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

Bob Aaron in Legal

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.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail

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