Elderton v. Knudsen and another (No.2), 2026 BCHRT 72
Date Issued: March 25, 2026
File: CS-000226
Indexed as: Elderton v. Knudsen and another (No.2), 2026 BCHRT 72
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:
Stephanie Elderton
COMPLAINANT
AND:
Kerry Knudsen and Michael Shore
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Robin Dean
Counsel for the Complainant: Sheldon Parathundyil (articling student), Kyra Benloulou, and Sarah Fryling (law student)
Agent for the Respondents: Michael Shore
Date of Hearing: July 7-9, 2025
Location of Hearing: Videoconference
I INTRODUCTION
[1] This decision is about whether the Respondents discriminated against Stephanie Elderton in her tenancy, contrary to s. 10 of the Human Rights Code.
[2] Ms. Elderton lives with several disabling conditions. Both her feet have been amputated, and, since 2014, she has relied on a wheelchair, powerchair, or mobility scooter to get around. She does not have a mental disability, although the Respondents perceived her to have one.
[3] At all times relevant to this complaint, Ms. Elderton resided in unit 407, which was located on the fourth floor of Harbourview Manor, a residential building owned by Michael Shore and managed by Kerry Knudsen. The relationship between Ms. Elderton and the Respondents was strained, and they considered her to be a “difficult tenant” whom they tried to evict several times during the tenancy.
[4] Ms. Elderton alleges that the Respondents made derogatory remarks about her actual physical and/or perceived mental disabilities and failed to maintain her apartment in a way that made it accessible to her as a person with disabilities. In particular, she alleges the Respondents:
a. refused to replace her non-functioning toilet based on their view that her “abnormal feces” was causing the toilet’s plumbing issues [Toilet Allegation];
b. scheduled elevator maintenance so that she could not access unit 407 [Elevator Allegation];
c. failed to replace her non-functioning refrigerator with a new one that would accommodate her wheelchair in the small space of unit 407’s kitchen [Refrigerator Allegation];
d. failed to repair water damage to her ceiling, despite repairing the damage in neighbouring units [Water Damage Allegation]; and
e. refused to replace the torn-up carpet in unit 407 with a solid surface to accommodate her wheelchair [Flooring Allegation].
The core question this complaint poses is whether the Respondents satisfied their obligation to accommodate Ms. Elderton’s disabilities up to the point of undue hardship.
[5] As I explain in these reasons, I find that the Respondents discriminated against Ms. Elderton with regard to the Toilet Allegation, the Water Damage Allegation, and the Flooring Allegation. I dismiss the Elevator Allegation and Refrigerator Allegation. Because Ms. Elderton’s complaint is justified in part, I order remedies.
II Facts
[6] In this section I set out my findings of fact. These facts are derived from the evidence submitted by the parties, through their witnesses, as well as the documents that were admitted into evidence during the hearing.
[7] I note that there is conflicting evidence about some issues that are relevant to my decision. Where I make findings of fact about these issues, I will explain what evidence I have preferred, and why. In making these findings of fact, I must determine which evidence is more plausible based on a balance of probabilities: Ms. S v. Cannae Holdings, 2018 BCHRT 47 at para. 12. In assessing which evidence is more plausible, the Tribunal considers the credibility and reliability of that evidence. In assessing credibility and reliability, we are guided by the principles set out in R. v. S.A.S., 2021 BCPC 69 at paras. 21-27; Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, affirmed in 2012 BCCA 296; and Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10.
A. Evidence and Witnesses
[8] Four witnesses testified on behalf Ms. Elderton, including Ms. Elderton herself:
a. Ms. Elderton is the Complainant, who testified about all aspects of the Complaint.
b. Sheri Glasgow is Ms. Elderton’s friend, who lived on the same floor of Harbourview Manor as Ms. Elderton did and testified about certain repairs that were made to her unit during Mr. Shore’s ownership of Harbourview Manor.
c. Linda Jarvie is Ms. Elderton’s friend, who assisted her in making certain repairs to unit 407, interacted with Harbourview Manor’s management on Ms. Elderton’s behalf, including Mr. Knudsen, and testified about the living conditions in the apartment, generally.
d. Terry Jarvie is Linda Jarvie’s spouse, who also assisted Ms. Elderton in making certain repairs to unit 407 and also gave insight into Ms. Elderton’s living conditions.
[9] Ms. Elderton’s evidence in direct was made in writing. Mr. Shore cross-examined Ms. Elderton during the hearing.
[10] Three witnesses testified on behalf of the Respondents, including Mr. Shore and Mr. Knudsen:
a. Mr. Shore was the owner of Harbourview Manor until December 2018. He testified about his knowledge of Ms. Elderton’s requests for repairs and his responses to them.
b. Mr. Knudsen was a building manager at Harbourview Manor during the time period of the complaint. He testified about his interactions with Ms. Elderton, his knowledge of her repair requests, and his work on repairs in her unit.
c. Dan Carson was a maintenance worker for Mr. Shore who testified about his efforts to replace Ms. Elderton’s refrigerator.
[11] In his opening statement at the outset of the hearing, Mr. Shore raised the issue that two of his “key witnesses” were unable to testify because they are deceased, including Lynn Perez, another building manager at Harbourview Manor. Despite the Respondents’ position that it would be unfair to rely on testimony about things Ms. Perez said or did because Ms. Perez was not there to give her side of the story, both parties have relied on evidence of what Ms. Perez said and did in response to Ms. Elderton’s requests for repairs to unit 407. These statements are hearsay.
