May 10, 2022 by Emily Zarychta, Human Rights Clinic Lawyer
Smells can be very polarizing. Take the ‘king of the fruit’ – the durian – as an example. This much-loved fruit smells so pungent that the fruits are banned from Singapore’s subway systems and many hotels across Asia and have even caused a college to evacuate.
Smell is more than a biological sense – it is a cultural phenomenon that is tied to deeply held beliefs and practices. Smells can also connect to protected characteristics under the Human Rights Code (the “Code”). The Code protects people from discrimination related to their protected characteristics, which include Indigenous identity, race, ancestry, place of origin, and religion.
The BC Human Rights Tribunal has found that certain smell-producing activities are protected from discrimination. Three such cases will be reviewed below. Neighbours’ outrage over the smell of curry in multi-unit housing was the central issue in two of the cases. The third case concerned the Indigenous practice of smudging inside a rental apartment.
The Curry Cases
In Fancy v. J & M Apartments Ltd., the respondents refused to rent an apartment to the complainants, who were of East Indian origin, because the respondents feared they would cook with curry. The Tribunal held that the respondents discriminated against the prospective tenants on the basis of assumptions and stereotypes regarding cooking odours. The Tribunal awarded Mr. and Mrs. Fancy a total of $2,000 in injury to dignity compensation.
In Chauhan v. Norkam Seniors Housing Cooperative Association, a woman of East Indian ancestry alleged that her housing cooperative discriminated against her by threatening to evict her due to what it called “very offensive odours” coming from her unit. Ms. Chauhan cooked Indian foods such as curries and other savoury dishes. Neighbours complained about the smells from her cooking. The cooperative board wrote to Ms. Chauhan about the odours and said that she was creating a nuisance that needed to be corrected. She was ordered to cease producing these “offensive odours” or face eviction. The co-op argued it had a neutral policy prohibiting nuisances. Ms. Chauhan argued that when an odour is considered a nuisance is highly subjective and ethno-centric.
The Tribunal stated:
…Ms. Chauhan cooked foods in her home that were an expression of her ethnicity and ancestry. The preparation of these foods produced odours. Second, I find that Ms. Chauhan received differential treatment with respect to her tenancy as a result of her ethnicity and ancestry. Specifically, Ms. Chauhan was ordered to cease producing these odours or face eviction. Third, I find that the Association’s prohibition against her producing cooking odours had a significant impact on her. As she stated, she was embarrassed, mortified, and hurt by the treatment she received. The right to express and enjoy one’s ethnicity and ancestry is clearly central to one’s identity (at para 126, emphasis added).
The Tribunal found the co-op discriminated against Ms. Chauhan and the conduct was not justified; Ms. Chauhan was entitled to prepare foods from her culture in her home without fear of eviction: para 135. The Tribunal ordered that the Respondents pay Ms. Chauhan $2,500 in injury to dignity compensation and $2,571.42 for expenses.
In Smith v. Mohan (No. 2), an Indigenous woman smudged in her rental apartment, which involve the burning of sacred herbs. As a member of the Tsimshian and Haisla Nations, smudging was part of her connection to and expression of her Indigenous identity and, for her, a regular spiritual practice. When her landlord learned she had been smudging in her apartment, he ordered Ms. Smith to stop doing so or face eviction.
Similar to Chauhan, this respondent relied on a neutral rule or policy that applied to all tenants – no burning of any substances in the apartments. However, this was found to have a discriminatory impact on the complainant. The Tribunal stated:
… it is a fundamental principle that parties cannot contract out of their rights under the Code…Even if the Tenancy Agreement “nuisance” provisions or concerns about property damage could be seen as a neutral policy or rule, I am still required to consider whether such a policy itself discriminates (at para 242).
The Tribunal found that the landlord had discriminated against the complainant and awarded Ms Smith $20,000 in compensation for injury to dignity and $3,300 for lost wages and expenses.
Other Smell Issues
Other smell-related situations that could engage the Code in tenancy, services, or employment could include:
- Cooking Chinese medicine or burning Buddhist incense in multi-unit housing;
- Smudging access in the workplace, hospitals, or schools; or
- Microwaving strong smelling lunches in the workplace where the food has a connection to the person’s culture or ethnic background.
Balancing of Rights
Landlords and other duty-bearers (like employers or service providers) have a duty accommodate to the point of undue hardship. Where conflicts arise, they may need to balance the rights of more than one person. For example, if one tenant is burning religious incense, and their next-door neighbour has a smoke allergy that is triggered by the incense, there would need to be a collaborative dialogue and efforts to find a reasonable solution. In that case, the human rights of both residents are engaged, unlike a case where one neighbour simply does not like the smell of curry. Where conflicts arise relating to smell, people should consider the needs and interests of others and try to come up with a reasonable solution themselves before filing a human rights complaint.
These cases highlight that the right to express and enjoy one’s ancestry and culture is central to one’s dignity. Policies and rules about nuisance and smell that appear neutral on their face must be carefully reviewed and applied to avoid negatively impacting specific groups with protected characteristics. If certain smells are raising concerns in a workplace or housing situation, it’s important to approach the issue with respect, cultural understanding, and sensitivity to the human rights at stake.
 The author describes the smell as a mix of rotten onions and dirty gym socks.
 “A Rotting Durian Fruit Prompted a Gas Leak Scare and Evacuations on a Melbourne College Campus” by Laignee Barron, April 29, 2018. Retrieved from: https://time.com/5259241/rotting-durian-gas-leak-scare-rmit-library/
 Cai v. Terrapure Environmental and another is an example where a complaint relating to a comment about the smell of the Complainant’s microwaved Chinese food was dismissed – see para 34: the single comment alone did not amount to discrimination under the Code.
Photo by Martijn Vonk