A Vancouver condo owner with mould in her unit filed a complaint with the British Columbia Human Rights Tribunal (the “Tribunal”) claiming that the strata corporation discriminated against her on the basis of a physical disability. The owner alleged that the strata corporation failed to adequately remediate mould in her unit, which was caused by water leakage through the building envelop, despite the fact that she had provided medical evidence confirming that she suffered from heart and lung ailments that were exacerbated by the mould in her unit.
The owner had retained an environmental company to conduct a mould test in her unit. The company’s report stated that the second bedroom was not safe for occupancy as two types of toxigenic moulds found in the unit were not safe at any level and a third type of mould was almost three times outdoor concentrations. The unit owner then had the second bedroom sealed with plastic sheets.
A contractor hired by the strata corporation opened and sprayed the walls in the second bedroom of the unit. No further testing to determine the presence of mould was done following this work. The walls were not closed up as no work had been done to stop the water penetration. It was undisputed that major remediation work was required to stop water penetration into the building.
Although there was subsequent correspondence and communication between the owner and the property manager about a second mould treatment, no further work was done. After the strata corporation’s contractor conducted a visual inspection of the unit, the contractor advised the corporation that there were no outstanding issues that required attention, even though no further air testing had been conducted.
The strata corporation then made a settlement offer to the owner but one of the terms of the settlement was confirmation that no further mould remediation was required in the unit. After the owner refused to accept the settlement offer, the strata corporation applied to have the owner’s complaint to the Tribunal dismissed on the basis that there was no reasonable prospect that the complaint would succeed and that a hearing by the Tribunal would not further the purposes of the Human Rights Code as the corporation had made a reasonable offer to settle. In order to have the complaint dismissed the strata corporation had the onus of convincing the Tribunal that there was no reasonable prospect that the complaint would succeed at a hearing.
The Tribunal sided with the owner and refused to dismiss the complaint. The fact that the owner had provided medical evidence of her disability and no subsequent remediation work had been conducted in the unit after the walls were opened and sprayed, indicated that there was a reasonable prospect that the owner could establish that “she experienced an adverse impact connected to her disability.” Furthermore, the strata corporation did not establish that it had accommodated the owner to the point of undue hardship. The corporation also did not convince the Tribunal that its settlement offer was reasonable – although the owner provided evidence that the mould issues persisted and further remediation work was required, the corporation did not provide any evidence to confirm that the mould in the unit had in fact been remediated.
While the Tribunal’s refusal to dismiss the complaint was a victory for the unit owner, the battle is still ongoing as a full hearing before the Tribunal will be required. Meanwhile, there is no proof that the mould in the unit has been remediated and the unit’s second bedroom is still unusable.
