10/03/2017 – Jurisdiction Ontario
Part 58 published on 01/06/2018
Owner permitted to continue Human Rights Claim based on alleged failure of strata corporation to accommodate her sensitivity to smells and odours
The claimant had been a resident in the condominium since 2011. She said that she has a disability, namely extreme sensitivity to scents and chemicals, both natural and synthetic. Exposure to such scents causes her shortness of breath, migraines, confusion, dizziness, vomiting, exhaustion, muscle aches, and burning lips and eyes.
In her unit, the claimant had experienced ingress of the following scents that have exacerbated her disability:
- fabric softener used by her neighbor;
- cigarette smoke;
- diesel from construction trucks related to a remediation project at the complex.
The strata corporation did take some steps to try to accommodate the claimant:
- General warnings and letters to specific neighbours (about cigarette smoke and fabric softeners);
- Changing the gym rules to request that users not wear scented products;
- In relation to the diesel fumes, the contractor providing two air purifiers for the claimant’s use, which didn’t solve the problem but helped to avoid severe reactions.
The strata corporation applied for dismissal of the claim, arguing that there was no reasonable prospect that the claim could succeed. The strata corporation’s application was dismissed. The tribunal said:
In (the case of Leary v. Strata Plan VR1001), the Tribunal set out a number of steps to guide stratas in navigating their accommodation obligations. The Tribunal said that a strata council must, among other things:
- 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.
There is little evidence before me that the Strata did much of the above, nor to allow me to conclude that it is reasonably certain the Strata would establish that it accommodated Ms. Andruski to the point of undue hardship, were the matter to proceed to a hearing.
