Accommodating Second-Hand Smoke in Strata: Balancing Competing Parties’ InterestsLeary v. Strata Plan VR1001, 2016 BCHRT 139 (CanLII)
Leary v Strata Plan VR1001, 2016 BCHRT 139 (“Leary”) focused on the responsibilities of a strata corporation to accommodate individuals with disabilities causing them to be particularly averse to second-hand smoke. Tobacco smoking rates have steadily declined in Canada and the majority of strata in British Columbia are now smoke-free. However, the recent legalization of recreational cannabis may lead to an increase in second-hand smoke related strata litigation. Strata corporations may be forced to accommodate an increasing number of individuals suffering from disabilities that make them averse to second-hand cannabis smoke.
The Strata Property Act (the “Act”) gives strata corporations the power to pass bylaws governing the use and enjoyment of strata lots, but those bylaws are enforceable only to the extent that they do not contravene the Human Rights Code (the “Code”). The Act also contains Standard Bylaws and imposes a statutory duty on strata councils to enforce the Standard Bylaws if they do not create their own bylaws. The Standard Bylaws prohibit owners from “unreasonably interfering with the rights of other persons to use and enjoy the common property, common assets, or another strata lot”. Almost all strata corporations have a nuisance by-law. Thus, strata corporations appear to have a statutory obligation to remedy unreasonable interference from second-hand smoke ingress. In Leary, the BCHRT created a set of guidelines to inform strata corporations in their handling of requests to accommodate a disability because of second-hand smoke. Conversely, cases such as The Owners, Strata Plan LMS 2900 v. Matthew Hardy (“Hardy”) have examined whether a strata corporation’s bylaw prohibiting the smoking of cannabis unfairly discriminated against an owner with a disability requiring medical cannabis as treatment.  In this article I examine strata corporations’ duties with regards to medical cannabis accommodation and second-hand smoke related accommodation. I also consider a scenario that requires a balancing of the rights of those who smoke cannabis for medical purposes, with those who— for medical reasons— cannot abide second-hand smoke. A condominium complex in Mississauga, Ontario encountered this exact scenario, and the BCHRT recently decided a similar tobacco smoke-related case.
Medical Cannabis Accommodation: The Owners, Strata Plan LMS 2900 v. Matthew Hardy
In Hardy, the CRT examined whether a strata bylaw prohibiting the smoking of cannabis unfairly discriminated against an owner with a disability requiring medical cannabis as treatment. The tribunal declined to strike down the strata corporation’s right to prohibit smoking within the development, and instead focused on the fact that the individual who had been smoking cannabis for medical purposes could have ingested the cannabis instead, a practice that the SCC declared legal in R. v. Smith (“Smith”). In Hardy, the CRT treated the ingestion of cannabis as an equivalent alternative to smoking cannabis and upheld the bylaw that prohibited the owner from smoking medical cannabis on strata property. However, in practice the effects from ingesting cannabis can vary substantially from the effects of smoking cannabis. Smith established that forcing a person to choose between a legal but inadequate treatment and an illegal but more effective treatment violates section 7 of the Charter of Rights and Freedoms. Hardy leaves space for an argument that if a strata member were to establish that smoking cannabis is a more effective medical treatment for them than ingesting cannabis, then the strata corporation would need to accommodate smoking cannabis.
Second-Hand Smoke Accommodation: Leary v. Strata Plan VR1001
Ms. Leary complained to the BCHRT that her strata corporation discriminated against her and violated section 8 of the Code by failing to accommodate her disability. Ms. Leary claimed that her disability made her particularly susceptible to second-hand smoke and argued that the strata corporation had not acted on her complaints about second-hand smoke from a neighbouring apartment. The strata corporation took the position that Ms. Leary had no credibility because of her frequent and exaggerated complaints. Over the course of approximately three years, the strata corporation made numerous responses to Ms. Leary’s complaints, but also ignored her in many instances. To establish a prima facie case of discrimination, Ms. Leary had to meet the test outlined in Moore v. British Columbia (Education) and show that she had a disability, had suffered an adverse impact in relation to the strata corporation’s provision of service, and her disability was a factor in the adverse impact suffered. Based on the medical evidence submitted by Ms. Leary and her description of her experiences with second-hand smoke, the tribunal found that Ms. Leary had a disability that made her particularly susceptible to harm from second-hand smoke. While living in her strata unit, Ms. Leary suffered a number of adverse effects from second-hand smoke including: being unable to sleep, seeking refuge in her car, and buying fans in an attempt to improve the situation. Based on the doctor’s note provided by Ms. Leary, the tribunal concluded that Ms. Leary’s exposure to second-hand smoke caused the adverse effects outlined above. Ms. Leary had established a prima facie case of discrimination and thus the onus shifted to the strata corporation to justify its actions.
