Tenant M and another v. British Columbia Housing Management Commission, 2024 BCHRT 331
Date Issued: November 29, 2024
File: CS-004263
Indexed as: Tenant M and another v. British Columbia Housing Management Commission, 2024 BCHRT 331
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Tenant M and Tenant S
COMPLAINANTS
AND:
British Columbia Housing Management Commission (BC Housing)
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Edward Takayanagi
On their own behalf:
Tenant M
Tenant S
Counsel for the Respondent: Anne Cochrane
Date of Hearing:
April 22, 2024 – April 26, 2024
April 29, 2024 – May 2, 2024
Location of Hearing: Videoconference
I INTRODUCTION
[1] Tenant M, and her adult son Tenant S, live in a rental unit in a multi-unit building managed by the British Columbia Housing Management Commission ( BC Housing ). The Tenants say their downstairs neighbor smokes cigarettes and the second-hand smoke entering their unit affects and worsens their physical and mental disabilities. They say BC Housing discriminated against them with respect to tenancy based on physical and mental disability, contrary to s. 10 of the Human Rights Code because it has not stopped the ingress of smoke.
[2] BC Housing denies discriminating. It does not dispute that exposure to second-hand smoke can negatively affect a person’s health. However, it says these negative health effects are shared by the public at large. It disputes that the Tenants have disabilities that have been impacted by the second-hand smoke. It also says it took reasonable steps to reduce the exposure to second-hand smoke, and reasonably accommodated the Tenants to the point of undue hardship.
[3] In this decision, I must decide whether the Tenants have established on a balance of probabilities that they experienced an adverse impact from second-hand smoke exposure that was linked to their disabilities.
[4] The parties called witnesses and introduced evidence over the course of a nine-day hearing. The parties subsequently provided the Tribunal with written closing submissions. While I do not refer to it all in my decision, I have considered all the evidence and submissions of the parties. This is not a complete recitation of that information, but only those necessary to come to my decision.
[5] For the reasons that follow, I find that the Tenants have not established a breach of the Code , and I dismiss the complaint. I find the negative affects of the second-hand smoke are not linked to any disability and therefore do not engage the protection from discrimination within the meaning of the Code .
II PRELIMINARY ISSUE – THE TENANTS’ WRITTEN CLOSING AND REPLY SUBMISSIONS
[6] BC Housing objects to the Tenants’ closing and reply submissions because they say they are late filed, in excess of the page limit set by the Tribunal, introduce evidence not presented during the hearing, make reference to documents and recordings not in evidence, and misrepresent the evidence that was presented during the hearing.
[7] The Tenants say they are self-represented and unfamiliar with “legal technicalities.” I understand the Tenants to be arguing that the Tribunal should accept their submissions in its entirety despite any deficiencies.
[8] For the following reasons, I accept and consider the Tenants’ closing and reply submissions. However, I do not consider new evidence introduced in the submissions or materials not introduced into evidence during the hearing. I have reviewed and rely on the recording of the hearing for what evidence was presented during the hearing.
A. Whether to Accept the Tenants’ Closing and Reply Submissions?
[9] Procedural fairness is concerned with ensuring that:
… administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
Kinexus v. Asad , 2010 BCSC 33 at para. 24 (citing Baker v. Canada (Minister of Citizenship and Immigration) , 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 22)
[10] Within this requirement, the Tribunal is entitled to manage its own process: C.S. v. British Columbia (Human Rights Tribunal) , 2017 BCSC 1268 (affirmed 2018 BCCA 264; leave to appeal refused [2018] SCCA No. 357, 2019 CanLII 23870) at para. 128.
[11] The Tribunal has “special duties” towards self-represented parties, to accommodate their unfamiliarity with the hearing process and acquaint them with procedure and the rules of evidence to permit them to present their case: Morwald-Benevides v. Benevides , 2019 ONCA 1023 at para. 34.
[12] There are limits to the Tribunal’s obligation to self-represented parties. While the Tribunal may offer a margin of lenience, the fact that a party is self-represented does not relieve them of the obligation to comply with rules of procedure or orders of the Tribunal: M.P.W. v. City of Victoria , 2019 BCSC 1448, at para. 20.
[13] The Tenants were self-represented at the hearing. During the hearing the Tenants gave testimony and made submissions with the aid of an interpreter. The interpreter also interpreted my instructions to the Tenants regarding the hearing process.
