Remedy granted. An Indigenous woman’s complaint is justified against her landlord that she was discriminated against and harassed connected to her protected characteristics. The landlord is ordered to pay her compensation of lost wages and expenses incurred, as well as $20,000 for injury to her dignity, feelings and self-respect.
Ms. Smith is an Indigenous person and a member of the Tsimshian and Haisla Nations. Smudging is part of her connection to and expression of her Indigenous identity and, for her, a regular spiritual practice. For roughly the first half of 2017, she lived in an apartment she rented from Mr. Mohan. Ms. Smith says that from the time the parties began discussing entering a tenancy and during it, Mr. Mohan said things to her she found offensive and which she says were discriminatory harassment based on stereotypes about Indigenous people. She also says she was adversely impacted in tenancy by what happened when Mr. Mohan learned she had been smudging in her apartment, which included attempts to evict her and – after his attempts to evict her for cause failed – refusing to accept her rent payments. Ms. Smith filed this complaint in which she says Mr. Mohan discriminated against her on the basis of her race, ancestry, place of origin, and religion in tenancy contrary to s 10 of the Human Rights Code [“Code”].
Mr. Mohan denies discriminating against Ms. Smith, but instead were efforts at inter‐cultural dialogue. He also says Ms. Smith was not adversely impacted in tenancy for reasons connected to her protected characteristics by what happened after he learned she smudged. He says he has a policy for his properties that prohibits nuisances and behaviour that damages his property. He says he attempted to evict Ms. Smith because of this policy, not because of her protected characteristics. He also says that, in the alternative, his conduct was justified because Ms. Smith failed to cooperate in his efforts to accommodate her smudging.
Section 10 of the Code prohibits discrimination regarding a term or condition of a tenancy because of the race, ancestry, place of origin, or religion of a person. For Ms. Smith to succeed in her complaint of discrimination under s 10 of the Code, she must prove, on a balance of probabilities, that she experienced an adverse impact in her tenancy and that her race, ancestry, place of origin, or religion were a factor in that adverse impact (Moore v BC (Education), 2012 SCC 61 [“Moore”]).
There is no dispute that, as an Indigenous person, Ms. Smith has one or more of the “constellation” of protected characteristics under the Code relating to one’s cultural background and identity, or that Ms. Smith’s spiritual practices are protected by religion as a protected characteristic. The overriding issue for this matter is whether Ms. Smith was adversely impacted in tenancy for reasons connected to her protected characteristics and, where a justification defence is available, whether Mr. Mohan’s conduct was justified. There is no dispute a complainant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection (Central Okanagan School District No 23 v Renaud,  2 SCR 970 [“Renaud”]. If the complainant rejects a reasonable proposal, the respondent’s duty to accommodate is discharged and the complaint is dismissed (Renaud).
Ms. Smith established her case, therefore the burden shifted to Mr. Mohan to justify his conduct (Moore). Mr. Mohan repeatedly accused Ms Smith of smoking marijuana both in messages to her and before the Residential Tenancy Branch, which could be of some significance to a person who is a teacher. He did not pursue this defence at the hearing. Mr. Mohan repeatedly attempted to evict Ms. Smith, both for cause and, when he was unsuccessful, for landlord’s use of property. Mr. Mohan ultimately refused to accept further rent payments from Ms. Smith. Ms. Smith was quite simply denied the right to enjoy her home, especially near the end of her tenancy. The discrimination impacted her ability to meet a fundamental need: a home for herself and her family.
Discrimination in respect of a person’s home can be particularly egregious, and is often marked by a power imbalance between landlord and tenant (Biggings obo Walsh v Pink and others, 2018 BCHRT 174; James obo James v Silver Campsites and another (No 3), 2012 BCHRT 141). Overall, it was found the nature of the discrimination serious and favoured a fairly significant award.