Court of Appeal overturned the decision of a chambers judge and upheld a decision of the BC Human Rights Tribunal awarding a mentally disabled appellant damages for discrimination in tenancy. The appellant had purchased a motor home and the respondent had refused to rent the pad on which the home was located and refused to consent to the vendors’ lease to the appellant.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Landlord and tenant – Leases – Human rights complaints – Disability – Discrimination – Judicial review – Privileged communications – Disclosure – Evidence – admissibility – Judicial notice

Silver Campsites Ltd. v. James, [2013] B.C.J. No. 1302, 2013 BCCA 292, British Columbia Court of Appeal, June 20, 2013, C.A. Ryan, M.E. Saunders, D.C. Harris JJ.A.

The appellant, Brian John James, a mentally disabled adult, had purchased a motor home from a tenant on the respondent’s mobile home park. The respondent had refused to rent the pad on which the mobile home was located to the appellant and refused to consent to the vendor’s lease to the appellant.

During the course of the initial dispute under the Manufactured Home Park Tenancy Act, counsel for the respondent had provided a letter which set out the grounds upon which the respondent was withholding consent to the lease in accordance with regulation. Eventually, a dispute resolution officer found that the respondent did not have a permissible ground for refusing its consent and authorized the tenancy assignment. The appellant moved into the respondent’s campsite and the appellant’s mother filed a human rights complaint on behalf of her son alleging discrimination by the respondent.

The Tribunal found that the appellant had been discriminated against in tenancy on the grounds of disability and source of income, contrary to s. 10 of the Human Rights Code. Despite having no direct evidence from the appellant regarding the effect the discrimination had on him, the Tribunal awarded $10,000 as compensation for injury. The appellant applied for judicial review of the Tribunal’s decision.

The chambers judge found that the Tribunal had erred in awarding damages without objective evidence of injuries and was exercised for an improper purpose, namely, to punish the respondents rather than compensate the appellant for his injuries. The chambers judge also found that the letter from appellant’s counsel was protected under absolute privilege and therefore inadmissible. The chambers judge therefore remitted the matter back to the Tribunal for reconsideration without reference to the letter from counsel and on the basis of the evidence that was before it (or lack thereof) of the injury to the appellant’s dignity, feelings and self-respect.

The Court of Appeal disagreed with the chambers judge’s ruling and set aside the two orders under appeal. The Court found that the Tribunal could properly take judicial notice of the fact that denying a mentally-disabled man would cause compensable injury to his dignity in the circumstances, and the Tribunal’s conclusions fell well within the proper role of the Tribunal and was consistent with the legislative purpose of the Human Rights Code.  Further, the Court held that the letter written by respondent’s counsel was simply a means by which the respondent communicated its refusal to consent to the assignment. The letter was not the functional equivalent of a pleading, was not written in preparation of contemplated proceedings and was not protected by absolute privilege. The fact that it was written by counsel acting as the agent for the respondent was also found to be immaterial.

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