BC Human Rights Tribunal (Canadian Press)

BC Human Rights Tribunal (Canadian Press)

Abbotsford strata failed to adequately address ‘life or death’ smoking matter

B.C. Human Rights Tribunal sided with resident with lung disease affected by neighbour’s smoking

An Abbotsford strata violated the human rights of a resident with a respiratory condition by failing to take adequate steps to address her neighbours’ indoor smoking, which the woman described as “a matter of life or death for me, literally.”

The general facts outlined in a recent B.C. Human Rights Tribunal ruling were not in dispute between the strata, a Garibaldi Drive property in the Clearbrook area of Abbotsford, and strata resident Ruth Bowker, who filed her complaint in April 2016.

Bowker lives with pulmonary fibrosis, a lung disease that causes coughing and gradually worsening shortness of breath, which can be made worse by exposure to smoke.

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She bought a unit at the strata in November 2015, telling the tribunal she had not smelled smoke when she had viewed the unit sometime prior to buying it, but was “horrified” to find that it smelled heavily of cigarette smoke when she moved in.

The smoke smell was to the point that Bowker testified to being confined to her bedroom, the “only room that is consistently livable.” She left her patio door open, despite it being late November, and bought large fans and two air purifiers.

In her ruling, tribunal member Emily Ohler noted that the strata failed to act meaningfully on the matter until December 2016, 13 months after Bowker moved in.

The strata cited actions, such as writing the offending unit to request they stop smoking, albeit failing to invoke the nuisance bylaw; work it undertook to attempt to seal Bowker’s unit off from the offending unit; and two failed votes on non-smoking bylaws as its efforts to resolve the matter.

The strata claimed anything more would have constituted undue hardship, but Ohler noted no evidence to support that claim, and neither the strata’s nor Bowker’s efforts provided any relief.

“It is not apparent to me why … anything other than tepid attempts at reducing smoke ingress were not explored prior to December 2016,” Ohler said. “The Strata … appeared to see the non-smoking bylaw as a kind of lifestyle choice rather than as a part of its efforts to meet its legal responsibilities.”

Ohler added that the strata failed to adequately address insults and harsh rhetoric directed toward Bowker during the non-smoking bylaw votes, or provide context for the need for such a bylaw.

In December 2016, the strata sent LR and her husband a cease and desist against smoking in the downstairs unit, and in January 2017 threatened fines, citing the nuisance bylaw.

However, LR responded, stating that the Human Rights Code included “support for the premise that nicotine addiction is within the meaning of physical disability” and that the threat of fines “is in essence harassing and very stressful to my husband.”

Ohler acknowledged that nicotine addiction may be seen as a disability, but questioned whether such a claim would stand up against Bowker’s own human rights complaint.

All the while, Bowker testified to her and her husband’s deteriorating conditions, including that she had become depressed to the point of thoughts of self harm. Between May and September 2017, Bowker required an oxygen tank wherever she went, due to her lung condition.

In September 2017, LR’s husband died, which Bowker said reduced the amount of smoke in her unit significantly, but has not resolved the matter entirely.

Ohler ordered the strata to pay $7,500 in relief to Bowker, including $2,000 already paid in a previous resolution, but stopped short of ordering a non-smoking bylaw in the strata.

The strata has taken LR to the Civil Resolution Tribunal, citing the nuisance bylaw, but Ohler noted that the CRT may not interpret that bylaw as applying to smoking inside.

In case the CRT fails to find the smoking in contravention of the bylaw, Ohler said she will keep the current B.C. Human Rights Tribunal complaint active for parties to return to for further resolution.

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Dustin Godfrey | Reporter

@dustinrgodfrey

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