The Alberta Court of Queen's Bench has determined that the Alberta Human Rights Act applies to condominiums

I have written on the topic of the Alberta Human Rights Act, RSA 2000, c A-25.5 before at:

http://albertacondominiumreporter.blogspot.ca/2013/05/condominium-complexes-are-private.html

Based on the recent decision of the Court of Queen's Bench in Condominium Corporation No 052 0580 v Alberta (Human Rights Commission) (the "Goldsack case") the Alberta Court of Queen's Bench has determined that the Alberta Human Rights Commission has jurisdiction to hear human rights complaints. 

My original blog was partly in response to a blog by Jenifer Koshan of the University of Calgary.  Ms. Koshan has blogged in response to the Goldsack decision and I thank her for her collegiality.  I will not exhaustively respond to the further comments of Ms. Koshan.  However, I can comment that the reasoning in the University of British Columbia v. Berg case is worthy of further study.

The Berg case was the core basis upon which the Court of Queen's Bench made its determination in the Goldsack case. I contemplate going forward that the tests identified in Berg may have application to complaints made to the Human Rights Commission in Alberta.  In this respect, and without limitation, whether the alleged accommodation, service or facility subject of a complaint satisfies the relational test.  I quote from the Supreme Court of Canada decision in Berg in this regard:

"This reasoning is directly applicable to any selection process used by the School in this case.  Eligibility criteria, as long as they are non-discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries, its "public", thereby avoiding overuse and unnecessary depletion of scarce resources.  The benefits of such screening tools, however, should not come at the cost of excluding the protection of human rights legislation.

This is not to say that all of the activities of an accommodation, service or facility provider are necessarily subject to scrutiny under the Act just because some are.  But a quantitative approach still does not help to define what smaller segment of the entire population might suffice.  As long as the debate remains centred on the number of people who can use the service or facility, it will be very difficult to draw lines of inclusion and exclusion on a principled basis because of the varied nature of the services and facilities and service and facility providers which will fall to be considered.

Instead, in determining which activities of the School are covered by the Act, one must take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user by the particular service or facility.  Some services or facilities will create public relationships between the School's representatives and its students, while other services or facilities may establish only private relationships between the same individuals."

...

"The idea of defining a "client group" for a particular service or facility focuses the inquiry on the appropriate factors of the nature of the accommodation, service or facility and the relationship it establishes between the accommodation, service or facility provider and the accommodation, service or facility user, and avoids the anomalous results of a purely numerical approach to the definition of the public.  Under the relational approach, the "public" may turn out to contain a very large or very small number of people.

 For example, Canada or Quebec Pension Plan benefits are provided to millions of Canadians, yet not to the equally large number of Canadians who have not yet attained the qualifying age.  Can it be said that the provision of such benefits should not be free from discrimination because of the established eligibility criteria which ensure that such benefits reach only those who have paid into the fund and are intended to receive them?  Or consider a privately-owned centre which publicly advertises its services or facilities to treat a rare disease, from which only two or three people in Canada suffer.  Statistically speaking, 99.99 percent of the population cannot use this service or facility, since they do not suffer from the disease and are not part of its "public".  Yet could the legislature have intended that the institution could purport to serve the public, then extend its services or make its facilities available only to male applicants?"

The relational test may be applied in some circumstances to suggest that the accommodation, service or facility provided by a condominium corporation and subject of a complaint may not have a public.  The following words from the dissenting opinion from the Berg case express this sentiment and the concern with the decision of the majority in Berg:

"While I agree that human rights legislation should, where possible, be given a broad and purposive interpretation, that interpretation has to be realistic.  If s. 3 of the British Columbia Human Rights Act is given the reach sought in these appeals there would be, in effect, no services that would not fall within the scope of "services customarily available to the public"."

Notwithstanding this minority decision, the Berg decision has been referred to in almost 300 decisions.  As an example of the types of decisions which will have to be made a search of CanLii lead me to the 1996 Supreme Court of Canada decision in Gould v. Yukon Order of Pioneers.  The Court considered the Berg decision and concluded that the services provided by the Yukon Order of Pioneers were outside of the ambit of the subject Human Rights legislation. I think this may be a portent of the type of analysis which may have to be made by the Courts in Alberta  as a consequence of the Goldsack decision.  

 

Smoking in common areas and units of a condominium

The issue of prohibiting smoking in condominiums is gaining momentum.  At the date of this blog entry neither the Alberta Courts nor the Alberta Human Rights Commission has issued a decision on the topic of smoking in a condominium.  However there have been a few salient decisions from outside of Alberta.

In a Yukon case referred to as Sider v. Yukon Housing Corporation, 2012, YKTC 18 (the "Sider Case") a landlord enforced a non-smoking policy which the landlord had created in respect of the rented premises upon a tenant.  Though this case does not involve a condominium corporation, it is relevant in the circumstance as the Honourable Judge Faulkner considered the interpretation of the Canadian Charter of Rights and Freedoms (the "Charter") and whether or not smoking is a right which is protected by the Charter.  Judge Faulker ruled in favour of the landlord and dismissed the tenant's claim that the landlord's non-smoking policy was unenforceable finding, among other things, that smoking was not protected by the Charter.

In  a British Columbia case referredto as Chorney v. The Owners, Strata Plan ViS770, 2011 BCSC 1811 (the "Chorney Case") the petitioners alleged that the cigarette smoke emanating from the Respondents unit was affecting the health of the petitioners and the enjoyment of their units.  The Honourable Mr. Justice Schultes examined the facts and the subject bylaws and noted that the subject bylaws provided the corporation with the power to impose fines for bylaw violations.  As a consequence, Justice Schultes directed that the proper course of action would be to follow the process set out in the bylaws which included providing written notice of the breach, allowing a period for rectification, and imposing a fine 

if the breach continues.  This case is authority that condominium corporations can and should have rules and policy in respect of smoking in the common areas and that they can and should, if their bylaws allow, impose fines where conduct of one owner by smoking impacts another owner.

This positive duty is also reflected in the British Colimbia Human Rights Commission decision in McDaniel v. Strata Plan LMS 1657, 2012 BCHRT 167 (the "McDaniel Case").  In the McDaniel Case the complainants alleged that smoke was entering their unit primarily through open windows.  The complainants both suffered from health conditions that made them sensitive to smoke. The B.C. Human Rights Commission ruled that the Condominium Corporation failed to enforce an existing by-law that prohibited residents from causing "a nuisance or hazard to another person" and granted a judgment against the Condominium Corporation in the sum of $8,018.88.  This decision demonstrates that condominium Boards may have a positive duty to control smoking.

I anticipate that it will not be long before somebody challenges smoking before the Alberta Courts or the Alberta Human Rights Commission.  In the meantime it behooves condominium Boards to review their bylaws and policy on smoking and develop a consistent approach to dealing with smoking.  Though I have limited my comments to the common area I also anticipate either a direct or collateral attack on the right, or lack thereof, of an owner to smoke in the owner's unit.  This issue may well be resolved on the whether the unit is in a multi-unit building (versus town house or bareland condominiums) and in this context the strength of the HVAC system in the condominium building.  If the condominium building does not have adequate ventilation the Courts and the Commission may well conclude that smoking can be prohibited in units.  This will be an interesting issue to follow.