BC HUMAN RIGHTS TRIBUNAL hears first case on SHS in MUDs Monday April 2 – Wednesday April 4, 2012

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

Welcome to the second generation of Tobacco Wars!

In Quebec, the ongoing trial against Corporate Tobacco represents 90,000 victims of lung, larynx, throat cancer, and emphysema caused by cigarettes, and approximately 1.8 smokers dependent on the nicotine contained in cigarettes.

http://www.cqts.qc.ca/recours/en/

http://tobaccotrial.blogspot.ca/2012_03_01_archive.html

In Vancouver, the Human Rights hearing begins Monday, April 2, 2012 at 9:30 AM between Metro One Strata (LMS1657 at 20245-53 Ave, Langley City, BC) represented by Shawn Smith, and Matthew/MelanieMcDaniel who represent themselves.

The Strata, of course, filed for a dismissal.

On February 29, 2012, the Human Rights Tribunal decided to dismiss the claim against NAI Goddard & Smith Realty Services, but not to dismiss the claim against the Strata.

As Tribunal decisions do, the focus is on standard questions around whether the complaint furthers the purpose of the Code, and whether the complaint benefits the complainant. Is pursuing the complaint to a hearing worthwhile for the complainant? Does it contribute to advancement of human rights?

The Tribunal decided if the McDaniels are successful, they would be entitled to seek a remedy under s 37 (2) of the Code to redress the effects of the discrimination, including an award for injury to dignity. The McDaniels could benefit, and the Tribunal dismissed the Strata's application to dismiss.

The Tribunal assessed the McDaniels' complaint based on the “reasonable prospect the complaint will succeed [or not],” and therefore benefit the advancement of Human Rights.

In their fact finding, the Tribunal concluded there was insufficient material to declare that the McDaniel complaint wouldn't succeed against the Strata. This was decided, in part, based on the fact the McDaniels' provided sufficient health related information to the Strata council, to invoke the duty to inquire, which was never made by the Strata.

The hearing goes forward : Monday April 2 – Wednesday, April 4, 2012 at BC Human Rights Tribunal offices, 1170 - 650 Robson at 9:30 AM

Read the BC Human Rights Tribunal Decision

http://www.bchrt.bc.ca/decisions/2012/pdf/feb/42_McDaniel_v_Strata_Plan_LMS_1657_and_others_2012_BCHRT_42.pdf

Yukon, North of Ordinary™, trumps Naturally, Beautiful BC, A Better Place To Be – again.

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

Recall, back in January 2012, I reported how Yukon Housing Corporation became smoke-free.

http://canadianpushforsmokefreehousing.blogspot.com/2012_01_01_archive.htm

Initially, Yukon Housing Corporation announced intended smoke-free housing policy changes to all of its tenants on May 13, 2011, with a grace period to January 1, 2012.

On March 13, 2012, Ashley Joannou reported in the Whitehorse Star the outcome of Sider versus Yukon Housing Corporation. http://www.whitehorsestar.com/archive/story/yhc-successfully-butts-out-lawsuit/

Alan Sider, a tenant of Yukon Housing Corporation, filed his complaint stating that

1. the landlord’s non-smoking policy is unenforceable as regards to him because he has an existing Tenancy Agreement with no provision in the original rental agreement with respect to smoking. Section 17 provides that any changes to the Agreement must be agreed to by both parties, and Sider had not agreed to the no smoking policy,
   
   
2. this no smoking policy is contrary to the Charter of Rights and Freedoms, R.S.C. 1985,
   
   
3. and that the no smoking policy interferes with his normal use of the rented premises.

Judge Faulkner dismissed Sider's application finding that

http://www.canlii.org/en/yk/yktc/doc/2012/2012yktc18/2012yktc18.pdf

1. clause 6(m) of the Agreement clearly authorizes the landlord and gives him the right under the Agreement to make regulations regarding the safety, care and cleanliness of the premises and the tenants. Smoking inside of the unit affects safety, affects the care, affects cleanliness, and it affects other tenants. Therefore, the landlord is perfectly within its rights under clause 6 (m) to make the regulation in question.
   
   
2. Smoking is not a right protected by the Canadian Charter of Rights and Freedoms nor does the Charter provide, as Mr. Sider suggests, that the law cannot be changed to restrict smoking if no such law existed at the time the Charter came into effect. That is simply not a correct interpretation of the Charter and, if one needs any proof, one can look at the fact that subsequent to the Charter coming into effect, a substantial body of statute law has been passed relating to the restricting of smoking, for example, in or near public buildings.
   
   
3. With respect to the normal usage of the rented premises, Mr. Sider
   may view it as an interference, but it is not the law that normal usage of rented premises necessarily includes the right to smoke therein, and restricting of smoking does not make the tenant, as Mr. Sider claims, somehow the property of the landlord.

