TRIBUNAL GRANTS COMPLAINANTS' APPLICATION TO AMEND THEIR COMPLAINT, AND CLARIFIES ISSUE OF ADDING TO ORIGINAL COMPLAINT

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

The Westbrooks, another case involving secondhand smoke, scheduled for hearing in November 2012, received the Tribunal's decision today on the matter of adding subsequent events of discrimination to the original complaint.

The Westbrooks filed documents to “update relevant information on the original complaint”, and to “add ...details of the alleged discrimination”.

The decision states,

“Though a complainant may normally amend a complaint without application up until two months before a hearing, when there is an outstanding application to dismiss, Rule 25(4)(b) of the Tribunal’s Rules of Practice and Procedure require an application, so that the complainant does not improperly present the respondent with a “moving target”: Pausch v. School District No. 34 and others, 2008 BCHRT 154, paras. 20-31.”

“To the extent that the Westbrooks’ application deals with the continuing impact on them of the alleged discrimination, including their decision to move, I do not think an amendment is necessary. Parties routinely lead evidence of impact up to the point of hearing, without any requirement to amend the complaint. I remind them both that they have a continuing obligation under the Rules to make timely disclosure of documents

which may be relevant to the complaint, including the impact of the alleged

discrimination.”

“The complainants' application to amend their complaint is granted, in part.”

On July 2, 2010, the Westbrooks filed their Human Rights complaint, after exhausting attempts with the smoker, and the Strata Council, including a June 2010 special general meeting seeking a by-law prohibiting smoking in individual units.

In March 2011, they participated in mediation, and entered into a settlement agreement.

The Westbrooks filed further information with the Tribunal outlining that the settlement agreement had not been adhered to or carried out by the smoker or the Strata Council.

In October 2011, the Westbrooks sold their Strata.

In November 2011, the Strata Council filed for dismissal. The Strata contends,

• its bylaws do not prevent residents from smoking inside their units.
• it had “no authority to enforce anything other than the provision of sealing material around pipes,
• vents and ducts”.
• it “does not have the control to see that the Complainants live in a smoke-free environment.”
• it says that, “given the owners’ failure to pass the proposed by-law amendment, it would have been an arbitrary infringement on the rights of smokers for [the Strata] to undertake any further action.”

The Westbrooks await the Tribunal's decision on the Strata's application to dismiss, and the hearing scheduled for November 2012. 

 https://docs.google.com/file/d/0B79Yz_e6a6XNaTY2UFplTzFxdzQ/edit 

Trials Against Big Tobacco Reveal Internal Documents Stating Lethal Hazard Of Smoking And Environmental Tobacco Smoke

UPCOMING HEARINGS and Stratas/Boards Defense Challenging The Impact Of Secondhand Smoke, mouthing “just doesn't like smoke.”

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

A “strictly personal and confidential” memo dated March 19, 1987, from then Imperial Tobacco's president, Jean-Louis Mercier, concluded,

“Smoking is a serious health hazard; it is an accepted fact and there is no longer any possibility of refutation. Governments are convinced, smokers concede, non-smokers are up in arms, shareholders and employees are bewildered.” and

“As the smoking and health issue wore thin over the past thirty years, anti-smoking forces cleverly re-directed their focus from 'smoking will give you cancer' to the appeal to the intellect with 'smoking is not a sophisticated or smart thing to do.' To question the smoker's judgment and good taste has touched a very raw nerve.” and

“In Canada, it can be shown that over 60% of people who do not smoke, do so 'because it annoys others'!” and

“The tobacco industry enjoys very little public or governmental confidence and unless steps are taken to regain this (to whatever extent possible at this late stage), we will continue to stumble along, a sunset industry, heading for a smokeless society.”

During the course of the government trials against Corporate Tobacco, first in the United States, United Kingdom, and now in Canada's Quebec, documents acquired in the discovery phases revealed how the tobacco industry engineered cigarettes to be slow killing sticks, and industry corruption. These documents now number >70 million at the internet Legacy Tobacco Documents Library, accessible to everyone.  Much  of what we now know about the operations of Big Tobacco and hazards of tobacco comes from documents released through litigation, and efforts of whistleblowers Jeff Wigand, Merrell Williams, and Victor DeNoble.  

Here in British Columbia, the BC Human Rights Tribunal received several claims against stratas and boards. Recent activity consists of the McDaniels hearing from April 2, 2012, who are waiting for a published decision.

The next hearing is in Victoria BC, involving B and Parklane Mews Strata Council, on July 17-18, 2012.

Our own hearing (Borutski  et al and Crescent Housing Society) is scheduled for Oct 1-12, 2012 in Vancouver BC.

A fourth hearing in Victoria BC, involving Westbrooks and Clarence House, is scheduled for Nov 27-30 2012.

A fifth hearing, in Vancouver, is awaiting hearing dates.

The Human Rights hearings here in BC exist as a microcosm of the trials against tobacco. The current Quebec trials provide the macro level drama adding to the >70 million pages. The paper trail of the BC Human Rights hearings numbers in the thousands, instead of millions.

Characterizing secondhand smoke as an 'annoyance' and 'nuisance' was Corporate Tobacco's marketing to quell the unrest of non-smokers, without ever realizing that, in fact, this was legally actionable.

