Burton v. Chen, 2026 BCHRT 237
Date Issued: November 6, 2026
File: CS-004627
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:
Robert Burton
COMPLAINANT
AND:
Scott Chen
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
On his own behalf: Robert Burton
Counsel for the Respondent: Andrew Leung
I INTRODUCTION
[1] Robert Burton was a tenant of a rental unit owned by Scott Chen. During his tenancy, Mr. Burton complained about the accumulation of pigeon faeces on a ledge outside his window. Eventually, he began withholding rent pending the resolution of that issue. In 2021, Mr. Burton was evicted for failure to pay rent. The Residential Tenancy Branch [RTB] upheld the eviction. At the relevant time, Mr. Burton was 74 years old.
[2] In this human rights complaint, Mr. Burton alleges that Mr. Chen discriminated against him in his tenancy by suggesting that he should be responsible for cleaning the pigeon faeces. He says that this was not possible, because of his age and physical limitations. He alleges that Mr. Chen discriminated against him based on his age, in violation of s. 10 of the Human Rights Code.
[3] Mr. Chen denies discriminating. He says that he twice offered to hire a company to clean the faeces, but Mr. Burton refused to allow access through his apartment. He says that the issues in this complaint have been thoroughly litigated through two RTB proceedings, a judicial review, and two Provincial Court actions. He asks the Tribunal to dismiss the complaint because it has no reasonable prospect of success and its substance has been dealt with in other proceedings: Code, ss. 27(1)(c) and (f).[1]
[4] I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
[5] I can most efficiently address this application under s. 27(1)(c) of the Code. For the following reasons, I am satisfied that Mr. Burton has no reasonable prospect of proving that he was adversely impacted in his tenancy because of his age. His complaint has no reasonable prospect of success. It is dismissed.
II DECISION
[6] Section 27(1)(c) of the Code allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing. The onus is on Mr. Chen to establish the basis for dismissal.
[7] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[8] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[9] To prove his complaint at a hearing, Mr. Burton would have to prove that he experienced adverse impacts in his tenancy and his age was a factor: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. In his materials, Mr. Burton says that he was adversely impacted by:
a. The accumulation of pigeon faeces outside his window, creating a health hazard for his family;
b. Mr. Chen’s alleged position that it was the tenant’s responsibility to clean the faeces;
c. Alleged removal attempts where Mr. Chen shoveled “large amounts of pigeon carcasses and faecal matter through the Tenant’s bedroom window”, endangering health and human dignity;
d. Alleged violations of the Building Code and strata law;
e. The eviction, which Mr. Burton alleges was made in bad faith for the ulterior motive of removing the tenants and selling the property.
[10] For the purpose of this application, I accept that Mr. Burton may be able to prove that these issues adversely impacted him in his tenancy. In saying this, I acknowledge that many of these allegations are strongly disputed, and contradict findings made in parallel proceedings by the RTB. For example, the RTB found that Mr. Chen had offered to remove the faeces but Mr. Burton would not allow access to his unit, and that Mr. Burton was evicted fairly for refusing to pay rent.
[11] In my view, the complaint has no reasonable prospect of success because there is no evidence capable of proving that any of these adverse impacts were connected to Mr. Burton’s age. There is no evidence, and Mr. Burton does not argue, that age was a factor in the dispute about who was responsible for the faeces. Nor is there any evidence, and Mr. Burton does not argue, that his age was a factor in the eviction or alleged violations of strata and building law. There is no evidence, and Mr. Burton does not argue, that his age made him vulnerable to the health hazards of the faeces.
[12] Rather, Mr. Burton argues that his age is a factor because he could not physically remove the faeces himself, whereas a younger person could. He says that, to remove the faeces, he would have to “climb a ladder, placed upon the exterior [of] the balcony of 17th floor, climb to the 18th floor, jump over a high protective barrier, alight upon the 18th floor narrow ledge, and literally shovel and dispose of approximately 9 kilogrammes of faecal matter” [as written]. He argues that this is a “classic case of adverse impact” and warrants a hearing to “examine the Landlord, Mr. Chen’s bad faith and failure to accommodate a senior tenant”. Respectfully, I disagree.
[13] Even accepting that Mr. Burton may prove that Mr. Chen considered the faeces to be the tenants’ responsibility, there is no evidence to support a finding that Mr. Chen expected or required Mr. Burton to remove the faecal matter himself. Rather, it appears undisputed that Mr. Burton eventually hired a company to do the removal, and pursued compensation for the cost of the work through the RTB. The RTB awarded Mr. Burton compensation for the work, albeit not the amount that Mr. Burton was seeking. In this situation, the evidence could not support a connection between any negative impacts from the pigeon faeces and Mr. Burton’s age – whether the Tribunal considered this as a case of direct or adverse impact discrimination.
III CONCLUSION
[14] This complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Vice Chair
[1] Mr. Chen also seeks dismissal under ss. 27(1)(b) and (d)(ii) of the Code. However, the tribunal did not permit an application on that basis: letter dated December 8, 2025. For that reason, I do not consider these submissions.