Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: It’s my strata, and I’ll smoke if I want to (Part 2)

The final part of a legal battle between two strata residents and second-hand smoke

In the first part of this two-part series, the B.C. Human Rights Tribunal looked at the case of Bowker v. Strata Plan NWS 2539. The case involved a militant smoker (LR) in a condominium strata unit. Above her lived Ms. Bowker, a woman with pulmonary fibrosis, who filed a human rights claim complaining about the second hand smoke.

In this second part of the series, the decision from the Tribunal is reached.

Ms. Bowker brought her complaint under section 8 of the B.C. Human Rights Code (the Code).

The Code states a person must not without bona fide and reasonable justification:

  • Deny to a person or class of persons any accommodation, service or facility customarily available to the public,
  • Or, discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the physical or mental disability of that person.

The dispute focused on whether the strata council adequately accommodated Ms. Bowker’s disability. If it had accommodated her to the point of undue hardship, it would have a defense. The Tribunal noted that accommodation required the Strata to take all reasonable and practical steps to remove or mitigate the disability‐related adverse impacts on Ms. Bowker.

The strata argued that doing more would amount to undue hardship. However, it failed to provide evidence of this.

Ms. Bowker argued that the strata failed to reasonably accommodate her because it was not serious, was not respectful and delayed taking action.

Previous Human Rights Tribunal decisions state that stratas must take “a serious and rigorous approach to complaints related to smoking.” The Tribunal observed that “fear of reprisal from neighbours who feel sovereignty in their homes and … may be a significant barrier for people with disabilities who require accommodation.”

The strata failed to educate itself of its legal responsibilities. Instead, it regarded a non-smoking bylaw as a lifestyle choice rather than a way of meeting its legal obligations.

Even if the strata eventually accommodated Ms. Bowker, it remained liable for its delay in doing so: for at least a full year. Ms. Bowker had to experience the effects of its lack of action. She endured inappropriate remarks and felt ostracized. The strata council failed to defend her or support her.

The Tribunal observed that “what we do within our own homes is curtailed in a variety of ways already, more so in a shared living environment such as a strata.” Fire code regulations, noise bylaws and pet bylaws, for example, already restrict our actions. Adopting a smoking bylaw was “low hanging fruit” that would have allowed the strata to act. It failed to demonstrate that this would have amounted to undue hardship.

If LR had a nicotine addiction, then the strata may also be required to accommodate LR. However, it observed that “while a person addicted to nicotine may be able to go outside of their unit to smoke, a person with a smoke-sensitive disability cannot be expected to go outside to safely breathe.”

The conclusion was that the strata failed to accommodate Ms. Bowker to the point of undue hardship.

For an extended time, she was prevented from enjoying a regular existence within the confines of her home. Her disability was exacerbated and her mental state was negatively impacted.

The Tribunal also observed that taking legal proceedings against the smoker did not “vitiate the strata’s obligation to accommodate Ms. Bowker to the point of undue hardship.”

The Tribunal declined to direct the strata to implement a non-smoking bylaw, but ordered it to stop contravening the Code. It stated that: “the ultimate goal is for Ms. Bowker to be able to live a relatively normal life in her unit without cigarette smoke adversely affecting her health.”

Ms. Bowker was “not to be left enduring a persistent adverse health impact in her home.”

The Tribunal stated that it remains seized of the matter, and the parties could return if necessary for further adjudication.

This case illustrates some lessons. Be aware of your rights and obligations under human rights legislation. Act quickly, respectfully and responsibly when a possible human rights issue arises.

Non-smokers, look into your rights. Smokers, consider smoking outside.

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