Stratas and boards understand that exercising their authority means shifting the burden onto non-smokers, those whiners and complainers.  Saying that a complainant, "just doesn't like smoke" really amounts to mean-spirited dismissive, deflecting, demeaning cheap shot, a jab meant to elicit emotional reaction to disrupt the attention on the strata/boards responsibility.

Big Tobacco already proved lethal hazard of cigarettes and secondhand smoke with their own research, and conceded publicly that this is so. Stratas and boards using the 'prove secondhand smoke is a hazard to your health' defense, screams embarrassment at their judgment, governance, and financial acumen.

Absurd and inane: Shakespeare would have loved it, and no doubt penned a cryptic play highlighting the ludicrous.

Drewlo Holdings Building More Smoke-free Apartment Buildings

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

Build Smoke-free Apartments, People Will Come

• Do you long to live in a smoke-free building?

Remember the movie, Field of Dreams?  Build it and they will come?

An article in the Kitchener-Waterloo RECORD, today,  by Dianne Wood, reports on the newest developments for smoke-free housing.

Drewlo Holdings built southern Ontario's first non-smoking building in London, ON.  Then, Burlington.  Now, Kitchener.

Because provinces refuse to provide legislation and enforcement, landlords realize they must make their own decisions, and realize that there is a market for renting, and for renting to non-smokers.

http://www.therecord.com/news/local/article/710063--smoke-free-apartment-will-be-first-for-kitchener

NSRA's rebuttal of Harper's Gut of Federal Tobacco Control Program

Why would the Harper Government gut a program that saves the government money, that saves the lives of Canadians, and that safeguards the health and well-being of young Canadians?

The Federal Tobacco Control Strategy was arguably the most successful health initiative ever undertaken by the federal government—in terms of lives saved, disease prevented, improvements to quality of life, health care cost savings, and cost-effectiveness. Smoking rates among Canadians age 15+ dropped from 24% to 17% between 2000 and 2010, representing 1.1 million fewer smokers and more than half a million averted tobacco-caused deaths. Rates of tobacco use among youth were cut in half during the life of the strategy, a feat achieved by few other countries. An analysis commissioned by Health Canada concluded that one person quitting smoking results in an average savings of $8,500 in avoided health care costs. This means that the federal government’s investment of $500 million over the ten years of the Strategy is expected to yield savings of $9.6 billion in direct health care expenditures alone—close to a 20-fold return on investment.


http://www.nsra-adnf.ca/cms/index.cfm?group_id=2217

Strata concedes failure to accommodate McDaniels

"They could have done more, but that they always acted in good faith," acknowledges Metro One strata lawyer Shawn Smith on behalf of his clients.

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


The Nuisance clause in the Metro One Strata Act was not activated properly, nor enforced, despite the fact secondhand smoke from tobacco and marijuana were the number one complaints at the strata. The strata passed a by-law relating to secondhand marijuana smoke to make the Nuisance clause clear, but believed they were prohibited from doing so in the case of tobacco smoke.

The hearing lasted less than one day.  Lawyer, Shawn Smith and the McDaniels agreed on the list of documents and exhibits, and eliminated what would have been a lengthy process of examination evidence during the hearing.

I noted that the Strata were not forthcoming in presenting documents that showed the scope of the problem in the strata, and the number and kind of letters of complaint they received. Full disclosure did not happen.

As a result, this leaves the judge to write up a decision on the extent of failure to accommodate, and weigh this with the binder of facts to issue an award on injury to dignity (not to be confused with the word 'fine').

Even without the judges decision, which will take more than a couple of months before being published, the acknowledgement to the McDaniels of failure to accommodate brought about relief and closure to an almost four year ordeal.  Their efforts help clear a tangled and gnarly path, and their story as documented in the evidence presented shows the tangled and gnarly path. The McDaniels appeared to have achieved what they set out to do: that it doesn't happen to other people.

The procedure followed in the hearing remains an essential component to take note of.  The McDaniels kept clear, organized, and journalized documents, and these were transformed into numbered documents, which were then reviewed chronologically.  That these documents were reviewed by the parties before the hearing, and a list of documents with exhibits agreed to, facilitated how smoothly the morning progressed.

Shawn Smith spoke to mitigating the damage of his clients, the Strata, and the McDaniels responded where they disagreed, or highlighted from the documents that this wasn't exactly so.

Of significance, the judge noted three times during the brief hearing expressing his gratitude, that despite the emotions the complaint raises, the parties proceeded to explain their respective points of importance in a civilized tone.  Two dozen Roses to the judge.

Rotten Tomatoes to Shawn Smith, who could have presented his case without saying three times that the McDaniels "didn't like smoke" because there was "scant medical evidence" of any physical harm, not overwhelming evidence of any ill effects.  This trivialized the medical evidence that existed, and it showed the medical evidence may not have been recognized or understood.

Hugs to Melanie McDaniels who sobbed, "this was our home. We wanted to be in good standing with our neighbors." She expressed the kind of dread they experienced when out for a walk with their dog and child, and coming back to the complex. 

The McDaniels bought the strata lot in Langley when Melanie was 6 months pregnant in 2008.  When they realized that they were not going to achieve a by-law change, and their only and best option was to move, they applied to their strata council to rent their unit. This was declined.  As a result, they left their 'home' and moved, and left the strata lot to foreclosure.  They reasoned they are young and will recover.