To justify its actions, the strata corporation had to establish that it had accommodated the complainant up to the point of undue hardship. During the course of the complaints, the strata corporation attempted to amend its bylaws to make the building non-smoking, but that amendment failed to pass the required ¾ vote threshold. Beyond the attempted amendment, the strata made few attempts to address Ms. Leary’s concerns or to assess the seriousness of the problem. Eventually the strata corporation had a volunteer confirm that smoke was entering Ms. Leary’s apartment, but they were unable to suggest possible solutions. Ms. Leary was not accommodated in any other way. The tribunal concluded that Ms. Leary experienced an adverse impact related to her disability due to second-hand smoke in her suite. This impact was long-standing and supported by medical evidence since at least 2014. The strata did not properly inquire into the extent and severity of the adverse impacts, nor did it determine what was required to accommodate Ms. Leary’s disability and whether it would amount to undue hardship. The tribunal sustained Ms. Leary’s complaint, determined that the strata corporation had violated section 8 of the Code and made orders to return the parties to the position they would have been in had there been no violation of the Code.
The Tribunal in Leary set out guidelines for how a strata should address requests to accommodate second-hand smoke. This accommodation process is one of shared responsibility, wherein the individual seeking accommodation and the strata council both have a number of obligations. The individual seeking accommodation must:
- Advise the strata of their disability–including providing the strata with medical information; and
- Cooperate with the strata to discuss reasonable solutions.
The Strata council must:
- Address accommodation requests promptly;
- Gather enough information to understand the nature and extent of accommodation required;
- Restrict access to the individual’s provided medical records to only those involved in the accommodation process;
- Obtain expert opinion where needed;
- Take a lead role in investigating possible solutions;
- Recognize that the strata cannot contract out of the Human Rights Code via its bylaws; and
- Ensure that the accommodation issue is approached with respect.
In summary, the strata council must do its best to assess whether it can implement an appropriate accommodation solution. The individual seeking accommodation is not entitled to perfect accommodation, but rather to reasonable accommodation.
As illustrated in Leary, strata corporations have a duty to accommodate owners with disabilities that cause them to be adversely affected by second-hand smoke. Hardy suggests that strata corporations may also have a duty to accommodate owners with disabilities requiring the smoking of medical cannabis as treatment. Where strata owners have conflicting cannabis accommodation needs, the strata corporation can attempt to proceed on the basis that ingesting cannabis is a suitable alternative to smoking cannabis. The Mississauga strata corporation that encountered this issue is currently examining a variety of accommodation solutions, including whether medical marijuana users are able to use alternatives to smoked-cannabis.  However, if a medical cannabis user can establish that edible cannabis is not an appropriate treatment for their needs, accommodation for smoking cannabis may be required. Conflicting accommodation requirements may result in scenarios where accommodation solutions are impossible without undue hardship. As stated by the tribunal in Leary, “In some circumstances, a solution may not be possible without the strata suffering an undue hardship. In that case, the strata council should document the hardship and test its conclusion to ensure there is no other possible solution.” When faced with conflicting accommodation responsibilities, strata corporations may be forced to engage in extensive problem solving and testing to fulfill their accommodation obligations. If no solution is forthcoming, strata corporations may be able to proceed on the basis that— as stated in Bowker with-regards to tobacco smoke— an individual requiring the smoking of medical cannabis can go outside of their unit to smoke, whereas a person with a smoke sensitive disability cannot be expected to go outside to safely breath.
 Leary v. Strata Plan VR1001, 2016 BCHRT 139 (“Leary”).
 The Canadian Press, “Canada’s Smoking Rate Falls Slightly” (2017), Canadian Broadcasting Corporation. Online: <https://www.cbc.ca/news/health/canada-s-smoking-rate-falls-slightly-1.4036492>
 Strata Property Act, SBC 1998, c 43, s 119(2).
 Human Rights Code, RSBC 1996, c 210 (the "Code").
 Strata Property Act, supra note 4, s 26.
 Strata Property Act, SBC 1998, c 43, Schedule of Standard Bylaws, s 3(1) [“Standard Bylaws”].
 The Owners, Strata Plan LMS 2900 v. Mathew Hardy, 2016 BCCRT 1 (“Hardy”).
 The Canadian Press, “Woman's deadly cannabis allergy highlights complexity of condo living” (2018), Canadian Broadcasting Corporation. Online: <https://www.cbc.ca/news/canada/toronto/deadly-allergy-cannabis-condo-1.4830526>
 Bowker v. Strata Plan NWS 2539, 2019 BCHRT 43 (“Bowker”).
 Hardy, supra note 8.
 Ibid at para 49.
 R. v. Smith, 2015 SCC 34,  2 S.C.R. 602. (“Smith”)
 Hardy, supra note 8 at para 56.
 Barrus DG, Capogrossi KL, Cates SC, et al. “Tasty THC: Promises and Challenges of Cannabis Edibles”. Methods Rep RTI Press. 2016 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5260817/>
 Smith, supra note 7.
 Human Rights Code, supra note 5.
 Leary, supra note 1 at para 26.
 Moore v. British Columbia (Education),  3 SCR 360, 2012 SCC 61, para 33.
 Leary, supra note 1 at para 46.
 Ibid at para 54.
 Ibid at para 63.
 Ibid at para 68.
 Ibid at para 69.
 Ibid at para 68.
 The Canadian Press, supra note 9.
 Leary, supra note 1 at para 69.
 Bowker, supra note 10 at para 63.