[14] Oral submissions on the hearing concluded on May 3, 2024. At the end of the hearing, I provided the parties with a recording of the hearing and set a schedule for closing submissions. I said written closing submissions should be no longer than six pages, and in a legible 12-point font size. The Tenants were instructed to provide their written submissions to the Tribunal and the other party by the end of day on May 17, 2024.
[15] On May 13, 2024, the Tenants emailed the Tribunal asking for an extension of the deadline for closing submissions to May 21, 2024. BC Housing opposed the extension.
[16] Because the Tenants did not provide a reason for their extension request beyond saying they found preparing submissions was a large task, I denied the request.
[17] Notwithstanding that I had denied their request the Tenants did not submit their closing submissions until May 21, 2024.
[18] The Tenants submitted a six-page closing submission in the Microsoft Uighur font. While I had not specified a font, even at a 12-point font size, I found Uighur to be too small to be legible. BC Housing objected to the Tenants’ submissions saying they could not be read without straining their eyes. BC Housing said the Tenants chose an unusually small font to evade the six-page limit.
[19] Because I had not instructed the parties on what font to use for their submissions, and the Tenants had followed the letter, if not the spirit, of my directions by using a 12-point font size, I accepted the Tenants’ closing submissions. I instructed the Tenants to convert their submissions, without any other revisions, to Arial font in a 12-point size with 1.5 line spacing so that their submissions could be read. The converted submission was 15-pages. The Tenants subsequently provided reply submissions by the deadline using the instructed font.
[20] I accept the Tenants’ closing and reply submission. First, I find it appropriate to exercise my discretion to consider the Tenants’ closing submission despite its late filing: Rule 2(2), Tribunal’s Rules of Practice and Procedure . I find that accepting the Tenants’ late-filed closing submissions furthers the just and timely resolution of the complaint. The Tenants are self-represented, working in a non-native language, and unfamiliar with the Tribunal processes. The Tenants submitted their closing submission on the next business day after the due date. I acknowledge that I denied the extension request but find it would be a harsh result to deny the Tenants the opportunity to make closing submissions, filed only one day late. BC Housing has not pointed to any prejudice to them based on the delay and submitted a comprehensive response to the Tenants’ closing submission, which I have also considered: De Medeiros v. Rovalution Automotive Ltd. and another , 2023 BCHRT 182 at para. 7.
[21] Second, as noted above, the Tenants adhered to my instruction that closing submissions be in a 12-point font and less than six pages. While their submissions exceeded the page limit when converted to a font that I found to be legible, I find they complied with the instruction I gave. Further, because the Tenants’ submissions using a legible Arial font was 15-pages, I waived the six-page limit for BC Housing’s response submissions. BC Housing has not said they are prejudiced by the length of the Tenants’ closing submissions and ultimately provided a comprehensive response submission of 15-pages.
[22] Therefore, I have accepted and considered the Tenants’ closing submission and reply submission. I reach a different conclusion regarding the contents of the submissions and whether to consider the new materials not in evidence.
B. Whether to consider the contents of the Tenants’ Closing and Reply Submissions not in evidence
[23] If a party wishes to persuade the Tribunal of a point, the supporting evidence must be presented: Stein v. Vancouver Coastal Health Authority and another (No. 3) , 2015 BCHRT 180 at para. 34. Evidence can be presented through witnesses who testify under oath, and documents that are admitted during the hearing.
[24] The Tribunal may accept evidence that it considers to be “necessary and appropriate” regardless of whether it would be admissible in a court of law: Code at s.27.2. Generally, the Tribunal considers evidence to be appropriate if its probative value outweighs its prejudicial effect: Lam v. Chiu , 2012 BCSC 440 at paras. 25-30; Parsons v. A&B Tool Rentals and another , 2018 BCHRT 154. Evidence has probative value if it can assist the Tribunal in deciding whether a party has proven a fact that is in issue in the complaint. Evidence has a prejudicial effect if its use threatens the fairness of the Tribunal’s process on a party.
[25] The Tenants say that all of the evidentiary materials they reference in their closing submissions was previously disclosed to BC Housing at earlier stages of the proceedings. They say BC Housing’s objection is a “legal technicality” and should be disregarded.
[26] I find that accepting the Tenants’ submission would threaten the fairness of the Tribunal’s process and outweighs any probative value of the potential evidence. I have compared the Tenants’ submissions with the hearing record and agree with BC Housing that the Tenants’ closing and reply submissions references documents and recordings that were not introduced during the hearing. The Tenants also misrepresent evidence that was before the Tribunal by attributing statements to witnesses who did not say those things or were explicitly denied. In my view, the materials have little probative value on the issues that I must decide which is whether the Tenants experienced a disability related adverse impact due to the second-hand smoke.
