Canada: Perception Of Retaliation Does Not Breach The Human Rights Code

In Gichuru v. Pallai, 2018 BCCA 78, the most recent decision in the long-running saga between an individual and his former landlord, the BC Court of Appeal clarified the test for retaliation under section 43 of the BC Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code").

Mr. Gichuru leased a suite in an apartment building owned by Mr. Pallai. He filed a complaint with the BC Human Rights Tribunal (the "Tribunal") relating to exchanges between him and Mr. Pallai regarding a noise complaint he made. Mr. Gichuru's complaint was dismissed by the Tribunal in 2010 BCHRT 125.

Less than two weeks after the dismissal of the complaint, Mr. Pallai served Mr. Gichuru with notice to end his tenancy.

Mr. Gichuru filed a second complaint with the Tribunal alleging the notice to end his tenancy was retaliation contrary to the Code.

Section 43 of the Code provides:

A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.

After a hearing, the Tribunal dismissed the retaliation complaint in 2012 BCHRT 327. Mr. Pallai provided evidence regarding the reasons for his decision to end Mr. Gichuru's tenancy, none of which were related to the original human rights complaint.

The Tribunal stated that the test for retaliation required the complainant to establish in accordance with Bissonnette v. School District No. 62 and Frizzell, 2006 BCHRT 447 that:

  1. a previous complaint has been made under the Code and the respondent was aware of the complaint;
  2. the respondent engaged in or threatened to engage in retaliatory conduct; and
  3. the respondent intended to engage in that conduct or can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception assessed from the point of view of a reasonable complainant.

The Tribunal concluded that while a reasonable inference could be drawn that Mr. Pallai's decision to end Mr. Gichuru's tenancy was retaliatory, a reasonable explanation had been provided by Mr. Pallai for his decision.

Mr. Gichuru's application for judicial review was dismissed in 2017 BCSC 1083.

On appeal, the Court of Appeal held that the test for retaliation required "some clarification". In particular, the Court held that the Bissonnette test did "not necessarily capture the requisite connection" under section 43 between the retaliatory conduct complained of and the original human rights complaint. The Court further noted:

... s. 43 protects complainants (and others) from certain actions done in sufficient connection with previous complaint(s); it does not protect them from the perception of retaliation. Bissonnette should not be taken to imply this latter proposition, and the third step of the test should make this clear.

The Court of Appeal therefore restated the test as follows:

... To establish a complaint under s. 43, a complainant must show the following on a balance of probabilities:

  1. A previous complaint has been made under the Codeand the respondent was aware of the complaint.
  2. The respondent engaged in or threatened to engage in the conduct described in s. 43 (e.g. evicted, discharged, intimidated, etc.).
  3. There is a sufficient connection between the impugned conduct and the previous complaint. This connection may be established by proving that the respondent intended to retaliate, or may be inferred where the respondent can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct.

The Court continued:

Section 43 is different from other discrimination provisions in another way – it does not contain any sort of justification clause. However, the fact that respondents cannot justify retaliation under s. 43 of the Code does not mean that their evidence is unimportant. To the contrary, explanations offered by respondents must be considered together with all of the evidence in assessing whether the requisite connection has been established. In particular, in assessing the reasonableness of the perception that a respondent has engaged in retaliatory conduct, the respondent's evidence, together with all of the evidence, informs the point of view of the reasonable complainant, who is taken to be apprised of the facts at the time of the impugned conduct.

In the result, Mr. Gichuru's appeal was dismissed.

Practical Advice for HR Professionals

Although this decision arose in the tenancy context, it applies equally to employment. It serves to confirm that while section 43 protects against retaliation, it does not prevent a landlord or employer from taking steps adverse to a complainant after the filing of a human rights complaint.

When considering taking any such adverse steps, however, organizations must be certain that the reasons are unrelated to the original complaint. Organizations should also ensure that the reasons and deliberations are adequately documented to facilitate proof of the non-retaliatory explanation at a hearing or in an application to dismiss.

Originally published in the LexisNexis Labour Notes Newsletter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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