IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Gichuru v. Purewal, |
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2019 BCSC 484 |
Date: 20190402
Docket: S172318
Registry: Vancouver
Between:
Mokua Gichuru
Petitioner
And
Kulbir
Singh Purewal, Sukhbir Purewal aka Sukhbir Purawal
and the BC Human Rights Tribunal
Respondents
Before: The Honourable Mr. Justice Marchand
Corrected
Judgment: The front page of the judgment
was corrected on April 17, 2019
On
judicial review from: An order of the British Columbia Human Rights Tribunal, dated
January 18, 2017 (Gichuru v. Purewal and another,
2017 BCHRT 19, File 13552)
Reasons for Judgment
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Appearing on his own behalf: |
M. Gichuru |
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Counsel for the Respondent, Sukhbir Purewal aka Sukhbir Purawal: |
A.E. Syer |
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The Respondent, Kulbir Singh Purewal did not appear and no one appeared on his behalf |
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Counsel for the Respondent, The BC Human Rights Tribunal: |
K.A. Hardie |
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Place and Date of Hearing: |
Vancouver, B.C. January 15-18, 2019 |
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Place and Date of Judgment: |
Vancouver, B.C. April 2, 2019 |
[1] Mokua Gichuru rented a basement suite from Sukhbir Purewal in Vancouver from December 2010 until December 2014. Ms. Purewal lived upstairs with her sons, Ranbir and Kulbir Purewal, and Kulbir Purewal’s family. A variety of other tenants lived in a separate basement suite. Mr. Gichuru dealt with Kulbir Purewal regarding tenancy issues.
[2] To distinguish between Ranbir Purewal, who is not a respondent, and Kulbir Purewal, who is, I will refer to Ranbir Purewal as “Ranbir” and Kulbir Purewal as “Mr. Purewal”. In referring to Ranbir by his first name, I intend no disrespect.
[3] Whenever I refer to “the Purewals”, I am referring only to the respondents, Ms. Sukhbir Purewal and Mr. Kulbir Purewal.
[4] Mr. Gichuru’s tenancy was largely uneventful until the summer of 2014 when Mr. Purewal attempted to evict Mr. Gichuru but failed, at least initially, to do so in accordance with the Residential Tenancy Act, S.B.C. 2002, c. 78 [RTA]. Mr. Purewal became frustrated with Mr. Gichuru’s refusal to abide by the non-RTA-compliant verbal and written notices he had given Mr. Gichuru. Mr. Purewal threatened Mr. Gichuru and also made derogatory remarks to Mr. Gichuru regarding his mental health.
[5] After moving out, Mr. Gichuru filed a complaint with the Human Rights Tribunal (the “Tribunal”) alleging that the Purewals discriminated against him in respect of a tenancy, by threatening, harassing and evicting him based on a mental disability, contrary to s. 10 of the Human Rights Code, R.S.B.C. 1996, c. 210 [Code].
[6] In a decision dated January 18, 2017 indexed as Gichuru v. Purewal and another, 2017 BCHRT 19, the Tribunal found:
1. Mr. Gichuru suffered from a mental disability, namely depression, at the relevant time;
2. Mr. Purewal perceived Mr. Gichuru to be suffering from a mental disability at the relevant time;
3. Mr. Purewal discriminated against Mr. Gichuru on two occasions by making derogatory remarks regarding his mental disability;
4. Mr. Gichuru experienced an adverse impact in relation to his tenancy, consisting of verbal harassment and eviction;
5. Mr. Gichuru’s mental disability was not a factor in his eviction; and
6. Mr. Gichuru’s mental disability was a factor in Mr. Purewal’s discriminatory conduct but was “not otherwise” a factor in Mr. Purewal’s harassing and threatening behaviour towards Mr. Gichuru.
[7] The Tribunal found that Mr. Purewal violated s. 10 of the Code by his disparaging remarks but not by his “larger” threatening and harassing conduct. The Tribunal found Ms. Purewal was liable for the acts of her agent, Mr. Purewal, and made the mandatory “cease and refrain” order under s. 37(2)(a) of the Code against both Ms. Purewal and Mr. Purewal.
[8] The Tribunal found that any emotional upset suffered by Mr. Gichuru was in relation to the eviction itself, Mr. Purewal’s larger threatening and harassing conduct, and/or what Mr. Gichuru perceived to be the inadequate response of the Vancouver Police Department (the “VPD”). The Tribunal further found that Mr. Gichuru had provoked Mr. Purewal’s discriminatory conduct.
[9] Having found no connection between the discriminatory conduct and the eviction, the Tribunal made no compensation order in relation to the eviction.
[10] Having found no connection between the discriminatory conduct and Mr. Gichuru’s emotional upset, the Tribunal found no loss of income flowed from the discrimination and made no order for loss of income.
[11] Having found that Mr. Gichuru provoked the discriminatory conduct, and that no emotional upset flowed from the discriminatory conduct, the Tribunal awarded no compensation to Mr. Gichuru for injury to his dignity.
[12] The Tribunal awarded Mr. Gichuru $10,000 in costs payable by Mr. Purewal for intentionally misleading the Tribunal by giving false evidence. The Tribunal awarded Mr. Gichuru $2,000 in costs payable by Ms. Purewal and Mr. Purewal jointly for other improper conduct through the course of the proceeding.
[13] Mr. Gichuru has applied for judicial review of a number of the Tribunal’s findings. Mr. Gichuru submits that the Tribunal made factual errors, legal errors, and errors in the exercise of its discretion. Mr. Gichuru also submits that the Tribunal based its decision on stereotypes.
[14] The Tribunal was diligent and thorough in its conduct of the hearing and the preparation of its reasons. Further, it was open to the Tribunal to find that Mr. Purewal’s discriminatory conduct did not have much effect on Mr. Gichuru. Nevertheless, for the reasons that follow, I have concluded that some of the Tribunal’s factual findings were unreasonable and its reasoning path flawed such that it was unable to properly exercise its remedial discretion. As a result, I will be returning Mr. Gichuru’s complaint to the Tribunal to reconsider its decision in accord with these reasons.
[15] In his Amended Petition filed on January 22, 2018, Mr. Gichuru seeks an order quashing the Tribunal’s decision. Mr. Gichuru then sets out a number of specific findings that he challenges.
[16] In my view, Mr. Gichuru’s Amended Petition is really about the Tribunal’s refusal to grant him certain remedies. As I see it, the best way to address many of Mr. Gichuru’s specific complaints is within a consideration of whether the remedial orders made by the Tribunal were patently unreasonable.
[17] I will address the following issues:
1. Did the Tribunal state the correct legal test for discrimination?
2. Did the Tribunal err in finding that Mr. Gichuru had a mental disability at the time of the events in question?
3. Was it patently unreasonable for the Tribunal to award Mr. Gichuru no compensation in relation to expenses associated with the eviction?
4. Was it patently unreasonable for the Tribunal to award Mr. Gichuru no compensation in relation to his claimed income loss?
5. Was it patently unreasonable for the Tribunal to award Mr. Gichuru no compensation for injury to his dignity?
6. Was it patently unreasonable for the Tribunal to make no award to Mr. Gichuru for expenses associated with advancing his complaint?
7. Did the Tribunal err in allowing certain evidence as background only and not as evidence of a new allegation of discrimination?
8. Did the Tribunal make other unreasonable or incorrect findings of fact or law?
9. Did the Tribunal base its decision on stereotypes?
[18] Human rights legislation has quasi-constitutional status in Canada: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 30. The special role the Code is intended to play in achieving social cohesion in British Columbia is obvious from its terms:
Purposes
3 The purposes of this Code are as follows:
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination prohibited by this Code;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.
Code prevails
4 If there is a conflict between this Code and any other enactment, this Code prevails.
[19] Mr. Gichuru’s human rights complaint relates to s. 10(1) of the Code. That subsection provides as follows:
Discrimination in tenancy premises
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 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.
[20] The background is not in serious dispute.
[21] Mr. Gichuru has struggled with depression for many years. He was first diagnosed in 1993. Mr. Gichuru’s history of depression was a central feature of a previous human rights complaint against the Law Society of British Columbia, which drew a certain amount of media attention.
[22] According to Mr. Gichuru, his mental health has at times been quite debilitating. In the summer of 2014, he testified that he was functioning quite well. He put himself at seven out of ten.
[23] Mr. Gichuru began renting a basement suite from Ms. Purewal in December 2010. There was no written tenancy agreement. Mr. Gichuru made a damage deposit of $400 and paid rent of $800 per month. Mr. Purewal asked Mr. Gichuru to pay his rent in cash and Mr. Gichuru did so.
