Andruski v. The Owners, Strata Plan LMS2298, 2024 BCHRT 240
Date Issued: August 15, 2024
File(s): CS-003945
Indexed as: Andruski v. The Owners, Strata Plan LMS2298, 2024 BCHRT 240
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:
Heather Andruski
COMPLAINANT
AND:
The Owners, Strata Plan LMS2298
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Laila Said Alam
On their own behalf: Heather Andruski
Counsel for the Respondent: Andrea Fammartino
I INTRODUCTION
[1] Heather Andruski alleges The Owners, Strata Plan LMS2298 [Strata] discriminated against her on the basis of disability, contrary to s. 8 of the Human Rights Code. She alleges that the Strata discriminated against her in the provision of services customarily available to the public by failing to adequately and appropriately respond to her complaints regarding laundry odours and nicotine damage in her condo. She says that the toxins continue to make her ill.
[2] The Strata denies discriminating and says that it has adequately and appropriately responded to the Complainant’s concerns about laundry and nicotine odours. The Strata also says that Ms. Andruski continues to reject reasonable accommodation offers and insists on specific – “perfect”- solutions.
[3] The issue I need to decide is whether the Strata is reasonably certain to prove that Ms. Andruski rejected the Strata’s proposals to reasonably accommodate her.
[4] For the following reasons, I allow the application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[5] Ms. Andruski says she has asthma and suffers from Multiple Chemical Sensitivity (MCS). She says since 2007, she has been exposed to laundry odours daily, causing her physical and mental symptoms.
[6] Ms. Andruski has owned and lived in her condo since around November 6, 2020. When she moved in, the Strata permitted smoking inside the condos, but not on common Strata property. The events relevant to this complaint take place in 2021.
[7] On January 7, 2021, the Strata cleaned the dryer vents.
[8] On January 15th, Ms. Andruski notified the Strata that the daily “toxic odours wafting into [her] suite from neighbours’ dryer vents” is a concern for her because she has asthma and other chemical sensitivities that cause her to instantly react when she inhales the toxic odours. She said her previous strata covered the cost of purchasing and installing an H-VAC system after she made a human rights complaint.
[9] The Strata responded, acknowledging that she had raised, “a very serious issue.” It asked her to identify what kind of toxic odours she was referring to. Ms. Andruski responded, “Dryer vent odo[u]rs which can come from all sorts of fabric softeners and laundry detergents.”
[10] In response, the Strata took steps to remedy the issue. I set out some of those steps below.
[11] Between January and May, Ms. Andruski and the Strata were in regular communication about Ms. Andruski’s needs, the Strata’s efforts to remedy the laundry odour issue, and Ms. Andruski’s assessment of the efficacy of the Strata’s efforts. During this time, the Strata took the following steps:
a. engaged the services of their duct cleaning company, specifically to address Ms. Andruski’s sensitivities to the fumes coming from the laundry vents. It sent construction drawings, the Strata plan with unit numbers, and offered to facilitate access to condos that the duct technician needed to access to investigate Ms. Andruski’s concerns. Ms. Andruski met with the duct technician.
b. arranged for the duct cleaning company to attend again to inspect and repair any loose dryer hose connections that might have been contributing to the problem.
c. retained other trades companies to inspect the top venting system for any alterations that could be made to redirect airflow from the dryer vents on the roof away from the intake of the makeup air system. Several deficiencies were repaired.
d. retained an engineer to approve the re-design for the makeup air system intake.
e. retained a building repair company to create and install a heavy-duty metal shroud to the air intake unit (it was installed in July).
[12] At the end of May, Ms. Andruski asked the Strata to replace all her windows. She alleged that they were saturated with nicotine. Between May and July:
a. the strata manager told Ms. Andruski that she would include the request in a council meeting agenda and do some research on the matter.
b. the strata manager consulted with a glass company and was informed that the windows would not need to be replaced, and instead recommended that the windows and tracks be cleaned.
c. the strata manager corresponded with a janitorial service regarding the plan to clean Ms. Andruski’s windows with non-scented cleaning products of her choice.
[13] In mid-July, Ms. Andruski said that cleaning the windows and trim was not a satisfactory solution. She said she cleaned them herself, and “realized that nothing other than replacement would suffice – at least of the tracks.” Ms. Andruski told the Strata that the laundry odours continued to enter her condo, and that she would send the strata manager some information regarding “a solution for the scent.”
[14] The strata manager followed up with Ms. Andruski about her proposed solution for the scent. Ms. Andruski said she would get back to her. Later, she emailed the strata manager a link to an air purifier. She followed up on her request a few days after.
[15] The strata manager requested further details regarding the air purifier, including medical documentation setting out her need for one. Ms. Andruski had a medical note available but did not give it to the strata manager. Ms. Andruski said she would only share her medical documents with one council member.
