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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

Thursday, April 28, 2011

DROs Ways to Strengthen a Bid for Smoke-free Housing

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:
  1. 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).
    1. If the tenancy agreement differs from the RTA, you quote the relevant section, and this would reads as follows:
    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.

  2. 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.

  3. 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.
     
  4. 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.
     
  5. 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.

  6. 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.
    1. 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.

  7. 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:

http://www.christyclark.ca/premier/

Minister of Health Michael de Jong  mike.dejong.mla@leg.bc.ca

Minister of Public Safety Shirley Bond   housing.policy@gov.bc.ca

Rich Coleman Minister Responsible for Housing  rich.coleman.mla@leg.bc.ca

BC's Healthy Living Alliance, Mary Collins;   mcollins@bchealthyliving.ca

Smoke-free Housing BC,  info@smokefreehousingbc.ca

and
Canadian PUSH for Smoke-free Housing, Rose Marie   socionik@yahoo.ca


Tuesday, April 19, 2011

April: Lifting the Veil off of Quiet Enjoyment

Instilling a Fervent Wish for Smoke-free Housing - Part XIV
Hello, my name is April, because it's spring, we're in April, and I need an alias.
I've been keeping track of the smoke-free housing initiative since it first made the papers back in early 2008, and visit this blog and smoke-free housing websites regularly to see what will happen. I have expectations and anticipations.
My son and I live in subsidized housing beginning in 2006, and we both developed asthma as a result of there being so many smokers. In the beginning, I asked management to do something, wrote letters to management, got doctor's letters. I lived a frantic and vigilant and panicked life for months thinking I could do something or get out.
When my son has an attack, my heart stops. My mind races about what to do, not to have an attack at the same time, and will I be able to help him. Smoking is heaviest in the evening and at night, so this is a problem for sleeping and just relaxing.
So did my son live this chaotic life with me. One day I said, “this has got to stop.” This is no way for a child to grow up, and growing he was. I made a vow to go about our day and not be bothered by smoke. Sometimes we get sick. Everyone gets sick. I deal with it. I forget about it.
I haven't talked, there is no talk of smoke, since the spring of 2007. My son is now 12.
The idea of quiet enjoyment, and disturbance or disruption to quiet enjoyment is new to me. I've been thinking about it a lot.
What it means to me is what is missing from everything that is available on the blog and on the websites. What I write about matters most, and yet it matters not at all. Not only does it not matter, my pleas and tears were considered to be mental illness by management and I was told to get a grip and get help, and perhaps unfit as a mother. If it was so bad, why didn't I move and get my son out from it. Everyone here knows how impossible it is to move, much less try to live someplace safe from smoke.
I think this must be an instance of disruption to quiet enjoyment.
I don't invite friends over. I am afraid if I ask my son's school friends over, they will notice how bad the smoke is and complain to their parents. My friends always complained, and I now make sure we do something outside, never visit. I could never have my son's friends to sleep over.
I think this too must be an instance of disruption to quiet enjoyment.
I know I remove myself from being friendly. I now know almost nobody in the building, where in the beginning we knew many. I know I'm not alone. You only see the smokers out and being friendly. I don't want my son to play with smoker's children, and perhaps go into their homes.
Over the past weeks I've made a list of all the ways I live differently because of smoke drifting into our home. I came up with a list of 21 things I do to cope and accommodate second-hand smoke. I stopped.
I felt possessed with needing fans and air purifiers, and at one point had three fans and three air purifiers. Each one better, more expensive than the last. Not only did it not bring us relief, the filters created an awful smell, and became too expensive. It created a constant noise, and even my neighbors complained about the noise. Now I only want quiet. Quiet is so important to me.
The smell of smoke came off my skin, off our hair, off our clothes, and I became obsessed with smelling clean and fresh. I showered twice and three times a day. I changed clothes twice a day, and began washing clothes in the tub because it was becoming so expensive to do laundry. Drying clothes in the apartment just made them smell again.
In trying to find a way to get away from the smoke at night while sleeping, that having the bed in the middle of the room rather than up against any wall works best. So we sleep in the middle of the room, with our heads away from the walls.
Sometimes talking, too much, makes us cough. So we are quiet a lot. Laughing too much, can make us cough, so we are pleasant and quiet. Being away from others, there is much less excitement, laughter, and more quiet.
I've sealed up my kitchen stove exhaust fan, and rarely use the burners. I cover the burners with a very large cutting board, and it makes my counter-top area larger. I rely on the oven and microwave. I've learned to cook quickly, with less clean-up. I no longer enjoy cooking. I hate it.
I read less, because smoke interrupts my attention and interferes with my concentration, and I'm too easily angry. When my son and I are doing something quietly, the interruption of smoke is now a signal to move, to get up and move elsewhere, and do something else. Often, it means we must go outside for some fresh air, even for a bit. It is a game. We must think of something else to do. It is good for us. Otherwise, we would sit all evening, and all day on the weekends.
So I think this quiet enjoyment thing means stopping ordinary life, really ordinary habit, regular enjoyment, stopping freedom of action, for all the usual purposes.
This quiet enjoyment thing brings back that I'm too easily angry. I remember the time of being frantic and panicked about doing something about the smoke. I am feeling some of that again.
I think this must be an instance of disruption to quiet enjoyment.
Now what am I going to do.
Begin recording and reporting to management again.
File a claim with the Residential Tenancy Branch, and then maybe with the BC Supreme Court.
File a human rights complaint.
File a nuisance claim.
Be obsessed by this, and watch my son grow into a teenager through this.
All these websites, they tell me nothing has happened. Some are not even updated anymore.
Nothing happened since I began complaining in 2006 and stopped in 2007.
It's not even talked about any more. No one asks how are we doing. I will answer them, if someone asks, “I am living quiet enjoyment.”
It's like a shroud silencing us.
The obsession will die again.
It's time to do something else.

