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CASITAS DEL SOL TO VOTE ON WHETHER TO PROCEED WITH JUDICIAL REVIEW OF DISCRIMINATION DECISION
OSOYOOS TIMES-May 12, 2010
By Paul Everest – Osoyoos Times
Residents of the Casitas Del Sol manufactured home community on 115th Street will vote later this month on whether to proceed with a judicial review of a B.C. Human Rights Tribunal decision that found the community’s strata council guilty of discriminating against a physically disabled resident.
In December, the tribunal issued a decision stating the council discriminated against Mick Shannon, a retired train engineer in his 60s who suffers from a type of lung disease known as chronic obstructive pulmonary disease (COPD), by not allowing him to keep a solar screen installed on one of his home’s windows.
Since his COPD symptoms, including chronic coughing and breathing difficulties, are exacerbated by continuous exposure to in-home air conditioning, Shannon installed the screen without the permission of the council to help cool his home and minimize the need for air conditioning in Osoyoos’s hot climate.
The strata council argued that Shannon went against a bylaw that states that owners in the development must seek the written consent of the council before making any changes or alterations to the exterior of a home and that any alterations must conform to the strata council’s design guidelines.
Tribunal member Lindsay Lyster found that the council’s actions were discriminatory against Shannon as they had an adverse effect on him because of his physical disability.
Lyster issued an order entitling Shannon to reinstall the screen on his home’s front window and ordered the council to pay Shannon’s legal expenses as well as $2,500 as compensation for injury to his dignity.
An alleged introduction of inaccurate evidence during the hearing resulted in Lyster ruling that the strata council engaged in improper conduct.
Maureen Poucher, who became the council’s president in June, 2009, acted as the council’s sole witness and provided evidence that the council had considered Internet documents about COPD relating to alternatives to the screen in September, 2008.
The consideration of these documents was a central part of the council’s case that it had looked at some of these alternatives in making its decision about the Shannons’ request to keep the screen on the window.
It was revealed through cross-examination, however, that such documents could not have been considered at that time as they were not printed until March 30, 2009.
In February, 2010, the council filed a petition for judicial review with the B.C. Supreme Court asking for the court to declare that the tribunal, in laying out its decision in December, exceeded its jurisdiction and breached the rules of natural justice and procedural fairness.
The council wants an order from the court that would quash the tribunal’s decision or an “an Order quashing the Decision and remitting the original Complaint to a different Tribunal Member for a hearing on the merits with decisions from the Court.”
In court documents, the council stated that the tribunal ultimately treated it unfairly when it came to what evidence was allowed during tribunal proceedings last summer and through its finding that the council had acted improperly when presenting evidence.
On April 22, the Shannons filed a response to the council’s petition by saying they oppose the council’s application for a declaration that the tribunal exceeded its jurisdiction or that the tribunal breached the rules of natural justice and procedural fairness in the course of rendering its decision last December.
The Shannons’ response also states they oppose an order from the court quashing the tribunal’s decision.
In an interview on May 10, Poucher said a petition was circulated within the Casitas Del Sol community to have a vote on whether or not to proceed with the judicial review.
That vote will take place at the community’s annual general meeting on May 29, she said.
The Osoyoos Times has also obtained documents showing that Lyster resigned her appointment as a member of the B.C. Human Rights Tribunal in March and returned to private practice in April.
The Times was unable to verify before press time why Lyster resigned from the tribunal.