subsidized Housing Application” package [Sample Application] proffered by BC Housing does not appear to have mandatory fields or checkboxes in the “Asset Information” section. It simply asks the applicant for the total value of their assets. I also note that Stan described the application process as involving: going online, downloading the application form, filling it out, and faxing or emailing it to BC Housing. He did not mention any mandatory fields that could not be skipped. Last, I note that the Sample Application indicates that RDSPs are not counted in calculating the total value of an applicant’s assets, and only the net value of real estate equity after mortgage is counted.

[73]           Based on what I heard from Sheila, and considering her testimony in context, I do not interpret her to have stated definitively that she remembered not seeing the assets section in the Application when they completed it online. Her evidence in this area was unclear, uncertain, and equivocal. Her recall was poor. But at no point did I believe that she was being insincere or deliberately untruthful. On the contrary, in my view, at all times she tried to give honest answers to the best of her recollection.

[74]           I do not accept the LRCA’s assertion that Ms. Harron’s testimony regarding the semi-annual calls between applicants and BC Housing “directly contradicted” Sheila’s evidence. This simply is not true. Ms. Harron testified generally to her understanding of the purpose of the phone calls and what was typically discussed with applicants. She did not claim to have any specific, first-hand knowledge of Sheila’s phone calls with BC Housing, and gave no evidence about what BC Housing asked Sheila during their calls.

[75]           Finally, I reject the LRCA’s description of the inaccuracies in the Application as being misrepresentations. This characterization is inconsistent with the probabilities affecting the case as a whole and shown to be in existence at the time. Sheila’s testimony clearly suggested that she did not view the one percent property interest as being a significant asset. She estimated its value to be $500. When asked if she believed that property ownership information would be relevant to determining eligibility for subsidized housing, Sheila answered that it might be if the person was the sole owner of the property, which Ms. McMillan was not. Similarly, Sheila’s estimates for Ms. McMillan’s bank account balances were very low. I note again here that the Sample Application indicates to the applicant that their RDSP is not counted in calculating the total value of their assets, and only the net value of any real estate equity after mortgage is counted.

[76]           On the information before me, I find it highly unlikely that Sheila would have deliberately lied about Ms. McMillan’s modest assets in the Application. I accept Sheila’s testimony that she had no reason to lie and nothing to hide. Moreover, I note that there is no clear evidence before me that there would have been anything to gain from misrepresenting Ms. McMillan’s assets. On the whole of the evidence presented, I find it most probable that the omissions in the Application were the result of innocent mistakes and inattention to detail.

[77]           In sum, I found Sheila to be a credible witness. I have relied on her evidence regarding Ms. McMillan’s interview at HOTH and the subsequent phone call denying Ms. McMillan’s application for tenancy.

2.      Interview

[78]           The LRCA initially contracted out the HOTH tenanting process to a third-party non-profit housing agency. However, the housing agency withdrew early on, after which the LRCA engaged an independent contractor to do the tenanting [Contractor]. Shortly before withdrawing, the housing agency had called Ms. McMillan in early April 2023 to try to include her in the first set of tenant interviews. After the housing agency withdrew, Sheila repeatedly followed up with the LRCA, eventually connecting with the Contractor and arranging an interview for Ms. McMillan. The interview took place at HOTH on June 6, 2023 [Interview].

[79]           At the hearing, the LRCA’s sole witness, board member Candi McNeil, was asked by LRCA counsel whether any direction was given to the Contractor about what she was supposed to take into account in the tenanting process, to which Ms. McNeil responded:

Well, one of the things that came up for the disabled people – both physical and IDD people – they had to show that they were able to live on their own … live independently. And that was important.

[80]           When counsel asked if the LRCA gave the Contractor further directions to “put any boundaries around what ‘independently’ meant,” Ms. McNeil said: “No, we didn’t.” She explained that there are various organizations and professionals “that can make that definition,” and the LRCA believed the Contractor had the requisite knowledge and experience to do what the board hired her for.

[81]           Ms. McNeil was not at the Interview. Sheila and Ms. McMillan were the only witnesses to provide first-hand testimony about it. Their versions of events were similar. Where there were differences, I have preferred Sheila’s evidence, as her recall was stronger than Ms. McMillan’s, her evidence was more detailed, and she testified with more clarity and certainty.

[82]           The Interview took about an hour. It began in an office at HOTH, where Sheila and Ms. McMillan met with the Contractor and a “tenanting liaison” person. The Contractor advised that two types of units were available – a standard unit and a wheelchair accessible one. Ms. McMillan said she wished to see both types of units. They then went to see a standard unit, where the Contractor showed Ms. McMillan around and asked her questions. For example:

a.    The Contractor showed Ms. McMillan a covering/door on the wall in a closet area, which housed the internet hook-up, and asked her to identify what it was. When Ms. McMillan said she did not know, the Contractor asked Ms. McMillan, “Well, would you go into it?”

b.    The Contractor showed Ms. McMillan how to operate the blinds on the windows in the unit, and then repeatedly asked Ms. McMillan to operate the blinds herself, until eventually Ms. McMillan was able to do so. Ms. McMillan had never seen those particular blinds before.

c.     The Contractor showed Ms. McMillan the new stove in the kitchen, and asked her to identify the knob for a particular element, which Ms. McMillan was unsure about. Ms. McMillan had never seen that particular stove before.

d.    The Contractor asked Ms. McMillan to turn on the stove top fan and try to reach certain high cupboards. Ms. McMillan was unable to do so, as she is roughly four feet seven inches tall and the fan and high cupboards were beyond her reach without a stool.

[83]           Later in the Interview, the Contractor asked Ms. McMillan how she would know when to take out her recycling. Ms. McMillan was unable to answer. When they were touring the main floor, the Contractor took Ms. McMillan to a stairwell doorway and asked what she would do in the event of a fire [Fire Question]. Ms. McMillan replied that she would not open a door if the handle was hot. The Contractor continued to ask the Fire Question, and Ms. McMillan was confused and said she would go upstairs, which was the incorrect answer. They eventually returned to the office, where the Contractor asked Ms. McMillan repeated questions about her finances, which Ms. McMillan could not answer.

[84]           Sheila testified that she felt the Contractor was condescending towards Ms. McMillan during the Interview; the Contractor did not treat Ms. McMillan like a 45-year-old adult. Sheila said the Contractor humiliated Ms. McMillan and treated her like she was a toddler. She said the Contractor allowed Ms. McMillan to “stumble along” through the interview process:

What I saw was no accommodation for her intellectual ability. It was like her intellectual ability was continuously being tested, which I thought was totally unfair. And I thought [that with] a lot of the questions, [Ms. McMillan] could have understood and even explained had she been given the opportunity to understand what [the Contractor] was trying to get her to do. I felt, the fact that [the Contractor] was well aware of her height when we went through the interview, and still asking her to see if she could reach the fan, which was very obvious she couldn’t. And then asking her to reach into the cupboards. It was – it was just setting Amy up for failure. And I think – I think I was almost most offended when she asked Amy what was behind that covered door [to the internet hook-up] – which I had no idea what it was.

…

[The Contractor] was expecting Amy to know what was behind that door. I had no idea what was behind that door. And then it was so belittling to listen to her say to Amy, “Would you go in it?” Like it was just, like – would you say that to another adult? No.

[85]           Sheila testified that, for individuals with IDDs, like Ms. McMillan – “part of their disabilities is initially understanding.” She said that “all they need is to be explained; they need one more explanation than most people.”

[86]           The Contractor did not show Ms. McMillan a wheelchair accessible unit. At the end of the Interview, the Contractor told Sheila and Ms. McMillan that she would contact them. A day or two later, Ms. McMillan’s application for a unit at HOTH was denied. The Contractor spoke to Sheila on the phone and told her that Ms. McMillan was not safe to live at HOTH. Sheila’s evidence is that the Contractor provided several reasons for denying Ms. McMillan’s application, including her inability to operate the stove during the Interview, and that she “could easily be taken advantage of if she resided at Heart on the Hill.” Ms. McNeil testified that the Contractor determined that Ms. McMillan was not able to live independently.

[87]           Within a couple of days of speaking to the Contractor, Sheila submitted a complaint to the LRCA regarding the Interview and its outcome.

