Human Rights Complaints: Smoking, hardwood floors, pets and - PowerPoint PPT Presentation

Human Rights Complaints: Smoking, hardwood floors, pets and… Presented by: Elaine T. McCormack- Wilson McCormack Law Group G. Stephen Hamilton – Hammerberg Lawyers Sat Harwood – Lesperance Mendes Lawyers Moderator: Jamie Bleay – Access Law Group

Disclaimer • The legal work performed with respect to this seminar is for general education purposes only and does not constitute legal advice in relation to any specific matter, circumstances or fact pattern to anyone, including those who take the seminar. Should anyone want legal advice pertaining to any specific matter, circumstance or fact pattern then such party must enter into a solicitor/client relationship with a lawyer for such purpose.

Agenda • Smoking and the Human Rights Tribunal and the Civil Resolution Tribunal Presented by Elaine T. McCormack • Accessibility and flooring issues and the Human Rights Tribunal Presented by Sat Harwood • Break (approximately 10:45 a.m.) • Pets and the Human Rights Tribunal Presented by G. Stephen Hamilton

Introduction • Human Rights legislation, in one form or another, has been in existence in British Columbia for many, many years. One of the earliest examples of the application of Human Rights legislation to condominiums in British Columbia occurred in 1994 ( 453048 British Columbia Ltd. v. Strata Plan KAS 1079, 43 R.P.R. (2d) 293 (B.C.S.C.)). This case involved a bylaw that prohibited any person under the age of 50 from occupying a strata lot for more than 21 days in any calendar year.

Introduction Since that case was heard by the tribunal in 1994 there have been • hundreds of human rights complaints filed with the B.C. Human Rights Tribunal involving complaints filed by various individuals against strata corporations, strata councils and individual strata council members, owners, tenants, employees and strata managers. Some of these complaints have involved tenancy and age restriction • bylaws. Others have involved discrimination involving accommodation based on physical or medical disabilities with fact patterns including complaints about cigarette smoking, therapy pets, cigarette smoking and family status.

Introduction • For the most part complaints filed under the Human Rights Code of B.C. (the “Code”) against strata corporations generally fall into two categories: – Discrimination involving accommodation, service and facility under section 8 of the Code; – Discrimination in tenancy premises under section 10.

Introduction Owners and tenants alike who feel that their strata council/strata • corporation has not responded to their complaints of discrimination can approach the Tribunal for a remedy. Complaints that are accepted by the Tribunal can, if not settled at • some point in time, end up at a hearing where witnesses are examined and evidence is considered by a Tribunal member. Today’s presentation will look at some of the different types of • complaints and the importance of the duty to accommodate persons who have, often unintentionally, been discriminated against.

SMOKING IN A STRATA The Interaction of Laws, Bylaws, the Human Rights Tribunal, the Courts and the CRT Presented by Elaine T. McCormack

Law Governing Smoking in BC Strata Corporations • Human Rights Code • Common Law of Nuisance • Tobacco and Vapour Products Control Act (as of September 1, 2016) • Schedule of Standard Bylaws, Strata Property Act

Human Rights Code • Mental and physical disability • Vast majority of smoking cases against strata corporations involve non-smokers alleging physical disability affected by second hand smoke • Fewer cases involve smoker alleging physical or mental disability as a result of being highly addicted to nicotine, or disability requiring medical marijuana • Courts, Tribunal and Arbitrators have broad and liberal interpretation of disability • Nicotine-addiction recognized as mental and physical disability • Cominco Ltd. v. United Steelworkers of America Local 9705

Human Rights Code • Relevant Provisions for Strata Corporations: Section 8: Discrimination in accommodation, service and facility Section 9: Discrimination in purchase of property Section 10: Discrimination in tenancy

Human Rights Code • Teodora Leary v. Strata Plan VR 1001 September 21, 2016 • Blueprint for accommodation