[24] Mr. Gichuru was uncomfortable paying his rent in cash and considered it a hardship. In the spring of 2014, it came to Mr. Gichuru’s attention that another tenant was paying rent by cheque so for one or two months Mr. Gichuru did likewise. Mr. Purewal told him that doing so would reduce his mother’s pension. Mr. Purewal asked Mr. Gichuru to go back to paying his rent in cash. Mr. Gichuru agreed.
[25] In June 2014, Ranbir was using a power washer outside the premises and sprayed dirt onto Mr. Gichuru’s bicycle. Mr. Gichuru asked him to stop but Ranbir continued. When Mr. Gichuru asked Ranbir what he was doing, Ranbir responded “What the fuck, this is our place – move your shit out of here.” Mr. Gichuru says Ranbir then challenged him to a fight but Mr. Gichuru walked away.
[26] Mr. Gichuru did not wish to be treated the way Ranbir had treated him. He was not willing to put up with being mistreated and decided he was no longer willing to accommodate the Purewals by paying his rent in cash. Mr. Gichuru paid his rent on July 1, 2014 by cheque. Mr. Gichuru expected a response. He testified that he hoped he might receive an apology and that things may get better. He also realized that his days of living in his suite may be coming to an end.
[27] On July 5, 2014, Ranbir and his mother attended Mr. Gichuru’s suite, ostensibly to inspect for a fire hazard. Mr. Gichuru refused to allow the inspection and promptly delivered a letter addressed to Ms. Purewal. The letter indicated that such an inspection was “not authorized” under the RTA and warned that Mr. Gichuru would “involve the authorities” if Ms. Purewal were to “violate [his] rights in any way.”
[28] Later that day, Mr. Purewal verbally informed Mr. Gichuru that the Purewals needed his suite in September because they had relatives arriving from India. Mr. Gichuru knew this did not give the Purewals proper grounds to evict him under the RTA.
[29] As a pragmatic person, Mr. Gichuru thought the parties may be able to negotiate an end to his tenancy. Mr. Gichuru assumed the Purewals “did not want attention brought to this situation where they were apparently defrauding the government or some organization that was paying [Ms.] Purewal’s pension”. He thought that he may be able to negotiate a buy-out of perhaps $5,000 to $10,000 to end his tenancy, conditional on his finding another place.
[30] On August 1, 2014, Mr. Purewal left a voicemail message for Mr. Gichuru that he wanted to give Mr. Gichuru a written eviction notice. Mr. Gichuru called Mr. Purewal back. Sensing that something was wrong, Mr. Gichuru recorded the call. Nothing much transpired during the call. Mr. Purewal said he had no problem with Mr. Gichuru but needed the suite because his relatives needed a place to stay. Mr. Purewal said he was getting a letter printed at the office of a notary public and would then bring it down to Mr. Gichuru.
[31] Mr. Purewal delivered the written notice to Mr. Gichuru on August 1, 2014. It gave Mr. Gichuru notice to “vacate the premise on or before September 1, 2014 so the landlord can gain control of the rental property for family purposes.”
[32] When Mr. Gichuru received the written notice, he realized that it was not in the proper form under the RTA. Though Mr. Gichuru had no intention of complying with the written notice, he was concerned about informing Mr. Purewal. Mr. Purewal had never previously threatened Mr. Gichuru, but Mr. Gichuru had witnessed events that led him to believe Mr. Purewal had a violent temper.
[33] Ultimately, Mr. Gichuru decided to inform Mr. Purewal by phone. Mr. Gichuru also decided that he would record the call.
[34] Mr. Gichuru made the call on August 25, 2014. Up to that time, Mr. Purewal believed that Mr. Gichuru would be moving out effective September 1, 2014. Mr. Purewal was upset to learn otherwise. During what the Tribunal characterized as an agitated diatribe, Mr. Purewal said, “You get out before the 1st or there’s going to be a lot of problems for you.” When Mr. Gichuru asked, “What kind of problems?”, Mr. Purewal replied that he did not know. Mr. Purewal said he would come to see Mr. Gichuru when he got home.
[35] Mr. Purewal spoke to Mr. Gichuru in person during the afternoon of August 25, 2014. Mr. Gichuru recorded the conversation. During the conversation, Mr. Purewal expressed his view that the type of notice did not matter. When Mr. Gichuru said, “That’s what the law is”, Mr. Purewal responded:
It doesn’t matter. I give you a month – proper month notice, right? I was giving you two months notice, actually, right? The other month – I didn’t have the proper month so I gave it to you this month. So I’ve been telling you for, you know, almost two months, right? And now you’re making it – you’re waiting until you got, like, five days to move to tell me that it’s not the proper paperwork? Huh?
…
I’m telling you, you got five days or else I’ll forcefully remove you from there, okay?
…
… I’ll throw all your shit on the lawn by the end of the month and you do whatever you got to do, okay?
[36] Mr. Purewal came to Mr. Gichuru’s door on August 26, 2014. Mr. Gichuru did not record the interaction but made the following contemporaneous note of what happened:
[Mr. Purewal] just came to my door and told me he knows I have a mental illness and that I sued the Law Society and a neighbour for loud music. He said that on September 1st he’s going to get some “buddies” to come in and remove me by force and that all my stuff will be out on the front lawn or on the street. He said he doesn’t care if I complain because they will know I have a mental illness.
He also said that he knows I got $100,000 from the Law Society and he doesn’t know if that’s how I make my money but I can sue him, he doesn’t care.
[37] Mr. Gichuru called the non-emergency number for the VPD. Cst. See attended the next day, on August 27, 2014. Mr. Gichuru overheard Cst. See leave a voicemail message for Mr. Purewal to stay away from Mr. Gichuru. Mr. Gichuru recorded his interactions with Cst. See.
[38] Two hours later Mr. Purewal shouted at Mr. Gichuru from the top of the steps. Mr. Gichuru did not record what was said but made the following contemporaneous note of what happened:
[Mr. Purewal] just said the police will not be around here forever to protect me.
…
[Mr. Purewal] said I had not been allowed to practice law because of mental illness and I had then tried to become a nurse but I was not allowed to do that either (he was speaking from about 15 feet away from my front door).
[39] Mr. Gichuru testified that Mr. Purewal’s demeanour was hostile and that he was so frightened of being attacked by Mr. Purewal that he locked his door. Mr. Gichuru called 911 but the police did not attend. Instead, he received a call from an officer early the next morning. The officer apparently told Mr. Gichuru to keep recording to get the best evidence of the threats. Mr. Gichuru believed the officer would speak to Mr. Purewal.
[40] Mr. Gichuru’s next interaction with Mr. Purewal was on August 30, 2014. According to Mr. Gichuru, the interaction occurred when Mr. Purewal returned from work and was shouting at him. Mr. Gichuru testified that he opened his door because Mr. Purewal’s wife was also there. Mr. Gichuru therefore felt it was less likely that Mr. Purewal would attack him. Mr. Gichuru recorded the conversation and Mr. Purewal was aware that he was doing so.
[41] In the conversation, Mr. Purewal initially tried to confirm that Mr. Gichuru was not going to move out. Mr. Gichuru responded that he never said that and only said that Mr. Purewal had not given him the proper notice. When Mr. Purewal asked Mr. Gichuru what kind of notice he needed, Mr. Gichuru responded with his own question about whether the police had spoken to Mr. Purewal. Mr. Purewal continued to ask questions which Mr. Gichuru continued to answer with questions. During the to and fro, Mr. Purewal denied having threatened Mr. Gichuru and being told by the police to stay away from him. Both of these denials were untrue. Eventually, Mr. Purewal raised Mr. Gichuru’s mental health. He told Mr. Gichuru that there was something wrong with his head that he should have it checked out. Mr. Purewal said that talking to Mr. Gichuru was like talking to a brick wall.
[42] Mr. Gichuru testified about his perceptions and intentions on August 30, 2014, in part, as follows:
… [T]here have been serious threats made against me. As far as I knew, [Mr. Purewal] had been told twice by the police to stay away from [me] before this interaction occurred. And I had no interest in engaging with them. However, I also realized that I had not recorded the previous two interactions with him and that now I was recording. So when he started… making these comments about mental illness and so on I was trying to get him to elaborate more – basically so I could get him on tape saying yes, I looked up your case in the Law Society and I found out that… you have a mental illness, so to repeat some of the stuff he said before. So that was part of my thinking during this interaction was that I wanted to get more on [the] recording from him.
[43] Both Mr. Gichuru and Mr. Purewal called the police. Cst. Robeson eventually called Mr. Gichuru back. Cst. Robeson informed Mr. Gichuru that Mr. Purewal had said that Mr. Gichuru had threatened to burn the house down. During the Tribunal hearing, Mr. Purewal eventually admitted that this was a lie. During the Tribunal hearing, Cst. Robeson testified that Mr. Purewal also told him that Mr. Gichuru had a mental illness.