3.      Denial of unit was IDD-related adverse impact

[88]           The Complainants say the Interview was unfair and discriminatory. They say a person with IDDs had no chance of succeeding in the interview process. They argue that the Contractor did not take Ms. McMillan’s IDDs into consideration, and no attempt was made to accommodate her. They say the Interview was formalistic and the LRCA assumed that it was fair to simply treat people with IDDs the same as all other applicants. They say Ms. McMillan was put on the spot and asked about things she had never seen before, without any guidance or explanation. In addition, they say the Contractor’s questions about Ms. McMillan’s finances were irrelevant to whether she could live independently – which she had already been doing for many years. The Complainants argue that Ms. McMillan was denied tenancy at HOTH based on her disabilities. They say the LRCA is liable for the Contractor’s actions under s. 44(2) of the Code.

[89]           The LRCA concedes that being denied a unit at HOTH “may appear to be an adverse impact.” However, it argues that Ms. McMillan was not actually eligible for a unit at HOTH, because Sheila misrepresented Ms. McMillan’s assets on the Application. As a result, the Application should have been cancelled in the first place. Citing Khabazian-Isfahani v. BC Ministry of Finance (No. 2), 2023 BCHRT 94 and Ledoux v. Gambler First Nation, 2018 CHRT 26, the LRCA says that “it is not an adverse impact to deny someone something they were not originally entitled to.” In addition, the LRCA says that an applicant’s housing need is a factor in the tenant selection process at HOTH. It argues that, if Ms. McMillan’s asset information had been corrected after the Interview, “there is no evidence to suggest the LRCA would consider Ms. Amy McMillan (a homeowner) in more need of subsidized housing than individuals without homes and grant her a unit at [HOTH] .”

[90]           The LRCA also argues that there was no nexus between Ms. McMillan’s protected characteristics and the denial of her application for tenancy. It says that, based on the Interview, the Contractor reasonably determined that Ms. McMillan could not live independently. The LRCA points specifically to Ms. McMillan’s statement during the Interview that she would go upstairs in the event of a fire. It asserts that the Contractor “would not have permitted anyone who gave that sort of answer to live at [HOTH], and this decision was not connected to Ms. Amy McMillan’s IDD.” BC Housing agrees, asserting that “there is no evidence that disability was a factor in the LRCA’s decision.”

[91]           For the following reasons, I am satisfied that what happened to Ms. McMillan amounted to a disability-related adverse impact within the meaning of the discrimination analysis under s. 10 of the Code.

[92]           First, being denied “the right to occupy, as a tenant, space that is represented as being available for occupancy” is an adverse impact: Code, s. 10(1)(a). It is not disputed that Ms. McMillan was denied tenancy in a unit at HOTH that was available for occupancy. The LRCA’s reliance on Khabazian-Isfahani and Ledoux is misplaced. Those were services cases, which are distinguishable from the complaint before me and unhelpful to my decision-making.[3] Under section 10 of the Code, a complainant who has been denied tenancy may be found to have experienced a disability-related adverse impact even if they would have been denied tenancy in the absence of any discrimination: see Alexander v. PAL Vancouver (No. 4), 2006 BCHRT 461 at para. 51-59.

[93]           In any event, the evidence before me does not establish that Ms. McMillan was ineligible for a unit at HOTH. I appreciate that she signed an “Online Application Form Declaration” when she applied to the Housing Registry. And for the purposes of this decision, I am willing to assume that the substance of the declaration made by Ms. McMillan (which is not in evidence) is reflected in the declaration document in the Sample Application. This means that I accept that Ms. McMillan would have declared at the time that all the information in the Application was correct and complete to the best of her knowledge, and she would have indicated that she understood that false information in the Application could result in it “being cancelled from consideration.” Even accepting all of this, it does not follow that Ms. McMillan was ineligible for a unit at HOTH. I have already rejected the LRCA’s assertion that Sheila misrepresented Ms. McMillan’s assets when she helped her complete and submit the Application. The McMillans did not give “false information” in the Application; they made errors. I have no reason to believe that Ms. McMillan was untruthful when she declared that the information in the Application was correct and complete to the best of her knowledge. Further, I note Ms. Harron’s testimony, on cross examination, that applications to the Housing Registry can be corrected, and that errors in an application form do not typically or as a matter of policy disqualify an applicant from eligibility for the housing they are seeking.

[94]           Second, I acknowledge that housing need was a factor in the tenant selection process at HOTH. I also accept that it is possible that, if Ms. McMillan’s asset information was added to the Application after the Interview, it could have impacted the LRCA’s consideration of her candidacy for a unit at HOTH. But those are not the facts before me, and the Complainants do not need to rule out every hypothetical that may be adverse to their claim in order to make their case.

[95]           Third, I find that Ms. McMillan’s disabilities factored into the determination that she was not safe to live at HOTH and could not live there independently. The evidence is that the Contractor made this determination based on the Interview. The LRCA asserts that Ms. McMillan’s answer to the Fire Question was “one of the most prominent” examples of why the Contractor made her determination. Given the nature of IDDs (i.e., significantly impaired intellectual functioning), and considering Sheila’s testimony that Ms. McMillan’s disabilities are such that she has difficulty initially understanding things and requires more explanation than most people, it is reasonable to infer that Ms. McMillan’s IDDs factored into her poor performance in the Interview, during which she was unable to correctly answer questions that were put to her without clarifying information or explanations. I appreciate that Sheila is not an expert regarding IDDs. However, I am satisfied that, as Ms. McMillan’s mother – who lived with Ms. McMillan for many years and has interacted with and supported her for decades – Sheila has reliable knowledge of Ms. McMillan’s disability-related needs and challenges.

[96]           Fourth, the LRCA’s argument regarding the reasonableness of the Contractor’s determination goes to the question of whether it was justified in the circumstances. It is properly considered as part of the LRCA’s justification defence.

[97]           Finally, there is no evidence before me to support the LRCA’s bald assertion that Ms. McMillan’s answer to the Fire Question would have been disqualifying for any applicant. Regardless, even if there was evidentiary support for this assertion, it would not change my analysis. To make their case, the Complainants do not need to prove that Ms. McMillan was treated differently than everyone else. They must only establish that she was treated adversely or experienced an adverse impact with a nexus to her disabilities. For the reasons provided, I am satisfied that the Complainants have met this onus.

4.      No reasonable justification for what happened

[98]           The Complainants have proven the elements of their case regarding the denial of Ms. McMillan’s application for a unit at HOTH. The burden now shifts to the Respondents to justify what happened.

[99]           The law provides a justification defence against a complaint of discrimination in tenancy. Even if a complainant makes their case, there is no discrimination if there was a “bona fide and reasonable justification” for what happened: Biggings obo Walsh v. Pink and others, 2018 BCHRT 174 [Biggings] at para. 76; see Moore at para. 33. There are several elements to this defence: see British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20. However, the heart of the dispute between the parties is over whether Ms. McMillan was accommodated to the point of undue hardship. The Complainants say she was not. The LRCA disagrees. It argues that it accommodated Ms. McMillan, by permitting Sheila to attend the Interview with Ms. McMillan, by the Contractor showing Ms. McMillan how to use the blinds, and by following a reasonable internal review process in response to Sheila’s complaint about the Interview. The LRCA says that there was “nothing else reasonable or practical [it] could have done without undermining the purpose of the interview altogether, which was to determine if a potential tenant lives independently.” The LRCA adds that the only accommodation Ms. McMillan would have accepted was “being granted a unit” at HOTH, which is a standard of perfection that it was not required to meet.

[100]       For its part, BC Housing says that there was nothing it could have done to accommodate Ms. McMillan.

[101]       “’Accommodation’ refers to what is required in the circumstances to avoid discrimination”: Grismer at para. 22. The LRCA is correct in saying that the standard for accommodation is not perfection; it is reasonableness: McCulloch v. Nociar and another (No. 2), 2025 BCHRT 111, citing Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425; see Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at 944-995. Accommodation is about doing what is reasonable and practical to avoid the negative impact related to the affected person’s protected characteristics: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 [Meiorin] at para. 38. I am not satisfied that the LRCA met this standard in the Interview or its resulting decision to deny Ms. McMillan a unit at HOTH. For the following reasons, the LRCA has not shown me that it could not have done anything else reasonable or practical to avoid the disability-related adverse impact on Ms. McMillan: Moore at para. 49.

