Date Issued: October 22, 2024
File: CS-006915
Indexed as: Bethinger and others (by McMillan and another) v. British Columbia Housing
Management Commission and others, 2024 BCHRT 231
2024 BCHRT 231 (CanLII)
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Miranda Bethinger, Amy McMillan, and Mark Skelton (by Sheila McMillan and Stan Skelton)
COMPLAINANTS
AND:
British Columbia Housing Management Commission (BC Housing) and
His Majesty the King in Right of the Province of British Columbia
as represented by the Ministry of Social Development and Poverty Reduction
and Ladysmith Resource Centre Association
RESPONDENTS
CORRECTON
Counsel for the Complainants: Peter Harrison
Counsel for the Respondent Anne Cochrane
British Columbia Housing Management
Commission (BC Housing)
Rochelle Pauls
Counsel for the Respondent Ministry of Social
Development and Poverty Reduction
Counsel for the Respondent Ladysmith Resources Enriques Montes
Centre Association
[1] This corrects an error on the title page of the decision.
[2] The names of the complainants are changed from Miranda Bethinger, Amy McMillan, Laura
2024 BCHRT 231 (CanLII)
McLuckie, Rachel Camille (by Sheila McMillan and Stan Skelton) to Miranda Bethinger, Amy
McMillan, and Mark Skelton (by Sheila McMillan and Stan Skelton)
Beverly Froese
Tribunal Member
1
Date Issued: August 7, 2024
File: CS-006915
Indexed as: Bethinger and others (by McMillan and another) v. British Columbia Housing
Management Commission and others, 2024 BCHRT 231
2024 BCHRT 231 (CanLII)
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Miranda Bethinger, Amy McMillan, and Mark Skelton (by Sheila McMillan and Stan Skelton)
COMPLAINANTS
AND:
British Columbia Housing Management Commission (BC Housing) and
His Majesty the King in Right of the Province of British Columbia
as represented by the Ministry of Social Development and Poverty Reduction
and Ladysmith Resource Centre Association
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a)
Tribunal Member: Beverly Froese
Counsel for the Complainants: Peter Harrison
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Counsel for the Respondent British Columbia Anne Cochrane
Housing Management Commission (BC
Housing)
Counsel for the Respondent Ministry of Social Rochelle Pauls
2024 BCHRT 231 (CanLII)
Development and Poverty Reduction
Counsel for the Respondent Ladysmith Enriques Montes
Resources Centre Association
I INTRODUCTION
In December 2020, BC Housing and the Ladysmith Resources Centre Association
[Association] entered into an Operating Agreement to provide housing to households with
moderate to low incomes. Funding to construct the residential apartment building in the town
of Ladysmith known as “Heart on the Hill” came from BC Housing’s Community Housing Fund.
Heart on the Hill opened in 2023 and is owned and operated by the Association. It
consists of 36 units. The terms of the Operating Agreement require 30% of the units to be
“market units”, meaning the resident’s income cannot exceed specific moderate income limits
and the rent is based on the market rent; 50% are “Rent-Geared-to-Income units”, meaning
they are for residents with low incomes and the rent is calculated based on a rent scale; and
20% are “Deep Subsidy Units” for people with low incomes, in particular people on income or
disability assistance.
The Complainants are adults with intellectual and developmental disabilities who live in
Ladysmith and their representatives. The Complainants made a complaint against the
Respondents alleging discrimination under ss. 8 and 10 of the Code on the basis of disability.
Specifically, the Complainants allege that the allocation of units in Heart on the Hill is
discriminatory because there are not enough “Deep Subsidy Units” reserved for persons with
intellectual and developmental disabilities living in Ladysmith. In the amendment to the
complaint, the Complainants say their complaint is “also a systemic complaint on behalf of all
3
persons with intellectual or developmental disabilities who are discriminated against in
securing affordable and appropriate housing”.
The only allegation against the Ministry relates to the amount of monthly shelter
2024 BCHRT 231 (CanLII)
allowance provided to eligible persons with disabilities under the Employment and Assistance
for Persons with Disabilities Act [Act] and Employment and Assistance for Persons with
Disabilities Regulation [Regulation]. Specifically, the Complainants allege that the low amount
of the shelter allowance, combined with BC Housing’s policies, create economic barriers to
access subsidized housing in Ladysmith by persons with intellectual and developmental
disabilities.
