Part 37 published on 01/02/12
Human Rights Tribunal refuses to dismiss complaint respecting second-hand smoke
The owner suffers from a chronic disability and secondary health issues, as well as multiple allergies and asthma. She asserted that these conditions had been exacerbated by smoke entering her unit from an adjacent unit. She also asserted that the strata corporation had not taken proper steps to prevent the transfer of smoke.
The strata corporation applied for early dismissal of the complaint on the ground that its investigations had revealed that nothing could be done to stop transfer of smoke.
The Tribunal refused to dismiss the complaint (and the complaint was accordingly permitted to continue). The Tribunal said:
On the basis of the material filed, it is not clear that (the strata corporation) dealt with Ms. Buttnor’s complaint in a thorough, responsible, effective, proportionate or timely manner upon being notified of her concerns and considering that it acknowledges her disability. (The strata corporation) has essentially indicated that it cannot, and does not, intend to take further steps to respond to Ms. Buttnor’s concerns. Although the offending unit has been vacated, Ms. Buttnor fears that she may find herself in a similar position in future.
In this case, if Ms. Buttnor proves her allegations at a hearing, she may be in a position to establish a prima facie case of discrimination.
If Ms. Buttnor’s complaint prevails at an evidentiary hearing, s. 37 of the Code may provide a remedy which has the potential to offer her some form of relief.
The Tribunal urged the parties to engage in settlement discussions.