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 authorizes 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), , 35 C.H.R.R. D/257 (S.C.C.)
6. Terry Grismer (Estate) v. The British Columbia Superintendent of Motor Vehicles et al.,  3 S.C.R. 868
Application of Meiorin
7. ASH – Action 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
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,”  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…”  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.” 
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 (Café 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,
“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.”