[27] Much of the Tenants’ materials is about their ongoing conflict with their neighbor and hearsay evidence about the smell of smoke from residents of the building who were not called as witnesses. The Tenants also reference without prejudice settlement offers made by the parties and accuse Respondent’s counsel of “hiding evidence”. I find evidence of the Tenants’ conflicts with their neighbor and the smell of smoke in other units to not be relevant to the issues I must decide. Similarly, accusations about counsel are not helpful to my analysis and is improper. In my view, the prejudicial effect of considering materials that were not introduced during the hearing outweighs any probative value of the potential evidence.
[28] The medical documents not entered as exhibits and referenced by the Tenants is also of limited probative value. The materials consist of brief notes from a physician. The physician was not called to authenticate the evidence. The notes repeat the Tenants’ assertion that they are negatively affected by the smoke from their downstairs neighbor. There is no indication that the physician examined the Tenants, or on what basis they draw their conclusion that the Tenants are affected by the smoke. Further, the documentary evidence that was entered by BC Housing and authenticated by Tenant M, shows in an email dated January 25, 2021, the Tenants instructed the physician what to write in the medical note.
[29] The principle that a party must present evidence they want the Tribunal to consider is fundamental to procedural fairness. This is so that the other party knows what evidence the Tribunal will consider and has a fair opportunity to address the evidence. I find that the Tenants’ new evidence consists of evidence that was not before the Tribunal at the hearing. Accepting new evidence that was not before the Tribunal at the hearing will have a prejudicial effect on the Tribunal process and outcome of the complaint because BC Housing has not had an opportunity to cross-examine witnesses on those statements or lead its own evidence in response to the new evidence. I further find that the new evidence submitted by the Tenants is of minimal probative value to the issues I must decide. Where the prejudicial effect outweighs the probative value of the evidence, the evidence must be excluded. I do not agree with the Tenants’ characterization of this principle as a mere “legal technicality.”
[30] Further, I find that the Tenants were given a fair opportunity to present their evidence, including information, reminders, and opportunities to review the evidence. First, before the hearing, during a pre-hearing conference call on February 8, 2024, the Tribunal informed the parties that it was necessary to present evidence and how to present evidence. The Tribunal summarized the information given to the parties on the conference call in a letter of the same day writing, “The Tribunal can only make its decision based on evidence it hears from witnesses who testify under oath, and documents that are admitted by the Tribunal Member…If you want the Tribunal to consider a document, you must introduce that document as evidence at the hearing.”
[31] Additionally, at the hearing, I repeatedly informed the parties that I would only consider evidence that was presented at the hearing. Before the Tenants’ case concluded, I reviewed the documents that had been admitted into evidence with the parties and asked the Tenants if there was any other information or materials they wished to present. The Tenants confirmed there was no additional materials and concluded their case. At the end of the hearing, I confirmed with the parties the documents that had been admitted into evidence. Because the Tenants used an interpreter, I asked the Tenants multiple times if they understood the information being conveyed. On each occasion the Tenants confirmed they understood the Tribunal’s process and the options available to them.
[32] While I acknowledge that the Tenants are self-represented, I find the Tenants had a full and fair opportunity to present their evidence during the hearing.
[33] Therefore, while I have accepted and considered the Tenants’ closing and reply submissions, I do not consider any of the new information or reference to evidence that was not presented during the hearing in the closing and reply submissions. Where the Tenants have summarized evidence that was presented to the Tribunal, I have compared the summary to the hearing recording to verify the accuracy of the submissions. Where there is a discrepancy between the Tenants’ summary and the recording, I have relied upon the hearing recording as the accurate record of the evidence given.
III BACKGROUND
[34] The Tenants are a mother and adult son who reside together in a unit in a three-story, multi-unit building operated by BC Housing.
[35] BC Housing is a Crown agency that provides and manages affordable housing to people in the province. The building is non-supportive subsidized housing for people who do not require on-site support services. BC Housing’s staff attend the building but there are no live-in caretakers or support staff.
[36] The Tenants moved into their current unit on the third floor of the building in January 2021. They previously lived in another unit in the same building and requested BC Housing perform renovations to the third floor unit before moving in. The Tenants say their first-floor neighbor smokes cigarettes and the smoke enters their unit on the third floor.