[12] Hearsay statements cannot be tested by cross-examination. Such statements are presumed inadmissible: Davy v. Davy, 2019 BCSC 1826 at para. 26; R. v. Khelawon, 2006 SCC 57 at para. 2. If the hearsay evidence falls into a traditional exception or the principled exception to the general rule, then the presumption may be overcome and the statements admitted: R. v. Mapara, 2005 SCC 23 at para. 15. Under the principled exception, hearsay evidence may be admitted if it is necessary and reliable: Khelawon at para. 47; R. v. Bradshaw, 2017 SCC 35 at para. 18. However, the decision maker has the discretion to exclude admissible evidence where its prejudicial effect is not proportionate to its probative value: Khelawon at para. 3.
[13] Further, the Tribunal has the discretion to admit and consider hearsay regardless of whether the evidence or information would be admissible in court: Code s. 27.2.
[14] However, even if hearsay is necessary and reliable and admitted into evidence, it is still subject to the weight given to the statement by the decision maker: Khelawon, at para. 49; Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65 at paras. 95–96.
[15] I have tried to make the decision on Ms. Elderton’s complaint without reference to hearsay. This was not possible in all cases. Where hearsay evidence is needed to resolve an issue before me, I have identified it in these reasons and explained why I have found the hearsay evidence necessary and reliable, as well as what weight I have given to it.
B. Background
[16] The temporal scope of the complaint is Fall 2017 to December 2018, as determined by the Tribunal in Elderton v. v. Knudsen and another, 2022 BCHRT 39 (at paras. 7 & 56). While the temporal scope is limited, I sometimes refer to events occurring outside of it to give context to the complaint’s allegations. However, to be clear, I have not relied on events occurring outside of this time period to form a basis for the Respondents’ liability under the Code.
1. Malfunctioning Toilet
[17] The problems with Ms. Elderton’s toilet significantly pre-date this complaint and included the toilet often plugging and overflowing, causing leaks into unit 307 below. Building management replaced Ms. Elderton’s mid-twentieth-century toilet with a toilet of the same vintage in 2006, after a Residential Tenancy Branch eviction arbitration.
[18] After that, Mr. Shore and Mr. Knudsen say they were unaware of Ms. Elderton’s continuing toilet plumbing issues until Ms. Elderton sent the Respondents a letter in 2008 asking them to replace her toilet. The toilet was fixed and the Respondents did not hear anything more about Ms. Elderton’s toilet after that.
[19] Nevertheless, the issues with Ms. Elderton’s toilet persisted.
[20] In 2014, the other toilets in Harbourview Manor were replaced with low flow toilets. Ms. Elderton’s toilet was not replaced at this time because the Respondents feared that if they put a low flow toilet in Ms. Elderton’s unit, “the blockages would resume”. There was some dispute about what the Respondents viewed as the cause of the blockages. Mr. Shore and Mr. Knudsen testified that they found cat litter in the pipes while snaking out the toilet in 2006. However, I find that the Respondents believed that Ms. Elderton’s plumbing problems were, at least in part, the result of her medications, which they believed caused her to have “extremely solid stools”. This is supported by Mr. Shore’s 2006 affidavit submitted to the Residential Tenancy Branch, where he says:
Over the years we have experienced numerous problems with Ms Eldertons toilet. Ms Elderton has on numerous occasions flooded out her bathroom by flushing a clogged toilet. We have also on many occasions discovered kitty litter in her toilet and have repeatedly instructed her not to plug up her toilet. The situation is further complicated by Ms Elderton’s medication causing her to experience extremely solid stools.[emphasis added]
[21] In 2017, things with Ms. Elderton’s toilet came to a head. In the summer of 2017, Ms. Jarvie has a conversation with Ms. Perez, “imploring” her to do something about the toilet. According to Ms. Jarvie, Ms. Perez said that the toilet problems were caused by Ms. Elderton’s “abnormal feces”. Therefore, there was no point in giving Ms. Elderton a new toilet.
[22] While Ms. Perez is not here to be asked about this conversation with Ms. Jarvie, I have found it necessary given Ms. Perez’s absence, and reliable, given that it is supported by Mr. Knudsen’s testimony about why Ms. Elderton was not given a new toilet in 2014. Further, I give Ms. Jarvie’s testimony about her conversation with Ms. Perez substantial weight. Ms. Jarvie was a credible and reliable witness. And not only is Ms. Jarvie’s testimony consistent with Mr. Knudsen’s, it is also consistent with a letter she wrote for another proceeding in 2019.
[23] In November 2017, Ms. Elderton’s home care services threatened to cut off in-home assistance to Ms. Elderton due to her malfunctioning toilet.
[24] Because of the immediacy of the situation, and the Respondents’ refusal to take action, the Jarvies stepped in and replaced Ms. Elderton’s toilet with a new one, which solved Ms. Elderton’s toilet problems for good.
2. Elevator Access
[25] Ms. Elderton alleges that the elevator at Harbourview Manor was undergoing major repairs in November 2017, at which time she was in the hospital. She says the elevator repairs prevented her from returning home from the hospital even after she was cleared to leave. In particular, she says the elevator repair required her to prolong her stay in the hospital by 5 days because, as someone in a wheelchair, she relied on the elevator to get to her apartment.
[26] Mr. Shore’s position is that the elevator repairs occurred over two weeks in November 2015, not 2017. He relies on several documents, which were admitted into evidence, that show repairs to add an elevator lifejacket were done in 2015, including the contract for the repairs, signed in August 2015, the invoice for the repairs, dated November 27, 2015.
[27] Ms. Elderton says that patient progress notes from December 12, 2017 are evidence that she could not be discharged from the hospital because the elevator was not working. The patient progress notes say that Ms. Elderton was asking to go home, but that she told the hospital that she would not be available for nursing visits due to the elevator not working. In my view, these notes do demonstrate that the elevator was malfunctioning in 2017; but they do not demonstrate that Ms. Elderton was kept in hospital because the elevator was not working.
