Langley tenants fight in-suite strata smokers

The B.C. Human Rights Tribunal has declined to dismiss a complaint by a Langley couple who object to their neighbours’ smoking. This is the second time in two years that the tribunal has refused to dismiss a complaint of this nature.

Paul and Rose Kabatoff, who own their suite, alleged to the tribunal that Strata Corporation Plan NW 2767 discriminated against them on the basis of physical disability. According to an October 13 preliminary decision by tribunal member Marlene Tyshynski, they both suffer from respiratory illnesses and allergies that are exacerbated by secondhand smoke.

About 14 months ago, smokers moved into the suite below. The Kabatoffs sought assistance from the strata corporation, and even provided a letter from their doctor.

“The Kabatoffs allege that the Strata Corp. has refused to do anything about the second-hand smoke issue and that they were generally told that if they had a problem with people smoking they should move,” Tyshynski wrote in her two-page decision.

The president of the strata corporation, Agnes Janzen, denied there was any discrimination. She told the tribunal that the building does not have a no-smoking bylaw, and therefore has no authority to respond to the complaint.

“Ms. Janzen denies that the Kabatoffs were told that if smoking was injurious to their health they should move,” Tyshynski added.

Janzen applied to have the complaint dismissed on a preliminary basis.

She argued that because there wasn’t a ban on smoking in an owner’s private suite or on a balcony in the building, there was no basis for the complaint. Tyshynski, however, refused her application to dismiss. In her decision, Tyshynski wrote that if the Kabatoffs established that they have disabilities that are made worse by secondhand smoke, then the strata corporation’s failure to accommodate their disabilities could constitute discrimination under the B.C. Human Rights Code.

Tyshynski issued a similar decision last year in a human-rights case involving a tenant who objected to her neighbours smoking in a social-housing complex. Sheila Abraham filed a complaint against the Greater Vancouver Housing Corp., B.C. Housing, Metro Vancouver, and the B.C. government, and she raised a systemic and an individual allegation of discrimination.

Abraham stated that she has multiple disabilities, including “hyper-reactive airway disease caused by second-hand smoke”.

She claimed that she suffered discrimination because of the respondents’ reluctance to provide smoke-free housing.

Under Section 8 of the B.C. Human Rights Code, a person must not discriminate against a person or a class of persons because of the person’s race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or age.

Under Section 10 of the code, a person must not deny a person the right to occupy space as a tenant that is represented as being available for occupancy by a tenant or discriminate against a person or a class of persons regarding a term or condition of the tenancy.

There is no law against smoking in multi-unit residential buildings.

Last year, the Georgia Straight reported that the Greater Vancouver Housing Corporation, which operates 54 properties, had launched a pilot project at the 86-unit Heather Place in Vancouver, the building where Abraham lived. As part of the project, certain areas of the complex were declared smoke-free.

According to Tyshynski’s preliminary decision, which was issued on February 1, 2008, there were three smokers in the six-plex inhabited by Abraham. Two moved out after the GVHC board declared the building smoke-free. However, a tenant who lives below her stayed.

“Ms. Abraham submits that her allegations against the Ministry and BC Housing are of discrimination against persons with disabilities, in the course of their performance of their roles as funder, overseer and administrator of public housing in BC,” Tyshynski wrote, adding that the complaints were not about the day-to-day operation of public housing or issues relating to tenancy.

She concluded that the final determination would be best achieved at a hearing.

If people with respiratory problems—such as the Kabatoffs and Abraham—are successful with their complaints about the effects of secondhand smoke, this could lead to a lot more complaints coming forward in the future.

Comments

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13 Comments

cardeo

Oct 15, 2009 at 12:16pm

what about smoker's rights? Discrimination against smokers who have paid thousands of dollars for a condo that they could no longer smoke in, or on their balcony?

