Retaliation complaint against Burnaby housing co-op can proceed, rules human rights tribunal

A retaliation complaint against a Burnaby housing cooperative and two of its board members can go ahead, the BC Human Rights Tribunal has ruled.

It’s one of at least five complaints involving the same group of people—all of whom seem to have been, at one time or another, board directors at Avalon Housing Cooperative—in less than five years, tribunal member Pamela Murray noted in a decision issued yesterday.

The saga began with a complaint filed by co-op member Wally Awale in September 2017, which alleged that the co-op had discriminated against his daughter by not replacing carpet in their unit that was exacerbating her allergies—something a doctor had said was necessary.

While the co-op applied to have the first complaint dismissed, the tribunal denied that application in March 2020. The parties ultimately settled the complaint later that year, and the co-op installed laminate flooring in Awale’s unit.

At least three other complaints were filed in relation to the same dispute over the next few years, one by Awale and two by other board members.

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Awale’s latest complaint alleges that in the years since his first, the co-op has retaliated against him in several ways for going to the tribunal—including attempting to revoke his membership at the co-op and evict him from his unit, and calling the police on several occasions.

The board says its actions were in response to Awale’s conduct—which all parties agree was at times rude and inappropriate, but which Awale said was borne out of frustration.

Several incidents detailed show that the conflict between Awale and several board members escalated, including one where board director Dana Kozak called the police because Awale allegedly honked at her and gave her the finger—something Awale said was particularly egregious because he is a Black man.

The police were also called over a separate incident where Awale obtained internal board documents and distributed them to other members, and another where the board claimed Awale had broken rules on video surveillance.

Murray, however, noted the co-op’s rules do not specifically say anything about members installing surveillance cameras in their units, and pointed out that the co-op itself uses video surveillance.

While Awale’s racial identity isn’t central to the complaint at hand, Murray agreed that it does “flavour much of what Mr. Awale says has happened throughout his disputes with the respondents.”

“Since 2012, Mr. Awale himself has been making allegations about such things as racial slurs being used against him at the co-op and inequitable enforcement of the rules,” Murray wrote.

Another director, who was supportive of Awale, claimed that the board was prioritizing the “situation” with Awale over all other aspects of community life.

“This situation is not just being discussed with multiple emails being sent back and forth every day, but even practical, legal actions are being pushed, specifically by the member who is most personally and emotionally involved with this protracted conflict [an apparent reference to Ms. Reid],” an email written by that other director in April 2020 read.

And Murray found that the timing of several decisions was persuasive evidence that Awale could rely on to allege that the board had retaliated against him for the previous complaints he had filed.

For example, the day after the tribunal rejected the board’s application to dismiss Awale’s first complaint, the board passed a motion to get lawyers involved in ending his co-op membership.

Similarly, the day after the carpeting in Awale’s unit was ultimately replaced, the board informed Awale that his co-op membership had been terminated and that he would need to leave his unit by the next January. He was allowed to appeal that decision to the co-op’s general membership, who decided he should be able to stay.

Murray said that while the timing of one or more of those decisions may be coincidental—which would be something that could be determined in a proper hearing—it was tough to “get past”.

She also said there was reasonably objective evidence that there was a concerted effort to remove Awale from the co-op.

“Overall, even if I assume the board sincerely believed the long history of conflict alone provided valid reason to terminate Mr. Awale’s membership under the rules or to call the police on him, I am not persuaded that Mr. Awale has no reasonable prospect of persuading the tribunal a reasonable complainant —looking especially at the timing of what happened—would conclude Mr. Awale filing the previous complaints played a role in the respondents’ conduct,” Murray wrote.