Lee v. Strata Plan 4082 and others (No. 2), 2012 BCHRT 21
We originally reported on this decision back in January. In supplementary reasons issued in February, the Human Rights Tribunal clarified why council members (and, by extension, property managers) can be named as respondents in human rights complaints by owners against their strata corporations.
The strata council members argued that it was not necessary to name them in the complaint and that the Tribunal ought to discourage the practice of naming council members in Human Rights complaints because “… an accusation that one has discriminated is one of the most highly charged accusations which can be made in our society. Individuals named as respondents, who may not ultimately be found liable for any discrimination, often experience significant personal distress as a result of being named”. They argued that this type of personal strain and possible acrimony does not further the broader remedial purposes of the Human Rights Code.
The argument was a bit of a stretch and the Tribunal was not persuaded. The Tribunal said that the council members should have brought a preliminary application before the hearing to have the claim against them dismissed. Such an application is always open to parties who did not act personally but instead acted for or on behalf of the party who is alleged to have discriminated against the complainant. No preliminary application was made in this case and the matter proceeded to a hearing as against all of the respondents, including the council members.
The Tribunal also clarified that the council members were found liable in the original decision because, as members of the strata council, they had the power to direct the actions of the strata corporation. A property manager, as agent for the strata corporation, could also be found liable on the same basis.
The lesson learned here is that human rights complaints need to be handled strategically. Baseless human rights complaints are routinely dismissed or narrowed in scope through the effective use of pre-trial procedures. If you or your strata corporation is faced with a human rights complaint, report the complaint to your E&O insurer as well as your client’s insurer. Legal counsel should also be retained and instructed promptly to review the complaint and determine whether any pre-hearing applications are warranted.
Read the reasons for decision here: http://canlii.ca/t/fq499.
What we do: Lesperance Mendes advises strata corporations and owners on matters such as construction defects, warranty claims, bylaw enforcement and collections. We have also successfully represented our clients before the Human Rights Tribunal. For more information about our strata law practice, contact Paul G. Mendes at 604-685-4894 or by email at pgm@lmlaw.ca.
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