Send your personal plea to:

http://www.christyclark.ca/premier/

Minister of Health Michael de Jong  mike.dejong.mla@leg.bc.ca

Minister of Public Safety Shirley Bond   housing.policy@gov.bc.ca

Rich Coleman Minister Responsible for Housing  rich.coleman.mla@leg.bc.ca

BC's Healthy Living Alliance, Mary Collins;   mcollins@bchealthyliving.ca

Smoke-free Housing BC,  info@smokefreehousingbc.ca

and
Canadian PUSH for Smoke-free Housing, Rose Marie   socionik@yahoo.ca

Sunday, April 10, 2011

Alice: Narrating the personal

Instilling a Fervent Wish for Smoke-free Housing - Part XIII

Hello, my name is Alice, because I feel like I've fallen down the rabbit hole.
I'm in my sixties, and I'm in recovery - from two years of trying to enforce a no-smoking policy at our building with the strata council.
My husband and I, we purchased a strata unit, one where there was a non-
smoking proviso. My husband has COPD, which he developed as a child from a smoking father.
We were uniformed that of the 48 units, there was one smoker, and that smoker was beneath us.
This is my story. By telling my story, I hope that it will shock so that strata
councils change all over BC, so that the Early Settlement Human Rights meetings change, and that more owners and renters step up to demand smoke-free housing.
But as it stands, my story is not good. Likely a story like mine has never been told.
As I tell it, I realize there will be people who will not step up and confront second-hand smoke in multi-unit dwellings. I realize they will not step up and confront their councils. I know that.
 The road is unpleasant as if it were meant to punish, rather than to help those of us seeking to right a wrong, and the holy grail of smoke free housing. It made me weary and wary. 
     Our strata council blocked our efforts to have the problem of drifting second-hand smoke brought forth out into the open. We provided them with information on smoke-free housing, and had a lawyer draft letters outlining the problem and that we had a case that was actionable. This cost us financially, but we had just purchased a condo. When a very large retainer was asked of us, we decided we could not go forward this way, and would have to find another route.
     We wrote to the smoker below us, informing them of the situation and legal
ramifications. We were ignored, and the smoking seemed to increase.
      We would eventually learn that other owners tried unsuccessfully to have this second-hand smoke issue brought out into the open. Other owners would give us copies of past council minutes, and the trail goes back six years.
So in addition to second-hand smoke, we have the problem of dereliction of duty by our strata council.
     We were successful in filing a Human Rights complaint, and the council ignored it, ignored deadlines, to the point that the case manager ordered the council to retain a lawyer as she would not talk to anyone else. She instructed them to attend a settlement meeting or file their dismissal.
     With the Human Right Complaint documents served on the council, they took the documents, scanned them, sent them by email to many people, and posted them in the elevator and in the lobby. Our medical history was passed around willy-nilly, and we had to file a complaint against the council with the BC Privacy Commissioner.
     Now, more than a month has passed since our settlement meeting. Time to
ponder and reflect on what happened in the settlement meeting, the outcome,
and the fact that the contract signed was not carried out. While I suspected there was never any intention to follow through on the contract, having it confirmed twice  - makes me shutter.
     We settled at the meeting, after intense pressure was put on us.  The mediator was a pit-bull (a real surprise) and kept pushing and rushing so we barely had time to think or think things through.  I held her off for about 2 hours then got worn down. 
     She was very blunt and told us our case was not in the correct venue, and said we would have been much better to deal with it in the courts, try for an
injunction for the smoker to stop the nuisance. I don't know. Maybe she's right.
How does one know what to do?
     The concessions we agreed on, to have a licensed inspection/report,
repairs/sealing and upgrades of the building and of the smoking suite, were little enough.
     We had asked that the smoking lady come to the meeting and, to our surprise, the strata must have gone to her.  She refused to come but sent a "contract" notarized by her lawyer, where she stated she would not smoke cigarettes in the building again. The council said that the night before, police had been called and evicted her pot-smoking boyfriend. This startling piece of evidence swayed the meeting entirely. The mediator bought it, hook, line and sinker, and then said that our case was closed because of this development and we wouldn't get any further.
