Part 54 published on 01/05/16
Human Rights Tribunal dismisses claim for discrimination in relation to second-hand smoke. However, retaliatory fines declared invalid
The complainants alleged that second-hand tobacco smoke from an owner residing immediately below them had infiltrated their suite, causing them special harm due to their disabilities. They said that the strata corporation had failed to respond adequately to these smoke transfer problems. They also said that the strata corporation had levied fines against them (for alleged violations of the corporation’s by-laws) in retaliation for their claims against the corporation.
The claim for discrimination was dismissed because the complainants failed to show that they suffered any extra harm (from second-hand smoke) due to a disability. The Tribunal said:
… I find that it is more likely than not that Mr. Beckett and Ms. Kuan were exposed to second-hand smoke…
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Mr. Beckett has not established, on a balance of probabilities, that his physical disability was a factor in any adverse impact he may have experienced from second-hand smoke exposure.
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Absent any link to a disability, Mr. Beckett’s increased risk of responding negatively to second-hand smoke exposure is shared by the public at large. In these circumstances, his increased risk does not engage the protection from discrimination within the meaning of the Code.
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I also find that Ms. Kuan has not established that she had a physical disability under the Code during the relevant time period.
However, the Tribunal agreed that the fines were retaliatory. The Tribunal said:
I find that the Strata Council imposed fines on the Complainants for bylaw and rule violations that were not enforced against any other owners in the Strata.
The Tribunal ordered the strata corporation to refrain from imposing retaliatory fines against the complainants, and declared that the outstanding fines were void. The Tribunal also ordered the strata council to undertake one day of training respecting the obligations of strata corporations under Human Rights Legislation, and also ordered the strata corporation to pay $1,000 to each complainant as compensation for injury to dignity, feelings and self-respect.