[28] Read as a whole, the notes recommend that Ms. Elderton complete her therapy in hospital because she would require three daily, at home nursing visits to manage her IV, when the hospital could only accommodate one daily visit. While Ms. Elderton told the hospital the elevator was not working, that does not seem to have been an issue for the hospital. The issue was whether Ms. Elderton could manage her IV by herself. It determined that she could not, and that it could not provide her with what she needed, which was nursing visits three times a day. Therefore, she was kept in hospital while her IV therapy was ongoing.
[29] Ms. Elderton maintains that she was prevented from returning home from the hospital in 2017 because the elevator was not working. That there were problems with the elevator malfunctioning in 2017 is supported by the hospital notes and Ms. Elderton’s testimony that the elevator frequently did not work. However, in my view, whatever issues were going on with the elevator in 2017, they did not prevent Ms. Elderton from returning home. Indeed, Ms. Elderton wanted return home, but it was the hospital’s assessment of her ability to manage her own care that kept her in hospital.
3. Refrigerator Repair
[30] The issues with Ms. Elderton’s fridge, like her toilet, significantly pre-date the scope of the complaint. The complaint, however, is concerned with events in August 2018, when the Respondents offered to replace Ms. Elderton’s fridge with a new one. The problem from Ms. Elderton’s view was that the new fridge stuck out an inch more. Ms. Elderton rejected the new fridge based on her assessment that a larger refrigerator would make it more difficult to (1) move past the refrigerator to access the rest of the kitchen and (2) reach items at the back of the fridge given her range of mobility. Instead of replacing the old fridge, the Respondents repaired it and testified that “[Ms. Elderton] didn’t complain again.”
[31] According to Ms. Elderton, the repairs did not fix the refrigerator. As she said in her testimony, “it still functioned very poorly and was barely useable for storing most refrigerated items as they often froze outright.” Ms. Elderton, however, did not tell the Respondents about the continued issues with her refrigerator after the repair.
4. Water Damage to Ceiling
[32] Ms. Elderton’s and Ms. Glasgow’s ceilings leaked and had water damage, including black mould, due to maintenance issues with Harbourview Manor’s roof, which was asphalt. The Respondents were aware of the roof issues and were responsive, patching the roof up intermittently and replacing the roof in 2017. The ability to make repairs to the roof was limited in rain given that the asphalt had to be dry to make repairs. Therefore, Mr. Shore reduced the affected tenants’ rent to compensate them for having to live with the leaks during the rainy season.
[33] Mr. Jarvie patched up the ceiling with anti-mould paint in December 2016.
[34] In January 2018, Ms. Glasgow’s ceiling and drywall were repaired. Ms. Elderton says that hers was not, and in March 2018, her home care services threatened to cut off in-home assistance to Ms. Elderton because of the black mould issue. At that point, Ms. Jarvie again repaired the ceiling to prevent this from happening.
[35] Mr. Shore disputed this at the hearing, saying, as far as he knew, Mr. Carson had repaired Ms. Elderton’s ceiling after the roof replacement. Mr. Carson was not asked about this during his testimony.
[36] I find on a balance of the probabilities that Ms. Elderton’s ceiling was not repaired by the Respondents. Ms. Elderton’s testimony was supported by that of Ms. Glasgow who said that Ms. Elderton’s repairs were not done at the same time as hers, in January 2018. She said that “Stephanie has had to be extra patient.” Further, Mr. Shore did not have direct knowledge of the repairs to the fourth floor tenants’ ceilings. He said “as far as I know” the ceilings were fixed. It was Mr. Carson who did the repairs, and I did not hear from him on this subject. Therefore, I prefer Ms. Elderton’s evidence.
5. Hazardous Carpeting
[37] The floors in unit 407 were covered with carpeting from the 1960s and were in a very bad state of repair.
[38] When Ms. Elderton moved in, Mr. Shore provided her with an area rug to cover the holes in the carpet. Mr. Shore said that there was too much furniture in Ms. Elderton’s apartment to replace the carpet. However, he also said he “would not have moved her into an apartment with a brand-new carpet.” He did not want to replace the carpeting in unit 407 because he thought Ms. Elderton’s many cats would tear the carpet up and urinate on it.
[39] In 2003, Ms. Elderton agreed during a Residential Tenancy Branch eviction proceeding to get rid of all but two of her cats. Due to that agreement, Mr. Shore decided not to evict Ms. Elderton after all.
[40] Mr. Shore received a letter from Ms. Elderton about the disrepair of the carpets in 2012. He says that he sent Ms. Perez to see if Ms. Elderton had removed any of the furniture so they could change the carpets now that the cat count in the apartment had been reduced. According to Mr. Shore, Ms. Perez told him that there “was still furniture stacked floor to ceiling.” Ms. Elderton apparently told Ms. Perez that she would get rid of some of the furniture and would “tell us when she is ready.”
[41] What Ms. Perez told Mr. Shore about the state of Ms. Elderton’s apartment is hearsay, which Ms. Elderton says I should disregard. Regardless of what Ms. Perez told Mr. Shore, I find that there was a substantial amount of furniture in Ms. Elderton’s apartment that had to be moved to replace the flooring. This is based on Mr. Jarvie’s testimony that the amount of furniture was “a lot” and that when the floors were replaced by new owners in 2019, Mr. Jarvie had to assist Ms. Elderton in moving the furniture around so that new flooring could be laid down.
[42] When Ms. Elderton became wheelchair-bound in 2014, the holey carpet became hazardous. There was also a gap in the flooring between the living room and the kitchen that was difficult to navigate in a wheelchair. At some point after 2014, Ms. Elderton asked Mr. Shore to replace the carpet with a solid surface to accommodate her wheelchair but he refused.
