Instilling a Fervent Wish for Smoke-free Housing - Part XV
Back in May 2008, I finished drafting and submitting an individual and a group human rights complaint, and organizations advocating for smoke-free housing advised I should also file a claim with the Residential Tenancy Branch (RTB). As a group, we were encouraged to file a group claim.
Information on Dispute Resolution Officer's (DROs) decisions relating to drifting second-hand smoke in multi-unit dwellings given to me for reference, indicated inconsistency instead of uniformity or standardization, for both landlords or tenants. As described to me, there was a very real problem with DROs failing to take proper consideration of the facts and law, and unreasonable departure from precedent and agreed upon judicial procedure. This resulted in seemingly arbitrary decisions, and arbitrariness in decision-making.
However, filing claims became a necessary exercise with the introduction of the smoke-free housing initiative, especially with the bid towards smoke-free housing, but one that advocates and advisers defined as a “crap shoot.” Decisions, more often than not, resulted in a need to request a review, often at the BC Supreme Court level. Few pick up the gauntlet, and pursue the ordeal of challenge. I (we) did not.
Crap shoot, a colloquial expression, refers to the chance factor, and that decisions in favor of eliminating second-hand smoke were possible, though highly improbable. DROs generally and genuinely thought there were no laws or guidelines to address the issue, and DROs relied solely on their own discretion.
Discretion is an inherent aspect of judicial authority and independence, exercised by officers of the justice system. Part of all decision-making and judgment, discretion refers to authority and choice, and a continuum from which to make choices, governed by principles of law.
Discretion becomes problematic where decisions are made avoiding facts and law, passing on fiduciary and stewardship responsibilities, and psychologizing tenants based on their verbal presentation, their communication abilities.
From DROs decisions, abuse of discretion thinking can be shown in the following “reasons” (read rationalizations and justifications):
- Almost half of the tenants in rental building are smokers and it is entirely unfair to suggest that the landlord alone has the duty to make sure that the smoke from the smokers does not affect the non-smokers.
- I think everyone needs to share in that duty and almost certainly everyone needs to work together in solving the health hazards of smoking.
- I think the landlord has tried to accommodate the tenants, but the tenants have decided to fight rather than work cooperatively with the landlord.
- Tenants need to stop fighting and start talking on how to protect their health.
Over time, I found two retired DROs and one active DRO who agreed to discuss the claims and decisions relating to drifting second-hand smoke and smoke-free housing. They agreed to read material I provided, and gave me a half hour of their generalized legal opinion, similarly to lawyer referral.
This is some of what I learned:
- Normally, applicants filing for dispute resolution check off the appropriate categories on a form, and create a document in the form of a time-line, of events detailing the breach of their tenant agreement and the Residential Tenancy Act (RTA). A time-line includes when the tenancy started, what was done in response to the breach, and as supported by evidence (witness statements, receipts, pictures, video), and the resolution sought. Usually, in the opening paragraph of the document, applicants quote the relevant section of the RTA. As it relates to drifting second-hand smoke and a breach of quiet enjoyment, this would read as:Section 28 Protection of tenant's right to quiet enjoyment (Policy Guideline #6 Right to Quiet Enjoyment).
Section 18 Landlord's Entry into Rental Unit: (a) For the duration of this tenancy agreement, the rental unit is the tenant's home and the tenant is entitled to quiet enjoyment, reasonable privacy, freedom from unreasonable disturbance.Section 22 Conduct: The tenant agrees that if any occupant or guest causes unreasonable and/or excessive noise or disturbances the landlord may end the tenancy.
- If the tenancy agreement differs from the RTA, you quote the relevant section, and this would reads as follows:
- Normally, this format is succinct and sufficient. The applicant proves damage or loss. The DRO applies or proves the RTA by way of reasons, to determine and support the issue of mitigation, and amount of damage or loss. This is the usual order of business, and generally works.
- The introduction to smoke-free housing de-normalized the RTA, and applicants presented DROs with requests for access to smoke-free housing under quiet enjoyment rather than enforcing an aspect of quiet enjoyment. Because most tenancy agreements did not have a “no smoking” clause and did not address drifting second-hand smoke issues, then smoking was permitted in the rental unit. Thus, advice on how to respond to drifting second-hand smoke under quiet enjoyment recommended the comparison to noise, mold, and asbestos, with substantial and unreasonable measured medically.
- Confounding factors surfaced as a result of DROs being left out and felt left out of the planning and implementation of the smoke-free housing initiative, but were expected to enforce and access new ideation.