[102]       To start, I am not convinced that the LRCA reasonably needed to assess Ms. McMillan’s ability to live independently in the first place. At the time of the Interview, Ms. McMillan had been living in a rental unit for over 15 years, sometimes with a roommate, other times on her own. On the evidence before me, I find that the ability to live “independently” at HOTH did not mean the ability to live without third-party supports through CLBC or from other sources arranged by the tenant. Rather, it meant the ability to live at HOTH without on-site services or residential care components provided by the LRCA. Ms. McMillan has lived independently with CLBC supports for many years, without the need for the types of services and care components not provided in CHF housing projects. In my view, the LRCA could have reasonably assumed that Ms. McMillan met the “ability to live independently” requirement for HOTH. It did not need to test her abilities during the Interview.

[103]       Next, even accepting that it was necessary to assess Ms. McMillan’s ability to live independently at HOTH, I am not satisfied that the Interview, as it was conducted, was an appropriate way of making that assessment – let alone the only reasonable and practical way of doing so. The LRCA had worked and consulted extensively with people with IDDs and their families (see Proposal at 7, 12, 19, 31, and 34). It knew that prospective tenants like Ms. McMillan, who were generally able to live independently, were nonetheless vulnerable and required extra supports for “disability challenges” (see Proposal at 17). Yet the evidence in this case is that the Contractor interviewed and assessed Ms. McMillan in the same way that she interviewed other applicants. There is no evidence that the Contractor did anything differently based on Ms. McMillan’s impaired intellectual functioning. Rather, on the evidence before me, I find that Ms. McMillan was, for the most part, left “to sink or swim within the mainstream environment” of the usual interview process: see Eaton v. Brant County Board of Education, [1997] 1 SCR 241at paras. 66-67. That is the antithesis of reasonable accommodation.

[104]       I appreciate that Sheila was permitted to accompany Ms. McMillan, and I acknowledge that the Contractor showed Ms. McMillan how to work the blinds. What is missing, however, is evidence that the Contractor considered or inquired into Ms. McMillan’s disability-related needs so as to reasonably “accommodate factors relating to [her] unique capabilities and inherent worth and dignity”: Meiorin at para. 62. Had the Contractor done so, she probably could have provided the clarifying information and up-front explanations Ms. McMillan needed to better understand what was being asked of her at the Interview. I do not accept that this type of approach would have undermined the efficacy of the LRCA’s tenant selection process. There is no evidentiary basis for concluding – and it defies common sense to assume – that Ms. McMillan’s ability to live independently at HOTH could only be reasonably and practically assessed by quizzing her on things like the operation of the blinds, the location of the internet hook-up, and the knobs on the stove.

[105]       Nor do I accept that there were no reasonable or practical alternatives to the LRCA’s decision to deny Ms. McMillan’s application for tenancy based in significant part on her wrong answer to the Fire Question. The LRCA knew that “additional safety and security measures are required when providing housing to vulnerable populations” (Proposal at 17). It had committed to developing an emergency plan with training and awareness-building for tenants (Proposal at 17). It planned to conduct regular meetings with tenants regarding safety issues (Proposal at 17). The LRCA could have considered utilizing these types of measures to try to address its concerns regarding Ms. McMillan’s answer to the Fire Question, without reasonably needing to immediately and definitively deny her application.

[106]       Finally, while I appreciate that the LRCA investigated Sheila’s complaint regarding the Interview and its outcome, there is no evidence that it inquired at that time into Ms. McMillan’s disabilities and need for accommodation in the interview process. In my view, upon receiving Sheila’s complaint (if not before), the LRCA reasonably ought to have been aware of a potential connection between Ms. McMillan’s disabilities and what had happened in the Interview, and it should have inquired into that link before denying (or upholding the decision to deny) her application for a unit at HOTH: see Mitchell v. Chan, 2024 BCHRT 4 at para. 35, citing Dandurand v. Strata Plan KAS 3558, 2016 BCHRT 47; see generally Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Willems-Wilson v. Allbright Drycleaners, 1997 BCHRT 39 (CanLII). The LRCA did not do so.

[107]       In sum, I am not satisfied that there was a bona fide and reasonable justification for what happened to Ms. McMillan. It was discrimination in contravention of s. 10 of the Code.

B.     Failure to interview Mr. Skelton or offer tenancy at HOTH during relevant time period

[108]       Mr. Skelton’s circumstances were different than Ms. McMillan’s, and so is my decision about what happened to him.

[109]       Like Ms. McMillan, Mr. Skelton applied to the Housing Registry for tenancy at HOTH in December 2021. His parents helped him complete and submit the application and keep it up-to-date. Unlike Ms. McMillan, Mr. Skelton was not interviewed for a unit at HOTH during the time period relevant to this complaint. The parties did not call any witnesses with first-hand knowledge of why this happened. Mr. Skelton and Stan provided second-hand evidence.

[110]       Mr. Skelton testified that the woman who formerly did the tenant interviews told him he was not interviewed because of his income level (“they said I didn’t make enough money”). He could not remember the woman’s name, but recalled seeing her on the street and asking her why he had not received a response to his application.

[111]       Like Mr. Skelton, Stan also provided evidence that suggested there were financial reasons for what happened. Stan testified that, after Mr. Skelton applied, they heard nothing from the LRCA. He said he eventually phoned the Contractor, and was told that she did not have Mr. Skelton’s file and had not considered him for a unit at HOTH. Stan said the Contractor told him that the LRCA could not afford to select applicants with low RGI rent calculations for the RGI Units. He testified that the Contractor repeatedly stated that the LRCA would never be able to pay its mortgage if it did that. He said this conversation happened roughly one-and-a-half years prior to the hearing, but he was not certain.

[112]       Stan also testified that, at an LRCA membership meeting in July 2022, the then president of the LRCA board of directors [Board President] – who joined the board in the years following the Proposal – spoke to him and others and told them that “there was never any intention of putting any IDD people in the building at all.” He testified that the Board President had also said this once before.

[113]       The Complainants argue that the “failure to interview Mr. Skelton and offer him tenancy was discriminatory and Mr. Skelton was denied tenancy based on his mental disability.” They assert that the Tribunal must draw adverse inferences “against both respondents in the context of Mr. Skelton’s s. 10 complaint.” They say the reason for not interviewing Mr. Skelton is solely known by the Respondents, but neither called “a witness with knowledge of Mr. Skelton’s application … nor were relevant documents produced.” In these circumstances, they say it is open to the Tribunal to conclude “that Mr. Skelton was always a suitable candidate for tenancy at Heart on the Hill … that he should have been interviewed for tenancy, and in 2023 [he] should have been offered tenancy.” They say “[t]he adverse inference is fair and leads to the only logical conclusion based on the totality of the evidence before the Tribunal.”

[114]       The Respondents object to the Tribunal drawing any adverse inferences. As for the allegation that the failure to interview or offer a unit to Mr. Skelton was discriminatory, the LRCA argues that the Complainants have not made out their case. The LRCA says Mr. Skelton experienced no adverse impact, asserting (without evidence) that Mr. Skelton “was not denied an interview for a unit at [HOTH]; he was simply on a waiting list for an appropriate unit.” The LRCA says it does not dispute that Mr. Skelton is able to live independently, but asserts (without evidence) that it “would have been impossible … to interview every eligible applicant in the initial wave of tenanting.”

[115]       The LRCA also argues that the Complainants have not established that Mr. Skelton’s disabilities were a factor in any of its decision-making concerning him. The LRCA says Stan “admitted during cross examination [that] he did not believe Mr. Mark Skelton was not provided an interview in the initial wave of tenanting due to his identity as a person with IDD.” BC Housing also asserts that there is no evidence that disability was a factor in the LRCA’s decision-making regarding Mr. Skelton’s application for a unit at HOTH.