[37] The Tenants say they have physical disabilities that are worsened by the second-hand smoke entering their unit. Specifically, Tenant M says she has asthma, and an anxiety disorder and Tenant S says he has dyslexia, sinusitis, and an anxiety disorder. BC Housing disputes that either Tenant have a disability.
[38] The parties agree the Tenants have complained to BC Housing about the smell and ingress of smoke from their neighbor on multiple occasions since they moved into the unit. The parties also agree that BC Housing has taken measures in response to the Tenants’ complaints. These steps include inspecting the Tenants’ and the downstairs neighbor’s units, issuing warning letters to the downstairs neighbor, providing air purifiers to both units, sealing the units, and conducting extensive renovations to the units.
[39] BC Housing says that since about October 2021, the Tenants have refused to cooperate with BC Housing’s attempts to address the second-hand smoke complaints and have started campaigning to have their neighbor removed from the building. BC Housing says they have received complaints from the neighbor about the Tenants’ harassing her.
[40] The Tenants say the steps taken by BC Housing are inadequate. They say they continue to smell and be affected by smoke from their neighbor. They deny harassing the neighbor and say the only viable solution to the second-hand smoke issue is for BC Housing to evict their downstairs neighbor.
IV ANALYSIS AND DECISION
[41] To prove discrimination, the Tenants must establish three criteria on a balance of probabilities:
a. that each Tenant has a characteristic protected by the Code (in this case, a disability);
b. that each Tenant experienced an adverse impact with respect to their tenancy; and
c. that their disability was a factor in the adverse impact: Moore v. BC (Education) , 2012 SCC 61 at para. 33.
[42] The Tenants assert that they each have disabilities that are worsened by exposure to second-hand smoke from their downstairs neighbor which enters their unit.
A. Do the Tenants each have a disability protected by the Code ?
[43] Tenant M says she has asthma and an anxiety disorder. Tenant S says he has dyslexia, chronic sinusitis, and an anxiety disorder.
[44] Disability is not defined in the Code . The Tribunal interprets the term broadly so as to better achieve the purposes of the Code : British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. Disability generally indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life: De Medeiros v. Rovalution Automotive Ltd. and another, 2023 BCHRT 182 at para. 23.
[45] Medical evidence is not required for a person to prove they have a disability under the Code : Gichuru v. Purewal, 2017 BCHRT 19 at para. 275. However, while a formal medical diagnosis is not always necessary, the complainant must still prove they have a disability: Byrne v. BC Emergency Health Services, 2019 BCHRT 256 at para. 25.
[46] Based on the evidence I am unable to find that either of the Tenants have a disability that is protected by the Code .
[47] First, neither Tenant knew if or when they were diagnosed with an anxiety disorder. There were no medical documents regarding the alleged mental disability. The Tenants testified feeling anxious and agitated. Tenant M said they saw a counsellor a number of years ago. Tenant S was uncertain if he ever discussed his anxiety issues with a medical professional. The Tribunal has observed that anxiety is a commonly experienced emotion, and an assertion that a person experiences an emotion, without more, is insufficient to establish a mental disability under the Code : Beckett and Kuan v. The Owners, Strata Plan NW 2603 , 2016 BCHRT 27 at para. 123. I find that because the Tenants provided no information, other than their assertion that they felt anxious, the Tenants have not established their anxiety is a disability protected under the Code .
[48] Second, the evidence before me about the Tenants’ other disabilities (asthma, chronic sinusitis, and dyslexia) is vague. The Tenants were unable to recall when and how they were diagnosed with their disabilities. They did not submit any documentary evidence to support their assertion that they were diagnosed with disabilities and testified that they believe a doctor examined them sometime in the past. Tenant M testified that her physical symptoms include irritated eyes, a sore throat, and cough. Tenant S testified that his physical symptoms include chronic nasal drip, and headaches. Tenant S said he takes some decongestants for his symptoms. Both Tenants said they were uncertain which of their symptoms are related to their disabilities.
[49] As noted above, I have not accepted into evidence the documentary materials the Tenants did not present during the hearing. Even if I had considered them, I would reach the same conclusion because the documentary materials consist of brief notes and letters which repeat the Tenants’ assertion that they have a disability without indicating that the author of the documents examined the Tenants or on what basis they have concluded that the Tenants have a disability.
[50] Under the circumstances I am unable to find that the Tenants have met their evidentiary burden on a balance of probabilities to establish that they each have a disability protected by the Code .