[44] On August 31, 2014, Mr. Purewal reminded Mr. Gichuru that his rent was due the next day and told Mr. Gichuru that he had a proper two-month eviction notice for him. Mr. Gichuru recorded the interaction.
[45] On September 1, 2014, Mr. Purewal went to Mr. Gichuru’s suite to give him the notice and collect the rent. Mr. Gichuru wanted to see the notice before he paid the rent. Shortly afterwards, Mr. Gichuru attended the Purewals’ residence. Mr. Purewal gave Mr. Gichuru two forms. One form was titled “2 Month Notice to End Tenancy for Landlord’s Use of Property” and the other form was titled “Mutual Agreement to End Tenancy”. Mr. Purewal asked Mr. Gichuru to sign “it”. Mr. Gichuru refused saying the Mutual Agreement to End Tenancy form was the wrong form. At the end of their interaction, which was recorded by Mr. Gichuru, Mr. Purewal said the following to Mr. Gichuru:
…And we’re not interested in your fucking games or anything, okay? You got two months notice to get the fuck out of here, okay? You got 15 days to dispute it from now. Whatever you want to dispute, okay? We’re just sick and – fucking sick of your – sick and tired of your fucking shit, okay? Sick of your fucking bullshit. We thought you were a good guy. I asked you nicely to move out fucking two months ago and you’re just being a fucking asshole, okay? You’re lucky if I don’t fucking see you on the street after you leave from here. Fucking clown.
[46] Mr. Gichuru testified that Mr. Purewal was standing about one foot from Mr. Gichuru during this interaction and was being restrained by his wife and son. Mr. Gichuru called the police and Cst. Robeson attended.
[47] During the hearing, Mr. Gichuru asked Mr. Purewal a series of questions about why he said certain things to Mr. Gichuru. In relation to his comment about Mr. Gichuru being lucky if Mr. Purewal did not see him on the street, Mr. Purewal testified:
I don’t know what to say. I thought from you – maybe just hearing some of that you would move but you didn’t.
[48] Mr. Gichuru paid his September 2014 rent. He testified that he desperately wanted to leave the basement suite but faced a number of hurdles, including his financial situation, having no reference letter from his landlord for future rental applications, the stress associated with moving, and other obligations he had coming up. Nevertheless, he began looking for new accommodations after he received the September 1, 2014 notice.
[49] On September 21, 2014, Mr. Gichuru, accompanied by a friend, served a Residential Tenancy Branch (“RTB”) Application for Dispute Resolution on Mr. Purewal. Mr. Gichuru recorded the interaction. Mr. Purewal expressed his frustrations despite being encouraged by a family member to “relax” and “be professional”. At one point, Mr. Purewal said:
I am being professional, okay? I don’t know why, what the reason is that he doesn’t want to move. He’s like – he’s attached to the place, or he’s got some sort of problem. Is that what it is? I’ve given you so much time. Like, I’ve given you three, four months to move out of the place. A normal person would have took advantage of that time and found his place already. He would have been gone by now. And yeah, you just want to cause – stand here and you want to cause fucking shit all over here. You know that?
[50] After Mr. Purewal was told by a family member not to yell or swear, Mr. Gichuru told Mr. Purewal that he should listen to his family member. Mr. Purewal responded:
Hey, don’t tell me who to listen to, okay? You just talk to me directly, okay? I don’t know who the fuck you think you are, right, but you’re fuck all. You just live here. And I don’t know why you don’t want to fucking move. And you know what’s going to happen? You’re going to – fuck man…
[51] Mr. Gichuru then asked Mr. Purewal what was going to happen. Mr. Purewal said nothing was going to happen and one of his family members cautioned Mr. Purewal that “he’s trying to get you to do it”. Mr. Gichuru testified that Mr. Purewal was standing very close to him throughout the interaction, yelling with his face contorted and his eyes bulging. Mr. Gichuru felt that Mr. Purewal was very close to assaulting him. Mr Gichuru testified that Mr. Purewal was being pulled back by another family member.
[52] On September 23, 2014, Mr. Purewal filed an RTB Landlord’s Application for Dispute Resolution.
[53] Mr. Gichuru did not pay his October 2014 rent. He testified that was because “when you are given two months’ notice…the tenant is entitled to one month’s free rent under the [RTA].”
[54] A telephone hearing before the RTB was held on November 4, 2014. During the RTB hearing, the parties were apparently informed that the Purewals’ two-month notice to end Mr. Gichuru’s tenancy was not valid. The problem was that Ms. Purewal, as the landlord, was not proposing to use Mr. Gichuru’s suite for a “close family member”, meaning her father, mother or child, as required under s. 49 of the RTA. The parties were also apparently informed that a tenant receiving a notice under s. 49 is entitled under s. 51 of the RTA to receive the equivalent of one month’s rent from the landlord.
[55] Despite the apparent issues with the Purewals’ September 1, 2014 notice, Mr. Gichuru advised during the RTB hearing that he had found a new place effective December 1, 2014 and had paid three months’ rent in advance. Given Mr. Gichuru’s impending departure, the parties agreed to adjourn the RTB hearing to December 11, 2014.
[56] Mr. Gichuru did not pay his November 2014 rent. He testified that he could not afford to do so because he had had to pay three months’ rent in advance to secure his new place. On November 5, 2014, Mr. Purewal gave Mr. Gichuru a ten-day written notice of eviction for non-payment of rent, which Mr. Gichuru accepted as valid. Mr. Gichuru moved out of his basement suite at the Purewals’ on December 3, 2014.
[57] After hearing from the parties on December 11, 2014, the RTB issued a written decision the next day. The RTB noted that Mr. Gichuru’s request to cancel the Purewals’ notice of eviction and Mr. Purewal’s application for vacant possession had become moot. The RTB concluded that Mr. Gichuru had had to file his application for dispute resolution because the effective end of the tenancy on the eviction notice was invalid. The RTB therefore awarded Mr. Gichuru $50 for his filing fee. The RTB dismissed Mr. Purewal’s application for $2,400 in monetary compensation for unpaid rent because Mr. Purewal had not provided sufficient particulars. The RTB gave Mr. Purewal liberty to reapply.
[58] On February 2, 2015, Mr. Gichuru filed his complaint regarding the Purewals with the Tribunal.
[59] The Tribunal’s standardized complaint form asks questions. In response to the question “What did the Respondent do?”, Mr. Gichuru identified events on August 1, 25, 26 and 30, 2014. In response to the question “What is the adverse impact on you?”, Mr. Gichuru identified that he lost his tenancy. In response to the question “What is the connection between the conduct and the grounds of discrimination?”, Mr. Gichuru identified Mr. Purewal’s statements that he knew about Mr. Gichuru’s mental illness and his human rights complaint against the Law Society, and that if Mr. Gichuru complained about Mr. Purewal’s treatment of Mr. Gichuru, everyone would know Mr. Gichuru had a mental illness.
[60] The Tribunal hearing was held in Vancouver on April 4-8 and June 22-23, 2016. The Tribunal heard testimony from Mr. Gichuru, four other witnesses called by Mr. Gichuru and Mr. Purewal.
[61] During the Tribunal hearing, in addition to the background set out above, Mr. Gichuru testified and called other evidence to demonstrate a variety of harms he says he suffered as a result of Mr. Purewal’s discriminatory conduct, including an alleged income loss.
[62] After reviewing the evidence in great detail, the Tribunal summarized the positions of the parties. The Tribunal began its analysis by setting out relevant provisions of the Code. The Tribunal then outlined the basic legal principles, including the test for establishing a prima facie case of discrimination, stating:
[268] Human rights legislation occupies a unique, privileged status relative to other legislation. It does not have the constitutional status of the Canadian Charter of Rights and Freedoms, but prevails above all other legislation. A broad liberal and purposive approach must, therefore, be taken to interpretation of the Code: University of British Columbia v. Berg, [1993] 2 S.C.R. 353, p. 370.
Law
[269] A complainant is required to prove a prima facie case of discrimination on a balance of probabilities in order to establish discrimination under the Code. If the complainant is successful in establishing a prima facie case of discrimination, the burden shifts to the respondent to justify its conduct. If the complainant fails to prove a prima facie case of discrimination, then there is no breach of the Code: Rai v. Shark Club of Langley (No. 2), 2013 BCHRT 204, at para. 361.
[270] It is expected that the determination of whether a prima facie case has been established will involve analysis in a contextual and purposive manner: Hutchinson v. British Columbia (Ministry of Health), 2004 BCHRT 58, upheld on judicial review in HMTQ v. Hutchinson et al, 2005 B.C.S.C. 1421. In order to establish a prima facie case in this Complaint, Mr. Gichuru must prove that he has a mental disability or was perceived by the Respondents to have one, that he experienced an adverse impact with respect to his tenancy and that it is reasonable to infer from the evidence that his mental disability was a factor in that adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, para. 33.
