BC Human Rights Tribunal dismisses discrimination complaint against strata corporation in second-hand smoking dispute
March 23, 2016
BY Kevin Zakreski
In another strata-property dispute involving second-hand smoke, the British Columbia Human Rights Tribunal has issued a mixed decision. In Beckett v The Owners, Strata Plan NW 2603, 2016 BCHRT 27, the tribunal dismissed a complaint of discrimination on the basis of mental or physical disability under section 8 of the Human Rights Code. The complainants were partially successful in their argument that the strata corporation retaliated against them contrary to section 43 of the code.
The strata corporation in the case was “an age-restricted complex,” made up of “over fifty condos” in “several low-rise residential buildings.” The complainants were owners who had been in the strata since 2009.
The dispute began with the complainants’ concerns over alleged second-hand smoke entering their strata lot. It ultimately “escalated into an acrimonious feud at the Strata,” involving heated confrontations, videotaping, and fines amounting to “over $20,000 for bylaw and rule violations” being levied against the complainants. The parties’ conduct was considered in detail in the tribunal’s decision.
There were two main components of the tribunal’s decision. The first concerned second-hand smoke and discrimination on the basis of physical or mental disability. The complainants alleged that “second-hand smoke infiltrated their unit, adversely affecting their disabilities, and that despite their complaints, the Strata Council did not respond appropriately to their concerns.” As the tribunal noted, “to demonstrate prima facie discrimination,” the complainants “must show, on a balance of probabilities, that they had a disability, that they experienced an adverse impact in relation to a service customarily offered by the Strata, and that their disability was a factor in the adverse impact.”
The complainants were unable to meet this test. Although the tribunal was willing to accept that the complainants had been exposed to second-hand smoke, and that one complainant had a disability within the meaning of the code, it found that the complainants didn’t establish an adverse impact linked to this disability: “Absent any link to a disability, health effects from second-hand smoke exposure do not engage the protection from discrimination within the meaning of the Code.”
The second component of the decision concerned retaliation against the complainants. The tribunal stated the test for finding retaliation in the following terms:
To establish a complaint of retaliation, the Complainants must prove that: a complaint was made under the Code, about which the Respondent was aware; the Respondent engaged in or threatened to engage in retaliatory conduct against the Complainants; and the Respondent intended to engage in retaliatory conduct or can reasonably have been perceived to have engaged in that conduct, with reasonable perception being assessed from the point of view of a reasonable complainant.
The tribunal concluded, on the evidence, this test was met:
I find that, but for the filing of the Second Complaint, the Strata Council would not have begun imposing bylaw and other fines against the Complainants in June 2012. There was a great deal of animosity between Strata Council members and the Complainants, much of which stemmed from conduct apart from the filing of a human rights complaint or retaliation complaint. The Complainants’ conduct, especially their picture-and-video-taking, inflamed the situation in the Strata. It was reasonable that the Strata Council would want to address it. However, the timing of the Strata Council’s decision to impose fines points to retaliation, as does the lack of transparency in the Strata Council’s decision-making, and the lack of consistency in the enforcement of its bylaws. A reasonable complainant, apprised of these facts, would perceive the bylaw fines as retaliation. In these circumstances, I find that the Complainants have proven, on a balance of probabilities, that the Strata Council began issuing bylaw fines against them “because” they filed another complaint under the Code. The Complainants have established that the Respondent breached s. 43 of the Code.
In the result, the tribunal struck down the fines imposed by the strata corporation, ordered the strata council to “obtain one day of training on the obligations of strata corporations under human rights legislation from a recognized human rights training organization,” and awarded $1000 to each complainant as “compensation for injury to dignity, feelings, and self-respect.”