BC HUMAN RIGHTS TRIBUNAL Decides Crescent Housing Society's Application To Dismiss Lacking in Substance, Concreteness, and Good Faith (Another Debacle)

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

On March 12, 2008, in an open and public tenant forum at Crescent Housing Society, tenants presented formally for the first time the problems of secondhand smoke to board and management, which eventually lead to the Human Rights Complaint when these complaints were trivialized and dismissed. 

On March 12, 2012, the BC Human Rights Tribunal published their decision on Crescent Housing Society's application to dismiss - forever linking the two dates together.  

On March 12, 2012, the BC Human Rights Tribunal issued their long awaited, almost a year long wait, decision on Crescent Housing's Society application to dismiss the human rights complaint.

In addition, the Quebec trials against Corporate Tobacco began March 12, 2012.  The US Surgeon General released their 2012 report on eliminating the use of tobacco.  A global conference on tobacco control begins.  Robert Proctor published  "Golden Holocaust" from the files disclosed through legal proceedings against tobacco corporations.  Buzz and Hummmmmm!

In my evaluation of the Tribunal's words, we the complainants, were provided direction and vindication in confronting, what is basically, umbrage and ignorance.  We, now, wait and see, to what extent Crescent Housing Society will follow the Tribunal's direction.

March 31, 2009, the Human Rights Tribunal proceeded with the first early settlement meeting. At that meeting, Crescent Housing Society pronounced their position on that matter, that the venue was not correct, nor were they the proper respondents. When asked to participate in a problem-solving process with good faith, they failed to do so, and the mediator sent Crescent Housing Society home.

I think daily of the kind of designated smoking area and gazebo $26,000 would have created.

In August 2010, we the complainants, had been coerced into giving up our hearing dates for a second settlement meeting. In that meeting, Crescent Housing Society's lawyer, played a leadership role in drafting up an agreement, which then her clients didn't sign, but one where, we the complainants, were satisfied with. We went home happy.

Subsequently, Crescent Housing resurrected settlement proposals which had already been rejected, and which we rejected again and again and again. Each time Crescent Housing Society produced the same settlement proposal, it was tied to their issuing an application for dismissal. 

“Do it, already.” “Stop stalling.” summed up our response.

In 2011, Crescent Housing Society applied for a dismissal of the human rights complaint based on the fact that, we the complaints, had rejected a reasonable settlement proposal.

The Tribunal's task: determine whether Crescent Housing Society's resurrected and revised proposal was reasonable.  In deciding this application to dismiss, the allegations in the complaints must be taken as proven.

The Tribunal denied Crescent Housing Society's application to dismiss without a hearing, as it considered Crescent Housing Society's settlement proposal to be unreasonable.

Crescent Housing Society's settlement proposal failed to contain the following essential components:

1. No Admission of liability
   In this case, the Tribunal Member considered that Crescent Housing Society's failure, in their settlement offer, to admit any liability, is a factor which militates in favour of its being considered unreasonable.

2. Compensation within a reasonable range

The settlement offer includes no compensation for injury to dignity, feelings, and self-respect, which is also among the remedies sought by the complainants, provided for in the Code, and consistent with its purpose of providing redress for those who suffer discrimination.

The Tribunal found that the respondents' claims that “compensation is not likely to be awarded in the circumstances,” alongside “evidence that the Society would face undue hardship,” were not born out in the financial statements.

[The Tribunal Member seems to have missed the paragraph in the financial statement informing that fees and awards from these legal cases are covered by insurance, and don't affect the financial statement.] 

The Tribunal Member considered the complete absence of any reference in the settlement offer to monetary compensation to be an additional factor which militates in favor of its being considered unreasonable.

3.  Remedial Steps

The Tribunal Member found that the remedial steps contained in the settlement offer are limited, sometimes indefinite or vague, and largely in the discretion of the respondents. On their face, they lack the certainty of any remedies the Tribunal would likely award if the complaints were successful. When the Tribunal determines that a complaint is justified, and that remedies are appropriate, its remedial orders must be definite, clear, and enforceable. To the extent that the remedial steps in the settlement proposal lack these attributes, the proposal is not reasonable.

4.  Offer remains open 

The respondents confirm that their offer will remain open for acceptance even if the application to dismiss is granted. This is a factor, and in my view the only factor, militating in favour of finding the respondents’ settlement offer to be reasonable.

Conclusion on reasonableness of the settlement offer

The Tribunal Member ruled that the Crescent Housing Society's settlement proposal is not reasonable.

The Tribunal will convene a pre-hearing conference to set hearing dates and deal with other pre-hearing matters.

Decision

Crescent Housing Society's application to dismiss the complaint without a hearing is denied.

http://www.bchrt.bc.ca/decisions/2012/pdf/march/69_Borutski_and_others_v_Crescent_Housing_Society_and_another_No_2_2012_BCHRT_69.pdf