With cannabis legalization fast approaching, it is a good time for strata council members to educate themselves about a strata corporation’s obligations when responding to smoking complaints.
Regardless of what a strata corporation’s bylaws say about smoking, the strata corporation has a duty to accommodate any resident who has a legitimate medical condition that is exacerbated by second-hand smoke.
Strata corporations are subject to claims under section 8 of the Human Rights Code, which says that a person must not be discriminated against regarding any accommodation, service or facility customarily available to the public. A resident owner or tenant will successfully establish discrimination if they can show that they have a disability (such as a medical condition), and that they have suffered an adverse impact in relation to provision of services by the strata corporation as a result of that disability. If the claimant can establish discrimination, then the onus shifts to the strata to prove that it has accommodated the complainant up to the point of undue hardship.
For example, in the case of Leary v. Strata Plan VR1001, 2016 BCHRT 139, an owner who suffered from allergic and asthmatic bronchitis won a human rights claim against her strata when the strata council failed to take any meaningful action to respond to her complaints about smoke ingress into her unit from neighbouring units. The strata was ordered to engage an air quality specialist to investigate the smoke ingress, and to work with the claimant to find a reasonable solution. The strata was also ordered to pay the claimant $7,500 as compensation for injury to her dignity, feelings and self-respect.
In the Leary decision, the B.C. Human Rights Tribunal set out helpful guidelines for strata corporations to follow when responding to smoking complaints. Upon receipt of a smoking complaint from a resident, the strata council should take the following steps:
- Address requests for accommodation promptly, and take them seriously. There are very real consequences for a strata corporation that fails to adequately respond to smoking complaints.
- Designate a “first responder”. Consider having one strata council member responsible for responding to smoking complaints and requests for accommodation. That should allow the strata to be more responsive to requests, including in between council meetings.
- Request medical information. The strata is entitled to enough medical information to understand the need and extent for accommodation, but no more. In the Leary case, a doctor’s note explaining that the claimant’s bronchitis was negatively impacted by second-hand smoke was enough information to establish a disability and adverse impact.
- Keep medical information confidential. If an owner or tenant submits medical documentation to support their request, only the individuals who are involved in the accommodation process should have access to that information. Under no circumstances should it be circulated to the general ownership.
- Get an expert. A “sniff test” undertaken by another council member or the strata manager is rarely sufficient to evaluate the presence of smoke ingress into a unit. The strata may have to retain and pay for an air quality expert as part of its duty to accommodate.
- Investigate possible solutions. The strata council should be proactive and take the lead on figuring out how to resolve the smoke ingress. It should not put the onus on the complaining owner or tenant to find a solution.
- Document any undue hardship. The strata’s duty to accommodate is limited to the point of undue hardship. If there is no solution to the smoke ingress possible without causing the strata to suffer hardship, the strata council should document that hardship. For example, if the cost of a potential solution is too expensive, the strata should obtain estimates for that work and keep them on record. If there are competing needs of other strata members with disabilities, the strata council should document that in writing. Always have a paper trail.
- Make a decision. The strata council will ultimately be responsible for deciding how to respond to a request for accommodation. The council cannot offload that decision onto the owners by calling a vote at a general meeting. When recording the council’s decision in the meeting minutes, make sure not to disclose more than necessary about the accommodation. The complainant’s name and the details of their medical condition should never be recorded in the minutes.
If the strata council is unsure about the strata’s obligations when responding to a smoking complaint or whether it has fulfilled the duty to accommodate, consider seeking legal advice. While smoking complaints may often seem trivial, the strata corporation faces very real consequences if it fails to adequately respond to them.
Content Curated from lmlaw.ca / Amanda M. Magee