[43] In 2017, Mr. Jarvie placed a new area rug in Ms. Elderton’s living room and built a plywood ramp so that she could move from the living room to the kitchen, across the gap in the flooring.
[44] Mr. Shore said he did not become aware that Ms. Elderton’s carpet had gotten as bad as it had until the 2018 Residential Tenancy Branch proceeding. However, at that time, he blamed the carpet issues on Ms. Elderton’s “heavy electric wheelchair”, which he said was “chewing up” the carpet. With the help of the Jarvies, Ms. Elderton replaced the carpeting with vinyl in 2019, after the new owners had taken ownership of Harbourview Manor.
6. Derogatory Comments
[45] In her testimony, Ms. Elderton raises several instances where she says the Respondents made derogatory comments about her, in her presence or in the presence of Ms. Jarvie. She relies on these derogatory comments to demonstrate nexus as well as injury to dignity, feelings and self-respect. Ms. Elderton’s position is that the Respondents were prejudiced against her as a disabled person, viewed her disabilities as difficulties, and wanted her out of Harbourview Manor.
[46] The Respondents either “categorically deny” that these derogatory statements occurred, or they say that their words have been twisted. I have considered all the evidence and arguments before me and find on a balance of the probabilities that the Respondents made some of these statements. However, I find it more likely than not that others did not occur.
[47] First, Ms. Elderton says that in October 2018, she overheard a conversation between Mr. Shore, Ms. Perez, and Mr. Knudsen in the back alley of Harbourview Manor, within earshot of her balcony. During the conversation, she says she heard the people below say things like “[Ms. Elderton] can’t even manage her own life” and “can’t even take care of her own apartment.” According to Ms. Elderton, Mr. Knudsen had called her a “crazy fat old lady” before and said on this occasion that she was an exaggerator who was “delirious” and “mentally ill”. She says eventually the people involved in the conversation moved into unit 307 and continued the conversation there.
[48] During cross-examination, Ms. Elderton admitted that Mr. Shore was not one of the people who were talking about her in the back alley or in unit 307. Rather, it was another, unidentified person. When confronted with the fact that she said in her complaint that it had been her estranged husband who had been present, Ms. Elderton said she had assumed it was him but now did not know who it had been. Ultimately, Ms. Elderton said during cross-examination that she could not identify any of the three people who had been talking about her. She said she did not know where they were or who they were.
[49] The Respondents argue that Ms. Elderton’s “confusion” over who was speaking about her should be a basis to disregard this evidence. They also argue that Ms. Elderton could not have heard a conversation on the ground from four floors up and allege that Ms. Elderton fabricated this incident to anchor her untimely allegations to a timely one.
[50] While I find that Ms. Elderton was overall a credible witness, I do not find her evidence about this conversation to be reliable, particularly regarding those involved. I am persuaded by the fact that Ms. Elderton overheard the conversation but did not directly observe it or see the people who were speaking. The lack of opportunity to observe the conversation seems to have created some inconsistencies about who was actually present. In the complaint, which was filed only a few months after the incident, she says that it was Mr. Knudsen and her estranged husband. In her direct evidence, she said it was Ms. Perez, Mr. Shore, and Mr. Knudsen. On cross-examination, she admitted that it had not been Mr. Shore but rather an unknown third person. Ultimately, she said she could not identify any of the three people. While Ms. Elderton has been consistent in what was said, I cannot say on a balance of probabilities given the inconsistencies on who was there that either of the Respondents were involved.
[51] This does not mean that the conversation did not occur, just that I cannot say on a balance of the probabilities that Mr. Shore or Mr. Knudsen were present.
[52] Second, Ms. Elderton says that Mr. Knudsen spoke “aggressively” towards her in a couple of encounters in 2018 when she had issues with her landline, calling her “unintelligent” and “mentally ill” and accusing her of “trashing [her] apartment”. At the hearing, Mr. Knudsen denied that he ever used “abusive language” with Ms. Elderton and said that he was always accompanied by Ms. Perez in any interaction he had with Ms. Elderton. He said that these two encounters did not occur as Ms. Elderton described them. While he testified that he interacted on a couple occasions with Ms. Elderton about her landline malfunctioning, he said he was not abusive at those times.
[53] This of course puts the Tribunal in the position of making another credibility finding, which is difficult in this instance for a couple of reasons. First, the testimony about these encounters, both from Ms. Elderton and Mr. Knudsen, was limited; there is little contextual evidence on which to judge reliability. I simply have Ms. Elderton’s word that the encounters happened and Mr. Knudsen’s word that they did not. And, again, Ms. Perez, although present during the encounters, was not available at the hearing to corroborate either party’s testimony.
[54] There is some evidence from Ms. Jarvie, whom I find to have been a credible, reliable witness, that speaks to other times Mr. Knudsen made derogatory statements about Ms. Elderton. For example, in early 2017, Mr. Knudsen told Ms. Jarvie that Ms. Elderton was a “liar” and that Ms. Jarvie had been “hoodwinked by a lying person.” Mr. Knudsen said that Ms. Elderton had “trashed” her apartment and that “over my dead body will I do anything for [Ms. Elderton].” However, Ms. Jarvie’s evidence does not speak to the particular encounters at issue. Indeed, Ms. Jarvie did not witness any direct interactions between Ms. Elderton and Mr. Knudsen.