- Normal thinking relies on rules that DROs enforce Residential Tenancy Acts, versus providing access to new ideation about how society now chooses to live. Unless and until the RTA or it's policy guidelines point the direction so that DROs might pull reasons and cite law, there is little more that can be done.
- DROs (and landlords) may have positional authority, but do not necessarily have the knowledge base to be authoritative and change law. They do the business of administrating enforcement, and struggle to keep up with professional development and training just like any other profession. Landlords were expected to be leaders, when in the real sense, they are administrators.
- DROs conduct telephone conferences as settlement meetings, and it is in the best interests of everyone to settle. Settle remains the key and operative word. For the DRO, they don't have to go into any facts or relate facts to law. At best, what you will get is a mediation where both sides will agree on their points for resolution. At worst, the arbitrator's decision reflects grumpiness, a lack of reflectivity, and will make both equally unhappy. This old axiom, sadly, still applies.
- DRO's choose the wording in the agreement or decision. Wording remains in the domain of a DROs discretion; unless applicants (and respondents) provide, stipulate or negotiate the wording.
- The focus on quiet enjoyment to problematize and resolve the issue of drifting second-hand smoke, to the exclusion of other sections of a rental agreement or Residential Tenancy Act (RTA), rather than in conjunction with other sections, is problematic. This examples the bandwagon effect, and reveals advisers, advocates, and applicants are not really reading. Of course, reading takes time, interpretation and application: more confounding factors.
- Reconfigure the timeline document of a complaint, adopting headings that include the whole of the tenancy agreement and RTA, the relevant sections, and that reflects the tenancy agreement and RTA. Start with Section 1, Definitions. If “common area” is to be shared fairly and equitably and is at issue because of drifting second-hand smoke, then include how common area on residential property is defined. This sets down a fact, and a standard to be measured against. Then, time-line the examples of when and how common area is breached by drifting second-hand smoke or third-hand smoke. Detail what you do to address or avoid the problem.
- Set out definitions for words that constitute fact and measurement, relying on the RTA, case law, and the dictionary for meaning: unreasonable, reasonable, substantial, constant, clean/cleanliness, hazard, excessive, disturbance, timely.
- Consider how and where other sections of the RTA apply to your situation. For example:Section 7: Liability for not complying with this Act or a tenancy agreement (1) If a landlord or tenant does not comply with this Act, the regulations or their tenancy agreement, the non-complying landlord or tenant must compensate the other for damage or loss that results. (2) A landlord or tenant who claims compensation for damage or loss that results from the other's non-compliance with this Act, the regulations or their tenancy agreement must do what is reasonable to minimize the damage or loss.
- A landlord must do what is reasonable to minimize damage or loss. What did the landlord do and not do? What might be considered unreasonable? What did you, as tenant, do to minimize damage and loss? What would be considered unreasonable for you to do, in your circumstance?
Section 23: Condition Inspections, and
Section 32: Landlord and tenant obligations to repair and maintain (1) A landlord must provide and maintain residential property in a state of decoration and repair that (a) complies with the health, safety and housing standards required by law, and (b) having regard to the age, character and location of the rental unit, makes it suitable for occupation by a tenant. (2) A tenant must maintain reasonable health, cleanliness and sanitary standards throughout the rental unit and the other residential property to which the tenant has access. (3) A tenant of a rental unit must repair damage to the rental unit or common areas that is caused by the actions or neglect of the tenant or a person permitted on the residential property by the tenant. (4) A tenant is not required to make repairs for reasonable wear and tear. (5) A landlord's obligations under subsection (1) (a) apply whether or not a tenant knew of a breach by the landlord of that subsection at the time of entering into the tenancy agreement. And
Section 37: Leaving the rental unit at the end of a tenancy (2) When a tenant vacates a rental unit, the tenant must leave the rental unit reasonably clean, and undamaged except for reasonable wear and tear. (Residential Tenancy Policy Guideline 1: Landlord and Tenant – Responsibility for Residential Premises).
- At issue, the non-issue of third-hand smoke and the gassing off of third-hand smoke from interior doors, walls, ceilings, closets, cupboards, ventilation fans, and carpets. Some suites, with the help of open balcony doors and sunshine, and being vacant for two months, look and smell deceptively clean. Some tenants get away with sprinkling baking soda on the carpet rather than have it shampooed. Most often, the issue of third-hand smoke emerges after the “condition inspection” form has been signed. This does not, however, negate the landlord's responsibilities to provide a clean and healthy suite, after the fact, after the discovery from moving-in.
