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 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

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

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.”

Wednesday, February 6, 2013

Anti-smoking champ honoured for PUSH to smoke-free housing

Imagine a phone call asking if you would accept an award for all your unyielding efforts around smoke-free housing.

A long pause ensues. You realize you haven't responded, so you say, “Yes, thank you,” and continue to say, Yes, thank you,” to subsequent questions.  I now know for sure that sense of “deer in the headlights.”

Am loathe to displace Minister Responsible for Housing, Rich Coleman's matter of fact letter owning that secondhand smoke “is not simply an issue between neighbours” and belongs under quiet enjoyment – but...

I now live smoke-free, am incredible for being vexatious, and now awarded for being a fearless advocate. Does that make me incredible for being fearlessly vexatious?

Furthermore, I have moved up from being merely anti-smoking. I'm now officially proclaimed anti-tobacco.

But then, the label “anti-smoking” was not accurate to me, any more than it would be accurate to BC Cancer, BC Lung, and BC Heart and Stroke, or the Ministry of Health. It's name calling, plain and simple. It can't even be rightly called an ad hominem attack.

When I am called anti-smoking, it is a pejorative term, narrow-minded and small. It's an instance of name calling, meant to invoke “shut-up and go away. I do not want to hear what you have to say.”

When media perpetuate this term, they also perpetuate a certain image from Big Tobacco marketing, that is now decades old. This works against the efforts of the Ministries of Health all over the world, and the organizations which are off-shoots from it. 
This is a public health matter of gargantuan proportions. For anyone to continue using the “anti-smoking” label just marks them as Ignoramus, and possibly receiving a paycheck from Big Tobacco. 
I am anti-tobacco, because Big Tobacco are gangsters, and the documents from the tobacco trials testify to that.

I realize all that is left for me to do, is point this out, and point out my dismay and displeasure at the continued use of “anti-smoking.” I have a fervent wish that all media cease using the term “anti-smoking” and “anti-smokers”. 
I am, and we 10 Anti-Tobacco Champions are much more than that.

BC Lung and Heart and Stroke awards 10 individuals and organizations as 2013 Champions for Tobacco-free Living.