[116]       The onus is on the Complainants to put forward evidence that proves Mr. Skelton experienced a disability-related adverse impact in tenancy within the meaning of the discrimination analysis under the Code. They have not met this burden. For the following reasons, I agree with the Respondents that the Complainants have not made their case with respect to the allegation of discrimination regarding Mr. Skelton not being interviewed for or offered tenancy at HOTH during the time period relevant to the complaint.

1.      No adverse inferences

[117]       To start, I decline to exercise my discretion to draw any adverse inferences.

[118]       With respect to witness evidence, drawing an adverse inference means inferring that a party’s failure to call a material witness “amounts to an implied admission that the evidence of the absent witness would be contrary the party’s case, or at least would not support it”: S.N. Lederman, A.W. Bryant & M.K. Fuerst, The Law of Evidence in Canada, 5^th ed. (2018), cited in Singh v. Reddy, 2019 BCCA 79 at para. 8. Essentially, the decision to draw an adverse inference is premised “on the likelihood that the witness would have given harmful testimony to the party who failed to call [them]”: A.W. Mewett & P.J. Sankoff, Witnesses (looseleaf), cited in Singh at para. 9. In deciding whether to draw an adverse inference, the Tribunal may consider various factors, such as: whether there is a legitimate explanation for failing to call the witness; whether the witness is equally available to both parties; and whether the witness has key evidence to provide or is the best person to provide it: Clarke v. City of Vancouver and another, 2024 BCHRT 298 at para. 41; see Singh v. Reddy, 2019 BCCA 79 at paras. 8-10. Adjudicators should be cautious in drawing adverse inferences, because, for example, “there may be many reasons why counsel decides not to call a witness and it is generally not the business of the court to ascertain those reasons”: Singh at para. 25; Clarke at para. 41. As long as the witness is available to be called by the other party, “there can be no objection, in terms of trial fairness,” to an adjudicator declining to draw an adverse inference: Singh at para. 25.

[119]       These principles are also applicable when an adjudicator is asked to draw an adverse inference where a party does not produce documentary evidence: Port Coquitlam Building Supplies Ltd. v. 494743 B.C. Ltd., 2018 BCSC 2146 at para. 68, cited in Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7 at para. 70.

[120]       I acknowledge that there is no explanation in the evidence as to why the Respondents failed to call the Contractor or another witness who may have had first-hand knowledge of the circumstances surrounding Mr. Skelton not being interviewed for a unit at HOTH. Still, I am not persuaded to draw an adverse inference, because there is nothing before me to suggest that the Contractor or other potential witnesses were within the exclusive control of the Respondents and not equally available to all parties.

[121]       As for the Complainants’ argument that relevant documents were not produced regarding Mr. Skelton’s situation – they have not told me which specific documents they are concerned about. I understand that the Complainants obtained BC Housing documents via freedom of information requests, which the Complainants say are relevant in this proceeding but which were not disclosed to them by BC Housing during the Tribunal’s process. Over 100 pages of these materials were entered into evidence at the hearing. The Complainants have not identified which of these documents are covered by its adverse inference argument, and I am not prepared to guess. I will not draw an adverse inference in these circumstances.

2.      Ground of lawful source of income is not in issue

[122]       Because the Complainants explicitly raised the ground of “lawful source of income” in their closing argument, I will address it here.

[123]       There is vague, second-hand evidence suggesting there were financial reasons for what happened to Mr. Skelton, related to his income level. The level of a person’s income, however, is not the same as the source of their income. In general, being denied housing because of the level of one’s income does not engage the s. 10 protection against discrimination based on lawful source of income: see Poirer v. Valley Village Housing Co-operative and Spencer, 2008 BCHRT 150 at paras. 16-17. In any event, the complaint before the Tribunal was not plead, accepted, or heard on the ground of lawful source of income. As a result – despite the Complainants’ closing submissions – I have not considered Mr. Skelton’s lawful source of income as a stand-alone basis for the alleged discrimination against him.

3.      No reasonable inference of discrimination based on disability

[124]       Mr. Skelton is a person with disabilities, and I accept that not being interviewed for or offered a unit at HOTH was an adverse impact in tenancy. The question is whether the former was a factor in the latter. As is often the case, there is no direct, first-hand evidence of such a connection. As a result, the Complainants’ claim regarding Mr. Skelton’s situation turns on hearsay, circumstantial evidence, and inference.

[125]       Sometimes expert evidence can support an inference of discrimination. In the present case, however, the expert evidence and other contextual information put forward by the Complainants has not been particularly helpful in this regard. Nicole Chaland (an expert consultant specializing in housing and homelessness research) gave evidence about the shortages of affordable housing for persons with cognitive disabilities in Ladysmith. Her evidence has not helped me draw an inference one way or another regarding Mr. Skelton’s circumstances.

[126]       Dr. Tim Stainton – an expert from the Canadian Institute for Inclusion and Citizenship at the University of British Columbia – also testified. He gave evidence about: barriers faced by people with IDDs who are forced to relocate to other communities, and how those barriers can be reduced; challenges for people with IDDs receiving income assistance as a designated PWD in securing and keeping appropriate housing; and the provision of housing for people with IDDs in Nova Scotia. Dr. Stainton’s evidence was that people with IDDs share the same access-to-housing challenges as other low-income British Columbians, and that they also face additional barriers, such as: low income assistance rates, which make market rental units inaccessible; and poor employment outcomes, which rule out home ownership and heighten dependency on access to rental or social housing, which is in short supply.

[127]       In relation to Mr. Skelton’s circumstances specifically, I note Dr. Stainton’s evidence that “people with disabilities continue to face significant discrimination in housing rooted in deep-seated ableism.” Stan gave similar evidence based on personal experience, telling the Tribunal that there are “landlords in the private market who do not want to rent to IDD persons,” which “reduces the opportunities IDD persons have to secure rental accommodation.” I accept this evidence of Dr. Stainton and Stan. On its own, however, it is not enough to prove that what happened to Mr. Skelton was discrimination: Clarke at para. 102. The fact that Mr. Skelton has IDDs, and the fact that he did not get an interview or a unit at HOTH, does not mean he was discriminated against in tenancy. An inference of discrimination must be drawn reasonably and practically from the facts established by the evidence: Smith v. Mohan (No. 2), 2020 BCHRT 52 at para. 188; Clarke at para. 102; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 88. For the following reasons, the nature and quality of the evidence in this case does not permit me to draw such an inference.

[128]       First, despite the length of the hearing, and even though all parties were represented by experienced counsel, the Tribunal did not hear from a single witness with first-hand knowledge of the LRCA’s processing of Mr. Skelton’s tenancy application. The hearing ended with many key questions left unanswered. For example, when did the LRCA first review Mr. Skelton’s application? Who reviewed it? How did the tenant selection process work? [4] Were rent calculations done before applicants were selected for interviews, or after they were offered tenancy? Were applications considered in the order they were received? Were other people’s applications prioritized for consideration over Mr. Skelton’s? What types of units were available when Mr. Skelton’s application was considered? Were any studio or one-bedroom units available at that time? Were any units available for below-market rents, or had they already been filled? Information in answer to some of these questions may (or may not) have supported an inference of discrimination. The Complainants failed to put this information before me. Nor did they seek orders (for documents or particulars) requiring the Respondents to do so.

[129]       Second, the hearsay evidence from Stan and Mr. Skelton regarding what they were told about Mr. Skelton’s application was vague and inconclusive. At most, that evidence suggests there were financial reasons for what happened. Even if I rely on that evidence, without more information there is not enough to draw a discriminatory connection to Mr. Skelton’s disabilities.

[130]       Third, overall, I find that the circumstantial evidence in this case falls short of supporting a reasonable and logical inference of discrimination. For example, I appreciate that there is evidence that, in 2022 and early 2023, BC Housing told the LRCA board that it could not prioritize people with IDDs in the form of a set number of units, and that individuals receiving provincial income assistance as a designated PWD were only eligible for units rented at deep subsidy rents. There is no evidence, however, that these representations had any bearing on what happened (or did not happen) with Mr. Skelton’s application. I note that it was not the LRCA board members themselves who did the tenanting at HOTH. It was individuals like the Contractor, who, according to Ms. McNeil, received little direction from the board.

