Part 36 published on 01/12/11
Human Rights Tribunal refuses to dismiss complaint of discrimination against strata corporation in relation to second-hand smoke
One of the residents in the strata corporation suffered from chronic asthma. She complained that she was suffering harm due to second-hand smoke from another resident. The smoker lived in the townhouse below the complainant and was allegedly smoking in the garage, patio and other areas of the strata complex. The strata corporation determined that the smoker was in contravention of the strata corporation’s by-laws which prohibited activities causing nuisance or hazard to others. The strata corporation wrote to the smoker, demanding that she comply with the corporation’s by-laws (as well as the city of Surrey smoking by-law). The strata corporation also levied a fine of $25.00 against the smoker, for violation of the corporation’s by-laws.
The smoking continued and the complainant started a proceeding before the BC Human Rights Tribunal against the smoker and the strata corporation.
The complainant said that the smoker had refused to comply with the strata corporation’s by-laws and that the strata corporation had failed to take effective steps to restrain the smoking. The smoker and the strata corporation each moved for dismissal of the complaint in advance of the hearing.
In her response to the human rights complaint, the smoker asserted that the by-laws did not specifically prohibit smoking on the strata lots, balconies or decks. She said: “I will not be harassed or be a prisoner in my home”. The tribunal dismissed the complaint against the smoker on the grounds that a resident in the strata corporation has no human rights obligation to another resident (because a resident does not provide any “accommodation, service or facility” to another resident).
The strata corporation said that the complaint against the strata corporation should be dismissed because it had fulfilled its duty by first warning and then fining the smoker. The corporation asserted that “the extent of its duty under the Code is to enforce its bylaws”. The tribunal disagreed and refused to dismiss the complaint against the strata corporation. The tribunal said:
In my view, the timing, extent and effectiveness of the strata’s chosen means of enforcing its by-laws are matters to be considered on evidence and argument at a hearing, if and when Ms. Arndt establishes a prima facie case of discrimination based on her physical disability.