[55] In the complaint, Ms. Elderton speaks about these encounters and says that Mr. Knudsen called her “mentally unfit”, mentally ill”, and accused her of trashing her apartment. These statements were consistent with her direct evidence at the hearing. And they are consistent with some of the things that Mr. Knudsen said to Ms. Jarvie. While I understand that Mr. Knudsen denied being “verbally abusive” towards Ms. Elderton, the lack of detail in Mr. Knudsen’s testimony makes it difficult to assess exactly what Mr. Knudsen is denying. In particular, Mr. Knudsen never specifically denied calling Ms. Elderton mentally ill or accusing her of trashing her apartment. Rather, he said that he was not “abusive” towards her, without more information about what “abusive” meant to him. Given the consistencies in Ms. Elderton’s story about these encounters, I find it more probable than not that Mr. Knudsen said these things to Ms. Elderton.
[56] Third, Ms. Elderton alleges that the Respondents spoke negatively about her to one of her neighbours. Ms. Jarvie corroborated this testimony. According to Ms. Jarvie, in 2018, a neighbour of Ms. Elderton’s told Ms. Elderton and Ms. Jarvie: “You know, when I first moved in, they warned me not to talk to you [Ms. Elderton]. They said if I tried to talk to you, you would just get angry and yell and scream at me. But when I did finally talk to you, you turned out to be really nice!”
[57] I cannot say, based on this hearsay evidence, that it was the Respondents—Mr. Shore or Mr. Knudsen—who told the neighbour not to talk to Ms. Elderton. There is no evidence before me who “they” were. And the neighbour did not testify at the hearing. Therefore, I do not find on a balance of probabilities that the Respondents said this statement to the neighbour.
[58] Finally, in late 2018, Mr. Shore said to Ms. Jarvie outside of Ms. Elderton’s presence: “I tried to help Stephanie, but she was always so nasty and angry. She’s so sweet now, they must have changed her medications.” Mr. Shore did not deny saying this to Ms. Jarvie but accused Ms. Jarvie of twisting his words and using them against him when he really said them out of “joy” and “compassion” for Ms. Elderton.
III ANALYSIS AND DECISION
[59] Section 10 of the Code applies to tenancies. Section 10(1) says:
A person must not
….
(b) discriminate against a person … regarding a term or condition of the tenancy of the space,
because of the…physical or mental disability…of that person ….
[60] To prove her complaint under s. 10 of the Code, Ms. Elderton must show (1) she has one or more disabilities; (2) she suffered one or more adverse impacts in relation to her tenancy; and (3) her disabilities were a factor in the tenancy-related adverse impacts: Moore v. British Columbia (Education), 2012 SCC 61 at para 33.
[61] If Ms. Elderton successfully establishes her complaint, the burden then shifts to the Respondents to justify the adverse impacts as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[62] It is well settled that respondents can justify their conduct in tenancy complaints, pursuant to the test set out in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 SCR 3 at para. 54 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 SCR 868 [Grismer] at para. 20, and Alexander v. PAL Vancouver (No. 4), 2006 BCHRT 461 at para. 44.
[63] To establish a bona fide reasonable justification, the Respondents must establish three criteria on a balance of probabilities:
a. They adopted the standard for a purpose rationally connected to the function being performed;
b. They adopted the standard in an honest and good faith belief that it was necessary for fulfillment of the purpose; and
c. The standard is reasonably necessary to accomplish the purpose, including that the Respondents cannot accommodate Ms. Elderton without incurring undue hardship.
Grismer at para. 20.
[64] Accommodation requires that a housing provider take all reasonable and practical steps to remove physical barriers that prevent a person with a disability from accessing their rental unit safely and with dignity: Biggings obo Walsh v. Pink and others, 2018 BCHRT 174 at para. 79. This will not always be an easy, convenient, or cost-effective exercise: Biggings at para. 79. “Reasonable accommodation is satisfied where the respondent “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at para. 5. This is the point at which a respondent has reached the undue hardship threshold. What constitutes undue hardship is fact specific and will turn on the specific circumstances of each case: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 [Renaud].
[65] Accommodation is a dialogic process: Andruski v. The Owners, Strata Plan LMS2298, 2024 BCHRT 240 at para. 28. A tenant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection: Renaud at 994–995; Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425. A respondent is not responsible to accommodate a disability that it was not aware of or could not reasonably have been aware of: Klewchuk at para. 367.
A. Does Ms. Elderton have a disability under the Code?
[66] The Respondents do not dispute that Ms. Elderton has physical disabilities. At the hearing, Ms. Elderton led evidence of her physical disabilities, which I accept.
[67] Neither did the Respondents dispute that they perceived Ms. Elderton to have one or more mental disabilities. This, in my view, is appropriate given the evidence before me. I have found that Mr. Knudsen called Ms. Elderton “mentally ill” and “mentally unfit.” Mr. Shore also spoke to Ms. Jarvie about Ms. Elderton’s medications, which he surmised had influenced an improvement in Ms. Elderton’s mood.
[68] Based on the evidence before me as well as the Respondents’ failure to challenge this element of Ms. Elderton’s complaint, I find that Ms. Elderton has proved that she has physical disabilities and that the Respondents perceived her to have a mental disability.
B. Did Ms. Elderton experience disability-related adverse impacts regarding a term or condition of her tenancy? And, if so, was the Respondents’ conduct justified?
[69] I also easily find that for most of the allegations, Ms. Elderton experienced disability-related adverse impacts regarding a term or condition of her tenancy. The challenge in this complaint is deciding whether the Respondents justified their conduct. In this section, I go through the allegations and determine for each whether there was discrimination.
1. Toilet Allegation
[70] I have found that the Respondents decided not to replace Ms. Elderton’s toilet in 2014 at the same time it replaced everyone else’s with a low flow toilet because of their view that Ms. Elderton’s medications were causing her to have “abnormal” bowel movements. They thought these bowel movements were clogging her toilet and feared a low flow toilet would make clogging more likely. Because Ms. Elderton was about to lose her home care given the toilet problems, in 2017, the Jarvies replaced her mid-century toilet with a new, “mid-price-range” toilet that they bought at Home Depot. With that, Ms. Elderton’s toilet issues resolved.