[63] With respect to the first element of the test, despite being concerned about the lack of medical evidence, the Tribunal accepted Mr. Gichuru’s testimony regarding his difficulties with depression. The Tribunal found that integrity was important to Mr. Gichuru. Based on the details about Mr. Gichuru’s lifestyle since 2010, the Tribunal concluded that he had a mental disability during “the relevant timeframe for the events complained of” from June 1, 2014 to September 30, 2014.
[64] Given Mr. Purewal’s acknowledgement that he became aware of Mr. Gichuru’s mental disability and made disparaging comments to Mr. Gichuru about his mental disability, the Tribunal concluded that Mr. Purewal perceived Mr. Gichuru to have a mental disability.
[65] With regard to the second element of the test, the Tribunal considered the evidence to be clear that Mr. Gichuru had suffered “verbal harassment and ultimately eviction from his tenancy” between August 25 and September 30, 2014. Accordingly, the Tribunal was satisfied that Mr. Gichuru had proven an adverse impact relating to his tenancy.
[66] With respect to the final element of the test, the Tribunal concluded that Mr. Gichuru’s depression was not a factor in his eviction. The Tribunal also concluded that Mr. Gichuru “operates on his own personal code” and felt “entitled” to pay his rent by cheque. The Tribunal found that the Purewals decided to evict Mr. Gichuru out of anger for unilaterally changing his method of paying rent, after twice agreeing to pay in cash. This was well before they were aware of Mr. Gichuru’s mental disability. The Tribunal noted that there was no evidence that Mr. Gichuru’s mental disability in any way contributed to how he handled his rental payments.
[67] The Tribunal concluded that Mr. Gichuru’s evidence that he felt a need to leave the premises due to Mr. Purewal’s harassing conduct was immaterial because he gave the Purewals “a legal opportunity to evict him by failing to make a rental payment in September of 2014.”[1] The Tribunal found there was no evidence connecting Mr. Gichuru’s failure to pay his rent with his mental disability.
[68] The Tribunal found that Mr. Purewal did not become aware of Mr. Gichuru’s mental health issues until after the hostile interaction on August 25, 2014. The Tribunal, therefore, found that Mr. Gichuru’s mental disability “was not a factor in inciting the harassing and threatening behaviour by Mr. Purewal on August 25, [2014].” The Tribunal found, however, that Mr. Purewal subsequently made derogatory comments to Mr. Gichuru “on at least two separate occasions” regarding Mr. Gichuru having a mental illness. The Tribunal concluded those comments, made on August 26 and August 30, 2014, constituted discrimination.
[69] Besides the specific slurs regarding Mr. Gichuru’s mental health, the Tribunal concluded that “Mr. Gichuru’s mental disability was not otherwise a factor in Mr. Purewal’s harassing and threatening behaviour towards Mr. Gichuru”. The Tribunal reached this conclusion based on its finding that Mr. Purewal’s “reaction to Mr. Gichuru’s behaviour was violent and hostile before he was aware of Mr. Gichuru’s disability”.
[70] Having found that only two actions could be considered discrimination, the Tribunal went on to consider Mr. Gichuru’s conduct. The Tribunal held that “the surrounding context of the discriminatory slurs is relevant to the impact of the discrimination”. The Tribunal concluded that Mr. Gichuru had provoked Mr. Purewal’s discriminatory comments and noted that it was “troubled by the degree to which Mr. Gichuru contributed to the events giving rise to the Complaint”. It found that Mr. Gichuru’s conduct would be considered in assessing remedy.
[71] The Tribunal then turned to deal with remedy. I will summarize only the remedial orders that Mr. Gichuru challenges.
[72] Mr. Gichuru advanced claims for compensation on the grounds of ongoing expenses caused by the eviction (including rent differential and moving expenses), income loss, injury to dignity, and expenses associated with advancing his human rights complaint.
[73] Having found that Mr. Gichuru’s eviction was not discriminatory and that it would have happened in any event, the Tribunal made no compensation order in relation to expenses associated with the eviction.
[74] The Tribunal accepted that Mr. Gichuru may have suffered emotional upset and employment problems. The Tribunal found that Mr. Gichuru was more angry than upset during his dealings with Mr. Purewal. The Tribunal then found that any emotional upset “related to the threatening comments of Mr. Purewal and [Mr. Gichuru’s] frustration with the lack of action by the [VPD] to his complaints.” Likewise, the Tribunal found that any loss of income was caused by Mr. Purewal’s “aggressive behaviour and threats” and the response of the VPD. “Accordingly”, the Tribunal found no loss of income flowed from the discrimination. The Tribunal found Mr. Gichuru’s contention that he had lost wages as a result of Mr. Purewal’s discriminatory behaviour to be “at best, speculative”. The Tribunal made no compensation order in relation to Mr. Gichuru’s claimed loss of income.
[75] Having found that there was no connection between the discrimination and Mr. Gichuru’s evidence of the harms he suffered, paired with the finding that Mr. Gichuru provoked the discriminatory conduct, the Tribunal exercised its discretion to award no compensation to Mr. Gichuru for the injury to his dignity.
[76] The Tribunal did not address Mr. Gichuru’s claim for expenses associated with advancing his complaint.
[77] Section 32 of the Code provides that s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA] applies to the Tribunal. Section 59 provides as follows:
59. (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.
(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.
(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.
(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.
[78] As can be seen, the standard of review for questions of law, such as whether the Tribunal applied the appropriate legal test, is correctness per s. 59(1).
[79] The standard of review for questions of fact is reasonableness per s. 59(2).
[80] The standard of review for discretionary decisions is patent unreasonableness per s. 59(3).
[81] In B.C. Ferry and Marine Worker’s Union v. B.C. Ferry Services Inc., 2012 BCSC 663, Smith J. provides a brief overview and history of the patent unreasonableness standard as it applies under the ATA in British Columbia:
[22] At common law, judicial review is now conducted either on a standard of correctness or reasonableness and “patently unreasonable” no longer exists as a third, separate standard of review: Dunsmuir v. New Brunswick, 2008 SCC 9. In explaining the reasonableness standard, the Supreme Court of Canada said in Dunsmuir:
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[23] Prior to Dunsmuir, the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 SCR 941, defined the phrase “patently unreasonable” in the following terms at p. 964:
It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.
[24] Although Dunsmiur has eliminated the patently unreasonable test as a separate standard at common law, that does not alter the standard of review set out in the ATA. …
[25] In Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, the Court of Appeal referred to a number of formulations of the patently unreasonable standard, including:
· “Patently unreasonable" means openly, clearly, evidently unreasonable: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
· The review test must be applied to the result not to the reasons leading to the result: Kovach v. British Columbia (Workers' Compensation Board) (2000), 184 D.L.R. (4th) 415 (S.C.C.)
· A decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: Douglas Aircraft Co. of Canada Ltd. v. McConnell, [1980] 1 SCR 245, and Board of Education for the City of Toronto v. Ontario Secondary School Teachers' Federation et al (1997), 144 .DL.R. (4th) 385 (S.C.C.).
[82] In Morgan-Hung v. British Columbia (Human Rights Tribunal), 2011 BCCA 122, the Court of Appeal explained the process of reviewing discretionary decisions at para. 28 as follows:
[28] … If there is a readily extricable finding of fact or law underlying the discretionary decision, that finding will be reviewed on the standard applicable to issues of fact or law, as the case may be. On the other hand, if the issues of fact or law are inextricably intertwined with issues of discretion, the review must take place on the standard applicable to discretionary decisions.
[83] If a factual error is material to a tribunal’s discretionary decision, the decision must be set aside for being “arbitrary” as that word is used in s. 59(4)(a) of the ATA: Morgan-Hung at paras. 31-33.
[84] Regardless of which standard of review applies in relation to a particular issue, any error must be material to the decision under review to justify the court’s intervention: Petro-Canada v. British Columbia (Worker’s Compensation Board), 2009 BCCA 396 at paras. 49 and 56.
[85] As noted, in its reasons, the Tribunal set out the legal test for discrimination as follows:
[270] … In order to establish a prima facie case in this Complaint, Mr. Gichuru must prove that he has a mental disability or was perceived by the Respondents to have one, that he experienced an adverse impact with respect to his tenancy and that it is reasonable to infer from the evidence that his mental disability was a factor in that adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, para. 33.
[86] For the most part, Mr. Gichuru accepts that this formulation of the test accurately reflects the test set out by the Supreme Court in Canada in Moore. The one exception is that Moore addressed only whether the complainant, in fact, had a characteristic protected from discrimination and not whether the respondent perceived that to be the case. It is common ground, however, that the perception element incorporated by the Tribunal is well established by the authorities.