[131]        It is also worth noting that the evidence before me includes communications from BC Housing in which it tells the LRCA board that: housing providers were encouraged to “identify specific community needs,” which could include serving individuals in “priority groups consistent with the CHF program, as identified by the housing provider” (February 14, 2022); people with IDDs were included in the categories of persons to “which [HOTH] is targeted” and could apply for any type of unit (July 14, 2022); and “persons in receipt of Income Assistance may be considered in relation to any vacancy” at HOTH (November 10, 2022). Regardless, the evidence does not establish (directly or by inference) if or how the various mixed messages from BC Housing might have influenced the person or persons responsible for considering Mr. Skelton’s application in 2023 or 2024.

[132]       I accept Stan’s undisputed evidence that, in July 2022 (and once before that) the Board President stated that there was never an intention to put “any IDD people in [HOTH] at all.” There is also a July 6, 2022 email to BC Housing in which the Board President seemed to make statements questioning the ability of people with IDDs to live independently. However, these statements were made over eight months before the tenanting process began at HOTH – a process that was not administered by the Board President. There is no evidence that the people responsible for considering Mr. Skelton’s application in 2023 and 2024 (whoever those people may have been) were aware of the Board President’s statements, let alone influenced by them. I note that a person with IDDs was interviewed for and offered a unit at HOTH during the first wave of tenanting – and was still living there at the time of the hearing.

[133]       In determining whether the circumstances in this case support an inference of discrimination against Mr. Skelton, I have considered all of the circumstances together, in their full context. I have been mindful of the various types of evidence from which an inference of discrimination may be drawn: see Kennedy v. British Columbia (Ministry of Energy & Mines) (No. 4), 2000 BCHRT 60 at para. 168. The evidence in this case falls short. I accept that Mr. Skelton was able to live independently at HOTH, yet did not receive an interview and was not offered a unit during the relevant time period. But the Complainants have not proven their claim that this was discrimination.

[134]       I now move on to the Complainants’ broader claims of discrimination.

C.     Failure to prioritize people with IDDs in tenanting HOTH

[135]       The Complainants say BC Housing does not allow housing providers under the CHF program to give “any priority … to persons who are intellectually and developmentally disabled.” They state that this “is the gravamen of the wrong committed by BC Housing” in this case. They say HOTH “was intended to provide priority to intellectually and developmentally disabled persons who apply for and otherwise qualify to reside” at HOTH; however, “BC Housing prohibited it.” They assert that this was individual discrimination and systemic discrimination. They say the “only reasonable inference to be drawn is that BC Housing intended to and did discriminate” against them.

[136]       Ms. Harron testified that “prioritization” of people with IDDs was, in fact, allowed under the Operating Agreement and the CHF program more generally; it was “allocation” that was not permitted. She described prioritization as giving priority to a group of people in a “documented, transparent resident selection process.” In other words, prioritization could include establishing “selection criteria” with “ranking priority” for certain groups, but which still allow “the landlord to ensure that units are filled quickly upon turnover.” Ms. Harron agreed with counsel for the Complainants that prioritizing means that a group in the community is given “some priority, but it’s only if they meet all other obligations and there are qualified people [from the prioritized group] who are ready to apply and move in at that time.”

[137]       In contrast, Ms. Harron agreed with Complainants counsel that allocation means “you’re setting aside on a permanent basis a certain number of units” for a group of people. She testified that giving ranking priority to a group of people is one thing; “saying we’re going to set aside some number of units” for a group is another, “because that opens up the door to a unit being held [vacant] while waiting for someone who fits that group.” She testified that allocating (i.e., setting aside) units in this way poses “a particular risk in terms of [the housing provider’s] ongoing operating viability and the financial viability of the site,” which is not something that BC Housing permits.

[138]       The Complainants say that it “is common sense” not to permit the allocation of units as defined by Ms. Harron. And they assert that “the evidence is uncontradicted that BC Housing allows CHF projects to give priority to certain groups when units are leased” (emphasis added). But they allege that BC Housing opposed giving priority to people with IDDs specifically. They argue that BC Housing discriminated when it “told the LRCA that doing so would be a breach of the Operating Agreement.”

[139]       Adopting the distinction between allocation and prioritization, in my view, the evidence does not establish that BC Housing opposed giving “priority” to people with IDDs. Nor does it establish that BC Housing or the Operating Agreement prohibited the LRCA from “prioritizing” people with IDDs in the tenant selection process at HOTH. But even if I accept that BC Housing did oppose and prohibit prioritization, there is still insufficient evidence to link any such opposition or prohibition to a disability-related adverse impact in tenancy at HOTH.

[140]       In this regard, I have already discussed what happened to the Complainants. The evidence does not establish that they were denied tenancy because BC Housing opposed giving them priority or because the LRCA failed to do so. The evidence tells an entirely different story about what happened to Ms. McMillan. And the evidence is severely lacking in terms of the who, what, where, when, why, and how of Mr. Skelton’s situation. Further – aside from the person with IDDs who was offered a unit at HOTH – there is no evidence before me about the circumstances of any other individual applicant, let alone evidence regarding any adverse impact in tenancy experienced by other applicants with IDDs.

[141]       The Complainants specifically allege that:

A consequence of BC Housing’s refusal to allow priority to be given to intellectually and developmentally disabled persons is that the applicant pool for tenants is larger and applicants with higher annual incomes than the complainants or other intellectually and developmentally disabled persons who are able to secure only part-time work, may be selected because their incomes are higher than those of the complainants or other intellectually and developmentally disabled persons who otherwise qualify to reside at Heart on the Hill.

[142]       The Complainants have not put forward sufficient evidence to prove this. There is no concrete evidence before me regarding the size of the applicant pool. Further, aside from the Complainants, there is no solid evidence about the incomes or qualifications of the applicants who were in the pool, let alone information about who among them was selected or not selected for a unit at HOTH.

D.    Eligibility for rental units for people on income assistance

[143]       Under the terms of the Operating Agreement, a tenant receiving provincial income assistance was deemed to have a gross income that was below the low income threshold for a deep subsidy rent. Rather than calculating the tenant’s rent based on their actual total income, the Operating Agreement required the LRCA to apply a flat rent based on the income assistance shelter allowance. I will call this the “Flat Rent Provision.”

[144]       In reference to the Flat Rent Provision, the Complainants claim that the “Operating Agreement states that persons receiving disability assistance (PWD) could only apply for Deep Subsidy Units.” The Complainants also claim that “all intellectually and developmentally disabled persons are individuals on PWD.” They allege that, in practical terms, this meant that people with IDDs were “only eligible to apply for” for the roughly 20 percent of HOTH units that were rented at deep subsidy rents; they could not be considered for the other roughly 80 percent of the units. In sum, the Complainants argue that the Flat Rent Provision, which is standard in CHF operating agreements, “discriminates against intellectually and developmentally disabled persons because they can apply only for Deep Subsidy units.”

[145]       I do not accept these claims and arguments.

[146]       First, on its face, the Operating Agreement does not restrict people receiving income assistance to applying for only units rented at deep subsidy rents. That is not what the Flat Rent Provision says. In any event, the evidence before me is that, by letter dated November 10, 2022, BC Housing agreed not to enforce the Flat Rent Provision, and confirmed “that persons in receipt of Income Assistance may be considered in relation to any vacancy” at HOTH.

[147]       Second, the evidence before me does not establish that all people with IDDs receive provincial income assistance as a designated PWD. I accept that the Complainants each received income assistance as a PWD, and I appreciate that there are probably many people with IDDs in similar situations. But that is as far as I am able to go, on the evidence presented by the parties.

[148]       Third, the Complainants have not put forward evidence that proves that, in practice, people with IDDs were only considered for the small subset of HOTH units that were rented at deep subsidy rents.

[149]       Last, even if I accept that the Operating Agreement itself, and/or the LRCA in practice, restricted applicants with IDDs to applying for only units rented at deep subsidy rents, there is still insufficient evidence to link any such restriction to a disability-related adverse impact in tenancy at HOTH. The evidence does not prove that such a restriction was a factor in what happened to the Complainants. And, as I stated above, aside from the person with IDDs who was offered a unit at HOTH, there is no evidence before me about the circumstances of any other individual applicant.

