Part published on 01/11/2016
Strata corporation failed to properly accommodate a resident with a disability, who complained of second-hand smoke
The Human Rights Tribunal found that the complainant had a disability and had suffered adverse impacts from second-hand smoke. The Tribunal said that the strata corporation had a duty to accommodate the resident, and had failed to fulfill this duty. The Tribunal said that a strata corporation facing a complaint about second-hand smoke must take the following steps:
The strata council must:
- 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 behavior risks undermining genuine efforts at co-operation and conciliation may need to be removed from the process.
The Tribunal made the following orders:
To return the parties to the position in which they would have been had there been no violation of the Code, I order that the Strata:
(i) engage an air quality specialist to determine the source of the smoke that is coming into Ms. Leary’s suite and that the Strata also determine whether Strata members or their guests are responsible for the smoke ingress and, if so, how that smoke ingress could be prevented;
(ii) once this has occurred, the Strata and Ms. Leary must work together to determine whether preventing smoke ingress is a tenable solution that can be accomplished without undue hardship on the Strata. It may be necessary to have Ms. Leary provide further medical information in furtherance of arriving at a solution. I hesitate to make other comments in this regard in order to ensure that there is a comprehensive negotiation of a solution. However, I will retain jurisdiction for six months from the date of this decision to provide further direction, if either of the parties requests that I do so.
I order the Strata to pay Ms. Leary the sum of $7,500 which is an amount that I consider appropriate to compensate her for injury to dignity, feelings and self-respect.