OSOYOOS TIMES-August 25, 2010

By Paul Everest – Osoyoos Times

A two-year-long dispute that ended up before the B.C. Human Rights Tribunal has finally been settled.
In December, 2009, the tribunal found that the Casitas del Sol strata corporation had discriminated against Mick Shannon, a 64-year-old retired train engineer who suffers from a type of lung disease known as chronic obstructive pulmonary disease (COPD).
Since his COPD symptoms, including chronic coughing and breathing difficulties, are exacerbated by continuous exposure to in-home air conditioning, Shannon installed a solar screen on a window at the front of his house in the manufactured home community in June of 2008 without the corporation’s permission.
The corporation argued that by installing the screen, Shannon went against a corporation bylaw that states that owners in the development must seek the written consent of the corporation’s council before making any changes or alterations to the exterior of a home and that any alterations must conform to the community’s design guidelines.
The tribunal concluded that the corporation’s actions were discriminatory against Shannon as they had an adverse effect on him because of his physical disability and the corporation was ordered to allow Shannon to reinstall the screen.
The corporation was also ordered to pay Shannon’s legal expenses and $2,500 as compensation for the injury to Shannon’s dignity.
Tribunal member Lindsay Lyster, who has since left the tribunal, also concluded that the corporation had engaged in improper conduct during hearings on the matter by introducing inaccurate evidence.
In February, the corporation 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 argued 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 corporation had acted improperly when presenting evidence.
At a meeting on May 29, 2010, however, strata corporation members agreed that a settlement with Shannon should be reached without judicial review.
A settlement agreement on the matter was finalized last month and the corporation has paid Shannon and his wife Naomi $2,500 in dignity damages as well as $14,000 for legal costs.
Naomi said the overall legal costs she and her husband had to cover for the tribunal were $24,000.
She said she and her husband paid the outstanding $10,000.
The agreement also meant that the corporation discontinued the judicial review filed with the B.C. Supreme Court and the corporation cannot take any further action against the Shannons regarding the solar screen.
Naomi said members of a legal assistance organization that has helped her family during the matter negotiated the agreement with the corporation.
The solar screen was reinstalled on the window at the beginning of July, she said, and Mick is feeling better with it back up to minimize the need for air conditioning in the home.
Naomi added that she and her husband are relieved that the matter is over but said she’s a little disappointed that the settlement agreement does not include any policies to guide the corporation should it have to deal with similar matters with other residents in the future.
Maureen Poucher, who served as the strata corporation’s president during the course of the tribunal hearings, resigned from her position last month to focus on recovering from the strains of dealing with this matter.
She said the tribunal’s accusation of improper conduct that was included in the final decision on the matter was wrong.
Poucher provided evidence during the tribunal hearings that the corporation’s council had considered Internet documents regarding COPD in September, 2008.
The consideration of these documents was a central part of the council’s case that it had looked at some recommendations for the management of COPD.
The council had also considered alternatives to the screen in making its decision about the Shannons’ request to keep the screen on the window.
The tribunal found, however, that such documents could not have been considered in the fall of 2008 as the documents were not printed until March 30, 2009.
“While I do not find that the Strata Council acted in bad faith, its conduct, as described, had a significant impact on the integrity of the Tribunal’s processes, including a significant prejudicial impact on Mr. Shannon, and constitutes improper conduct,” Lyster wrote in her decision.
Poucher said, however, that the documents on COPD that she had printed from the Internet in September or October of 2008 were read to corporation council members and then shredded for the sake of confidentiality.
The strata’s property manager, Brian Amos, requested a copy of the COPD information, she said, and since the documents she had printed were shredded, Amos reprinted the document in the spring of 2009 in preparation for a special general meeting to inform Casitas del Sol residents of the situation.
The document Amos printed included the date it was printed out on, Poucher said, and that document ended up before the tribunal.
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