Human Rights Code - Teodora Leary v. Strata Plan VR 1001 • Section 8 second hand smoke case • Many varying complaints about neighbours, demanding and difficult owner • Letters from doctor – trouble breathing, inhaler, raspy speech, shortness of breath • Complaints about upstairs and downstairs neighbours smoking

Human Rights Code - Teodora Leary v. Strata Plan VR 1001 • Findings – Prima Facie case found – proven disability and adverse impact in relation to the provision of services – Claims exaggerated – Strata took minimal steps to address complaints – Once smoking confirmed by witness no further investigation to determine extent of problems and how they could be solved

Human Rights Code - Teodora Leary v. Strata Plan VR 1001 • Frequent complaint letters • Council often ignored complaints • Council sent letter to smoker, hoped dryer vent cleaning would help • Witness offered but no consequences communicated to Leary for not contacting witness • Witness did attend January 2015 – smoke smell obvious • Council sent out bulletin • HVAC experts could not provide service sought • Non-smoking bylaws failed

Human Rights Code - Teodora Leary v. Strata Plan VR 1001 • Relief Granted – Failure to accommodate – 30 days to engage air quality specialist – Parties must work together to find solution – Pay $7,500.00 injury to dignity, feelings self respect – Post-judgment interest

Human Rights Code - Teodora Leary v. Strata Plan VR 1001 • General Directions – Individual Must – Advise council of disability – Provide sufficient medical information – Discuss possible solutions – Co-operate with professionals or other parties involved to explore accommodation solutions

Human Rights Code - Teodora Leary v. Strata Plan VR 1001 • General Directions – Council Must – Address requests for accommodation promptly, take them seriously – Gather info required to understand the nature and extent of need for accommodation – Keep medical information confidential – Obtain expert advice when needed

Human Rights Code - Teodora Leary v. Strata Plan VR 1001 • General Directions – Council Must – Take lead role in investigating solutions – Assess whether strata can implement solution – consider financial costs and needs of those with competing disabilities – Cannot contract out of Human Rights Code – can’t rely on vote of owners to deny accommodation – Council members working on process must be able to approach the issue with an attitude of respect – those who can’t may need to be removed from the process

Common Law of Nuisance • Unreasonable interference with the use and enjoyment of property • Reconciles competing uses of land • Court can grant injunction

Tobacco and Vapour Products Control Act • Section 2.3 prohibits smoking or holding lighted tobacco or using or holding an e- cigarette in a public building or structure or within 6 metres of a doorway, window or air intake • Some municipalities have bylaws

Tobacco and Vapour Products Control Act • Covers the common areas of condominiums and apartment buildings • Managers, owners, lessees and employers liable for contraventions, except for any portion of the 6 metre area they are not in control over, and reasonable care and diligence to prevent a contravention is a defence

Tobacco and Vapour Products Control Act Progressive Enforcement » Education, awareness, verbal warning, letter warning, ticketing, administrative hearing

Bylaws • Section 3 of Standard Bylaws: 3 (1) An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that (a) causes a nuisance or hazard to another person, (b) causes unreasonable noise, (c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot, (d) is illegal, or (e) is contrary to a purpose for which the strata lot or common property is intended as shown expressly or by necessary implication on or by the strata plan. … • In some ways, more expansive than Tobacco and Vapour Products Control Act

Bylaws • Legal designation of area (e.g. common property, limited common property, strata lot) is not as important as the actual layout of the strata complex. • Entails a balancing of interests

Bylaws • Kinds of smoking bylaws: – Smoking prohibition bylaw – Smoking limitation bylaw

Bylaws • Must comply with all legislation: – Strata Property Act – Residential Tenancy Act – Human Rights Code

Bylaws • Section 128: Amendment procedures – ¾ vote resolution at AGM or SGM – Mixed use developments

Rules • Section 125 • Govern use, safety, and condition of common property and common assets • Rules can be used to prohibit smoking on common property and/or common assets, but not in strata lots • Eg. Smoking is prohibited while in common property garden

Rules • A rule ceases to have effect at first AGM held after it is made unless it is ratified by a resolution passed by majority vote at or before that AGM