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BC Human Rights Tribunal


BC arthritis sufferer files complaint against strata over air conditioner
Stratas (condos) are not in the business of “policing conduct” between residents
Leaky condo results in mould in unit


Arthritis sufferer files complaint against strata
The North Shore News
Jane Seyd
21 December 2017

A woman who lives in The Manor at Edgemont has filed a human rights complaint against her strata council, saying it discriminated against her on the basis of disability.     photo Kevin Hill, North Shore News

A North Vancouver woman has filed a human rights complaint against her Edgemont strata council, saying the council discriminated against her by not allowing her to install a central air conditioner in her townhouse to help with her arthritis symptoms.

Marianne Macario told the human rights tribunal that she suffers from rheumatoid arthritis, which is aggravated by warm temperatures, which cause her joints to swell.

Macario requested permission to install an air conditioning system in her unit in June 2016, but the strata council refused, according documents filed with the tribunal. In doing so, Macario said the strata discriminated against her on the basis of a disability.

According to tribunal documents, Macario lives in a two-floor duplex-style apartment in a 44-unit building in Edgemont. “She is a teacher, and so during the summers, when temperatures are hottest, she is at home,” according to the documents. During the summer of 2015, temperatures soared inside her home to between 28 and 32 degrees Celsius, causing her a “nightmare of pain and depression,” according to documents filed with the tribunal.

Macario put a portable air conditioning unit in her bedroom window, but soon got a letter from the president of the strata, asking her to remove the hose from the unit so it couldn’t be seen from the street. Potential noise and esthetic concerns were both factors in the request to remove the unit.

After that, Macario researched permanent air conditioning systems that might work in her apartment. She settled on a $20,000 unit, which she believed to be quiet and unobtrusive and in 2016 asked the strata for permission to install it.

Meanwhile, two strata council members attended a demonstration for a similar unit, and voiced a number of concerns about it. Among those: that the system would be noisy, would emit a significant amount of hot air, was ugly, could create vibration and could cause moisture build up in common areas of the building.

At the strata’s annual general meeting, held after that, Macario presented a doctor’s note about her arthritis. But the resolution was defeated.

In rejecting Macario’s request, the strata encouraged her to pursue other methods of cooling her apartment, including ceiling fans and blinds.

But Macario told the human rights tribunal she had either tried the other methods and found they didn’t work, or they were impractical.

For instance, she wrote that she previously had a ceiling fan over her bed “but it simply blew warm air on her and did not decrease the room temperature.”

She added she would need five portable units to cool her home which would block her view, take up a lot of space in small rooms and not be energy efficient.

Macario filed a complaint with the human rights tribunal on July 29, 2016.

The strata council argued that allowing Macario to install a permanent system would create undue hardship to the strata, including creating noise levels higher than those permitted by municipal bylaws, risking damaging the building envelope and negatively impacting the building’s appearance.

The strata asked the tribunal for an early dismissal of Macario’s complaint, arguing her objection to using portable units was based on “convenience rather than their effectiveness.”

But tribunal member Devyn Cousineau recently rejected that, stating the case should proceed to a full hearing on the evidence.

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Finnamore v. Strata Plan NW 3153
2018 BCHRT 26
British Columbia Human Rights Tribunal
File: 15766
Tribunal Member: Barbara Korenkiewicz
Date issued: 02 February 2018

Introduction
Mr. Finnamore complains against The Owners, Strata Plan NW 3153 [Strata] alleging discrimination in the provision of a service customarily available to the public, based on sex and sexual orientation. The Strata denies discriminating and applies to dismiss the complaint.

Mr. Finnamore owns and resides in a unit at the Strata (condo). On October 16, 2016. Mr. Finnamore says that, as he was driving out of the Strata’s parkade, a fellow resident who was sawing some wood in the Strata’s driveway yelled out, “Is that enough room for you princess?” Mr. Finnamore says the incident escalated after he exited his vehicle and approached the resident. Mr. Finnamore says the resident launched into a tirade during which he directed homophobic slurs at him. He further says that the resident also asked Mr. Finnamore why he does not just move out and make everyone happy as everyone at the Strata hates him.

Mr. Finnamore notified the Strata Council (board of directors) about the incident describing it as harassment. He asked the Council to censure his fellow resident and to declare that it does not condone violations of the Human Rights Code. Mr. Finnamore says that the Strata’s failure to address his harassment complaint concerning his fellow resident’s homophobic conduct is discrimination.

The Strata says that unless a specific Strata bylaw violation is alleged, policing the behaviour of strata residents towards one another is not one of the services offered by a strata corporation.

The Strata says that when it received Mr. Finnamore’s email regarding this incident, it notified him that it would be dealing with the matter as a bylaw violation complaint. It says it did so when it wrote to the resident involved and advised him to stop using the Strata’s common property as a woodworking area. The Strata says that it did not take steps to address the alleged offensive comments made by the resident because it has no jurisdiction to do so.

Analysis and decision
For the reasons that follow, I allow the Strata’s dismissal application and dismiss the complaint under section 27(1)(c) of the Code.

A complaint by a strata resident that details being subjected to homophobic slurs by a fellow resident who has created a hostile environment may be found to contravene the Code. Loss of enjoyment and peaceful use of common property due to another’s conduct could amount to an adverse impact. Where the protected characteristic, actual or perceived, is a factor in conduct causing the adverse impact, a failure by the Strata to enforce its bylaws to prevent such conduct could result in a violation of the Code being made out. As a result, I am satisfied that the acts alleged in the complaint, if proved, could contravene s. 8 of the Code.

