09/03/2017 – Jurisdiction British Columbia
Part 58 published on 01/06/2018
Owner permitted to continue Human Rights Claim based on failure of strata corporation to accommodate her susceptibility to health impacts from second-hand smoke
The owner asserted a Human Rights Claim alleging that the strata corporation had failed to take proper steps to respond to her complaints about second-hand cigarette and marijuana smoke.
The strata corporation had written to the complained-about neighbours, but the neighbours had generally denied any wrongdoing. The strata corporation said that there was nothing more that it could reasonably do.
The Tribunal said that that the strata corporation had not done enough. The Tribunal said:
When Ms. Talbot notified the Strata that she had a disability and was experiencing adverse health impacts as a result of the ingress of second-hand smoke into her condo, this triggered a duty on the part of the Strata to reasonably accommodate her disability to the point of undue hardship by investigating and mitigating the ingress of the second-hand smoke.
The Strata does not appear to be arguing that it did accommodate Ms. Talbot. In any event, even if I interpret the evidence to determine if accommodation was attempted, the materials submitted show only that Strata wrote to residents when confronted with a complaint from Ms. Talbot about the smoke, and asked them to stop. What the Strata does not appear to have done is take any steps, beyond asking other residents about what their smoking habits were, to investigate the source of the smoke or whether steps could reasonably be taken to prevent its ingress into Ms. Talbot’s home. Conversely, the Strata instructed Ms. Talbot to pay to hire an environmental expert to gather such evidence or, simply, sell her home and move. Notably, and evident from the letters and fines issued, the Strata does not appear to be taking the position that there was no smoke ingress into Ms. Talbot’s apartment. One is left wondering why the Strata would have required Ms. Talbot to undertake the task of further investigation for the purpose of gathering evidence.
The tribunal referred to the list of steps to be taken by a strata council in such cases – previously set out in the case of Leary v. Strata Plan VR1001. The Tribunal said:
In this case, the Strata has not said it did anything beyond warning and, possibly, fining neighbouring units under its nuisance bylaws. It appears the whole of its investigation into the smoke ingress consisted of asking neighbouring residents about their smoking habits. The Strata does not argue that this amounts to reasonable accommodation or that there is undue hardship in addressing Ms. Talbot’s concerns. In any event, the hardship analysis was not applied to Ms. Talbot’s request for an exception to allow her to rent out her apartment.
Based on my review of all of the materials before me, it appears that Ms. Talbot has brought her complaint beyond the realm of conjecture. The Respondents have not persuaded me that there is no reasonable prospect that Ms. Talbot’s complaint could succeed.
