Thursday, March 11, 2010

Do You have the right to smoke at home?

Victory for non-smoking condo couple in B.C.

A decision of the British Columbia Human Rights Tribunal late last year could have an enormous effect on owners and occupants of condominiums and rental apartments across Canada in the coming months.

Paul and Rose Kabatoff live in a suite in an attractive three-storey condominium building in Langley, B.C. They both have a number of health problems including respiratory illnesses and allergies that are negatively affected by second-hand cigarette smoke.

In August 2008, smokers moved into the suite below their own. The Kabatoffs appealed for help to their condominium corporation (known in B.C. as a strata corporation), claiming that the second-hand smoke coming from their neighbours downstairs worsened their health problems. They provided a letter from their doctor supporting their request.

Ideally, the Kabatoffs wanted the condominium to adopt a no smoking bylaw, which it would not do.

Eventually, they filed a claim with the B.C. Human Rights Tribunal, asserting that the condominium failed to provide them with a housing environment free of second-hand smoke. They alleged that the condominium refused to do anything about the smoke issue, and that they were told that if they had a problem with the smokers they should move.

The B.C. Human Rights Code makes it illegal to deny accommodation to a person because of his or her physical disability (among other reasons) without "a bona fide and reasonable justification." The Ontario code has a similar prohibition, stating that every person has a right to equal treatment with respect to the occupancy of accommodation without discrimination by reason of disability (and other reasons).

As with other provincial Human Rights Codes, the B.C. code prevails in the event of a conflict with any other legislation – including the B.C. Strata Property Act.

In October, the condominium (strata) corporation applied to the tribunal to have the complaint dismissed without a hearing. They based the application on the fact that the smokers were not violating any condominium bylaws. The president of the corporation said that it does not have a no-smoking bylaw and it therefore had no authority or ability to respond to the complaint.

Essentially, its position was that since there was no prohibition of smoking in an owner's private suite or balcony in the building, there was no basis for the Kabatoff complaint.

Tribunal member Marlene Tyshynski presided at the hearing, and dismissed the condominium corporation's application to toss out the complaint. She also provided a clear road map for the Kabatoffs to pursue and even succeed with their claim.

"If the Kabatoffs are able to establish that they have disabilities that are exacerbated by second-hand smoke," Tyshynski wrote, "their complaint that Strata Corp. failed to accommodate their disabilities could amount to discrimination under the code. The Strata Corp.'s application would be denied."

If the Kabatoffs are able to produce medical evidence of physical disability at the hearing of their complaint, it seems that this condominium – and similar condominium or rental buildings across the country – would be forced to become completely non-smoking if any occupant complains of a disability resulting from tobacco smoke.

As a human rights issue, the no-smoking requirement would supersede any building bylaw or condominium legislation in force at the time.

The idea that external legislation could affect the governing of condominium corporations will probably not go over well with the management and boards of thousands of condo and rental buildings across the country.

On the other hand, those of us who are very sensitive to tobacco smoke will chalk this case up as a significant victory for public health advocates. (Full disclosure: I am an elected member and past chair of the executive committee of the Non-Smokers' Rights Association.)

In a telephone conversation last week, Paul Kabatoff said that negotiations are underway with the new condominium board, and that his Tribunal application may not have to proceed to a full hearing.

I wouldn't be surprised if the entire building became smoke-free within the next little while.


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Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.


David Pylyp; So, smoking is bad for you, we all know that. Now, we know that the Landlord Tenant Board previously ruled on Smoking and causing damage to a rented unit; this shows that people are also suing for their right to have a certain lifestyle.

Do you think it is fair? I thought that what ever happened inside our own homes was our own business? Join in Have a say!

4 comments:

Mike S said...

If the Kabatoff's health is so bad that a neighbour's second hand smoke can exacerbate their existing poor respiratory condition, what in the world are they doing living in a city? Shouldn’t they be living in a smaller town where there is little or no air pollution? Furthermore, on what information did their doctor base his assessment that second hand smoke was negatively affecting their health? Did he perform air quality tests of their condo unit while the neighbours were smoking? Or did he just base it on complaints from the Kabatoffs? Maybe he made the assumption, as many non-smoking proponents do, that second hand smoke must be bad because there are studies showing a decrease in pulmonary disease in cities that banned smoking in public. Incidentally, there are just as many studies (if not more) showing no appreciable decrease in pulmonary disease due to smoking bans.
So what about the rights of the smoking neighbours; why is there no consideration of their rights to do whatever legal act they wish in their own home? What right does Ms. Tyshinski have to impose her will on the neighbouring smokers; what right does anyone have? Shouldn’t she be more concerned about why the Kabatoffs can even smell the second hand smoke emanating from a separate unit? How is this even possible, unless they are smoking on the balcony while the Kabatoffs have all their windows open?
By the way, I too hate the smell of second hand smoke – it reminds me of the sick feeling I used to get in my stomach when I was a boy and my parents used to smoke in the car - with the windows rolled up. However, while I sympathize with the Kabatoffs being of poor health, I cannot support their crusade to prevent their neighbours from being able to live their lives. At least not until someone can definitively prove that second hand smoke is anything more than a nuisance – like living downwind of a garbage dump or a sewage treatment plant.

Mike S said...

The last sentence in my comment above should have read as follows: At least not until someone can definitively prove that second hand smoke, in the amount that would be experienced by living beside a unit with smoking inhabitants, is anything more than a nuisance – like living downwind of a garbage dump or a sewage treatment plant.

shopTOism said...

Mike,
Thank you for your participation.

There are other issues that become involved and they deal with construction techniques and age of construction. New Building have negative air pressure in teh hallways that keep "scents" vented. Older construction techniques kept pipes for hot and cold running water through floors inserted in now PCV tubes. This never the less still permits Smoke fumes to migrate.

It is an interesting issue.

Thank you

David Pylyp

Mike S said...

Agreed. But this could easily be rectified by a series of inexpensive air quality tests, which would either support the Kabatoff's claim that the SHS is negatively affecting their health; or prove that they are just trying to get rid of a bad smell by leveraging the current momentum to curb smoking in public places. My thinking is that the condo corporation should be willing to pay for (and possibly even conduct) these tests on behalf of the condo owners. If the test proves positive for appreciable signs of CO, then the smokers would have to pay for the testing. If the tests prove negative, the complainants should pay for them.