BC Human Rights Tribunal allows second-hand smoking complaint to proceed against strata corporation10 March 2017
By Kevin Zakreski
Second-hand smoke continues to be a problem for strata corporations and strata-lot owners. The latest case gave the BC Human Rights Tribunal an opportunity to apply the guidanceÂ formulated as part of the tribunalâs 2016 decision in Leary v Strata Plan VR1001, 2016 BCHRT 139.
Talbot v Strata Plan LMS 1351 and another, 2017 BCHRT 59, involved a complaint of discrimination in the area of accommodation, service, or facility on the basis of physical disability, contrary to section 8Â of the Human Rights Code. The complainant was a strata-lot owner; the respondents were the strata corporation and its strata manager.
The respondents deniedÂ discriminating against the complainant. They applied to the tribunal to dismiss the complaint under section 27 (1) (c)Â of the code, alleging that there was no reasonable prospect that the complaint will succeed.
The complainant first corresponded with the respondents about second-hand smoke entering her strata lot from neighboring units in 2013. Over the next three years, there was what the tribunal describedÂ as a âflurry of complaints and letters and fines.â This flurry culminated in a requestÂ from the complainant to rent her strata lot because of personal hardship. The âhardshipâ derived from the complainantâs view that the strata corporation had failed to deal with her concerns about second-hand smoke. The strata corporation rejectedÂ this request, advising the complainant through its counsel âif she was not happy in her current circumstances, âwe suggest this may be an excellent time of the year to have your unit put on the market.âÂ â Shortly thereafter, the complainant launched this complaint.
The tribunal began its consideration of the respondentsâ application to dismiss the complaint by setting out the testsÂ governing such applications:
The analysis under s. 27(1)(c) considers whetherâafter an assessment of the evidence and submissions of the partiesâthe Respondents have shown that there is no reasonable prospect that Ms. Talbot could succeed in establishing discrimination at a hearing of her complaint.Â .Â .Â . If the tribunal determines that there is no reasonable prospect that Ms. Talbot will prove one or more of the elements of the prima facie case, it may dismiss the complaint. The complaint must be based on more than speculation.Â .Â .Â .
In an application under s. 27(1)(c), the threshold for Ms. Talbot is low: she need not establish a prima facie case at this stage but must only show that her complaint is not speculation or conjecture.
The Respondents arguedÂ that âthere is no evidence âthat the Strata caused the smoking; or ignored [Ms. Talbotâs] concerns; or did nothing to address the Complainantâs allegations; or did anything to encourage any adverse impact on the Complainant.â It argues that Ms. Talbot cannot possibly succeed in her complaint because she has not âset out how the Strata used the Complainantâs medical conditions to discriminate against her.âÂ â
The tribunal rejected this argument. It notedÂ that the respondents had not contested that the complainant had a disability or that she was adversely affected by second-hand smoke, and that the respondents had not demonstrated that the complainant would fail on the third element of her complaint:
in order to succeed at a hearing of her complaint, Ms. Talbot would have to persuade the Tribunal, on a balance of probabilities, that she has a physical disability, that she experienced an adverse impact, and that there is a nexus between those two things. On the first and second points, there is no dispute at this stage that Ms. Talbot has a physical disability, nor that she complained to the Strata that she was experiencing adverse impacts arising from the ingress of second-hand smoke into her condo. On the third point, it appears to me that the Strata is fundamentally misunderstanding the way in which the test for discrimination operates in these circumstances.
The tribunal citedÂ the ânumber of steps to guide stratas in navigating their accommodation obligationsâ concerning second-hand smoke set out in Leary. âIn this case,â the tribunal concluded, âthe Strata has not said it did anything beyond warning and, possibly, fining neighbouring units under its nuisance bylaws. It appears the whole of its investigation into the smoke ingress consisted of asking neighbouring residents about their smoking habits.â This fell short of the steps proposed in Leary.
In the result, the âapplication to dismiss the complaint is denied.â