[71] I am satisfied that Ms. Elderton has proved an adverse impact with a connection to disability. Not having access in one’s rental unit to a toilet that functions properly is an adverse impact related to tenancy that caused significant stress, particularly when her in-home care, which she required due to her disability, threatened to terminate its services. Further, this adverse impact was connected to Ms. Elderton’s disabilities, perceived or otherwise. Ms. Elderton suffered with a non-functioning toilet for many years because the Respondents did not want to give her a new one based on their view of the effects of her medication.
[72] Given that adverse impact and nexus have been established, Ms. Elderton has proved her case of discrimination.
[73] The Respondents say they did not know that Ms. Elderton continued to have toilet issues after 2008. Their position is that they could not replace a toilet that they did not know was still a problem. I am not persuaded by this argument as it is not borne out by the evidence.
[74] In 2017, Ms. Jarvie implored Ms. Perez, Mr. Shore’s agent, to replace the toilet and she refused because of Ms. Elderton’s so-called “abnormal feces”. If the Respondents did not know about Ms. Elderton’s persistent toilet problems earlier, they knew or reasonably should have known about the problems in 2017. Because of this knowledge, I find that the Respondents’ duty to accommodate Ms. Elderton was triggered, requiring the Respondents to take all reasonable and practical steps to find an acceptable toilet so that Ms. Elderton could inhabit unit 407 with safety and dignity. This they did not do. Rather than attempt to find an acceptable toilet, they left Ms. Elderton to fend for herself at a particularly precarious time, when her home care was threatened. Fortunately, she was able to acquire a new, reasonably priced toilet from Home Depot with the help of the Jarvies, and this fixed her toilet issues.
[75] This part of Ms. Elderton’s complaint is justified.
2. Elevator Allegation
[76] I have found that Ms. Elderton remained in hospital in December 2017 not because of the malfunctioning elevator but because of the hospital’s view that Ms. Elderton could not manage her IV by herself. The hospital did not have the capacity to send a nurse to Harbourview Manor three times a day. I take it from the evidence that the hospital would have sent her home, and that Ms. Elderton indeed wanted to go home, but for the IV issues. This means that Ms. Elderton will not be able to prove that the Respondents adversely impacted her with regards to the Elevator Allegation. Because she will not be able to prove the adverse impact element of her case, I dismiss the Elevator Allegation without need to consider the Respondents’ defence.
[77] This part of Ms. Elderton’s complaint is not justified.
3. Refrigerator Allegation
[78] I have found that Ms. Elderton rejected the new, bigger refrigerator and accepted a repair to her old fridge based on her view that the new fridge would be too large to accommodate her wheelchair and her mobility issues. The repair did not fix the problems with the refrigerator freezing her refrigerated items.
[79] Ms. Elderton’s malfunctioning refrigerator was a tenancy-related adverse impact with a nexus to Ms. Elderton’s disability. Ms. Elderton would have received a new fridge that worked properly had she not been wheelchair bound with limited mobility.
[80] The question is whether the Respondents met their duty to accommodate Ms. Elderton. I am satisfied that they did by repairing Ms. Elderton’s old fridge. While Ms. Elderton wanted a new fridge, perfect accommodation is not required in order to satisfy the legal duty. Repairing the old fridge was a reasonable approach given that it accommodated Ms. Elderton’s wheelchair.
[81] I recognize that the repairs to Ms. Elderton’s fridge were not successful and she continued to experience her refrigerator freezing and spoiling her food. This, I understand, was particularly adverse because Ms. Elderton’s specific food requirements. However, the evidence demonstrates that Ms. Elderton did not tell the Respondents about the persisting issues after the refrigerator was fixed. While she may have felt this would have been futile given the Respondents’ view of her as a difficult tenant, accommodation is a dialogue between the landlord and tenant. The Respondents were not required to do anything about the continuing problems because they did not know and could not have reasonably known about them.
[82] This part of Ms. Elderton’s complaint is not justified.
4. Water Damage Allegation
[83] Ms. Elderton’s ceiling was not repaired by the Respondents. The Respondents knew about the water damage and the need to repair the ceilings on the fourth floor, including Ms. Elderton’s ceiling, as they compensated her for having to live with a leaky roof. Ultimately, they repaired Ms. Glasgow’s ceiling in 2018. In contrast, Ms. Elderton’s ceiling was not repaired by the Respondents. Rather, Ms. Jarvie patched up the ceiling with anti-mould paint so that Ms. Elderton’s home care workers could continue visiting her in unit 407.
[84] I find that Ms. Elderton has proved her case of discrimination vis-à-vis the water damage to her ceiling. The ceiling damage filled buckets with murky water when it rained and produced black mould, which interfered with Ms. Elderton’s ability to safely enjoy her tenancy. Further, it caused her home care to threaten a cut-off to her services. I find this threat was an adverse impact directly related to Ms. Elderton’s disabilities.
[85] Turning to the Respondents’ defence, they say that Ms. Elderton was compensated via rent reduction for having to live with a leaky, mouldy ceiling. I am not persuaded by this argument. The Respondents confuse monetary compensation with accommodation. They are not necessarily the same thing. The purpose of an accommodation in tenancy is to remove barriers that prevent a tenant from accessing their unit safely and with dignity. The rent reduction did not accomplish this. Not only did the Respondents fail to repair Ms. Elderton’s ceiling, depriving her of safe access to her unit, they repaired the ceilings of the other, non-disabled tenants, indicating their view that Ms. Elderton was not entitled to the same dignity in tenancy as the other residents of Harbourview Manor.