E.     Failure to recognize relocation difficulties of people with IDDs

[150]       Finally, the Complainants assert that “BC Housing does not recognize that it is exponentially more difficult for intellectually and developmentally disabled persons than for others to relocate to a new community in search of secure, long-term housing.” They include this assertion in their list of “discriminatory conduct and acts that took place” in this case.

[151]       Whether or not BC Housing recognizes the unique difficulties faced by people with IDDs is not determinative of whether it discriminated in tenancy. While attitudes matter, the discrimination analysis is focussed on impacts: see Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 45. I have already discussed the adverse impacts that I have found, and not found, in this case.

F.      Conclusion regarding complaint under s. 10

[152]       The Complainants have proven the elements of their case regarding the denial of Ms. McMillan’s application for a unit at HOTH. They have not done so in relation to the other parts of the complaint. They have not made out their case in relation to Mr. Skelton’s situation or their other allegations of individual and systemic discrimination. Those parts of the complaint are dismissed.

[153]       The Respondents have not established a bona fide and reasonable justification for what happened to Ms. McMillan. It was discrimination in contravention of s. 10 of the Code. Before I decide on an appropriate remedy, I will address the issue of who is liable for the discrimination.

VII       Liability for the discrimination

[154]       I have found that Ms. McMillan was discriminated against in relation to the Interview and resulting denial of her application for tenancy at HOTH. The acts and omissions that contravened the Code involved the Contractor and the LRCA. The evidence does not establish that BC Housing played any role in what happened, and the Complainants have not asserted –nor do I find on the evidence – that BC Housing is liable for the acts and omissions of the Contractor or the LRCA under s. 44(2) of the Code. For these reasons, I am not satisfied that BC Housing violated the Code or is liable for any Code violation. As a result, the complaint against BC Housing is dismissed.

[155]       The Complainants say the LRCA is liable for the acts and omissions of the Contractor under s. 44(2). The LRCA does not deny that the Contractor was its employee or agent within the meaning of s. 44(2), and it agrees that “it is a principle of human rights law that organizations are vicariously liable for the conduct of its employees and contractors.” However, the LRCA argues that “it would be inappropriate for the Tribunal to hold [it] responsible for the actions of the [Contractor] in these circumstances because [the LRCA] thoroughly discharged their procedural duties to investigate.”

[156]       The LRCA says that, if the Tribunal finds it liable for the Contractor’s actions “regardless of its conduct of a thorough investigation and regardless of the fact that it followed up on the investigation in a manner that was consistent with the findings of the investigation and on legal advice, this will create a legal standard of strict correctness for organizations in human rights law where organizations will never know whether or not they are liable for discrimination until a Tribunal adjudicator validates their decisions.” The LRCA argues that “[p]rocess must matter, especially for small, unsophisticated boards of organizations like the LRCA, because if they are unable to rely on the expertise of professionals no rational person will be willing to serve on those boards.” I do not accept these arguments.

[157]       Under the Code, the LRCA had an obligation to take reasonable steps to prevent, address, and remedy instances of discrimination in its tenanting process. When Sheila alleged discrimination in that process at HOTH, the LRCA had a duty to respond. While an investigation may form part of an appropriate response to an allegation of discrimination, it is not an escape hatch from liability. To potentially avoid liability at a hearing or to obviate the need for a Tribunal proceeding altogether, a respondentmust take reasonable and effective steps to remedy or otherwise address the allegation of discrimination: Salanguit v. Parq Vancouver and another, 2024 BCHRT 119 at para. 22. It can do so by taking the allegation seriously, appropriately addressing the impact on the person who allegedly experienced the discrimination, and, where necessary, taking appropriate steps to ensure the discrimination does not happen again: Salanguit at para. 22. Relevant considerations may include: the seriousness of the alleged discrimination; the timeliness of the respondent’s response; the nature of its response, including whether the respondent investigated; whether the respondent acknowledged the discrimination; and whether the person who experienced the discrimination was compensated for their losses: Salanguit at para. 23.

[158]       While there is no disputing that the LRCA investigated Sheila’s complaint about the Interview and its outcome, there is little evidence before the Tribunal regarding the quality of the investigation or the nature of the LRCA’s follow-up. The LRCA did not call the investigator as a witness, and entered her report as an exhibit solely to prove its existence, not for the truth of its contents. The actual evidence before me regarding the investigation and its aftermath came primarily from Ms. McNeil and Mr. Weisz, who were on the board when the investigation happened. They testified that the board took Sheila’s complaint seriously, but board members had concerns about the investigator’s fact-finding and reservations regarding the report. They testified that the board accepted the report anyway and subsequently provided a copy to Sheila.

[159]       Based on the evidence of Ms. McNeil and Mr. Weisz, I am satisfied that the LRCA took Sheila’s complaint seriously. The evidence does not establish, however, that its response to the complaint appropriately addressed the impact on Ms. McMillan. On the contrary, for example,  Mr. Weisz testified that there were errors in the LRCA’s response to the complaint, and the organization could have done more to address what had occurred. He testified that, at the time, “there was still one free unit” at HOTH, which “was being considered as a possible … remedy, but unfortunately … that did not happen.” In addition, Mr. Weisz testified that his biggest concern “was that there was no accommodation provided” for Ms. McMillan in the interview process.

[160]       I find the LRCA to be liable for the discrimination against Ms. McMillan, including the acts and omissions of the Contractor. On the evidence, there is no basis for determining otherwise.

VIII    Remedy

[161]       I have determined that the part of the complaint that relates to the denial of Ms. McMillan’s application for a unit at HOTH is justified as against the LRCA. As a result, I must order the LRCA to cease the contravention of the Code and to refrain from committing the same or a similar contravention: Code, s. 37(2)(a).

[162]       In the circumstances of this case, I also consider it appropriate to make a declaratory order that the LRCA discriminated against Ms. McMillan based on her disabilities, in contravention of s. 10 of the Code: Code, s. 37(2)(b).

[163]       I now turn to the other remedies sought against the LRCA. I do not order any individual remedies for Mr. Skelton because the Complainants have not proven that he was discriminated against.

A.    Remedies sought under s. 37(2)(c)

[164]       The Complainants seek an order requiring the LRCA to apologize to Ms. McMillan for the manner in which the Interview was conducted. I decline to order an apology because I cannot regulate its sincerity and am not satisfied that it will ameliorate the effects of the discrimination Ms. McMillan experienced.

[165]       The Complainants also seek an order requiring the LRCA “to provide training to staff and others on communicating with persons who are intellectually and developmentally disabled.” I decline to make this order. The evidence before me does not indicate whether or not the LRCA provides training of this nature. The Complainants did not request this order in their Form 9.4 (remedy disclosure), and so the LRCA did not have an opportunity to respond to it by leading evidence of the types of training it provides. For similar reasons, I also decline the Complainants’ request for an order requiring the LRCA “to publish on its website its policy for reviewing applications for Heart on the Hill, including steps an applicant can take if they were not granted an interview, and if they were unsuccessful at the interview.”

B.     Remedies sought under s. 37(2)(d)(i)

[166]       The Complainants request orders requiring the LRCA to prioritize people with IDDs in its tenant selection process. They also request an order for the LRCA to give Ms. McMillan priority for any unit at HOTH that becomes vacant and for which she is qualified. I decline to make these orders. In my view, they are not responsive to the specific discrimination found in this case.

[167]       However, because Ms. McMillan was denied the opportunity to participate in a discrimination-free tenant selection process in relation to her application for a unit at HOTH, I order the LRCA to immediately make such an opportunity available to her on an expedited and priority basis: Code, s. 37(2)(d)(i).

C.     Remedy sought under s. 37(2)(d)(iii)

[168]       The Complainants seek an order for a payment to Ms. McMillan of compensation for injury to her dignity, feelings, and self-respect because of the discrimination.

[169]       In their amended Form 9.4, the Complainants requested an injury to dignity award in the amount of between $15,000 and $40,000 for Ms. McMillan. In their closing argument, they cite cases where the Tribunal ordered awards at the higher end of this range. The LRCA says the circumstances favour a lower award, citing two cases in which the Tribunal ordered awards of $5,000 and $7,500, respectively.