[87] Mr. Gichuru notes that the test has been stated somewhat differently in relation to human rights legislation in other jurisdictions and/or other contexts. While Mr. Gichuru’s points may be of some general interest, in my respectful view, they do not assist him in his application for judicial review. The Moore formulation of the test is the authoritative statement of the test in British Columbia. The concepts in the cases cited by Mr. Gichuru are the same. They are simply tailored to the legislation and circumstances at issue in those cases.
[88] Accordingly, in my view, the Tribunal stated the correct legal test for discrimination. I will consider the more difficult question of whether the Tribunal applied the correct legal test later in my analysis.
[89] The only comment that I wish to make in relation to the formulation of the test used by the Tribunal is that I understand the Tribunal has recently discontinued using the words “prima facie” in its dealings with the public and its decisions. While the words “prima facie” convey meaning to individuals with legal training, I agree that they do not serve the interests of many people who find themselves before the Tribunal. To the marginalized populations that typically come before the Tribunal, words like “prima facie” must be difficult to understand and just create another barrier. I am not in a position to reformulate the test for establishing discrimination but applaud the Tribunal’s efforts to make the process of pursuing a human rights complaint more accessible and its decisions more understandable.
[90] Given the time Mr. Gichuru spent testifying about his long-standing struggles with depression, it is surprising that he is critical of the Tribunal for finding that he had a mental disability in the summer of 2014.
[91] Mr. Gichuru may not have specifically testified that he was depressed in the summer of 2014, but he did testify that he was only operating at a seven out of ten. While Mr. Gichuru may have been functioning reasonably well, there was plenty of evidence on which the Tribunal could reasonably conclude that he had a mental disability.
[92] Even if the Tribunal’s finding that Mr. Gichuru was suffering from a mental disability was not supported by the evidence, such an error would not have been a material error. That is because the Tribunal found that Mr. Purewal perceived Mr. Gichuru to have a mental disability. As such, Mr. Gichuru satisfied the first element of the Moore test in any event.
[93] I dismiss this ground of review.
[94] The Tribunal’s decision to award Mr. Gichuru no compensation for expenses associated with the eviction involved an exercise of discretion. The decision may therefore only be set aside if it was patently unreasonable.
[95] The Tribunal awarded Mr. Gichuru no compensation in relation to expenses associated with the eviction because the Tribunal found that Mr. Gichuru’s mental disability was not a factor in his eviction and the eviction would have occurred in any event.
[96] Whether a protected characteristic is a factor in an adverse treatment is largely a question of fact. If the correct legal test is applied, under s. 59(2) of the ATA, the court may set aside a finding of fact only if it determines that there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable: Forsyth v. Coast Mountain Bus Company and CAW Local 2200, 2013 BCCA 257 at para. 50, leave to appeal denied [2013] S.C.C.A. No. 338; and Vancouver Area Network of Drug Users v. Downtown Vancouver Business Improvement Association, 2018 BCCA 132 [VANDU] at para. 49, leave to appeal denied [2018] S.C.C.A. No. 226.
[97] The standard of review under s. 59(2) requires a high degree of deference to the Tribunal’s fact-finding function that reflects the common law standard of review articulated in Dunsmuir: Kinexus Bioinformatics Corp. v. Asad, 2010 BCSC 33 at paras. 26-27.
[98] In VANDU at para. 68, the Court of Appeal recognized that while the Tribunal is not an “expert tribunal” under s. 58 of the ATA, the Tribunal is nevertheless a specialized tribunal. As such, the Court noted that a reviewing court should not “readily assume” that the Tribunal is unaware of matters that are “fundamental, even trite” under its home statute. I consider the determination of the required connection between an act of discrimination and an adverse treatment to fall into the bundle of such “fundamental” matters.
[99] In VANDU, the Court described the required connection as follows:
[62] Courts have recognized the equivalency of such words as “connection”, “factor”, “nexus”, and “link” in describing the association that must exist between adverse treatment and prohibited grounds of discrimination. On occasion, they have also used the language of “causation”. As indicated in Bombardier, however, discussion of “causation” is generally best avoided, lest it be confused with the concept of “causation” in other areas of the law, which may involve “but for” tests and may import issues of the exclusivity, proximity, or dominance of a cause. The link required to found a claim under the Code need not satisfy the usual criteria that we associate with causation in other areas of the law. According to the caselaw, the adverse treatment must be “based in part” on the protected characteristics, or, the protected ground “need only have contributed to” the discriminatory acts. While this is not the strict causation applied in cases of civil liability, this language does describe an attenuated form of causation. This is what the Code means when it uses the words “because of”.
[100] In my respectful view, the Tribunal’s factual finding that Mr. Gichuru’s mental disability was not a factor in the eviction cannot stand because the Tribunal did not apply the correct test, ignored material evidence and did not make required factual findings.
[101] As Mr. Gichuru pointed out to the Tribunal, in the context of his case, the term “eviction” could have three different meanings. “Eviction” could refer to a landlord giving a non-RTA-compliant notice to evict that is accepted by a tenant, a landlord making conditions intolerable essentially forcing a tenant to leave, or a landlord giving an RTA-compliant notice to evict. In this case, there were five separate events to consider:
1. Mr. Purewal’s non-RTA-compliant verbal notice to vacate on July 5, 2014;
2. Mr. Purewal’s non-RTA-compliant written notice to vacate on August 1, 2014;
3. Mr. Purewal’s conduct starting on August 25, 2014 that may have made it intolerable for Mr. Gichuru to remain in his suite;
4. Mr. Purewal’s non-RTA-compliant written notice on September 1, 2014; and
5. Mr. Gichuru’s non-payment of rent in November 2014, which ultimately led to Mr. Purewal serving an RTA-compliant ten-day notice to end Mr. Gichuru’s tenancy on November 5, 2014.
[102] The Tribunal rejected Mr. Gichuru’s submission that he was forced to leave by Mr. Purewal’s conduct, including his discriminatory conduct, for a number of reasons. For starters, the Tribunal accepted that the Purewals’ “true motivation for requiring” Mr. Gichuru to vacate was their anger at him for paying his rent by cheque. The Tribunal correctly noted there was no evidence that Mr. Gichuru’s decision to handle his payments in this way was connected to his depression.
[103] The Tribunal then concluded that whether Mr. Gichuru felt the need to leave was “essentially immaterial” because he gave the Purewals “a legal opportunity to evict him by failing to make a rental payment in September of 2014.”[2] The Tribunal noted that the decision to evict Mr. Gichuru “was made well before Mr. Gichuru’s mental disability was known to Mr. Purewal.” The Tribunal concluded Mr. Gichuru’s mental disability “never became a factor in his eviction.” The Tribunal also ruled that by the time the harassing and threatening behaviour began, Mr. Gichuru “had already been evicted, albeit in a manner not in compliance with the [RTA].”
[104] The fundamental problem with the Tribunal’s analysis is the Tribunal’s apparent conclusion that because the Purewals wanted Mr. Gichuru to leave they could require him to do so. That error was compounded when the Tribunal concluded that, regardless of how Mr. Purewal’s conduct affected Mr. Gichuru, Mr. Gichuru would have ended up being evicted anyway because he subsequently failed to pay his rent.
[105] Just because a landlord wants a tenant gone does not mean the tenant has to leave. A landlord can only “require” a tenant to leave in accordance with the RTA.
[106] The Tribunal found that Mr. Gichuru had twice agreed to pay his rent by cash but the Tribunal did not find that payment of rent by cash was a term of the oral tenancy agreement. The Tribunal also did not find that Mr. Gichuru’s payment by cheque gave the Purewals valid grounds under the RTA to evict Mr. Gichuru. The Purewals have never asserted otherwise.
[107] On the evidence and findings of the Tribunal, the earliest time the Purewals had a legal right to “require” Mr. Gichuru to vacate arose on October 1, 2014 when Mr. Gichuru did not pay his rent. By doing so, Mr. Gichuru effectively accepted the Purewals’ non-RTA-compliant September 1, 2014 two-month written notice. Had Mr. Gichuru paid his rent on October 1, 2014, he could have stood on his legal right to remain in his suite until the tenancy otherwise ended in accordance with the RTA. As of September 30, 2014, the Purewals had no legal right to require Mr. Gichuru to vacate. The Tribunal was manifestly wrong to say that by the time of the harassing conduct in August 2014, Mr. Gichuru had “already been evicted”.[3]
[108] I agree with the Tribunal that Mr. Gichuru’s non-payment of rent meant that, regardless of his views, he would ultimately have been evicted in any event – but that is not the test. The test is not the civil causation test that asks what position Mr. Gichuru would have been in “but for” the Purewals’ conduct.