In February 2024, the Tribunal allowed the Ministry to apply to dismiss the complaint
against it under ss. 27(1)(a) and (c) of the Code on the ground that it is not within the Tribunal’s
jurisdiction and has no reasonable prospect of success. In mid-March 2024, the Ministry made
this application under both ss. 27(1)(a) and (c). The Complainants filed a response to the
application and the Ministry filed a reply. BC Housing and the Association did not file any
submissions on the application.
In my view, this application is best decided under s. 27(1)(a) of the Code. For the reasons
that follow, I grant the application and dismiss the complaint against the Ministry on the
ground that it is outside the Tribunal’s jurisdiction. I find the complaint against the Ministry is a
direct attack on the Act and Regulation.
I have considered all the information filed by the Complainants and the Ministry. In
these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact
on the merits of the complaint.
4
II DECISION
A. Scope of the complaint against the Ministry
In their complaint, as amended, the Complainants allege discrimination by the
2024 BCHRT 231 (CanLII)
Respondents in the areas of tenancy and services. One of the arguments in the Ministry’s
application to dismiss is that the Complainants have no reasonable prospect of proving they
were in a tenancy relationship for the purposes of s. 10 of the Code. In their response, the
Complainants do not make any submissions on this argument and only say they “prefer to focus
on the meaning of services and apply it to the factual context of this case”.
Based on my review of the complaint and materials before me, it is evident that the
complaint against the Ministry was made solely in the area of services under s. 8 of the Code.
For that reason, it is not necessary for me to consider the Ministry’s argument and decide
whether the Complainants have a reasonable prospect of proving the complaint against the
Ministry falls within the definition of “tenancy” for the purposes of s. 10 of the Code.
B. Is the complaint against the Ministry within the Tribunal’s jurisdiction?
To prove the Ministry violated s. 8 of the Code, the Complainants must establish that
they experienced an adverse impact with respect to a service it provides that is customarily
available to the public, and that their intellectual and developmental disability was a factor in
that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33. To prove their
“systemic” complaint of discrimination against the Ministry, the Complainants must establish
that persons with intellectual and developmental disabilities are adversely impacted with
respect to a service the Ministry provides that is customarily available to the public.
The Complainants and the Ministry acknowledge it is well-settled that human rights law
does not impose a positive obligation on governments to provide a service customarily
available to the public. They also acknowledge it is well-settled that “once government chooses
to provide a service, it must not do so in a discriminatory manner”: Hasek v. BC (Ministry of
5
Health), 2018 BCHRT 187 at para. 78. As the Supreme Court of Canada stated at para. 41 of
Auton (Guardian ad Litem) v. British Columbia (Attorney General), 2004 SCC 78:
This Court has repeatedly held that the legislature is under no obligation
to create a particular benefit. It is free to target the social programs it
2024 BCHRT 231 (CanLII)
wishes to fund as a matter of public policy, provided the benefit itself is
not conferred in a discriminatory manner: [citations omitted]
For a complaint to fall under s. 8 of the Code, the alleged discriminatory activity must
“be a service, customarily available, and customarily available to the public”: British Columbia v.
Crockford, 2006 BCCA 360 at para. 78. To determine whether s. 8 is engaged, the Tribunal must
first “identify the service in question, and then … determine whether that service gives rise to a
public relationship between the service provider and the service user”: Gould v. Yukon Order of
Pioneers, [1996] 1 SCR 572 at para. 58.
The Complainants submit that determining what constitutes the service in this case is a
question of mixed law and fact and should only be answered after a hearing. The Complainants
cite Abraham v. Greater Vancouver Housing and others, 2008 BCHRT 41 to support its argument
that “a factual foundation, established at a hearing, may be necessary to assess the application
of the law”. Unlike the situation in Abraham, I find that determining what constitutes the
service at issue regarding the complaint against the Ministry can be done at this stage on the
materials before me.
The Ministry first argues that the complaint against it does not fall under s. 8 of the Code
because passing the Act and Regulation is not a “service”. I agree with the Ministry that the act
of passing legislation or regulations is not a “service” for the purposes of the Code: Phillips v.
