Part 54 published on 01/05/16
Human Rights Tribunal refuses to dismiss complaint. Smoker might have a right to smoke, because of a disability
The strata corporation had passed a “no-smoking” by-law. The complainant alleged that this by-law discriminated against her in that she needed to be able to smoke on her patio due to a disability (namely, a serious anxiety disorder).
The Tribunal refused to summarily dismiss the complaint, and therefore allowed the complaint to continue to a hearing, if not settled.
The Tribunal said that the complainant might be able to prove that she suffers from a mental disability and that the no-smoking by-law could be adverse to her health. At the same time, the Tribunal said:
That is not the end of the matter, however. At the hearing of her Complaint, if
Ms. Dandurand is successful in establishing a prima facie case of discrimination, she will still need to deal with the (strata corporation’s) argument that there was a bona fide and reasonable justification for their decision. They say this was the requirement to protect the other members of the strata from the known carcinogenic impact of secondhand tobacco smoke.