Do strata corporations have to make reasonable accommodation for owners with a disability caused or exacerbated by second-hand smoke?
A demonstrated allergy or environmental sensitivity to second-hand smoke could garner the protection of the Human Rights Code and require a strata corporation to take steps to accommodate the disability. This may include enforcing the bylaws that the strata corporation already has, or creating new bylaws that deal with the situation.
It has been established that a strata corporation’s provision of management services comes under the purview of Section 8 of the Human Rights Code. While the Human Rights Code does not define either mental or physical disability, a wide range of physical and mental conditions has been granted disability status under the Human Rights Code. Traditionally, Courts, Tribunals and Arbitrators have given a broad and liberal interpretation of “disability.”
To establish that a strata corporation has discriminated against an owner with respect to an accommodation, service or facility on the basis of a disability, a complainant would need to establish both that he/she had a disability and that the strata corporation knew about the disability.
In one case, Konieczna v. The Owners, Strata Plan NW2489, 2003, BCHRT 38, the complainant alleged discrimination because of a bylaw that prevented the installation of flooring other than wall-to-wall carpeting. The complainant alleged this was discrimination on the basis of a physical disability as she was asthmatic and carpeting aggravated her condition. The Tribunal concluded that the complainant’s condition was indeed a physical disability, that the strata was aware of the disability, and that she was entitled to protection under the Human Rights Code.
Once a complainant establishes disability discrimination, the onus is shifted to the strata corporation to prove, on a balance of probabilities, that it had a reasonable justification for the discrimination. In this case, the strata did not raise the defense of justification, and the Tribunal ordered that the strata allow the complainant to install hardwood flooring and pay compensatory costs of $3500 for injury to her dignity, feelings and self-respect.
A Smoking Prohibition Bylaw can be supported by the Human Rights Code where the layout of the complex would require a strata corporation to ban smoking in order to accommodate a resident with a physical disability, such as asthma, allergies or some other disability exacerbated by smoke. For example, while it might be impossible to stop smoke travelling from one strata lot into another in a heritage house, it would be more difficult to justify a Smoking Prohibition Bylaw in a bare land strata corporation where a strata lot is comprised of a plot of land