McDaniel v. Strata Plan LMS 1657 (B.C. Human Rights Tribunal)

Strata Plan LMS 1657 is a 39-unit, 4-storey apartment building. The McDaniels were the owners of one of the units. They suffered exposure to second-hand smoke, primarily during the summer months (when smoke from neighbouring balconies and patios entered their open windows). The second-hand smoke was of particular concern to the McDaniels because: 

• Ms McDaniel was pregnant (during part of their period of ownership).
• Ms McDaniel had environmental sensitivities and could suffer severe allergic reactions (including headaches, hives and anxiety attacks) to all types of smoke and perfumes.
• Mr. McDaniel suffered from Type I Diabetes. Second-hand smoke increased his risk of heart disease and other problems. 

The McDaniels complained to the Strata Corporation about the second-hand smoke. In response, the Strata Corporation did the following:

a)      The Strata Corporation suggested that the McDaniels buy an air-conditioner.

b)      The Strata Corporation suggested that the McDaniels attempt to obtain the support of at least 25% of the owners to demand that a resolution be placed before the owners at an annual special general meeting to enact a “no smoking by-law”.

c)      The Strata Corporation asked (by notices, letters and communications at Strata meetings) that residents who smoke be respectful of those who are bothered by smoke.

d)      The Strata Corporation wrote letters to three owners below the McDaniels, asking that they not smoke on their patios. and

e)      The Strata Corporation explored introducing an amendment to ban smoking on decks and patios (but did not, in fact, introduce such an amendment). 

The Strata Corporation admitted that it had failed to accommodate the McDaniels. The Strata Corporation argued, however, that any award in favour of the McDaniels should be “moderate” because: 

• The Strata Corporation had tried to assist the McDaniels within the confines of what it thought possible; it did not dismiss their concerns outright. It tried to achieve the greatest good for the greatest number.
• The Strata Corporation had been willing to concede that it breached its duty to reasonably accommodate the McDaniels.
• The medical evidence of any ill effects suffered by the McDaniels as a result of second-hand smoke was limited, and the log of the second-hand smoke events (kept by the McDaniels) was non-specific. and
• The McDaniels only had problems with second-hand smoke during 2 or 3 summer months of each year. 

The Human Rights Tribunal ruled in favour of the McDaniels. The Tribunal said: 

Though aware of the McDaniels’ sensitivities and vulnerabilities, the (Strata Corporation) never marshalled a meaningful, effective response. In my view, based on the materials filed, the (Strata Corporation’s) conduct, while not overtly aggressive or confrontive, was indecisive and minimizing of the McDaniels’ distress to the point that they came to hate their home. The Tribunal has said, and I accept, that from any personal, social, emotional or developmental perspective, a home is central to a person’s security and sense of self. 

The Tribunal made the following orders: 

1. Although the McDaniels were no longer residing in the complex, the Strata Corporation nevertheless must cease its discrimination and refrain from committing a similar contravention in the future. 
2. The Strata Corporation was ordered to compensate the McDaniels for expenses incurred in the context of the complaint, being the cost of an air-conditioner and naturopathic consultations as well as travel and accommodation expenses in connection with their attendance at the Hearing. 
3. The Strata Corporation was to pay Mr. McDaniel the sum of $2,000.00 and Ms McDaniel the sum of $4,500.00, as compensation for injury to their feelings, dignity and self-respect. 

[Editorial Note: The Tribunal declined to order the Strata Corporation to enact a no-smoking by-law, for the following reasons: 

• Such an Order could be beyond the Tribunal’s authority under Section 37 of the Human Rights Code.
• Such an Order would be excessive, because:

(i)                 the McDaniels were no longer residing at, and did not intend to return to, the complex;

(ii)               this would impose on the remaining residents a regime they have not had the opportunity to consider and may not want and would by-pass or nullify their rights to vote on the matter; and

(iii)             the Strata Corporation already had a nuisance by-law which could be used to address the issue of smoke.

So, in ordering the Strata Corporation to avoid similar discrimination in future, it’s not exactly clear what the Tribunal expected of the Strata Corporation.  But we know that the Strata Corporation had to do more – either by more aggressively enforcing the corporation’s existing by-laws or by presenting more restrictive by-laws to the owners, for their consideration.]