B. Adverse Impact
[51] Because I have found the Tenants have not established that they each have a disability protected by the Code , the Tenants’ claim of discrimination fails. Even if I had found the Tenants had established that they each have a disability, I would still be unable to find discrimination because the Tenants have not established, on a balance of probabilities that they have suffered an adverse impact from smoke ingress.
[52] The Tenants testified that they suffered negative health effects because of the ingress of second-hand smoke into their rental unit. The Tenants said they suffered headaches, coughs, breathing difficulties, and nausea. The Tenants said they were bothered when their downstairs neighbor smoked, but experienced relief when they were outside of their rental unit or when their neighbor was not smoking. Tenant M said she feels more agitated because of the smoke and takes medication for panic attacks and shortness of breath. Tenant S testified that he finds it difficult to concentrate when he smells smoke and that he is taking decongestants.
[53] The Tenants did not enter documents signed by medical professionals or receipts for medications into evidence. Although medical evidence is not always required, in this case the only evidence I have before me is the testimony of the Tenants. In my view this is insufficient to establish, on a balance of probabilities, that the Tenants’ experienced negative health effects from the second-hand smoke because the evidence is that the Tenants suffer negative reactions from a large number of triggers.
[54] The evidence of the Tenants is that they have sensitivity to a wide number of substances. The Tenants said they are negatively affected by the smell of chemicals, cleaning agents, plastics, glues, synthetics, and mould. The Tenants testified that prior to moving into the rental unit they lived in another unit in the building where they experienced negative health effects from, what they believed was, oud incense being burned by a neighbor. Tenant M said she suffered headaches, breathing difficulties, and swollen eyes. Tenant S said he experienced headaches, congestion, and nasal drip. The Tenants said they believed their symptoms were caused by either the oud burning or chemicals their neighbor was using.
[55] The Tenants also testified their health is negatively affected by the presence of mould and they discovered mould in their rental unit in or about 2023. They testified that they believe the mould was undiscovered but present in their rental unit from the start of their tenancy in 2021.
[56] While the Tenants attribute the negative impact on their health to the second-hand smoke from their downstairs neighbor, their own evidence is that there are multiple substances that cause them discomfort that are in their rental unit. The Tenants say they are sensitive to the mould that is present in their unit, to the glue used on baseboards, synthetics and chemicals used for patchwork inside their rental unit. Given the large number of potential triggers for the Tenants’ negative physical reaction that they say are found in their rental unit I am unable to find on a balance of probabilities that the negative health effects the Tenants say they are experiencing is because of the second-hand smoke.
[57] For these reasons, I find the Tenants have failed to establish, on a balance of probabilities, a case of discrimination under s. 10 of the Code .
C. Was the Landlord’s conduct justified?
[58] Even if I had found the Tenants had established discrimination by proving on a balance of probabilities that they each had a disability that was adversely impacted by the second-hand smoke, I would still conclude that BC Housing did not discriminate because they took all reasonable and practical steps to accommodate the Tenants and the Tenants failed to participate in the accommodation process.
[59] Although the Code does not expressly provide for a justification defence in s. 10, the Tribunal may consider whether a landlord could have accommodated a tenant: Alexander v. PAL Vancouver (No. 4) , 2006 BCHRT 461 at para 44.
[60] Accommodation requires that a housing provider take all reasonable and practical steps to avoid a discriminatory impact: Biggings obo Walsh v. Pink and others, 2018 BCHRT 174 at para. 79. Reasonable accommodation is satisfied where the service provider “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at para. 5. (” Meiorin”) .
[61] A tenant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection: Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at 994–95 (” Renaud”).
[62] Here, the parties agree that BC Housing took a number of steps in response to the Tenants’ complaint that they were negatively affected by the second-hand smoke from their downstairs neighbor. The Tenants say the measures taken by BC Housing did not resolve the issue. BC Housing says that after October 2021, the Tenants refused to cooperate in any further accommodation and insisted the only viable accommodation would be for BC Housing to stop their downstairs neighbor from smoking.
[63] It is not disputed that prior to the Tenants moving into the rental unit, BC Housing performed major upgrades to the rental unit and the neighboring units below. The rental unit and the two units below were professionally sealed. In addition, BC Housing removed the carpets, changed the baseboards, repainted, replaced and installed fixtures, and renovated the rental unit at the Tenants’ request.
