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80% of People Living in MUDs Want to Live SMoke-free Affair with Smoke-free Housing Alice: Narrating the personal Anna I am not going away not by a long shot. The smoke-free housing saga continues Answers to Frequently Asked Questions including Grandfathering Anti-smoking champ honoured for PUSH Any defensive discussion indefensible April Lifting the Veil off of Quiet Enjoyment Arabian COUGHING Poster At the Core of Smoke-Free Housing Workplace violence and bullying ATTRIBUTE REQUIRED TO SUCCESSFULLY ACCOMPLISH BEING SMOKE-FREE AUTHORITIES for Smoke-free Housing BC HUMAN RIGHTS TRIBUNAL Decides Crescent Housing Societys Application To Dismiss Lacking in Substance Concreteness and Good Faith (Another Debacle) BC HUMAN RIGHTS TRIBUNAL hears first case on SHS in MUDs Monday April 2 – Wednesday April 4 2012 BREAKTHROUGH DECISION Smoke-Free Housing Cancer in non-smoker sparks legal action Australia CLEANING UP TOXIC ENVIRONMENTS COMMUNITY DISCUSSION FORM Comparing “big” and “too small to matter” crises and catastrophes Demand for non-smoking apartments next to impossible Do you struggle with the problem of drifting second-hand smoke in your home? What you can do looks like 2011 DO YOU STRUGGLE WITH THE PROBLEM OF SECONDHAND SMOKE DRIFT What Struggle Looks like Drewlo Holdings Building More Smoke-free Apartments DROs Ways to Strengthen a Bid for Smoke-free Housing Ethical Dilemma of Smoke-free Housing EX-SMOKERS ARE UNSTOPPABLE flash mob dance Fervent Wish for Smoke-free Housing Governance by Dysfunctional Boards How the Smoke-free Housing Initiative inadvertently opened up governance for public scrutiny Grandfathering How does it apply to smokers Grandfathering Smoke freely Grandfathering Smokes License to Smoke License for Abuse GROUNDHOG DAY PUSHing the Drift to Smoke-free Housing GROUNDHOG DAY 2012: Secondhand smoke from grandfathered smokers takes a wee hit How Provincial and Municipal Bylaws Apply for MUDs in BC HR DECISION ORDERS “METRO ONE” TO CEASE ITS DISCRIMINATION AND REFRAIN FROM COMMITTING A SIMILAR CONTRAVENTION IN THE FUTURE INJUNCTIVE RELIEF A court order to Do this and Stop doing that Inspiring story behind SMOKE-FREE CARS ACT 2007 knowledge exchange Krossa from Maple Ridge Dare Extend Ideation For Smoke-free Housing Lung cancer kills non-smoker McDaniels thank supporters Measuring second-hand smoke drift in non-smokers: Prove it Medical Marijuana NEWS ~ NEWS ~ NEWS London ON New Apartment Building Opts for Smoke-free and Utilizing Grants to Encourage Smoke-free Housing NICOTINE REPLACEMENT THERAPY YOUR TIME HAS COME NSRAs rebuttal of Harpers Gut of Federal Tobacco Control Program People imagining a smoke-free world Picture Worth a Thousand Words Premier Christy Clark announces Nicotine Replacement Therapies (NRT) Sense and scent-ability: Do you smell second-hand smoke in your home? SHS Is Not Simply An Issue Between Neighbours Slaying the Myth of Right-To-Smoke and In-My-Home SMOKE DAMAGE - Voices from the Front Lines of Tobacco Wars Smoke-free at Last Smoke-free housing Litany of motivations and obstructions Smoke-free Housing: An award winning direction Standardize your letters and claims: Make them all the same Steps to Designating Smoking Area in Common Areas and Avoiding Misrepresentation STORIES: Heart of the Matter Strata concedes failure to accommodate McDaniels TENANTS' FUME IN SMOKE-FEST ABOUT HUMAN RIGHTS COMPLAINT COSTING THOUSANDS The 'In-Perpetuity' of National Non-Smoking Week Thinking Petition? Draft a report instead. Trials Against Big Tobacco Reveal Internal Documents Stating Lethal Hazard Of Smoking And Environmental Tobacco Smoke TRIBUNAL GRANTS COMPLAINANTS' APPLICATION TO AMEND THEIR COMPLAINT Tribunal's Decision Reveals DEBACLE Urging Political Will VEN TI-LA-TION – exchanging stale noxious air with clean fresh air Weitzels and Willow Park Estates What has California's new smoke-free housing law to do with us Canadians? What makes normal sensible people become dysfunctional when they join a board and what turns CEOs or EDs into mini-dictators? Why Isn't Vancouver's OLYMPIC VILLAGE A Flagship for Smoke-free Housing? Why there is a PUSH for Sf Housing WOW You've come a long way baby Yukon Housing Corp’s smoke-free housing leaves smokers fuming YUKON NORTH OF ORDINARY™ TRUMPS NATURALLY BEAUTIFUL BC AGAIN Yukon's smoke-free housing comes into effect Jan 1 2012