[170]        A violation of a person’s human rights is a violation of their dignity: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para. 128. The purpose of an injury to dignity award is to address this harm: Young Worker v. Heirloom and another, 2023 BCHRT 137at para. 114. An injury to dignity award is meant to compensate the complainant, not punish the respondent. In exercising its discretion to order an injury to dignity award, the Tribunal generally considers three broad factors: (1) the nature of the discrimination, (2) the social context in which the discrimination occurred and the vulnerability of the complainant, and (3) the specific effect that the discrimination had on the complainant: Nelson at para. 128. The amount of the award depends on the context and circumstances of the case: Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185, aff’d 2014 BCCA 396 at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases: Young Worker at para. 114, citing Mr. D v. Path General Contractors and another, 2023 BCHRT 46 at para. 55.

1.      Nature of the discrimination

[171]       The LRCA suggests that the scope and nature of the discrimination against Ms. McMillan supports a lower award. It argues that the relevant events “consisted of a single interview, not an ongoing or persistent pattern of conduct.” The LRCA says there “was no ongoing pattern of abuse” against Ms. McMillan.

[172]       I agree that the evidence does not establish a pattern of abuse here. However, I do not accept that the discrimination spanned only a single, one-hour interview. There was also the rejection of Ms. McMillan’s application for tenancy, which occurred one or two days later. In addition, the discrimination against Ms. McMillan included an ongoing failure to reasonably accommodate her. Beginning at least on the day of the Interview (June 6, 2023) and continuing through the remaining time period relevant to the complaint (ending in December 2024), Ms. McMillan was denied the opportunity to participate in a discrimination-free tenant selection process in relation to her application for a unit at HOTH. During that period, the LRCA did not inquire into her disability-related need for accommodation in the application and selection process, and it failed to take all reasonable and practical steps to accommodate factors relating to Ms. McMillan’s unique capabilities and inherent worth and dignity.

[173]       I am also mindful of the Tribunal’s comments in James obo James v. Silver Campsites and another (No. 3), 2012 BCHRT 141 [James] at para. 40 regarding the serious nature of discrimination in tenancy:

… to have a home is central to one’s sense of self, and security, one’s sense of emotional well-being and belonging in society. Having a home is a fundamental need … It is the necessary base that allows one to thrive.

Discrimination in relation to a person’s home has been recognized as “particularly egregious,” often marked by a power imbalance … especially where demand for housing exceeds supply [citation omitted]. This power imbalance, exacerbated by a lack of affordable housing, renders individuals acutely vulnerable to those who exercise power in relation to their housing [citation omitted].

[174]       I note here that Ms. Chaland’s evidence was that “housing shortages are widespread across Canada” and are “felt more by people who … rely on provincial disability assistance for their income.” In addition, she reported that the stock of rental apartments in Ladysmith is extremely limited. I also note that the Tribunal recently observed that British Columbia “is facing a housing crisis”: James and Rowland v. The Owners, Strata Plan VR1120, 2023 BCHRT 2020 at para. 34. This observation was echoed in a number statements made by BC Housing during these proceedings. At various times, BC Housing referred to “a shortage of housing in Ladysmith and … across BC,” a “housing crisis” in which “vulnerable populations with low incomes tend to struggle the most,” and “a housing market where demand for low-rent housing vastly exceeds supply.”

2.      Social context and vulnerability

[175]       In terms of Ms. McMillan’s vulnerability, the LRCA acknowledges her disabilities but says she “is a homeowner” whose “parents have made provisions for [her] in their estate planning.” They say that, during the time period relevant to the complaint, Ms. McMillan had affordable housing in Ladysmith and was never without housing or at risk of losing her housing.

[176]       I appreciate that Ms. McMillan held a one percent registered interest in the property where she lived, but I find it unfair to call to her a homeowner, given that she paid rent to live on said property as a tenant. In any event, I agree that Ms. McMillan had an affordable rental home during the relevant time period.

[177]       In terms of the broader social context in which the discrimination occurred, I note the expert opinion of Dr. Stainton, which I touched on above. His evidence was that people with IDDs share the same access-to-housing challenges as other low-income British Columbians, while also facing additional barriers, such as low income assistance rates and poor employment outcomes. Dr. Stainton reported a “severe shortage” of “social or subsidized housing,” which “creates significant challenges for people with IDD to secure safe, affordable housing.” In addition, as I stated earlier in this decision, Dr. Stainton’s evidence was that people with disabilities experience significant discrimination in housing rooted in deep-seated ableism. Dr. Stainton also reported that “persons with disabilities are roughly twice as likely to experience [social isolation] than the general population,” and “people with IDD are generally more likely to experience social isolation than even the general disabled population,” which makes “a sense of belonging and connectedness to one’s community … crucial for people with IDD’s wellbeing and health.”

[178]       I note here that the CRPD broadly recognizes that “persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world”: Preamble, (b). The CRPD also highlights “the profound social disadvantage of persons with disabilities” and “the fact that the majority of persons with disabilities live in conditions of poverty”: Preamble, (t) and (y).

[179]       Finally, while I do not wish to pathologize Ms. McMillan – who I find, on the evidence, to be an active and capable person, and an enthusiastic, contributing member of her community – I note the vulnerabilities and functional limitations that come with her IDDs. Ms. McMillan has Down Syndrome. Her medical information indicates an inability to communicate and interact with peers and others in an age appropriate manner. I take notice of the fact that she likely faces various challenges and barriers in most areas of her life. At the same time, I find, on the evidence, that Ms. McMillan is well-liked and supported by her family and other members of the Ladysmith community.

3.      Effect of the discrimination

[180]       In terms of the practical impact of the discrimination, the LRCA notes that there was no guarantee Ms. McMillan would get a unit at HOTH. I interpret the LRCA to be saying that, even if there had been no discrimination, Ms. McMillan’s application for tenancy may still have been unsuccessful “due to the high interest in the building and the limited number of units.” The LRCA also notes Ms. McMillan’s evidence that she likes her current home. The LRCA says Ms. McMillan was able to continue participating in her community despite what happened at HOTH.

[181]       In support of its argument that Ms. McMillan’s injury to dignity award should be “at the lower end of the spectrum,” the LRCA adds that, when it received Sheila’s complaint, it “took it seriously and hired an investigator.” I appreciate that, depending on the circumstances, an organization’s response to an allegation of discrimination can mitigate the impact on the person who experienced the discrimination and reduce the resulting harm and damage: Hale v. University of British Columbia Okanagan (No. 5), 2023 BCHRT 121 at para. 16, citing Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84 at para. 19. However, on the evidence before me, I am not satisfied that the LRCA’s investigation in any way mitigated the impact of the discrimination.

[182]        Ms. McMillan testified that it was her dream to live at HOTH. When asked if she wanted to live there, she answered that she would “love that more than anything.” She described it as “an opportunity of a lifetime,” where she would have her own space and be around other people.

[183]       When asked in direct examination about not being accepted to live at HOTH, Ms. McMillan struggled to answer for several minutes. She became very quiet. She had difficulties responding to the questions of counsel and the Tribunal. Eventually, she testified that, when Sheila told her that her application had not been accepted, she was “devastated” and “crushed.” She said she felt “embarrassed and totally frustrated.” She said she had been waiting for so long to be at HOTH and thought she had a chance. She said she just wanted to have her “forever home.”

[184]       Sheila’s evidence was that she had “never seen [Ms. McMillan] so devastated and upset.” She testified that Ms. McMillan “collapsed to the ground and just sobbed her heart out.” Sheila said Ms. McMillan subsequently experienced gradual weight loss. She said she noticed the extent of the weight loss in fall 2024. She said Ms. McMillan was eventually weighed by her doctor, and had lost 30 pounds since her weight had been measured three years prior. Sheila attributed the weight loss to what had happened in relation to Ms. McMillan’s application to live at HOTH.

4.      Other injury to dignity awards

[185]       In their closing argument, the Complainants cite Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 and Biggings.

[186]       Araniva was a case about sexual harassment in employment. The Tribunal determined that the effect of the discrimination on the complainant “was extreme.” Her doctor testified about disruptions to the complainant’s functioning, severe physical symptoms caused by stress, and the onset of a trauma and a stress-related disorder. Based largely on the extreme effect of the discrimination, the Tribunal awarded $40,000 in compensation for injury to dignity.