A strata council that receives a complaint of this nature would be well served to consider whether any bylaws regarding use and enjoyment of strata property may be engaged, and, if so, to handle the potential bylaw infraction in the same manner as it would any other.

In order for his complaint to succeed at a hearing, Mr. Finnamore would have to prove that the Strata’s decision not to address his complaint about the fellow resident’s homophobic slurs adversely impacted him in respect of a service, and that his sex and/or sexual orientation, actual or perceived, were a factor in that adverse impact.

The Strata argues that there is no reasonable prospect that Mr. Finnamore will be able to prove that he has experienced an adverse impact related to the Strata’s response to his complaint regarding the fellow resident’s comments.

Not every negative comment or single incident that is connected to a prohibited characteristic will be discriminatory harassment contrary to the Code. Not every failure to be kind or respectful requires state intervention. This includes failures with discriminatory overtones – and therefore highlights a distinction between comments that may be “discriminatory” in the everyday sense of that word, and comments that amount to discrimination.

In the analysis of whether negative comments made between residents while interacting on a strata corporation’s common property rise to a level of harassment that adversely affects a person residing in a strata complex, the context is critical.

It appears that one disrespectful comment from the fellow resident escalated into several after Mr. Finnamore flipped him off, stopped and exited his vehicle and went over to engage. In my view, the fellow resident’s remarks made in the heat of the moment were disrespectful and socially inappropriate. Likewise, Mr. Finnamore’s aggressive gesture in “flipping him off” was also disrespectful and socially inappropriate. While the type of conduct exhibited by both men during this incident can be upsetting or hurtful, the situation is best addressed by an exchange of apologies. It appears, on the evidence I have considered, to be an isolated incident.

In my view, the complaint does not merit using the Tribunal’s scarce resources and it is appropriately dismissed as having no reasonable prospect of success.

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Kates v. Strata Plan VAS2844, 2018 BCHRT 203
File: 15790
Date Issued:  28 August 2018

Mould in condo prompts human rights complaint against strata
CBC News
By: Maryse Zeidler
03 September 2018

A Vancouver condo owner enmeshed in a years-long battle against her strata has filed a human rights complaint saying there is toxic mould in her unit, which she says has exacerbated her health problems.

Anne Kates owns an apartment in Vancouver's West End. Like many residential buildings in B.C., hers is a strata-titled property. The strata owns the land in common and is responsible for repairs to that land. Homeowners are responsible for repairs to their units.

Kates first filed a complaint at the B.C. Human Rights Tribunal against the strata in November 2016, saying toxic mould was permeating part of her condo.

She said it was caused by a water leak into the building, which the strata is responsible for repairing.

The strata argues that Kates is responsible for the damage in her suite.

The strata tried to have the case dismissed, but the tribunal recently denied its application and the case was allowed to go forward.

According to the decision, some of the ongoing health problems Kates has faced because of the mould include "significant heart and lung ailments."

Tony Gioventu, executive director for The Condo Home Owners Association of B.C., says the complaint is a classic case of a strata facing expensive maintenance and repairs.

"One of the challenges with very high real estate prices is the affordability issue, which tends to put pressure on owners making decisions on things like maintenance and renewals and long-term planning," Gioventu said.

Both Kates and the strata declined to comment.

3 kinds of mould discovered
The building where Kates's owns a condo has had problems with water leaking into it since 2015.

At that time, engineers recommended a comprehensive plan to fix the exterior walls.

In August 2016, a contractor working on renovations in Kates's apartment noticed mould.

She hired an environmental company, which submitted a report that said it discovered three kinds of mould, including two that "should not be found at any level in a normal indoor environment," tribunal member Emily Ohler quoted in her decision.

The report said the second room in Kates's apartment wasn't safe for occupancy. She had the contractor immediately seal the bedroom. She hasn't had access to it since.

Contractors hired by the strata tore into the walls in the bedroom and sprayed them for mould, but Kates said they also kept the wall open with no clear indication of what was to happen next.

The decision says the strata considered the problem solved, although it wasn't clear how it came to that conclusion.

'Every day I live in fear'
The battle between Kates and the strata over the mould issues continues to this day, according to the decision.

Kates sent the strata a doctor's note which laid the blame for her heart and lung problems partly on the mould in her home.

"Every day I live in fear of what is going to happen to my health and quality of life," Kates told the tribunal.

Since 2016, the strata voted twice to reject approving construction that would have dealt with the water leakage problem throughout the building. The second estimate came to $2.6 million.

Kates was one of several members who voted against the second proposed rehabilitation project, the decision says. She didn't think it adequately resolved the problem that has been causing water to leak into her apartment.

Another engineering report estimated the costs to repair Kates's and the neighbouring unit alone would cost up to $250,000. The strata argued she would be responsible for her share of those costs.

'Just fix your building'
Gioventu, with the Condo Home Owners Association says it isn't the first time a strata battle has gone to the Human Rights Tribunal.

Many stratas defer basic maintenance and repairs until costs get out of hand, he said.

"It just gets atrociously expensive for everybody rather than just fix your building," he said. "Nobody wants to pay special levies. They're hoping it's going to go away."

Unfortunately, Gioventu says, even when courts get involved, repairs can still take years.

"The solution is just good long-term planning, and planning for the renewal of your building system."


Fiona Court, 1345 Burnaby Street, Vancouver is a 17 suite low rise condo built  in 1992. According to this article, this 26 year old condo needs at last $2.6 million in repairs. That works out to an average of $153, 000 per unit.

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