BC Human Rights Tribunal refuses to dismiss smoker’s discrimination complaint against strata corporation
April 26, 2016
BY Kevin Zakreski
In a decision made earlier this month, the British Columbia Human Rights Tribunal has refused to dismiss a complaint against a strata corporation that its blanket ban on smoking amounted to discrimination on the basis of a mental disability contrary to section 8 of the Human Rights Code.
Background to the complaint and application
The complainant in Dandurand v Strata Plan KAS 3558, 2016 BCHRT 47, was a tenant of a strata-lot owner. She was described as “a smoker suffering from a serious anxiety disorder,” who was “mostly homebound.” She smoked on the patio to the strata lot. For the first two years of her residence in the strata property smoking was allowed on patios.
This changed in 2014, when the respondent strata corporation changed its bylaws. It “passed a non-smoking bylaw which read”:
Smoking is not permitted anywhere within the bounds of the strata plan or within any vehicle or real property which is a common asset of the Strata Corporation.
The bylaw had one exception, which “allowed the Strata Council to provide exemptions to any bylaw or rule of the Strata Corporation to the minimum extent necessary to accommodate a physical or mental disability as defined in the B.C. Human Rights Code with certain specified restrictions.”
The complainant applied for an exemption. In support of her application, she provided a letter from her psychiatrist. But the strata council refused to grant the exemption. Shortly thereafter, the complainant launched this complaint with the human rights tribunal.
The strata corporation’s application to dismiss
In response, the strata corporation applied for an order dismissing the complaint under section 27 of the Human Rights Code. The strata corporation’s application was based on the following two provisions of section 27:
- the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
- there is no reasonable prospect that the complaint will succeed.
Acts or omissions alleged do not contravene the code
The tribunal began its consideration of this portion of the respondent’s application by observing “the Tribunal, under this subsection of the Code, must look only at the allegations in the Complaint to determine whether those allegations could constitute a contravention of the Code.” Adopting this standard, the tribunal found “[t]here is enough information in the Complaint to support that”:
- Dandurand suffers from a mental disability, being a serious anxiety disorder,
- that she was prohibited from smoking on her patio, and
- that it will be detrimental to her treatment if she is not allowed to smoke in the vicinity of her unit.
No reasonable prospect of success
This portion of the respondent’s application called for “a preliminary assessment by the Tribunal of whether there is no reasonable prospect that the Complaint will succeed.” The governing provision of the code “provides a gatekeeping function that permits the Tribunal to conduct that preliminary assessment in order to remove those matters that do not warrant the time and expense of a hearing.”
Under this provision, “the Tribunal does not determine whether the Complainant has established a prima facie case of discrimination.” As a result, “[t]he threshold for the Complainant in such a review is low. They must only show that their complaint is not merely speculation or conjecture.”
The complainant was able to reach this low threshold. After characterizing the strata corporation’s “specific service” that was at issue here as “that of considering and either approving or rejecting a request for an exemption to the smoking bylaw,” the tribunal concluded:
In this particular instance, on the facts in this case, the Respondents have failed to convince me that Ms. Dandurand has no reasonable prospect of proving a prima facie case of discrimination. On the facts, it is possible that she could establish:
- that she suffers from a mental disability,
- that the decision not to grant her an exemption from the non-smoking bylaw was adverse to her health, and
- that adversity arose because of the role that smoking played, according to her physician, as a coping mechanism for her mental health, i.e. the bylaw made her condition worse.
In other words, she is capable both of establishing that there was an adverse treatment of her and that her mental health disability was a factor in such treatment being adverse. It is not necessary that she establish that the smoking was an addiction, although it seems likely that it was, given the language in her doctor’s letters, but only that there be a connection between the refusal to exempt her from a non-smoking bylaw and the adverse health effects occasioned by her disability.
In the result, the tribunal dismissed the respondent strata corporation’s application to dismiss the complaint. But it also cautioned “this is not a conclusion that the Complaint will be successful. The outcome will turn, as in most cases, on the facts presented to the Tribunal at the hearing of this matter.”