DStanley

Oct 16, 2009 at 8:22am

"Smokers" have no legal rights in BC. People have rights, while "Smokers" have never been granted any distinctive rights as a recognized status. Legislation is now in favor of recognizing the right to clean air, and recognition of the dangers of drifting Second-Hand smoke. If smokers wish to cause harm to their own bodies, so be it, however "Smokers" and Strata Managers must recognize the right of those that choose to protect their health and wish to not breathe toxic smoke.

R Herbert

Oct 18, 2009 at 8:02pm

The Metro Vancouver Housing Corporation declared the building Ms. Abraham was living in, smoke-free. They moved all the smokers out, including the one living below Ms. Abraham and put no smoking signage around the building.

I sincerely hope the Kabatoffs will be successful in winning their human rights case. Second-hand smoke poses a serious jeopardy to health, and tenants should not be forced to have their health compromised by a known carcinogen!!!

It is time to ban smoking altogether in multi-unit housing!

audreylaferriere@yahoo.ca

Oct 21, 2009 at 2:56am

What next: smoking bans for fee simple housing.

cardeo

Oct 26, 2009 at 12:17am

"Smokers" have no legal rights in BC. People have rights, while "Smokers" have never been granted any distinctive rights as a recognized status"

Hey Douche bag, last time I checked smokers are people.

APerson

Nov 9, 2009 at 1:52am

Hey cardeo, your cigs are affecting the blood flow to your brain.

The title Smokers may define a group, like Grannies, or Actors, or Red-heads -- they're all people, but none of these groups "have been granted distinctive rights as a recognized status". Smoking may be a legal activity, but it is not a "right" as defined by law.

kmason

Dec 2, 2009 at 3:05pm

anyone who bitches about smoking killing everyone and poisoning the children needs to shut up. there are far more things in our day to day that damage our bodies far more than the occasional second hand smoke.
what about living in a city and sucking car exhaust every day of every hour of every second of your life. what about cellphones and their tumor causing habits? the list goes on and on, to old paints to off-gassing insulation, to cheap low quality food with preservatives? pectin in jam. I could rant for hours. cigarettes are most definately NOT as serious of a health concern as some who love to scapegoat it would like to believe

Brenda

Dec 10, 2009 at 6:46pm

are you kidding me kmason... we are not talking here about occasional smoke - we are talking about people who are addicted to cigarettes and their addiction is seriously affecting the physical, emotional and financial health of owners and renters. If you think that smoking cigarettes, inhaling chemicals directly into your lungs is not very serious health concern then you need to do some research. I am soooo tired of smokers making big FAT excuses for their addiction and expecting everyone else to breathe in their toxic waste. As far as I am concerned there are 2 places people should be allowed to smoke - in their cars with the windows shut, or in their grave.

Frank Gibons

May 16, 2010 at 2:41pm

if these people have known about the problem they have with second hand smoke, why would they not seek a strata lot in a building that has a bylaw against smoking, this is the same when a person with mobility problem buys into a strata that is older and does not have wheelchair ramps - then moves in and demands a wheel chair ramp be installed - I am not sure what the strata can do about stopping the people from smoking? as far as I am concerned the human rights tibunal is going to far on some of these cases- people are responsible to make sure the stata or living conditions of the building they are buying into suite thier needs before they buy.

S byers

Jun 7, 2010 at 11:21pm

I am so fed up with a plea for the rights of second hand smokers. I have a severe allergy to smoke and now find a smoker has moved in below. I'm extremely conscientious around my neighbours, taking care to keep my property clean, my music at a reasonable level. My whole house feels pervaded by this toxic stench--and now my home reeks and feels like prison. Smokers have no idea what it's like to suffer for their habits. Not to mention my mother, grandfather and uncle all died of lung cancer. It's ridiculous that someone can ruin things in a home I care for, and their right to impact others is what is upheld. I'm not saying smokers are hateful people, just that the line is crossed when another person can be so strongly effected by a dangerous and toxic habit.