BC Human Rights Tribunal finds strata corporation discriminated against owner in handling smoking complaints, offers advice to stratas on how to deal with requests for accommodation related to second-hand smoke

BC Human Rights Tribunal finds strata corporation discriminated against owner in handling smoking complaints, offers advice to stratas on how to deal with requests for accommodation related to second-hand smoke

October 3, 2016

BY Kevin Zakreski

In a decision released late last month, the British Columbia Human Rights Tribunal offered some guidance to strata corporations and strata-lot owners in handling requests for accommodation due to second-hand smoke.

Leary v Strata Plan VR1001, 2016 BCHRT 139, involved a complaint that a strata corporation was discriminating against a strata-lot owner in accommodation, service, and facility, contrary to section 8 of the Human Rights Code. The complainant claimed “that she has a disability that makes her react to second-hand smoke and the Strata did not act on her complaints of smoke ingress to her apartment.”

The strata corporation had “never had a bylaw that specifically prohibits or restricts smoking.” Relations between the complainant and the strata council were fraught, leading the tribunal to conclude that the complainant:

is a demanding and difficult member of the Strata. This has clearly impacted the way her concerns were treated by the Strata. I conclude that, due to the volume of other complaints, the Strata concluded that her concerns about smoking lack credibility.

Nevertheless, the tribunal also found that the complainant’s “concerns about smoke were dealt with in a manner best described as haphazard.” At various times, the strata corporation “put forward a bylaw change to making the building non-smoking” (which was rejected on three occasions) and it “secured a volunteer who would come to Ms. Leary’s apartment to see if they could smell the smoke she claimed was impacting her.”

The tribunal noted that the test to “establish a prima facie case of discrimination” required the complainant to “show that she has a disability, that she has suffered an adverse impact in relation to provision of services by the Strata, and that her disability was a factor in the adverse impact.”

The tribunal found that the complainant’s “disability is an allergy and that makes her asthmatic with shortness of breath for which she uses medication.” The complainant suffered from a number of adverse impacts, including awakening at night to the smell of smoke, requiring frequent dry cleaning of clothes and drapes, and purchasing fans to dissipate the smoke. Finally, the tribunal had “no difficulty concluding that there is a nexus between the exposure to second-hand smoke and the adverse impacts experienced by Ms. Leary.”

“Once a prima facie case of discrimination is established,” the tribunal observed, “the onus shifts to the respondent to justify its actions, including by showing that it has accommodated the complainant up to the point of undue hardship.” In the tribunal’s view, the strata corporation’s “steps to address the concerns and to obtain relevant information were minimal” and its “search for solutions lacked diligence.” It failed to meet the standard.

In the result, the tribunal found that the strata corporation had “violated s. 8 of the Code.” It ordered the strata corporation to “cease the contravention and to refrain from committing the same or a similar contravention,” take steps to determine the source of the second-hand smoke, work with the claimant “to determine whether preventing smoke ingress is a tenable solution that can be accomplished without undue hardship on the Strata,” and pay the complainant $7500 as compensation for injury to her dignity, feelings, and self-respect.

In concluding its decision, the tribunal acknowledged that:

it can be challenging for strata councils to address requests for accommodation. Strata council members are volunteers in what is often a thankless task. However, as service providers, stratas have an important role to play in removing barriers that may affect their owners with disabilities. This includes taking a serious and rigorous approach to complaints related to smoking.

It offered the following points of advice for navigating the accommodation process in response to a second-hand smoke complaint. This advice was set out in two parts, the first directed to the person seeking accommodation:

• Advise the strata council of their disability. The person must provide enough information for the strata council to understand that the person has a disability that is negatively affected by second-hand smoke in the strata.
• Co-operate with the strata to provide sufficient medical information to meet these goals. This may include a medical report. A brief doctor’s note on a prescription pad will probably not be comprehensive enough to establish the need for accommodation and allow the parties to understand what options are appropriate.
• Co-operate with the strata to discuss possible solutions. The person seeking the accommodation is not entitled to a perfect accommodation, but to one that reasonably addresses their needs and upholds their dignity in their housing.
• Co-operate with professionals or other parties who may have to be involved to explore accommodation solutions. A person may have to facilitate access to their unit and ongoing requests for information.

And the second directed to the strata council:

• Address requests for accommodation promptly, and take them seriously. A strata should consider how it will process accommodation requests on a timely basis, including between council meetings. For example, the strata council should ensure that someone is responsible for receiving such requests and promptly beginning the accommodation process.
• Gather enough information to understand the nature and extent of the need for accommodation. The strata is entitled to request medical information that is related to the request for accommodation. It is not entitled to any more information than is strictly necessary for this purpose. If the strata requests further medical reports, it should be at the strata’s expense.
• Restrict access to a person’s medical information to only those individuals who are involved in the accommodation process and who need to understand the underlying medical condition. The strata council should keep medical information confidential from the general membership of the strata.
• Obtain expert opinions or advice where needed. For second-hand smoke, a “sniff test” undertaken by another strata member will rarely be sufficient to evaluate the extent of a problem with smoke in a suite. The strata may have to retain air quality experts. The strata should pay for any tests or expert reports.
• Take the lead role in investigating possible solutions. Co-operate with the person seeking accommodation to constructively explore those solutions.
• Rigorously assess whether the strata can implement an appropriate accommodation solution. In doing so, the strata may have to consider the financial cost and competing needs of other strata members with disabilities. In some circumstances, a solution may not be possible without the strata suffering an undue hardship. In that case, the strata council should document the hardship and test its conclusion to ensure there is no other possible solution.
• Recognize that the strata cannot, through its membership, contract out of the Human Rights Code. This means that a strata cannot rely on a vote of its membership to deny an accommodation.
• Ensure that the strata representatives working on the accommodation are able to approach the issue with an attitude of respect. Members of a strata council whose behaviour risks undermining genuine efforts at co-operation and conciliation may need to be removed from the process.