Smoking ban challenged as discriminatory
A Penticton woman who says a strata bylaw forbidding from smoking on her patio is discriminatory will have her case heard by the B.C. Human Rights Tribunal.
Tribunal member Norman Trerise threw out an application from Strata Plan KAS 3558 to dismiss the case, ruling that Gisele Dandurand’s complaint has a reasonable prospect of success.
The complaint asserts that banning smoking from patios in the complex is discriminatory because Dandurand suffers from multiple psychiatric conditions — including post-traumatic stress disorder, depression, a sleep disorder, anxiety and panic attacks — that render her unable to leave her apartment for several days at a time.
The claim is supported by a submission from her psychiatrist, Alexander McIntyre, who writes that it would be “detrimental” to Dandurand’s health if she is forced to leave her apartment to smoke.
“Smoking is a coping mechanism for her mental health and asking her to change this habit will have painful consequences,” wrote McIntyre, adding that most pharmacological smoking cessation products could lead to a worsening of anxiety and depression.
Smoking was permitted on patios when Dandurand moved into the building in 2012, but the bylaw was enacted in December 2014, with the strata refusing her request for an exemption.
The strata’s response included submissions from residents of two other units that were concerned about the smell and adverse health effects of second-hand smoke potentially entering their apartments. The strata also asserted that passing the bylaw represented a “majority will” of owners to make the complex smoke-free.
However, Trerise ruled that a majority vote in favour of the bylaw is moot if the rules infringe on B.C.’s Human Rights Code, and that not enough evidence existed showing her smoking would have an adverse effect on other tenants.
“Further, there is no information respecting what, if any, efforts were made by the strata to consider whether it was possible to accommodate Ms. Dandurand’s request (for a bylaw exemption) without exposing other members of the strata to the ill effects of secondhand smoke,” wrote Trerise.