[187]       Biggings was a housing case involving a tenant who was diagnosed with Amyotrophic Lateral Sclerosis [ALS] and gradually lost the use of her limbs, at which point she was required to use a wheelchair for mobility. When her landlord refused to build a ramp to allow wheelchair access to her unit, the tenant was left effectively housebound. The Tribunal found there had been a substantial impact on the tenant’s dignity and ordered an injury to dignity award in the amount of $35,000.

[188]       The award in Biggings was based on a variety of factors, including: the egregious nature of discrimination with respect to a person’s home; the landlord’s response to the tenant’s request for accommodation, which sent the message that, because of the tenant’s disabilities, the building was no longer a suitable place for her to live; the decline in the tenant’s condition during the period relevant to the complaint, and the overall lack of progress made towards accommodating her needs; the medical and expert evidence regarding the tenant’s extraordinary vulnerability because of her ALS; and the upward trend in injury to dignity damages awards. The Tribunal was unable to pinpoint the amount of time that the tenant had been deprived of equitable access to her apartment or even what the outcome of a proper accommodation might have been. However, it found “that in the context of [her] disease and its rapid progression, every month that has passed since her diagnosis represents a significant period in the context of the remainder of her life.” During that period, the tenant “had to seriously restrict her trips outside the apartment” and “endure the indignity and possible danger of relying on others, including strangers, to carry her up and down the stairs when it was necessary to leave the apartment.” The tenant was unable to participate in “activities that could have improved her quality of life, in circumstances that were extraordinarily difficult.”

[189]       The Complainants cited one other BC case related to housing in its Form 9.4. Testar v. The Owners, Strata Plan VR 1097, 2022 BCHRT 70 was a strata case under s. 8 of the Code. In Testar, the complainant, an owner in the strata plan, asked the respondent strata corporation to build an elevator because he was unable to go up and down the stairs to his home due to his disability. The Tribunal found that the respondent had not offered the complainant reasonable accommodation and ordered an injury to dignity award in the amount of $35,000. In making this order, the Tribunal considered that: it had been two and a half years since the complainant sought accommodation; the complainant had been unable to leave his home for over two years; in the context of the complainant’s age, progressive health conditions, and limitations, the discrimination was serious in nature; the complainant’s situation was similar to that of the tenant in Biggings; and the complainant’s circumstances rendered him vulnerable (e.g., to falls and delayed medical care) and he was “essentially a prisoner” in his own home.

[190]       The LRCA did not address Testar in its submissions. It says Araniva and Biggings are highly distinguishable from Ms. McMillan’s situation and cites two cases which it says are more comparable.

[191]       Nicolosi v. Victoria Gardens Housing Co-operative and another (No. 2), 2013 BCHRT 1 aff’d 2013 BCSC 1989 involved a complainant who was removed from the top of the waitlist for a unit at a housing co-op. The Tribunal found that the removal was based at least in part on her family status. The complainant’s daughter had previously moved in to a unit at the co-op, and there had been a series of communications between the daughter, the complainant, and the co-op related to the daughter’s dissatisfaction with the unit. The Tribunal ordered an injury to dignity award in the amount of $7,500, finding that the discrimination prevented the complainant from supporting her daughter and grandson, who she cared for deeply. The Tribunal noted that the co-op had spurned or ignored the complainant’s attempts to help resolve her daughter’s issues, and had given her mixed messages about the status of her application, causing her anxiety and concern.

[192]       Mackenzie v. Jace Holdings and another (No. 4), 2012 BCHRT 376 was an employment case, in which an employer dismissed an employee for disability-related job performance issues. The Tribunal determined that the employer had neither fulfilled its “duty to inquire” nor discharged its duty to accommodate, and ordered a $5,000 award for injury to dignity. In its brief reasons for this award, the Tribunal noted that the employee had been devastated by her dismissal, cried a lot, and had panic attacks.

[193]       While I have found Mackenzie and particularly Nicolosi helpful in my analysis, I note that both cases are quite dated and the amounts ordered do not reflect the upward trend in injury to dignity awards: Araniva at para. 145.

[194]       James is a similarly dated decision, but it was a s. 10 case and is worthy of consideration. Mr. James had a brain injury and received a disability pension as a source of income. After living at a certain mobile home park for 19 years, he needed to find a new place to live due to a change in the ownership of the park. With the help of his mother, he planned to purchase a mobile home. To do so, he needed to apply for tenancy to rent the pad on which the mobile home was located. The respondents, however, refused to rent the pad to Mr. James on four occasions, thus preventing his purchase of the mobile home. The Tribunal found that Mr. James’ disability and lawful source of income were factors in the respondents’ refusal to rent to him, and there was no justification for what happened. In ordering “a large award” of $10,000 for injury to dignity, the Tribunal considered that:

a.    Mr. James was not able to transition smoothly from his rental home to his new mobile home, which would have been a move “befitting a person his age and capability – instead, he had to live with his mother for about 11 months;

b.    He felt embarrassed about his living situation, which represented a loss of his sense of independence;

c.     His “housing options [were] realistically extremely limited,” and the circumstances respecting his disability and income were not going to change;

d.    Mr. James was a member of “one of the most vulnerable and historically disadvantaged groups” in BC;

e.    The respondents did not consider Mr. James’ vulnerability or sense of dignity; and

f.      Discrimination against persons with a mental disability in the area of housing “is one of the most egregious forms of discrimination” because the “victims by nature of their disability in relation to landlords have very little power and the issue of procuring a home is of fundamental importance.”

[195]       The Tribunal noted that, because Mr. James did not testify at the hearing or provide evidence as to why he was unable to do so, the $10,000 award was “significantly lower” than it otherwise would have been.

5.      Conclusion regarding amount of injury to dignity award

[196]       Quantifying the injury to a person’s dignity, feelings, and self-respect is a difficult exercise. In all of the circumstances, and considering the awards in other cases, I find that an award of $18,000 is appropriate.

[197]       I order the LRCA to pay Ms. McMillan $18,000 as compensation for injury to dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii). I order the LRCA to pay Ms. McMillan post-judgement interest on this award until it is paid in full, based on the rates set out in the Court Order Interest Act.

IX          CONCLUSION

[198]       The complaint against BC Housing is dismissed.

[199]       The complaint against the LRCA is justified in part. The LRCA discriminated against Ms. McMillan based on her disabilities, in contravention of s. 10 of the Code. As a result, I make the orders set out below.

X            Orders

[200]       I make the following orders:

a.    I declare that the LRCA’s conduct in the Interview and in denying Amy McMillan tenancy at Heart on the Hill was discrimination contrary to s. 10 of the Code: Code, s. 37(2)(b).

b.    I order the LRCA to cease the contravention of the Code and to refrain from committing the same or a similar contravention: Code, s. 37(2)(a).

c.     Because Ms. McMillan was denied the opportunity to participate in a discrimination-free tenant selection process in relation to her application for a unit at Heart on the Hill, I order the LRCA to immediately make such an opportunity available to her on an expedited and priority basis: Code, s. 37(2)(d)(i).

d.    I order the LRCA to pay Ms. McMillan $18,000 as compensation for injury to dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii).

e.    I order the LRCA to pay Ms. McMillan post-judgement interest on the compensation award until it is paid in full, based on the rates set out in the Court Order Interest Act.

Jonathan Chapnick

Tribunal Member

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[1] According to BC Housing, HILs “are meant to reflect the minimum income required to afford appropriate accommodation in the private market.” For example, in 2023, the HIL for a studio or one-bedroom unit in the Ladysmith area was $44,000.

[2] Sheila testified that Ms. McMillan was given a nominal registered interest in 2015 so she could receive a home owner grant for the property.

[3] The complaint in Ledoux was filed under both s. 5 (denial of service) and s. 6 (denial of residence) of the Canadian Human Rights Act. However, the LRCA cited the case for the Canadian Human Rights Tribunal member’s application of s. 5, not s. 6.

[4] The LRCA’s “Tenant Application and Selection” policy was included in its book of documents, but no party saw fit to seek to enter it into evidence.