[109] As set out above, and as stated by the Tribunal, the test is whether Mr. Gichuru’s mental illness was a factor in the adverse treatment, namely the eviction. To answer that question, the Tribunal would have had to address why Mr. Gichuru did not pay his rent on October 1, 2014. In the circumstances, the reason why the Purewals wanted to end the tenancy was irrelevant.
[110] The Tribunal was manifestly wrong in stating “there was no evidence connecting the failure to make a rental payment with Mr. Gichuru’s mental disability.” In fact, Mr. Gichuru specifically testified that “the threats from the landlord…made an untenable situation” and that he “desperately wanted to leave”. Given that Mr. Gichuru knew the Purewals did not have grounds to evict him, this was some evidence that he did not pay his rent on October 1, 2014 because he felt he had to leave due to Mr. Purewal’s threatening behaviour, including his discriminatory behaviour.
[111] If Mr. Gichuru did not pay rent on October 1, 2014 because the Purewals made it intolerable for him to stay and Mr. Purewal’s discriminatory conduct was a factor in Mr. Gichuru’s decision to not pay rent, then Mr. Gichuru’s complaint in relation to his eviction would have to be validated.
[112] The Tribunal was manifestly wrong to conclude “[w]hether or not Mr. Gichuru felt a need to leave the premises was essentially immaterial”. In fact, it was precisely the issue.
[113] Unfortunately, the Tribunal did not ask or answer the appropriate question. Specifically, the Tribunal did not ask why Mr. Gichuru did not pay his rent on October 1, 2014 and, as a result, the Tribunal did not make the necessary finding as to whether Mr. Gichuru’s mental disability was a factor in that decision.
[114] Given the Tribunal’s legal and factual errors, the Tribunal’s decision to award no compensation to Mr. Gichuru in relation to the eviction has no foundation. The decision must be set aside on the grounds that it was arbitrary.
[115] The Tribunal’s decision to award Mr. Gichuru no compensation in relation to his claimed income loss involved an exercise of discretion. I will analyse whether that decision was patently unreasonable in accord with the principles drawn from Morgan-Hung as set out above. Namely, I will consider whether the Tribunal made factual or legal errors and whether any such errors were material to the Tribunal’s exercise of discretion.
[116] The Tribunal awarded Mr. Gichuru no compensation in relation to his claimed income loss because the Tribunal found that any emotional upset flowed from Mr. Purewal’s larger threatening and harassing behaviour and the lack of action by the VPD to his complaints, not from Mr. Purewal’s discriminatory behaviour. The Tribunal concluded that any income loss as a result of Mr. Purewal’s discriminatory behaviour was speculative at best.
[117] The Tribunal’s finding that Mr. Gichuru was upset by the response of the VPD is supported by the evidence and is reasonable. The issues are whether the Tribunal could reasonably isolate the effects of Mr. Purewal’s discriminatory behaviour from the effects of his other threatening and harassing conduct and, if not, whether the Tribunal’s error in doing so was material to its exercise of discretion.
[118] The Tribunal’s factual finding that no emotional upset and, therefore, no income loss flowed from Mr. Purewal’s discriminatory conduct is entitled to deference. It may be set aside only if there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.
[119] The Tribunal’s conclusion that Mr. Gichuru’s mental disability was not a factor inciting Mr. Purewal’s harassing and threatening conduct on August 25, 2014 is unassailable. The Tribunal reasonably found that Mr. Purewal was unaware of Mr. Gichuru’s mental disability on that date and reacted poorly to Mr. Gichuru’s advice that he would not be moving out on September 1, 2014. Mr. Purewal’s discriminatory conduct did not start until August 26, 2014.
[120] On August 26, 2014, Mr. Purewal told Mr. Gichuru he knew Mr. Gichuru had a mental illness. Mr. Purewal threatened to have some “buddies” remove Mr. Gichuru by force and throw his “stuff” outside. Mr. Purewal then said he did not care if Mr. Gichuru complained or sued him because then everyone would know Mr. Gichuru had a mental illness. Effectively, Mr. Purewal was telling Mr. Gichuru to take his threat seriously. Mr. Purewal’s message was clear that if Mr. Gichuru complained it would be even worse for Mr. Gichuru because everyone would know about his mental illness.
[121] The Tribunal’s justification for isolating the effects of Mr. Purewal’s discriminatory words from the effects of the rest of his threats and harassment was that Mr. Gichuru’s whole course of conduct had provoked Mr. Purewal and that Mr. Gichuru was angry, not afraid. With the greatest respect, neither of those conclusions supports the Tribunal’s finding that no emotional upset or income loss flowed from Mr. Purewal’s discriminatory conduct.
[122] Even if Mr. Gichuru had provoked Mr. Purewal’s initial angry outburst on August 25, 2014 (more on that later), there was no evidence that Mr. Gichuru provoked Mr. Purewal’s initial discriminatory comments on August 26, 2014. Mr. Purewal unilaterally discovered information about Mr. Gichuru’s mental disability and unilaterally made that information part of his threats and harassment. Insofar as Mr. Gichuru’s conduct had any relation to what happened on August 26, 2014, it had nothing to do with Mr. Purewal’s incorporation of Mr. Gichuru’s mental disability into his threats. It also had nothing to do with Mr. Gichuru’s reaction to Mr. Purewal’s discriminatory conduct.
[123] Whether Mr. Gichuru was angry rather than afraid was also irrelevant to the question of whether the effects of Mr. Purewal’s discriminatory conduct could be separated from the effects of the rest of his threats and harassment. I am frankly at a loss to understand why the Tribunal felt otherwise.
[124] Under s. 2 of the Code, a finding of discrimination does not require an intention to contravene the Code; the focus of the Moore analysis is on discriminatory effect rather than discriminatory intent. Nevertheless, intention can be relevant to a claim of discrimination.
[125] During the Tribunal hearing, Mr. Gichuru repeatedly asked Mr. Purewal why he did certain things or used certain words. Mr. Purewal generally testified that he did not know. Eventually, Mr. Purewal acknowledged that he said to Mr. Gichuru on September 1, 2014: “You’re lucky if I don’t fucking see you on the street after you leave from here” to make Mr. Gichuru leave. Even without this admission, it is self-evident that is why Mr. Purewal utilized threats, harassment and discrimination against Mr. Gichuru. Mr. Purewal wanted Mr. Gichuru gone and tried to make that happen – including by raising Mr. Gichuru’s mental disability.
[126] In my respectful view, the only reasonable conclusion on the evidence was that Mr. Purewal’s discriminatory comments were not only intended to be, but were expressly part of Mr. Purewal’s threatening and harassing conduct. They were spoken at the very same time and place, and they were inextricably linked. It was wholly unreasonable for the Tribunal to isolate the effects of Mr. Purewal’s discriminatory conduct from the effects of his other threats and harassment. They were one and the same thing.
[127] Though I would reach the same conclusion in any event, my conclusion is reinforced by the fact that Mr. Purewal’s “larger” threatening and harassing behaviour included other discriminatory conduct. Specifically, Mr. Purewal raised Mr. Gichuru’s “mental illness” on August 27, 2014, reported Mr. Gichuru’s mental disability to the VPD in late August 2014, and told Mr. Gichuru he had “some sort of problem” and implied he was not “normal” on September 21, 2014.
[128] The Tribunal’s unreasonable isolation of the effects of Mr. Purewal’s discriminatory conduct from the effects of his other threats and harassment is, of course, not the end of the story. I must still consider whether the Tribunal’s error was material to its exercise of discretion in awarding no compensation to Mr. Gichuru for income loss.
[129] In reaching its conclusion on income loss, the Tribunal references “all of the circumstances”, however, the only circumstances noted to be of relevance by the Tribunal were Mr. Gichuru’s anger, Mr. Purewal’s threatening and harassing behaviour and the lack of response by the VPD.
[130] I have already held that the effects of Mr. Purewal’s discriminatory behaviour could not be isolated from the effects of his larger threatening and harassing behaviour. In the Tribunal’s view, those effects included anger. As a result, two of the three justifications offered by the Tribunal to award no income loss to Mr. Gichuru actually support rather than detract from Mr. Gichuru’s income loss claim.
[131] Further, the Tribunal accepted “Mr. Gichuru’s suggestion that his employment problems may stem, in part, from Mr. Purewal’s threats”. Having made that finding, in my respectful view, the Tribunal could not then reasonably hold that, if Mr. Gichuru suffered an income loss, the connection to Mr. Purewal’s discriminatory behaviour was speculative.
[132] In Morgan-Hung, at paras. 33-34, the Court of Appeal set aside the Tribunal’s assessment of past wage loss in circumstances where one of the two considerations underlying the decision was overturned. The Court concluded that the error of fact was a material factor in the Tribunal‘s discretionary decision, making that decision arbitrary.