[86] This part of Ms. Elderton’s complaint is justified.
5. Flooring Allegation
[87] I have found that Ms. Elderton’s flooring was not replaced to accommodate her wheelchair while Mr. Shore was owner of Harbourview Manor.
[88] Again, I find that Ms. Elderton suffered an adverse impact with a connection to her disabilities regarding the carpets in unit 407. Again, there were barriers to Ms. Elderton accessing unit 407 safely and with dignity. Those barriers were directly the result of her disabilities. The holey carpeting was hazardous to Ms. Elderton as she tried to navigate her apartment. Again, Mr. Jarvie’s intervention was required until new owners took over, and the carpet was replaced with vinyl.
[89] The Respondents say that they tried to accommodate Ms. Elderton but that she did not play her part in the accommodation process by moving her furniture or allowing them to do so. I am not persuaded that in this case the Respondents did everything reasonable and practical to avoid the negative impact on Ms. Elderton. I accept that there was a lot of furniture in Ms. Elderton’s apartment that had to be moved to replace the flooring. This was not an easy task, but it was accomplished with Mr. Jarvie’s help in 2019.
[90] In his testimony, Mr. Shore said that prior to 2012, he asked if he could help Ms. Elderton move her furniture, but that Ms. Elderton told him not to touch her stuff. Mr. Shore said he thought the best thing was “to leave her alone and let her live a quiet life.” Sometime after 2014, he refused to replace the carpet with flooring that would accommodate Ms. Elderton’s wheelchair. In his closing submissions, the Respondents say they would have had to hire movers to move Ms. Elderton’s furniture to replace the flooring, which I take they viewed as a hardship. I do not have any evidence before me that they seriously explored this option with Ms. Elderton.
[91] In my view, hiring movers could have been a reasonable and practical approach to solving the flooring issue. While it would have come at a cost to the Respondents, accommodation is not always easy, convenient, or cost-effective. Further, there also may have been other approaches. However, there was no dialogue with Ms. Elderton or any serious exploration of whether such a hardship would have been more than they could have borne. Instead, the Respondents chose to leave her alone. In doing so, I find that they did not meet their duty to accommodate Ms. Elderton and therefore they discriminated against her.
[92] This part of Ms. Elderton’s complaint is justified.
IV Remedy
[93] Parts of Ms. Elderton’s complaint are justified. She is therefore entitled to remedies. In this section, I explain what remedies I order and why.
A. Section 37(2)(a) & (b) – Declaration of discrimination and cease and refrain order
[94] I have found that the Respondents violated s. 10 of the Code. I declare that their conduct was discrimination contrary to the Code: s. 37(2)(b). I also must order them to cease the contravention and refrain from committing the same or a similar contravention: s. 37(2)(a).
B. Section 37(2)(d)(ii) – Expenses incurred by the contravention
[95] Under s. 37(2)(d)(ii), the Tribunal may order the person who contravened the Code to compensate the person discriminated against for all or a part of any wages or salary lost, or expenses incurred, by the contravention. Ms. Elderton seeks compensation in the amount of 1,135.48 for the expenses incurred because of the contravention: s. 37(2)(d)(ii).
[96] Ms. Elderton seeks $1135.48 in expenses incurred because of the discrimination, including:
a. $30 for the anti-mould painting done by Mr. Jarvie (done in December 2016);
b. $40 for the modifications to her floor done by Mr. Jarvie to even the area between the dining room and the kitchen so Ms. Elderton could traverse the gap in the flooring with her wheelchair (done in October 2017);
c. $480.00 for Mr. Jarvie’s labour moving Ms. Elderton’s furniture to facilitate the installation of the new flooring (completed June 23-28, 2019); and
d. $585.48 for the upcharge from carpeting to vinyl in unit 407 (invoiced August 29, 2019).
[97] Ms. Elderton does not seek expenses incurred by Ms. Jarvie patching up the ceiling in 2018.
[98] Mr. Shore has not disputed the above amounts; however, I find I cannot award $30 for the 2016 anti-mould painting based on the temporal scope of the complaint, which is between the Fall of 2017 and December 2018. The ceiling painting was done by Mr. Jarvie before this time.
[99] I award Ms. Elderton $40 for the modifications to her flooring done in October 2017, $480 for Mr. Jarvie’s labour in moving her furniture, and $585.48 for the vinyl upcharge in 2019. While the last two amounts were incurred after Mr. Shore no longer owned the building, had the discrimination regarding the flooring not occurred, Ms. Elderton would have received new flooring prior to Mr. Shore selling Harbourview Manor. The expense flows from the Code contravention. An injured party is entitled to be put in the position they would have been in had the discrimination not happened.
[100] Therefore, I award Ms. Elderton $1,105.38 for expenses incurred. I also award pre- and post-judgment interest on these amounts.
C. Section 37(2)(d)(iii) – Compensation for injury to dignity, feelings, and self-respect
[101] Section 37(2)(b)(ii) of the Code says that if the Tribunal finds a complaint is justified, it may order compensation for injury to dignity, feelings, and self-respect. The purpose of these awards is compensatory, and not punitive: Biggings at para. 155.
[102] Ms. Elderton seeks compensation for injury to dignity in the amount of $100,244. The Respondents did not make any submissions as to whether this amount would be appropriate should I find discrimination. Because the complaint is justified only in part, I award a lower amount: $60,146. I explain my reasons below.
[103] 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. 33. The purpose of an injury to dignity award is to address this harm. Determining the amount of an injury to dignity award depends on the specific facts and circumstances in any given case: Gichuru v. Law Society of British Columbia (No. 9), 2011 BCHRT 185 at para. 260, upheld in 2014 BCCA 396. In making an injury to dignity award the Tribunal considers factors including the nature of the discrimination, the complainant’s social context or vulnerability, and the specific effect the discrimination had on the complainant: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 225.