[64] The parties also agree that when the Tenants complained about second-hand smoke from their downstairs neighbor in June 2021, BC Housing investigated by interviewing the Tenants, the downstairs neighbor, and other tenants of the building, and inspecting the Tenants’ and neighbors’ unit. Despite not finding evidence of the downstairs’ neighbor smoking, and failing to detect smoke inside the rental unit, BC Housing issued a warning to the downstairs neighbor not to smoke.
[65] The Tenants say BC Housing’s response was inadequate and their downstairs neighbor continued to smoke in the building. The Tenants thereafter refused to allow BC Housing to access and inspect their rental unit because they felt BC Housing should deal with the root cause by stopping the downstairs’ neighbor from smoking in their unit. The Tenants each testified that they believed BC Housing needed to end their neighbors’ tenancy and remove them from the building.
[66] BC Housing’s evidence is that it continued to explore means of responding to the Tenants’ complaint of second-hand smoke ingress. BC Housing says it tried to investigate the possible areas where smoke might be entering the Tenants’ unit and resolve the issue. BC Housing says it offered to review and reseal the Tenants’ unit in case the initial sealing was inadequate. BC Housing made numerous offers to inspect the Tenants’ rental unit by emails, letters and phone calls on October 25, December 14, 15, 17, 20, 30, 2021, and January 14, 2022. The Tenants refused to respond to BC Housing. The Tenants did not allow access to their unit. BC Housing posted reminders to all residents of the building that smoking was prohibited in rental units or on common property. BC Housing also issued warning letters to the downstairs neighbor on October 6, 2021, June 16, 2022, February 8, 2023, and May 4, 2023, that they must not unreasonably disturb other residents. BC Housing purchased air purifiers and ozone generators that could be used by the Tenants to purify the air in their unit.
[67] The duty to accommodate requires reasonable efforts to find a solution. Here, I find BC Housing made reasonable efforts to accommodate the Tenants’ complaints. They took measures to prevent the ingress of smoke into the rental unit and when they were told the sealing was inadequate, they offered to redo the work and inspect to see where in the unit the smoke was coming in from. BC Housing also issued multiple warning letters to the downstairs neighbor the Tenants identified as the source of the smoke.
[68] The Tenants failed to participate in the accommodation process when they stopped communicating with BC Housing and refusing all options offered. In fact, I conclude that they impeded the accommodation process by refusing to allow BC Housing to inspect the rental unit or perform further sealing work in the unit. From October 2021 onwards the Tenants had concluded that the source of their discomfort was their downstairs neighbor, and they refused to consider any accommodation suggested by BC Housing.
[69] While the Tenants say they refused to allow access to the rental unit because they were concerned about the ongoing COVID-19 pandemic and risking infection, I am not satisfied that is a reasonable explanation for the ongoing failure to respond or communicate with BC Housing. Even if the Tenants were concerned about contracting COVID-19, they could have responded to BC Housing by email and phone or arrange to have BC Housing come inspect the unit to determine if further sealing would stop the ingress of smoke. The Tenants did not do this. Instead, they did not respond to BC Housing or engage with them except to repeat that it needed to deal with the downstairs neighbor. In my view, the Tenants’ refusal to engage with BC Housing was not reasonable under the circumstances.
[70] My finding that the Tenants did not participate in the accommodation process is not based solely on their refusal to allow BC Housing access to the rental unit in October 2021. Rather, I find that it was their continued and repeated failure to communicate, provide reasonable access, or consider any option other than for BC Housing to end their neighbors’ tenancy.
[71] I find that the Tenants failed to participate in the accommodation process. I am satisfied that BC Housing discharged its duty to accommodate by attempting to determine the source of the Tenants’ complaint, offering to inspect the rental unit, and conduct remediation work to fix and issues that was causing the ingress of smoke. In addition, BC Housing issued notices to residents to stop smoking in the building, issued multiple warnings to the neighbor the Tenants identified as the source of the smoke, and offered the Tenants devices to purify the air in their unit. The Tenants did not engage in the accommodation process because they wanted only one thing: their downstairs’ neighbors’ tenancy to end. While I appreciate that the Tenants believed that BC Housing ought to have terminated the tenancy of the downstairs neighbor, this does not make the offers for accommodation made by BC Housing unreasonable.
V CONCLUSION
[72] Based on the evidence I find BC Housing did not violate the Code and discriminate against the Tenants. Accordingly, the complaint is dismissed.
Edward Takayanagi,
Tribunal Member