Section 47 Ending the Tenancy - Landlord's notice: cause
(1) A landlord may end a tenancy by giving notice to end the tenancy if one or more of the following applies: (d) the tenant or a person permitted on the residential property by the tenant has (i) significantly interfered with or unreasonably disturbed another occupant or the landlord of the residential property, (ii) seriously jeopardized the health or safety or a lawful right or interest of the landlord or another occupant, or (iii) put the landlord's property at significant risk.
- Reference and cite this section requesting DROs investigate whether the landlord is in compliance with the Act, and to call on the landlord's responsibility to enforce the Act, detailing with examples a breach of this section. Definitions remain crucial (significantly, interfered, unreasonably, disturbed, seriously, jeopardized, significant, risk), as does the matching through examples from everyday living.
Section 64: Dispute resolution proceedings generally (2) The director must make each decision or order on the merits of the case as disclosed by the evidence admitted and is not bound to follow other decisions under this Part.
- This is where RTB decisions earned their “crap shoot” monicker. As a stand alone article of the RTA, normal interpretation apparently lends itself to mean that DROs must make individualized decisions meant to consider individual circumstances and to refrain from following previous, prior, or particular precedents. This normal interpretation goes so far as to infer exclusion from previous, prior, or particular precedents. However, note the qualifier, “is not bound to follow” that provides the leeway to follow, and standardize decisions equitably. This, in conjunction with,
Section 91: Except as modified or varied under this Act, the common law respecting landlords and tenants applies in British Columbia.
- Common law refers to case law, established by judges decisions that then have precedent on future decisions of lower courts in the same jurisdiction. Common law is the parent 'property' law of quiet enjoyment and nuisance, and the Acts governing residences (stratas, co-ops, and rentals).
- This section, in effect, instructs DROs and applicants to reference, cite, quote case law.
Section 64: Dispute resolution proceedings generally (4) If, in the director's opinion, another tenant of a landlord who is a party to a dispute resolution proceeding will be or is likely to be materially affected by the determination of the dispute, the director may (a) order that the other tenant be give notice of the proceeding, and (b) provide that other tenant with an opportunity to be heard in the proceedings.
- In conjunction with Section 76 below, make a request of the DRO to have smoking neighbours brought into the discussion, and to negotiate about their drifting second-hand smoke and for smoke-free housing.
Section 76: Director may require persons to attend and produce documents (1) On the request of a party or on the director's own initiative, the director may issue a summons requiring a person (a) to attend a hearing under this Division and give evidence, or (b) to produce before the director documents or any other thing relating to the subject matter of the dispute. (3) If a person named in and served with a summons does not comply with the summons, the person is liable, on application to the Supreme Court, to be committed for contempt as if in breach of a judgment or an order of the Supreme Court.
- A word of caution: DROs may dislike being presented with this new complaint template, and may disagree with it, may even admonish applicants. Give them the opportunity to do so.
Section 77 Director's decision (1c) A decision of the director must include the reasons for the decisions
- Reference and cite quote from 2008: “Dealing with the adequacy of reasons, it is not in my view sufficient for an adjudicating officer to simply set out the criteria on which they are to base their decision and then make their decision without going through any analysis. Reasons require any adjudicating officer to set out a test that has to be met. It requires an adjudicating officer to find some facts, to then apply the facts against the test that has to be met, weigh it and come to some conclusion.” Honourable Mr. Justice Groves stated in June Ross v. Mrs. Simpson and Karen Knott in their capacity as Dispute Resolution Officers under the Residential Tenancy Act and Colene Gudeit, Landlord, Date: 20080212, Docket: S078505, Registry: Vancouver, BC. (Retired DRO, Margaret Carter-Pyne, 2010)
The last word: Whether it's medicine or justice, sometimes applicants of a service need to alert DRO's (doctors) to relevant law or knowledge beyond what is normal thinking.
The very last word: “Do not assume that DRO's know the laws or what is in the Guidelines. It is up to you to educate yourself and to draw attention to the relevant law that supports your position as an applicant or a respondent. Cut and paste if you have to, but make sure you get the relevant law before DRO's.” Retired DRO, Margaret Carter-Pyne, 2010.
Send your personal plea to:
Minister of Health Michael de Jong firstname.lastname@example.org
Minister of Public Safety Shirley Bond email@example.com
Rich Coleman Minister Responsible for Housing firstname.lastname@example.org
BC's Healthy Living Alliance, Mary Collins; email@example.com
Smoke-free Housing BC, firstname.lastname@example.org
Canadian PUSH for Smoke-free Housing, Rose Marie email@example.com