Smoker claims strata's ban violates her human rights

A housebound B.C. woman with severe anxiety is taking her strata council to B.C.'s Human Rights Council for introducing a non-smoking policy that would force her off the premises to have a cigarette.

Case pits physical health of tenants against mental health of woman who claims smoking eases anxiety

Gisele Dandurand claims her strata council's non-smoking bylaw would violate her rights by forcing the housebound woman to go outside to smoke. (Pawel Dwulit/Canadian Press )

An apartment-bound B.C. woman with severe anxiety is taking her strata council to B.C.'s Human Rights Tribunal for introducing a non-smoking policy that would force her off the premises to have a cigarette.

According to a decision posted on the tribunal's website, Gisele Dandurand claims the smoking ban amounts to discrimination on the basis of a mental disability.

As part of her application, she provided a letter from her psychiatrist pleading with the strata council.

"I am of the opinion that it will be detrimental to the patient's treatment if she needs to leave the building to smoke," the letter reads. 

"I strongly recommend that an exception be made to allow the patient to smoke on her patio."

Hotly contested issue

The human rights case is the latest in a continuous back-and-forth between smokers and non-smokers in one of the most hotly contested issues in strata living.

Non-smokers argue that smokers are violating their rights by exposing them to fumes while smokers claim prohibition ignores their property rights and addiction problems.

The human rights tribunal has agreed to hear the case, but has not judged its merits.

The B.C. Human Rights Tribunal has previously fined a strata council for exposing condo owners to second-hand smoke.

Dandurand is a tenant in the building, not an owner. She moved into her suite in 2012; the non-smoking bylaw was introduced in 2014.

Further complicating matters is the fact the same human rights tribunal fined a different strata council $8,000 in 2012 for failing to protect two former condominium owners from exposure to second-hand smoke.

Dandurand's strata council rely on that earlier decision in their defence.

"The respondents submit that to provide the complainant with an exemption to the non-smoking bylaw would defeat the purpose of the bylaw, which is to provide a non-smoking environment for the benefit of all owners and would constitute undue hardship," the decision reads.

"They say that the tribunal has confirmed that, in particular circumstance, there may be a positive onus on strata corporation to provide non-smoking environments for the benefit of certain owners protected by the (Human Rights) Code."

A coping mechanism?

According to the ruling, Dandurand's psychiatrist claims she suffers from a series of disorders which render her unable to leave her apartment for days at a time.

"Smoking is a coping mechanism for her mental health and asking her to change this habit will have painful consequences," he wrote.

But the strata argues that smoking is a habit, as opposed to a treatment for mental disability.

Earlier this year, a B.C. Supreme Court judge ordered another B.C. smoker to butt out inside his Langley apartment while he awaits the hearing of his own human rights challenge.

Paul Aradi claims he has a mental disability in the form of an addiction to nicotine and a physical disability which makes it tough for him to stand and walk.

He wants his strata council to be forced to accommodate his disabilities, which he says affect his ability to smoke outside.

In both Aradi's and Dandurand's cases, other residents of the building have submitted letters concerned about the impacts of second-hand smoke should the council make exceptions.