BC Human Rights Tribunal allows second-hand smoking complaint to proceed against strata corporation

10 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 guidance formulated as part of the tribunal’s 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 8 of the Human Rights Code. The complainant was a strata-lot owner; the respondents were the strata corporation and its strata manager.

The respondents denied discriminating against the complainant. They applied to the tribunal to dismiss the complaint under section 27 (1) (c) 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 described as a “flurry of complaints and letters and fines.” This flurry culminated in a request from the complainant to rent her strata lot because of personal hardship. The “hardship” derived from the complainant’s view that the strata corporation had failed to deal with her concerns about second-hand smoke. The strata corporation rejected this request, advising the complainant through its counsel “if she was not happy in her current circumstances, ‘we suggest this may be an excellent time of the year to have your unit put on the market.’ ” Shortly thereafter, the complainant launched this complaint.

The tribunal began its consideration of the respondents’ application to dismiss the complaint by setting out the tests governing such applications:

The analysis under s. 27(1)(c) considers whether–after an assessment of the evidence and submissions of the parties–the Respondents have shown that there is no reasonable prospect that Ms. Talbot could succeed in establishing discrimination at a hearing of her complaint. . . . 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. . . .

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 argued that “there is no evidence ‘that the Strata caused the smoking; or ignored [Ms. Talbot’s] concerns; or did nothing to address the Complainant’s allegations; or did anything to encourage any adverse impact on the Complainant.’ It argues that Ms. Talbot cannot possibly succeed in her complaint because she has not ‘set out how the Strata used the Complainant’s medical conditions to discriminate against her.’ ”

The tribunal rejected this argument. It noted 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 cited the “number of steps to guide stratas in navigating their accommodation obligations” concerning second-hand smoke set out in Leary. “In this case,” the tribunal concluded, “the 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.” This fell short of the steps proposed in Leary.

In the result, the “application to dismiss the complaint is denied.”

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