Monday, June 9, 2014

BREAKTHROUGH DECISION on Smoke-Free Housing



This month, June, is Smoke-Free Housing Month, as declared by BC lung Association, the Heart and Stroke Foundation (BC and Yukon) and supported by the Condominium Homeowners Association and Landlord BC. 

Why declare June as Smoke-free Housing Month?   Awareness media campaign of the scope of the problem:  They are stumped by their efforts to promote smoke-free housing and why so few buildings have opted in;  BC Lung and Heart & Stroke are “keen to move the issue forward, particularly given the increasing number of weekly complaints they receive from residents who feel helpless about smoke entering their homes from neighbouring units.”

June 3, our long-awaited decision arrived, all 73 pages.   What timing! Freaky!
We established a prima facie case of discrimination.

However, the claim was dismissed because we were unreasonable in our expectation and need for more than “limit” or reduced exposure to secondhand smoke, exaggerated the volume/frequency of exposure, and number of smokers, and deemed uncooperative.  The Tribunal considered  steps Crescent Housing Society took reasonable, in the context in which the complaints arose.

DETAILS from the decision at (pg 3-4):

[14] I have no doubt that the Complainants experienced significant distress at being exposed to SHS and not being able to move to a comfortable and preferred housing situation due to their limited financial means. I am also satisfied that, to varying degrees, exposure to secondhand smoke had an adverse impact on their physical and mental health.

to…

[16] Given the number of tenants who were requesting accommodation due to SHS at the time, I find that the steps taken were reasonable, in the context in which the complaints arose, and to implement measures requested by the Complainants would have constituted undue hardship.

[17] The Complaint is dismissed against the Respondents.

and 

[370] I am persuaded that the Respondents discharged their duty to accommodate the Complainants. The complaint is dismissed.

The Complainants have established a prima facie case of discrimination (pg 63)

[322] Therefore, I conclude that the exposure to SHS had an adverse impact of each Complainant in various ways, levels and at different times, and that the Complainants have established a prima facie case of discrimination.

My unreasonableness….

(We just wanted to be freeeeeee from the burden of having to report infractions and contraventions, and freeeeeee from the burden of proof. And wanted bona fide assurances.)

[361] Overall, I find that the Society endeavored to reasonably accommodate Ms Borutski, but that Ms Borutski was resistant to anything other than the creation of an entirely smoke-free environment, both inside and outside the Building.  I find that she did not satisfy her obligation to reasonably participate in the accommodation process, and that she sought the perfect, rather than a reasonable, accommodation.

[15] last sentence…”I am also satisfied that the Complainants did not fully participate in the accommodation process and sought a perfect and preferred accommodation, rather than a reasonable accommodation.”

[369] I remain of the view that the Complainants would not have been satisfied with anything other than a complete prohibition on the property.

[327] The duty of the Respondents is to provide a reasonable, not a perfect, accommodation.

[367] Overall, I find that the society discharged its duty to reasonably accommodate the complainants by exploring possible accommodations, offering relocation, implementing restrictions on smoking, moving areas where people tended to smoke while away from all openings to the building, and enforcing the smoking prohibition after investigation provided evidence to do so. I find Ms Borutski, in particular, acted unreasonably in not availing herself of reasonable accommodations offered to her.

[361] Overall, I find that the Society endeavored to reasonably accommodate Ms. Borutski, but that Ms. Borutski was resistant to anything other than the creation of an entirely smoke-free environment, both inside and outside the building. I find that she did not satisfy her obligation to reasonably participate in the accommodation process and that she sought the perfect, rather than a reasonable, accommodation.