[133] In this case, two of the three justifications for the Tribunal’s discretionary decision to award no income loss do not support its decision. These two justifications were clearly material.
[134] The Tribunal’s decision regarding income loss was based in part on the Tribunal’s unreasonable isolation of the effects of Mr. Purewal’s discriminatory conduct from the effects of his other threatening and harassing behaviour. This erroneous factual finding was material. The Tribunal’s exercise of discretion to award Mr. Gichuru no compensation for income loss was, therefore, arbitrary and must be set aside.
[135] The Tribunal’s decision to award Mr. Gichuru no compensation for injury to dignity involved an exercise of discretion. At the risk of repeating myself, I will analyse whether that decision was patently unreasonable in accord with the principles drawn from Morgan-Hung as set out above. Namely, I will consider whether the Tribunal made factual or legal errors and whether any such errors were material to the Tribunal’s exercise of discretion.
[136] The Tribunal declined to make an award to Mr. Gichuru for injury to dignity because the Tribunal found that Mr. Gichuru provoked Mr. Purewal and because the Tribunal found no connection between Mr. Purewal’s derogatory slurs and Mr. Gichuru’s emotional reaction.
[137] Mr. Gichuru submits that the Tribunal’s decision was patently unreasonable for a number of reasons. First, Mr. Gichuru submits that the Tribunal declined to award him compensation for injury to dignity for the improper purpose of punishing him for provoking Mr. Purewal. Second, in any event, Mr. Gichuru submits that the Tribunal made unreasonable factual findings regarding provocation. Finally, Mr. Gichuru submits that the Tribunal made an unreasonable factual finding that there was no connection between Mr. Purewal’s slurs and Mr. Gichuru’s emotional reaction.
[138] The Code is remedial in nature. It is designed to provide relief for victims of discrimination, not to punish those who discriminate: Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at 547; and School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201 at para. 37. Even more so, the Code provides no authority to punish complainants: Lombardi v. Walton Enterprises, 2012 HRTO 1675 at para. 181.
[139] I agree with Mr. Gichuru that denying compensation to a complainant based on the complainant’s provocative conduct, in some circumstances, could amount to the improper purpose of punishing the complainant. It does not follow, however, that provocation can never be a valid consideration in the Tribunal’s exercise of its remedial discretion. I will, therefore, focus on whether the Tribunal’s findings regarding provocation were reasonable.
[140] The Tribunal made its finding that Mr. Gichuru provoked the discriminatory conduct on the basis that:
1. Mr. Gichuru “felt entitled” to and decided to pay his rent by cheque on July 1, 2014, even though he knew that would prompt a response, including the distinct possibility of eviction;
2. Mr. Gichuru took advantage of the Purewals’ lack of knowledge about the RTA by not informing them that their August 1, 2014 written notice was non-compliant with the RTA until August 25, 2014;
3. Mr. Gichuru refused to move out because “he thought he might extract some money from the [Purewals] for doing so”; and
4. Mr. Gichuru filibustered and intentionally provoked Mr. Purewal on August 30, 2014 “because he had failed to record the conversation of August 26, 2014 and wanted to bolster his evidence”.
[141] The Tribunal’s finding that Mr. Gichuru provoked Mr. Purewal’s discriminatory conduct is a finding of fact that is entitled to deference. At the further risk of repeating myself, it may only be set aside if there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.
[142] For reasons that I hope will become obvious, in my consideration of provocation, I have found it necessary to separate Mr. Gichuru’s conduct prior to Mr. Purewal’s initial discriminatory outburst on August 26, 2014 from his conduct immediately prior to Mr. Purewal’s further discriminatory outburst on August 30, 2014.
[143] As previously noted, the Tribunal found that Mr. Gichuru had agreed to pay his rent in cash on two occasions but the Tribunal did not find that this was a term of the oral tenancy agreement between the parties. The Tribunal also did not find that Mr. Gichuru’s decision to pay his rent by cheque provided grounds for the Purewals to evict him under the RTA. Accordingly, Mr. Gichuru was quite right that he was “entitled” to pay his rent by cheque. While it may not have been pleasing to the Purewals, I do not understand why the Tribunal considered Mr. Gichuru’s decision to do so to be wrongful or improper.
[144] Further, I do not understand why the Tribunal felt that Mr. Gichuru somehow took advantage of the Purewals in relation to their repeated failures to comply with the RTA. The RTA is in place so that landlords and tenants equally know all of their rights and obligations. It may have been the courteous thing to do but Mr. Gichuru was under no obligation to educate the Purewals about the RTA or assist them in evicting him. If they did not know the workings of the RTA, that was their responsibility not Mr. Gichuru’s.
[145] In my respectful view, there was also nothing wrong with Mr. Gichuru’s thought that he may be able to negotiate favourable terms to vacate his suite. Landlords who want a tenant to vacate, but who do not have grounds to evict in accordance with the RTA, are often prepared to negotiate suitable terms with tenants. While Mr. Gichuru’s thought about how much the Purewals would be willing to pay to have him leave may or may not have been realistic, that does not lead to the conclusion that Mr. Gichuru was trying to provoke an angry, threatening, harassing and discriminatory response.
[146] Of particular relevance to this case, there is no evidence to suggest Mr. Gichuru knew that Mr. Purewal had unilaterally discovered information about Mr. Gichuru’s mental disability after Mr. Purewal’s angry outburst on August 25, 2014. In those circumstances, how can it be said that any of Mr. Gichuru’s conduct was intended to provoke Mr. Purewal’s initial discriminatory comments?
[147] If endorsed, the Tribunal’s reasoning would have an unintended and troubling consequence. The unintended message would be that a tenant with a protected characteristic whose landlord is an angry bully should cooperate, assist and comply with the landlord lest the landlord be provoked into discriminatory conduct. The tenant should not try to enforce their rights and protections under the RTA because, if a discriminatory response is provoked, the tenant will be to blame and a complaint to the Tribunal will be futile. This clearly cannot be right.
[148] The bottom line is that it was unreasonable for the Tribunal to conclude that Mr. Gichuru provoked Mr. Purewal’s initial discriminatory outburst on August 26, 2014.
[149] With respect to the events of August 30, 2014, I reach a different conclusion.
[150] Mr. Gichuru submits it was unfair and contrary to the principles of natural justice for the Tribunal to consider provocation on August 30, 2014 when the Purewals had not put that issue to Mr. Gichuru in cross-examination. Mr. Gichuru also disputes that he “admitted” provoking Mr. Purewal on August 30, 2014.
[151] Mr. Gichuru’s concerns about natural justice and fairness are, with the greatest respect, unfounded. First of all, under s. 27.2 of the Code, the Tribunal is not bound by the strict rules of evidence. Next, even if it were, the failure to cross-examine a witness on a point in controversy goes to the weight not the admissibility of any contrary evidence. Finally, in any event, the issue of provocation was not raised by the Purewals. Rather, it was raised during Mr. Gichuru’s direct-examination of his own witness, Cst. Robeson. That testimony occurred before Mr. Gichuru had completed his testimony. Mr. Gichuru examined Cst. Robeson extensively on the topic then testified about it himself. The Purewals were not obliged to cross-examine Mr. Gichuru. They may have been quite content with the state of the evidence.
[152] Turning to whether Mr. Gichuru admitted provoking Mr. Purewal on August 30, 2014, it is certainly true that Mr. Gichuru did not formally make such an admission. Nevertheless, the Tribunal heard testimony about the interactions between Mr. Gichuru and Mr. Purewal on August 30, 2014 as well as an audio recording of those interactions. On that evidence, it was open to the Tribunal to conclude that Mr. Gichuru intentionally provoked Mr. Purewal and to characterize Mr. Gichuru’s testimony as an admission that he had done so.
[153] In my view, there was evidence to support the Tribunal’s factual finding that Mr. Gichuru provoked Mr. Purewal into making discriminatory comments on August 30, 2014. The Tribunal’s finding regarding provocation on August 30, 2014 was, therefore, not unreasonable.
[154] The Tribunal’s finding that there was no connection between Mr. Purewal’s slurs and Mr. Gichuru’s emotional reaction was based on the Tribunal’s factual finding that Mr. Gichuru’s emotional reaction was linked to Mr. Purewal’s larger threatening and harassing behaviour, not his discriminatory behaviour. I have already found the Tribunal’s finding in this regard to be unreasonable. I will not repeat my analysis.