     So, we had to "trust."
     We had to trust the smoking lady would not smoke in her unit or the building, and that the council would initiate inspection and repairs.
     We did have about three days smoke free. It was heaven.
     When we visited our real estate lawyer, we got into a discussion about the
smoking story of our condo. He just couldn't believe it, it was all so fantastic, but thought that we had done extremely well in our quest so far. The fact that the strata did something, which can be little more than breathing, means that we got their attention and that counts. How do you sell a condo entangled in litigation? Realtor’s unite for smoke-free housing – RUSH!
     Another lawyer advised that the smoker's contract is enforceable in law,
something we thought it would not be.  He stated, also, by just agreeing to do
the repairs, the strata has admitted that they have a duty to act.  This is key to the case, according to him.  He feels that cases like this reinforce the idea that the whole strata corporation has a duty to manage and prevent nuisances/hazards within the strata complex. 
     The legal opinion is that the smoker lady and the strata council have pretty well admitted that they did not do enough. He thinks we have done a great job of representing ourselves so far, but BCHRT could go no further. 
The smoking lady started up again, big-time, complete with pot-smoking
boyfriend. The elevators reek of smoke and booze.  To be fair, it is less in our
suite than before, but we still can't open our windows and others around us are getting the full brunt of her smoke, particularly at night.  These people expect that our settlement should help them. We have had to tell them that they will have to stand up for themselves, as BCHRT made it clear that this was only between us, the smoker, and council.
As far as confidentiality goes, about three days after the meeting, an
acquaintance who used to live in the building, who moved out into a house,
contacted me. She related how she was at the bedside of one of our neighbors
before he passed away. Who came into the hospice room but a former
neighbor.  While at the hospice, this lady told her the entire details of our settlement meeting! It was surprisingly correct, although she neglected to mention the declaration of the smoker.
     Where did she get this information?  It seems the former council president told  his wife, who told a group at the pool in our building, and this lady passed it on at the hospice, while a former neighbor lay dying.  The neighbor passed it on to me, as she said that she felt a serious breach of privacy and confidentiality had just taken place, and she wanted me to know.
At the hospice, the lady revealed the council had no intention of following up on their agreement. They signed it just to "shut us up" and make our complaints go away.
Well, the contract's broken.
To recoup our financial losses, we must go to BC Supreme Court, and file against the smoker lady, and put a lien on her apartment until she pays.
To enforce the Human Rights complaint contract, we must go back to the Human Rights Tribunal.
     The mediator said we had become bitter over this, and maybe it's true. I hope not. No one wants to become bitter. I wonder if she said the same thing to the council?
     The mediator said we should move on with our lives. I wonder what we could have done differently? I recognize the placating GOWYL, "get on with your life."  I wonder what that actually means in the face of health and financial implications?
     In hindsight, we should have just put the unit back on the market immediately,  but that thought never entered our minds then.
I can't believe that there are such unreliable and evil people out there.  And
these people are older, in their late 70's and 80's!  How did these people get
through their former lives acting like this?
     So here we are, at the same place where we started.  What a full circle, eh?  This whole thing has been very hard on our marriage, our lives, our health, our  finances.  And it seems our neighbors, despite signing "contracts", have no
intention of keeping their word. 
     You know, I couldn't make this stuff up.  If someone told me this stuff, I would think that they needed serious psychiatric help.
     My name is Alice. 

Send your personal plea to:

http://www.christyclark.ca/premier/

Minister of Health Michael de Jong  mike.dejong.mla@leg.bc.ca

Minister of Public Safety Shirley Bond   housing.policy@gov.bc.ca

Rich Coleman Minister Responsible for Housing  rich.coleman.mla@leg.bc.ca

BC's Healthy Living Alliance, Mary Collins;   mcollins@bchealthyliving.ca

Smoke-free Housing BC,  info@smokefreehousingbc.ca

and
Canadian PUSH for Smoke-free Housing, Rose Marie   socionik@yahoo.ca