[356] I accept that the Respondents to the following measures to reasonably accommodate the complainants:

a)   Implemented a policy which precluded smoking in buffer zones, smoking by employees on the premises, and which put tenants on notice that the building was working toward being smoke-free by 2018;
b)   Posted notices about the buffer zones
c)   Amended its lease to include a no smoking clause
d)   investigated and enforced complaints about breaches of the buffer zone and no smoking clause and in some cases relocated smoking tenants away from no smoking tenants
e)   Inspected, cleaned and reasonably maintained the ventilation system;
f)    Obtained quotes about the installation of the new ventilation system. Given the cost of the system and the necessity of a roof replacement, find it was reasonable that a new system was not installed, particularly since the current system was in good working condition;
g)   Moved the outdoor smoking pit and barbecue area 12 beyond the buffer zone
h)   Designated the rooftop deck as no smoking, though not until 2012
i)     Mapped out where known smokers resided and endeavored to relocate tenants to areas were exposure would be minimized
j)    Offered to weather-stripped units
k)   Offered to facilitate tenant to tenant meetings to negotiate smoke-free hours
l)     Asked some, if not all, of grandfathered tenants who smoked to sign on to no smoking addendum in and in some cases to relocate;
m) Advice tenants to who wished to relocate to submit our request in writing and that society would endeavor to relocate them to suites where there was less exposure to secondhand smoke; and
n)   Sought advice from various professional organizations such as the Health Authority, BC Housing and a Housing Association as to what it could do to address the situation. 

[25] (b) Darin Froese (BC Housing) testified that there are not many BC Housing or non-profit buildings that are completely smoke free.  He stated that BC Housing had run pilots but found that they started to suffer a vacancy loss when a building was made completely smoke-free.  He said that while there is a demand for smoke-free housing, it is not overwhelming.

SOooo, what’s breakthrough about this decision?  Because this is as good as it gets!

BUT You decide!  

Put it on your summer reading list, and read all the way to [322] at least. Remember the context in which this happened.  It continues to be a BIG smoking hot issue; not just in market rentals and condos!

Can we pretend this never happened? Yes, lets!


Saturday, April 27, 2013

AUTHORITIES for Smoke-free Housing




State of the Art on Smoke-free Housing:  The nexus connecting Human Rights and Nuisance
 


The hearing Borutski, Chandler, Hancock v Crescent Housing and Janet Furcht before the Human Rights Tribunal finished April 25, 2013.  All that’s left to do:  wait for the decision.   How do you spell relief!

For those struggling with secondhand  or third-hand smoke from tobacco and marijuana, and suffering in silence, consider reading these authorities and referring your landlord/council to them.

1.   Accommodation for Environmental Sensitivities: Legal Perspective; C Wilkie, D Baker. (2007)

The Canadian Human Rights Commission commissioned this report to establish the issue of environmental sensitivities, such as secondhand smoke, from a legal perspective across Canada, UK, US, Australian and New Zealand, and as these relate to the accommodation under human rights.  They cite Hyland, Maljkovich and Feaver (p18-19).


2.   The Medical Perspective on Environmental Sensitivities, Margaret E. Sears, M.Eng., Ph.D. (2007)

The Canadian Human Rights Commission ordered this report to review and summarize the science on environmental sensitivities, with the focus on protecting people from triggers such as tobacco smoke, and perfume, accommodating people, and help prevent the onset of sensitivities in others.

Canada Mortgage and Housing Corporation produced publications on environmental sensitivities, and announced federal initiatives at a demonstration house in Ottawa, 2006.

3.   Human Rights and Rental Housing Ontario – Ontario Human Rights Commission (2009)  6.1 Smoking [p82]  

“However, given the inherent risks associated with smoking, a housing provider may have little or no obligation to accommodate a tenant’s need to smoke when to do so would amount to undue hardship, for example, by negatively affecting the health and safety of other tenants.” [p83]

References Meiorin, the legal test for assessment of health and safety risks, an essential element under duty to accommodate, and adapted to housing [p 72, 88-98].

4.   Bed, Bath and Beyond: Discrimination in Rental, Co-op, and Strata Housing in BC,  (2009)

Explains the scope of protections under the Human Rights Code, Section 8, and 10, as well as, references Meiorin, explaining the “Justification Analysis” from Meiroin as applied to the housing context [p14-15].

5.   MEIORIN: British Columbia (Public Service Employee Relations Commission) (BCPSERC) v. The British Columbia Government and Service Employees Union (BCGSEU), [1999], 35 C.H.R.R. D/257 (S.C.C.)