[104] First, the nature of discrimination in this case was serious and ongoing. It impacted Ms. Elderton’s mobility in her home, her ability to live in safe, mould-free conditions, and her access to a functioning toilet. It even threatened her ability to receive the in-home care that she needed due to her disability.
[105] Instead of implementing accommodations to allow Ms. Elderton to live safely and with dignity, the Respondents singled out Ms. Elderton for adverse treatment because of her disabilities. The photos and other evidence before me demonstrate that by failing to accommodate Ms. Elderton’s disability-related needs, the Respondents allowed her to live in unacceptable conditions, conditions other tenants were not subjected to. In contrast to Ms. Elderton, these other tenants received new flooring, new ceiling drywall, and new toilets.
[106] Mr. Shore spoke about his “compassion” towards Ms. Elderton. I do not doubt that Mr. Shore had some sympathy for Ms. Elderton’s living situation. However, Mr. Shore’s compassion did not spur him into action. Rather, he saw Ms. Elderton as a difficult tenant for asserting her rights. Instead of recognizing his legal obligation to accommodate Ms. Elderton so that she could live as independently as possible, he thought Ms. Elderton would have been better off living somewhere else—i.e. in a care home. As a landlord he relied on stereotypical assumptions and a one-size-fits-all approach to disabled individuals. Disabled people are not a monolith, and accommodation must be determined on a case-by-case basis. Each person seeking accommodation deserves to be treated as an individual with specific needs. Ms. Elderton was entitled to specific accommodations to enable her to live safely at Harbourview Manor, up to the point of undue hardship. This she did not receive.
[107] Second, Ms. Elderton was particularly vulnerable to the Respondents’ discrimination due to her disabilities and the nature of the relationship between her and the Respondents. As the Tribunal has said,
Discrimination in respect of a person’s home can be particularly egregious and is often marked by a power imbalance between landlord and tenant. Safe and secure housing is critical to a person’s overall well-being. For people with disabilities, this necessarily requires that housing be accessible to them, taking into account their individual needs and circumstances.
Biggings at para. 156.
[108] Here, the discrimination was egregious and significantly impacted Ms. Elderton’s living conditions at home—a place that Ms. Elderton should have been able to rely on for safety and security. The discrimination was particularly acute given that she lived alone and was receiving in-home care. Ms. Elderton was reliant on the help of her friends to get her through this time, including the multiple occasions when her in-home care was threatened.
[109] Additionally, the power imbalance between landlord and tenant was heightened. Landlords have the power of eviction, which was leveraged here in such a way that Ms. Elderton became fearful of future eviction attempts by the Respondents. This affected her comfort in making requests for repairs from the Respondents, further contributing to her poor housing situation.
[110] Third, the effect of the discrimination on Ms. Elderton was significant. The emotional toll that such discrimination would take on a person in this context is manifest. However, it is also supported by the evidence. Ms. Elderton said that the Respondents’ conduct was “deeply embarrassing and dehumanizing”. She said that her relationship with the Respondents has caused her “severe emotional distress, loss of self-esteem and increased anxiety and depression.” Ms. Glasgow testified that she often found Ms. Elderton in tears due to the state of her apartment, which the Respondents failed to address, even though they addressed similar issues in other apartments in Harbourview Manor. Considering this coupled with the derogatory comments blaming her and her disabilities for her housing issues, it is easy to see why Ms. Elderton has called her relationship with the Respondents as “hostile”.
[111] In light of these factors, I find that Ms. Elderton is entitled to a meaningful award for injury to dignity. The question is whether I should award the full amount sought by Ms. Elderton. I conclude that I should not. Instead, I award her $60,146. This is three-fifths the amount sought, which accounts for the fact that I have found three out of five of her allegations to be justified.
[112] This amount is also in line with the Tribunal’s case law. Until this year, Biggings, which was decided in 2018, was the high-water mark for an injury to dignity award in a tenancy case. There, the Tribunal awarded the complainant $35,000. There, one act of discrimination was alleged and ultimately found to be justified. Here, there were several acts of discrimination, which were accompanied by the Respondents’ discriminatory attitudes towards Ms. Elderton and her disabilities. I find the case to be more aligned with the Tribunal’s recent decision in Lloyd v. Fernanda Almeida and others (No.2), 2026 BCHRT 12. There, the Tribunal considered the case-law, including Biggings,which identified the upwards trend for injury to dignity awards in recent years. The Tribunal awarded the complainant in Lloyd $60,000 based on multiple counts of discrimination and retaliation.
[113] I also award post-judgement interest on this mount.
V CONCLUSION
[114] The complaint is justified in part. Because the complaint is partially justified, I declare that the Respondents, Mr. Shore and Mr. Knudsen, violated s. 10 of the Code,and I order them to:
a. cease the contravention and refrain from committing the same or a similar contravention: s. 37(2)(a);
b. pay $1,105.38 to Ms. Elderton as compensation for expenses incurred by discrimination: s. 37(2)(d)(ii);
c. pay Ms. Elderton $60,146 as compensation for injury to her dignity, feelings, and self-respect: s. 37(2)(d)(iii);
d. pay pre-judgment and post-judgment interest on the amount awarded for expenses, until the full amount is paid, based on the rates set out in the Court Order Interest Act; and
e. pay post-judgment interest on the amount awarded as compensation for injury to dignity, until the full amount is paid, based on the rates set out in the Court Order Interest Act.
The Respondents are jointly and severally liable for all the amounts awarded.
Robin Dean
Tribunal Member