[16] Before furnishing the Strata with further details, Ms. Andruski purchased a medical grade air purifier on or around September 20th.
[17] On October 3rd, the Strata received two medical notes from a physician (dated June 25 th and September 15th). The June 25 th note reads:
Ms. Andruski has asthma and is extremely sensitive to scents and smells. Exposure results in cough, shortness of breath. Nausea, headache, and itchy eyes and throat, all of which can be quite severe. The diagnosis is multiple chemical sensitivity. She requires a medical grade air purifier.
[18] The September 15 th note reads, “Ms. Andruski requires 1 month relocation out of her condo while air purifiers are installed and given time to work. This is medically necessary.”
[19] On October 7th, the Strata sent the owners the Notice of the Annual General Meeting, scheduled for October 27th. The Strata passed an amendment to its smoking bylaw, prohibiting smoking in condos as well as on the common property.
[20] The Strata arranged for a tradesperson to seal the space around Ms. Andruski’s door. Ms. Andruski says that she tried contacting the tradesperson but did not get a response. She did not advise the Strata that she could not reach the tradesperson.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[21] The Strata applies to dismiss Ms. Andruski’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on the Strata to establish the basis for dismissal. I am satisfied, on a review of the whole of the materials before me, that they have.
[22] Section 27(1)(c) of the Code allows the Tribunal to dismiss complaints that do not warrant the time and expense of a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95at paras. 22‐26, leave to appeal ref’d [2006] S.C.C.A. No. 171 [Berezoutskaia].
[23] The Tribunal’s analysis under s. 27(1)(c) takes into consideration all materials filed by the parties, including a respondent’s explanation for their alleged acts or omissions. The Tribunal does not make findings of fact or credibility, but rather, assesses all the information and evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia; Francescutti v. Vancouver (City), 2017 BCCA 242at paras. 22 and 52 .
[24] When determining whether a complaint should be dismissed under s. 27(1)(c), the Tribunal only considers the information before it and not what evidence might be given at a hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[25] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[26] To prove her complaint at a hearing, Ms. Andruski will have to prove she has a characteristic protected by the Code, she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Strata to justify the impact.
[27] The Strata argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove a defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50. As such, the only issue I need to decide is whether the Strata is reasonably certain to prove that Ms. Andruski rejected its reasonable accommodation proposals thus bringing their obligations to an end. For this reason, I assume, without deciding, that Ms. Andruski has satisfied the elements of her case.
[28] The duty to accommodate is dialogic in nature. Ms. Andruski has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 [Renaud] at 994‐995. The Strata is not obligated to provide a perfect accommodation, but a reasonable one: Renaud. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case: Renaud.
[29] Here, the Strata took Ms. Andruski’s report of a disability that required accommodations seriously. The materials show that its response was timely, and it continued to explore alternative approaches to Ms. Andruski’s complaint about laundry odours and nicotine saturation around the window. It regularly communicated its efforts to her, respectfully and promptly.
[30] The evidence supports the conclusion that the Strata is reasonably certain to prove that Ms. Andruski did not cooperate with the Strata in considering the options it offered her. The Strata is reasonably certain to prove that she rejected the possibility of cleaning her windows and would only accept a replacement. It is reasonably certain to prove that she would only accept her preferred solution – replacing the windows – without considering professional cleaning services. Ms. Andruski was not entitled to a perfect solution. Her refusal to discuss or investigate the possibility of cleaning her windows or to communicate her efforts to have her door sealed is fatal to her complaint: Epp v. Strata Plan, 2009 BCHRT 97 at para 83.
[31] I find it significant that Ms. Andruski purchased a medical grade air purifier before providing the Strata with the medical documentation it reasonably requested. At the time of the Strata’s request, Ms. Andruski had a medical note in her possession. She did not give the Strata the medical note until many weeks after they requested it. In the meantime, she purchased a medical grade air purifier for her home. In my view, in this unique circumstance, the Strata is reasonably certain to prove that Ms. Andruski stymied the Strata’s opportunity to further accommodate her.
[32] Lastly, I do not accept on the materials before me that Ms. Andruski could not have notified the Strata that she was having difficulty contacting the tradesperson to seal her door. As stated earlier, she and representatives from the Strata were in regular contact, and the Strata was responsive to her communications.
[33] For the reasons set out above, I am persuaded that the Strata is reasonably certain to establish that it discharged its duty to accommodate Ms. Andruski. As a result, there is no reasonable prospect Ms. Andruski’s complaint could succeed.
CONCLUSION
[34] The application is granted. The complaint is dismissed.
Laila Said Alam
Tribunal Member