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), [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.
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
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 (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.”
