OSOYOOS TIMES-April 21, 2010

By Paul Everest - Osoyoos Times

The Casitas Del Sol strata council has filed a petition with the B.C. Supreme Court calling for a judicial review of a B.C. Human Rights Tribunal decision that found the council to have discriminated against a physically disabled resident of the manufactured home community on 115th Street.
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 to help cool his home and minimize the need for air conditioning in Osoyoos’s hot climate.
The strata council received a complaint about the screen from another home owner in the community, however, and advised Shannon that the installation of the screen went against strata bylaws and must be removed.
Although Shannon and his wife Naomi sought permission to keep the screen on the window, the strata council refused, arguing that the Shannons installed the screen without its blessing in contradiction of strata bylaws.
During a hearing on the matter that took place in July, 2009, Shannon testified that after reading the strata bylaws, he did not consider that the screen was an alteration needing council approval.
The Shannons removed the screen in November, 2008, and Shannon said during the hearings that in the summer of 2009, the increased use of air conditioning caused him a number of difficulties.
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.
Shannon offered to provide the council with a letter from his physician which confirmed that prolonged exposure to air conditioning aggravated his symptoms, and offered to install white mullions to make the screen match the pattern of the original window.
The council refused these offers and repeatedly stood by its original decision.
It suggested that Shannon install the screen on the interior of the window or seek out other alternatives to limit the use of air conditioning which would not violate the strata bylaws.
Shannon told the council he viewed its refusal to keep the screen in place as discrimination contrary to the Human Rights Code and he would be filing a complaint with the tribunal if the council did not give its consent to the screen.
The complaint was filed in October, 2008.
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 a petition filed on Feb. 12 in Vernon, the strata council has asked 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 is also seeking 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.”
As for the grounds for the petition, the council has stated that the tribunal made its decision “without admissible evidence” while relying on “inadmissible evidence.”
The council also argues that the tribunal “exceeded its jurisdiction through an incorrect consideration of whether alleged strata services were customarily available to the public.”
The tribunal breached the “rules of natural justice,” the petition states, in several ways:
By finding that Shannon had been denied a service “customarily available to the public without taking statutory wording into account;” by “determining what Member Lyster viewed as central and critical issues, without any medical evidence linking the Respondent Shannon’s disablement to the Petitioner’s refusal to permit full solar screens;” by failing to provide the council and Shannon with the opportunity to “make submissions relating to issues raised in the legal research done by the (tribunal) member” and by “concluding unreasonably in the circumstances, and in an unfair manner to the Petitioner in breach of its own Rules, that there was improper conduct by the Petitioner during the course of the Complaint.”
The petition also lays out the council’s concerns that Lyster did not admit letters and photos from two other residents who suffer from COPD as evidence during last summer’s hearing on the matter.
Such evidence was meant to show that the residents’ homes received more sunlight than Shannon’s residence, but they did not need solar screens for their conditions.
According to the petition, “Lyster said that she was only prepared to permit the sick witnesses to testify by telephone speaker,” even though the residents had told the council they were too ill to testify.
Ultimately, the council plans to argue that Shannon contravened or did not comply with a number of tribunal rules during last summer’s hearing on the matter.
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