[155] The Tribunal was entitled to take Mr. Gichuru’s provocation of Mr. Purewal on August 30, 2014 into consideration in relation to the injury to Mr. Gichuru’s dignity on that date. Mr. Gichuru’s conduct on August 30, 2014 did not, however, erase Mr. Purewal’s earlier unprovoked discriminatory conduct. Further, even if Mr. Gichuru had somehow acted improperly prior to August 26, 2014, the Tribunal was not entitled to punish Mr. Gichuru for that earlier conduct in relation to the initial discrimination on August 26, 2014.
[156] The Tribunal considered Mr. Gichuru to have been unnecessarily and inappropriately uncooperative, and discourteous (conclusions which I am not called on to either endorse or disavow). Even so, the human rights of uncooperative and discourteous citizens are protected by the Code.
[157] The Tribunal’s decision to award no compensation to Mr. Gichuru for injury to dignity was largely founded on flawed reasoning and unreasonable findings of fact. The Tribunal’s decision is, therefore, arbitrary and must be set aside.
[158] Perhaps because of its other findings, the Tribunal did not rule on Mr. Gichuru’s claim for expenses associated with advancing his complaint. On its reconsideration of Mr. Gichuru’s complaint, the Tribunal will have to do so.
[159] During the hearing, Mr. Gichuru identified two audio recordings he wished to play, including one of his interactions with Mr. Purewal on September 21, 2014. The Tribunal ruled that it would hear the recordings as part of the background but not as a distinct allegation of discrimination. The Tribunal noted that Mr. Gichuru had not identified the events of September 21, 2014 in his complaint form and had not applied to amend his form.
[160] Mr. Gichuru submits that the Tribunal breached the principles of natural justice in declining to include the events of September 21, 2014 as part of his complaint. Mr. Gichuru submits that complaint forms are not pleadings and that the recordings were provided to the Purewals well in advance of the hearing. Accordingly, he submits that there was no prejudice to the Purewals.
[161] The Tribunal’s decision was discretionary and, therefore, may only be set aside if it was patently unreasonable.
[162] Rule 24(2) of the Tribunal’s Rules of Practice and Procedure permits a complainant to amend a complaint to add an allegation by filing and delivering a Form 3 – Amendment. This is subject to Rule 24(4), which requires the complainant to apply to amend their complaint in certain circumstances, including if the hearing date is less than four months from the date the amendment is filed.
[163] In ruling against Mr. Gichuru, the Tribunal agreed that a complaint is not a pleading but identified the importance of the complaint as “the flag for any party to the proceedings with respect to what allegations they need to be prepared to counter”. The Tribunal then concluded it was “way too late” for Mr. Gichuru to amend his complaint.
[164] In my view, the Tribunal reasonably relied on reasonable rules that are in place to ensure fairness to all parties. The Tribunal’s exercise of discretion was not patently unreasonable. I dismiss this ground of review.
[165] I have already dealt with most of Mr. Gichuru’s submissions regarding alleged errors made by the Tribunal. For completeness, I will address two remaining submissions.
[166] I agree with Mr. Gichuru that the Tribunal misquoted his evidence in relation to his phone call with Mr. Purewal on August 1, 2014 and his thinking about negotiating a buyout. I consider these slight errors to be immaterial.
[167] I reject Mr. Gichuru’s submission that the Tribunal lacks the “ability and authority” to interpret the RTA. While the Tribunal cannot make any orders under the RTA, interpreting the RTA is central to its jurisdiction to determine questions of discrimination in tenancies.
[168] In its opening paragraph in Bombardier, the Supreme Court of Canada notes that human rights legislation is designed to provide a remedy for victims of discrimination in all its forms, including less obvious forms such as unconscious prejudices and stereotypes. The Court wrote:
[1] Discrimination can take a variety of forms. Although some of them are easy to identify, others are less obvious, such as those that result from unconscious prejudices and stereotypes or from standards that are neutral on their face but have adverse effects on certain persons. The Charter of human rights and freedoms, CQLR, c. C‑12 (“Charter”), prohibits the various forms of discrimination and creates a remedy for victims of discrimination.
[169] In this case, Mr. Gichuru submits that the Tribunal’s decision was arbitrary in that it was based on stereotypes. I reproduce Mr. Gichuru’s written submission on the issue in full below:
104. In particular, the decision was based on the stereotype of an “angry Black man”. This stereotype, as with all stereotypes, involves several elements: (1) a predisposition to believing that Black men in general exhibit more anger than other people; (2) a predisposition to perceiving any individual Black man as angry when he is not “angry”; (3) a predisposition to believing that when Black men are angry, their anger is unjustified; (4) a belief that when a Black man is angered by a situation he is not vulnerable or in danger; and (5) a belief that a Black man cannot be angry and fearful at the same time.
105. The decision was further based on the stereotype or negative perception that Black men who fight for their rights are less worthy of respect and dignity.
Decision, paras. 275, 314
106. The decision was also based on the stereotype that Black people should not seek compensation for infringement of their rights and that Black people who are aware of their rights are “powerful” and take advantage of others.
Decision, paras. 298, 301
107. With respect to mental disability, the decision was based on the stereotype that persons with so-called “mental illness” are incapable of determining whether they have a “mental illness” or not.
Decision, paras. 271-278
108. The decision is also based on the stereotype that “mental illness” is less serious than “physical illness” such that an unqualified tribunal member can diagnose a witness at a hearing with a mental illness.
Decision, paras. 271-278
109. The decision is further based on the stereotype that persons with “mental illness” exhibit “an unusual set of ethics and perspective” and “operate on their own personal moral code” simply for asserting their legal rights.
Decision, paras. 281, 294
[170] Unconscious prejudices and stereotypes are harmful. They lead to assumptions, which are often more than hurtful. Assumptions often lead to differential treatment, and cause very real social and economic harms. The justice system is no stranger to the problem.
[171] Unconscious prejudices and stereotypes can also be very difficult to root out because, as noted in Bombardier, they are often at work in ways that are superficially neutral.
[172] Throughout the justice system, it is critical for all participants, including decision-makers such as the Tribunal, to be aware of the problems associated with unconscious bias and stereotypes, and to check all assumptions at the door. Decisions must be based on an objective assessment of the evidence, the law, logic and reason. Assumptions flowing from immutable personal characteristics must play no role.
[173] It is a serious matter to suggest that a Tribunal designed to protect against stereotypes employs them.
[174] I agree with Mr. Gichuru that people who “fight for their rights” are no less worthy of respect and dignity than those who do not. I can find nothing in the record or decision, however, that indicates that the Tribunal treated Mr. Gichuru with a lack of respect and dignity in any way, let alone based on his race, colour, or its perception of his mental illness.
[175] I agree with Mr. Gichuru that all people should be free to seek compensation for infringement of their rights and that those who do should not be assumed to be taking advantage of others. In this case, the Tribunal made a number of errors but these were mostly based on a misapprehension of the rights and obligations of landlords and tenants under the RTA, not stereotypes.
[176] Mr. Gichuru’s criticism of how the Tribunal treated his evidence about his depression is unfair and unfounded. He advanced his complaint on the basis of mental disability. He gave extensive evidence about his long-standing struggles with depression. He did not introduce any expert evidence to support his testimony. Nevertheless, the Tribunal accepted his testimony and, as I have already detailed, made a reasonable finding that was favourable to Mr. Gichuru.
[177] I am unable to uncover any stereotypical thinking on the part of the Tribunal that links its finding that Mr. Gichuru suffered from depression with its findings that Mr. Gichuru had “an unusual set of ethics and perspective” and operated on “his own personal moral code”. The Tribunal’s findings were based on how Mr. Gichuru handled matters with the Purewals, which did not match up with the Tribunal’s view of how he should have behaved. I have detailed some flaws in the Tribunal’s reasoning in this regard. Again, these flaws were mostly based on a misapprehension of the rights and obligations of landlords and tenants under the RTA, not stereotypes.
[178] I dismiss this ground of review.
[179] For the reasons I have expressed, the Tribunal’s decisions to award no compensation to Mr. Gichuru for expenses associated with his eviction, wage loss and injury to dignity are set aside.
[180] Mr. Gichuru’s complaint is remitted to the Tribunal to reconsider these issues in accordance with this ruling. The Tribunal is also directed to address Mr. Gichuru’s claim for expenses associated with advancing his complaint.
[181] The Tribunal’s mandatory “cease and refrain” and costs orders against the Purewals have not been challenged. These orders stand.
“L.S. Marchand J.”
MARCHAND J.
[1] This date is incorrect and should be October of 2014. The evidence was clear and uncontested that Mr. Gichuru paid his rent on September 1, 2014. As will be seen, this error is not material.
[2] As previously noted, this date is in error. Mr. Gichuru paid his rent in September but not October 2014.
[3] This would be equally true if Mr. Gichuru had not paid his rent in September 2014 so nothing turns on the Tribunal’s mistaken finding about when Mr. Gichuru failed to pay his rent.