14/08/2018 – Jurisdiction Ontario
Part 63 published on 01/09/2018
Human Rights claim respecting harm allegedly caused by second-hand smoke dismissed as out of time
This was a claim by a parent on behalf of a child, for alleged discrimination on the part of the strata corporation in failing to address second-hand smoke, allegedly due to violations of the strata corporation’s No Smoking by-law, with alleged resulting harm to the claimant’s child who suffers from asthma.
The Tribunal dismissed the claim. The Tribunal said that the claim was out of time, for having been filed after the applicable six-month limitation period under Section 22 of the Human Rights Code; and the Tribunal declined to extend the limitation period. The Tribunal said:
The Parent is clearly seeking justice for the alleged discrimination related to the Child’s exposure to second-hand smoke emanating from another owner’s home and elsewhere on the strata property. More widely, the Parent argues it is in the public interest to accept the late filed complaint when so many British Columbians live in strata corporations and many are forced to move, including those with disabilities, because of discrimination on the part of strata corporations and property management companies, related to second-hand smoke. While sympathetic to these issues, in this case I am not satisfied the public interest is engaged where the Tribunal regularly deals with cases involving strata services and disability, the jurisprudence about which is fairly settled: Leary v. Strata Plan VR1001, 2016 BCHRT 139 (CanLII). Such considerations must also be weighed against the argument that allowing a late-filed complaint to be accepted could encourage other complainants to ignore the substantive time limits set out in the Code: A obo B v. School District No. C and another, 2009 BCHRT 256 (CanLII), at para. 101; Johansen v. Southern Railway of B.C. and another, 2011 BCHRT 239 (CanLII), at para. 33. In my view, the Parent has not shown that his complaint raises a unique issue that the Tribunal should hear to advance the purposes of the Code.