BC Ministry of the Attorney General, 2019 BCHRT 76 at para. 14; Startek v. Ministry of Finance
and another, 2022 BCHRT 117 at para. 29. However, I disagree with the Ministry that the
complaint against it is beyond the Tribunal’s jurisdiction for that reason. In my view, this case is
distinguishable from Phillips and Startek because the Act and Regulation do create a “service”
for the purposes of the Code.
6
In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018
SCC 31 [Andrews/Matson] the Supreme Court of Canada recognized that a critical issue for
adjudicators is whether a human rights complaint is a “direct attack on legislation” or alleges
discrimination with respect to a service: at para. 57. The Court stated that:
2024 BCHRT 231 (CanLII)
It is uncontroversial that actions of the executive in providing services
primarily available to the public are reviewable under human rights
legislation. What is controversial is consideration of complaints that, in
substance, solely target legislation. In reviewing such complaints, human
rights tribunals are faced with the challenging task of distinguishing
between administrative services and legislation. [citations omitted]
When considering this critical issue, I find the Tribunal’s decision in Khabazian-Isfahani
v. BC Ministry of Finance (No. 2), 2023 BCHRT 94, cited by the Ministry in its submission, to be
helpful to my analysis. In that case, the complainant alleged that the strict application of the
four-year time limit to apply for a refund of motor fuel tax paid and the 90-day time limit to
appeal decisions denying a refund under the Motor Fuel Tax Act were discriminatory. The
complainant argued the respondent failed to consider and accommodate the impacts his
mental disability had on his ability to meet the deadlines.
In that case, the Tribunal found the Fuel Tax Refund Program created by the Motor Tax
Fuel Act that allows people with disabilities to apply for fuel tax refunds of up to $500 per year
was a “service customarily available to the public”. It also found that the time limits to apply for
the refund and to appeal decisions denying the refund were not included in that service. The
Tribunal dismissed the complaint after a hearing on the basis that because there was no
discretion in the Motor Fuel Tax Act for the time limits to be varied, the complainant had not
established an adverse impact regarding a service customarily available to the public.
Following the approach in Khabazian-Isfahani, I first look to the Act and Regulation to
determine the precise scope of the service that may be at issue and what the Complainants are
asking of the Ministry: at para. 64. I note here that in their complaint, the Complainants refer to
“BC government policies” that they allege have thwarted their ability to find affordable
housing. The Complainants have not identified any such policies and it is evident from the
7
materials before me that disability assistance, including the shelter allowance, was created by
and is administered under the Act and Regulation. There is no evidence before me indicating
that any of the Ministry’s policies are at issue in this case.
2024 BCHRT 231 (CanLII)
A primary purpose of the Act is to provide “disability assistance” to eligible individuals
with disabilities and family units, which consists of monthly support and a monthly shelter
allowance. The maximum monthly support and shelter allowance are set out in Schedule A to
the Regulation. For an eligible single person with disabilities, the maximum amount of support
is $983.50, and the maximum monthly shelter allowance is $500 (increased from $375 in 2023).
In my view the Act and Regulation establish a “service customarily available to the
public”, whether it be disability assistance in general or the shelter allowance in particular. I am
supported in my conclusion by the cases cited at para. 17 of Phillips relating to complaints
alleging discrimination with respect to income assistance benefits, survivor pension benefits,
and workers’ compensation benefits. Specifically, Hendershott v. Ontario (Community and
Social Services), 2011 HRTO 482; Ball v. Ontario (Community and Social Services), 2010 HRTO
360; Gwinner v. Alberta (Human Resources and Employment), 2004 ABCA 210, leave to appeal
declined [2004] SCCA No. 342; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO
115; Harmer v. BC (Ministry of Human Resources), 2005 BCHRT 279.
I note here that in their response, the Complainants make an alternative argument that
the service at issue is “shelter”. The Complainants do not elaborate on that argument and, in
my view, have no reasonable prospect of establishing that the service created by the Act and
Regulation is shelter.
Section 24 of the Regulation expressly states that the monthly amount of disability
assistance must not be more than the amount set out in Schedule A less the family unit’s net
income determined under Schedule B. For that reason, in my view the service at issue does not
include discretion to assess an amount for support or shelter allowance greater than that set
out in Schedule A of the Regulation. In other words, the service at issue is limited to assessing
8
an applicant’s eligibility for disability assistance and providing no more than the maximum
amount of monthly support and shelter allowance allowed for in the Regulation.
