B.C. Human Rights Tribunal discrimination claims require evidence
The outcome of a complaint filed by a gay couple against their strata corporation illustrates the challenges of articulating cases of discrimination before the B.C. Human Rights Tribunal.
Complainants must establish two things. First, that the act of discrimination alleged is discernible. Second, that the adverse treatment was caused by prejudice covered by any of the protected grounds in the B.C. Human Rights Code. Those grounds include sexual orientation.
Barton Choi and Douglas Henning didn’t get a favourable ruling from tribunal member Murray Geiger-Adams in connection with a parking dispute they had with their West Vancouver strata. However, Geiger-Adams wrote that his January 21 decision was “not a determination” as to whether they were treated unfairly or “out of personal animosity, or in disregard of their respective legal rights”.
The dispute stemmed from the strata corporation’s move to prohibit Henning from parking in the entry courtyard and driveways of the eight-unit condominium complex. Henning proposed to the strata council that owners and visitors be allowed to park in the courtyard when space was available. He also volunteered to move his vehicle to the street if there was a request for him to do so.
For its part, the council argued that Henning was interfering with the other residents’ right to use the common property.
“Apart from the parking dispute, the complainants do not point to any words or acts of the respondents to support the ‘feeling’ that any of the respondents were ‘not happy’ about the complainants’ sexual orientation, or that, for that or any other reason, the respondents wished to, or sought to, get the complainants ‘out of the building’,” Geiger-Adams pointed out.
Geiger-Adams also noted that “there is little support in the materials for the complainants’ speculation that the respondents were subjecting them to adverse treatment because of their sexual orientation”.
According to Geiger-Adams, the complainants had argued that the “absence of derogatory language or open discrimination in the dealings between the complainants and the respondents is not determinative of whether covert or subtle discrimination is at work”.
But because no discernible act of discrimination was alleged, Geiger-Adams ruled that Choi and Henning do not have a reasonable prospect of obtaining “findings of fact that would support the complaint”.
“Rather, they rely entirely on speculation and conjecture,” Geiger-Adams wrote.
A separate case involving the parking dispute is pending before the B.C. Supreme Court.