6.   Terry Grismer (Estate) v. The British Columbia Superintendent of Motor Vehicles et al., [1999] 3 S.C.R. 868 
            Application of Meiorin

7.   ASHAction on Smoking & Health, Prof John Banzhaf, Chief Council on Motion to Intervene in Stevenson v City of Kelowna 2009 BCHRT 6164 on why claim should be dismissed:

a.   No legal right to smoke
b.   Smoker not a protected class
c.   Contrary to laws, regulations prohibiting smoking
d.   Smokers are not addicted to smoking, rather to drug nicotine
e.   Ways to satisfy nicotine addiction readily available

8.   GRANDFATHERING:  The Law of Nonconforming Uses and Vested Rights (2009 ed) H. Bernard Waugh, Jr. Gardner Fulton & Waugh P.L.L.C Exemption - p6 and

a.   Saint-Romuald (City) v Olivier R; 2001, SCC 57 File No. 27210

Meiorin and Saint-Romuald share pre-eminent status in their respective categories.

In support of the challenge to the notions around grandfathering, as compared to the use of the property to provide low income housing.  Grandfathering applies more specifically to the usage of property and providing housing. 

Exemption to Grandfathering is Nuisance (see Raith v Coles 1984 below, pre-eminent case on Nuisance): 

“unless it includes activity which is a nuisance or harmful to the public health and welfare….”

“No one can have a ‘grandfathered’ right to injure neighbours or the public by creating a nuisance.

9.   McDaniel and McDaniel v Strata Plan LMS, 2012 -  1657 BCHRT 167

Decision cites James obo James v silver Campsites [para 39-40]  in relation to

“The Tribunal has said, and I accept that from any personal, social, emotional or development perspective, a home is central to a person’s security and sense of self.”


10.                James obo James v Silver Campsites and another (No.3) 2012
BCHRT 141

Decision cites Bekele v Cierpich 2008 HRTO 7 below [para 88], on

“discrimination in relation to a person’s home has been recognized as ‘particularly egregious’, often marked by a power imbalance in bargaining power, especially where demand for housing exceeds supply.”

Cites Bed, Bath, and Beyond:  Discrimination in Rental, Co-op and Strata Housing (see above).

11.                Chorney v Owners, Strata Plan VIS770 2011 BCSC 1811

Mr. Justice Schultes directs the Strata administrator,
“to exercise the full extent of the authorities that are afforded to him in his position under the Strata Act,” [27] and
Instructs the Strata administrator that ”having sought to enforce the bylaws informally but without efficacy, the Strata administrator cannot then characterize further efforts as now the sole responsibility of the petitioners…” [28] and
“When the authority to solve the problem exists within the corporation’s own current authority and as the administrator is charged to exercise them.” [30]

12.                Feaver v Davidson, 2003, O.R.H.T.D. No. 103 [para 20-31]

In this case of a landlord versus a tenant, the decision includes a summary of the harmful affects of secondhand smoke from Health Canada website.

13.                Koretski v Fowler, 2008 QCCQ 2534 (Quebec) – cites Feaver v Davidson

14.                Young v Saanich Police Department, 2003,  BCSC 926
           Comprehensive case on the issue of secondhand smoke from marijuana.

15.                Bekele v Cierpich 2008 HRTO 7

16.                Kenny v Schuster Real Estate (CafĂ© Zen) 1990  SCBC C874184

17.                Raith v Coles 1984 B.C.J. No 772

Pre-eminent case law on Nuisance and which each of the residential Acts incorporated.   Raith v Coles does not differentiate on the basis of particular sensitivities or disabilities, but distinguishes on the awareness and responsiveness to standards of behavior and responsibility of cognizant people of a time and place.
“The standard of comfortable living which is thus to be taken as the test of a nuisance is not a single universal standard for all times and places, but a variable standard differing in different localities. The question in every case is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience, but whether the reasonable man connotes a person whose notions and standards of behavior and responsibility correspond with those generally obtained among ordinary people in our society at the present time…” [para 8]

18.                Royal Anne Hotel Co. Ltd. v. Ashcroft et al, 1979, 8 C.C.L.T.179 BCCA

19.                Residential Tenancy Act, Section 28 enjoyment, Section 32, health hazard

20.                Rich Coleman, Minister of Energy, Mines and Natural Gas and Minister Responsible for Housing and Deputy Premier of British Columbia - 
“When someone causes a nuisance, Council must enforce the bylaws by taking steps to deal with the nuisance.  It is not simply an issue between neighbours.”