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
“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.