Part 28 published on 01/11/09
Second hand smoke MAY give grounds for human rights complaint against strata corporation
Mr. & Mrs. Kabatoff filed a Human Rights complaint alleging that the strata corporation discriminated against them on the ground of physical disability. They alleged that second-hand smoke in the condominium building is especially harmful to them because they both suffer from a number of health problems, including respiratory illnesses. Their complaint is that the strata corporation has refused to do anything about the second-hand smoke. Ideally, they want the strata corporation to adopt a no-smoking by-law.
The strata corporation applied for summary dismissal of the complaint, on the grounds that the corporation does not have a no-smoking by-law and therefore has no authority or ability to prevent second-hand smoke. The strata corporation noted that the Kabatoffs “can try to have a no-smoking by-law passed by Council in accordance with the normal process for the adoption of by-laws”.
The Tribunal refused to dismiss the complaint. The Tribunal said:
“If the Kabatoffs are able to establish that they have disabilities that are exacerbated by second-hand smoke, their complaint that the Strata Corp. failed to accommodate their disabilities could amount to discrimination under the Code.”
[Editorial Note: This decision seems to suggest that strata corporations may have a duty to take steps (of some sort) to deal with second-hand smoke (at least in cases where some of the residents are particularly at risk). If so, what steps must be taken? No doubt this will depend upon the specific circumstances.]