In their response, the Complainants allege that the Ministry has violated s. 8 of the
2024 BCHRT 231 (CanLII)
Code because persons with intellectual and developmental disabilities may not be able to fully
participate or participate in the same way as the general public in accessing the shelter
allowance. More particularly, the Complainants allege that:
a. some private landlords are unwilling to rent to people with intellectual and
developmental disabilities;
b. some people with intellectual and developmental disabilities are not able to
manage money or other affairs such as completing forms;
c. people with intellectual and developmental disabilities do not have the same
“guile” to secure accommodation as members of the general public, including
people with physical disabilities;
d. some people with intellectual and developmental disabilities cannot avail
themselves of the service because they cannot first secure shelter;
e. compared to the general public, people with intellectual and developmental
disabilities are in greater danger of experiencing negative health consequences if
they cannot access adequate shelter; and
f. the shelter allowance rate applies an “obvious fallacy”, in that it is the same
amount regardless of where the person lives even though rent amounts vary
throughout the province.
The Complainants say they will be able to present evidence at the hearing to show the
obstacles and barriers that people with intellectual and developmental disabilities face when
they are forced to move to another community to find cheaper shelter.
9
I make no findings of fact regarding the Complainants’ allegations as to if or why people
with intellectual and developmental disabilities face barriers when trying to access affordable
housing. My only consideration at this stage is to determine if the complaint against the
Ministry is within the Tribunal’s jurisdiction.
2024 BCHRT 231 (CanLII)
In my view, it is evident from the complaint and the Complainants’ response that the
essence of their complaint against the Ministry is that the amount of shelter allowance is too
low for adults with intellectual and developmental disabilities to be able to find affordable
housing in their community.
The Complainants have identified difficulties that people with intellectual and
developmental disabilities allegedly face in accessing affordable housing. They have not,
however, made allegations that could support a finding that the Ministry confers disability
assistance generally or the shelter allowance specifically in a discriminatory manner. For
example, none of the Complainants allege they were denied a shelter allowance because they
have an intellectual or developmental disability, nor do they allege that the Ministry relied on
negative stereotypes about people with intellectual and developmental disabilities when
assessing their eligibility for benefits: Khabazian-Isfahani at para. 62.
Based on the materials before me, it is apparent that what the Complainants seek is an
amount of shelter allowance for adults with intellectual and developmental disabilities that is
higher than that allowed under the Act and Regulation. As I have found that the service at issue
does not include providing a shelter allowance higher than that allowed under the Regulation,
what the Complainants seek is not a benefit that exists under the statutory scheme. For that
reason, I agree with the Ministry that the complaint against it is a direct attack on the Act and
Regulation and, therefore, outside the Tribunal’s jurisdiction.
In their response, the Complainants appear to allege that the complaint includes an
allegation of discrimination against the Ministry as funder or indirect funder of Heart on the
Hill. The complaint, as amended, does not make this allegation. I have not considered it in this
decision because if, in fact, the Complainants are making such an allegation, it is a new
10
allegation, and they did not apply under Rule 24(4) of the Tribunal’s Rules of Practice and
Procedure to amend the complaint to add it.
III CONCLUSION
2024 BCHRT 231 (CanLII)
The Ministry’s application to dismiss the complaint against it under s. 27(1)(a) of the
Code is granted.
The proper way for the Complainants to pursue their complaint against the Ministry is
to continue with their Court action seeking relief under s. 15 of the Canadian Charter of Rights
and Freedoms.
Beverly Froese
Tribunal Member
This version of the Reasons for Decision has been amended in accordance with the Correction of October 22, 2024
[1] This corrects an error on the title page of the decision.
[2] The names of the complainants are changed from Miranda Bethinger, Amy McMillan, Laura McLuckie, Rachel Camille (by
Sheila McMillan and Stan Skelton) to Miranda Bethinger, Amy McMillan, and Mark Skelton (by Sheila McMillan and Stan
Skelton)
11
12
2024 BCHRT 231 (CanLII)
