By Emily Zarychta and Laura Track, Human Rights Clinic Lawyers, June 16, 2022
Climate change is an increasing risk to human health. The heat dome that swept across BC in June, 2021 saw temperatures soar to a record-breaking 49.6°C in some parts of the province. A BC Coroners Service report determined that 619 people died during the heat dome. 98% of these deaths occurred indoors.
People protected by human rights legislation including the elderly, unhoused, mentally ill, and physically disabled are at increased risk during heatwaves. Governments have an obligation to protect and uphold residents’ human rights to life, equality, safety, and the highest possible standard of health. Around the world, governments are facing lawsuits for their failure to protect their citizens’ rights to a healthy environment. To meet their human rights obligations, governments must take action to reduce greenhouse gas emissions and address, mitigate, and ultimately reverse the worst effects of human-caused climate change.
People with disabilities and the elderly are at particular risk for heat-related illness and death. Social isolation and poverty increase these risks. The BC Centre for Disease Control reported that during BC’s heat dome, “most deaths occurred in the community in private residences, and the areas of risk had … less green space, more people living alone, and lower income levels.” The vast majority of those who died during the heat dome lacked access to air conditioners, or even fans in their homes. Access to cooling options, including air conditioners, is essential for these and other vulnerable groups.
Unfortunately, projections indicate that BC will experience heat waves more frequently in the future due to climate change. The new BC Heat Alert and Response system will help notify communities of impending heat waves, but has been criticized by disability justice advocates for failing to include a requirement that government provide low-income and vulnerable people with air conditioners, which could be done through existing healthcare programs. People’s lack of awareness that a heat wave is coming is less of an issue than their lack of access to cooling devices, which are likely unaffordable to most low-income people, such as those receiving disability assistance.
Even if someone is fortunate enough to be able to find and afford an air conditioner or other cooling device, some stratas, landlords and co-ops have rules banning their installation and use. The rationale may be the cost of increased energy usage or preserving the aesthetics of the building. This is likely not a human rights-informed practice.
Strata residents, co-op members, and tenants with medical conditions that are impacted by heat have a right to accommodation under the BC Human Rights Code. Essentially, if someone has a disability that will be impacted due to heat, they can ask for accommodation to address that negative impact. Strata councils, co-ops, and landlords must accommodate these requests to the point of undue hardship. A blanket ban on air-conditioners and cooling devices without exceptions likely violates the Code and may be the subject of a human rights complaint. For a successful complaint, a complainant must prove some negative impact connected with their disability, flowing from the housing provider’s refusal to allow an air conditioner or alternative cooling device in the home.
For example, in Macario v. Strata Plan BCS1296 and another, the Strata refused to allow a resident to install a central air conditioning unit in her home. The complainant had rheumatoid arthritis, and she provided medical evidence that her arthritis worsened in excess heat. She said she had tried several options for cooling her home, but none was enough. She estimated that she would need five portable ACs to effectively cool her place, which was not practical. The Strata argued that she was seeking a “perfect” accommodation and that her refusal to use portable ACs was unreasonable. The Tribunal disagreed, finding that this question had to be considered in context based on all the evidence, including the impact of maintaining and storing five portable AC units on Ms. Macario’s quality of life. The Tribunal denied the Strata’s application to dismiss the case and allowed it to proceed to a hearing.
In Shannon v. The Owners, Strata Plan KAS 1613 (No. 2), the complainant had chronic obstructive pulmonary disease. His symptoms were worsened by continuous exposure to his in-home air conditioning. He attached a solar screen to the outside of his window which blocked sunlight and reduced the temperature in his unit. The solar screen reduced the amount he had to use the air conditioner to cool his unit, which reduced the negative impacts it had on his health. The Strata argued that he had breached a bylaw by making changes to the outside of the building and required him to remove the screen. The Tribunal held that the Strata discriminated against him by not allowing him to use the screen to reduce the use of in-home air conditioning. The Strata failed to provide a reasonable justification for its refusal to allow the solar screen as an accommodation for his disabilities. The Strata had to pay the complainant compensation for injury to his dignity.
Air conditioners and cooling devices such as solar screens, heat pumps, and blinds may have other human rights-related purposes, such as reducing the symptoms of allergies, or improving poor air quality due to BC’s increasing forest fire season. Looking forward, stratas, co-ops, and landlords should consider removing blanket bans on air conditioners and cooling devices, since cooling is becoming increasingly important to human health. Policies that do prohibit these products must contain human rights-based exemptions.
Adequate cooling is an urgent human need as our climate continues to warm. The United Nations says that with rising heatwaves around the globe, cooling is a human right, not a luxury. A human rights-based approach would require housing providers to allow – and in some cases would also require governments to provide – a range of cooling options in this warming world.
 Extreme Heat and Human Mortality: A Review of Heat-Related Deaths in B.C. in Summer 2021, Report to the Chief Coroner of British Columbia, June 7, 2022 at page 5, online: https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/death-review-panel/extreme_heat_death_review_panel_report.pdf [Coroner’s Report]
 Stewart, R.E., Betancourt, D., Davies, J.B. et al. “A multi-perspective examination of heat waves affecting Metro Vancouver: now into the future.” Nat Hazards 87, 791–815 (2017), online: https://doi.org/10.1007/s11069-017-2793-7
 See, e.g., Kent Roach, “Judicial remedies for climate change”, 2021 Vol. 17(1) Journal of Law and Equality 105, 2021 CanLIIDocs 13198, https://canlii.ca/t/tskf.
 Human Rights Watch, “Canada: Disastrous impact of extreme heat” (October 5, 2021), online: https://www.hrw.org/news/2021/10/05/canada-disastrous-impact-extreme-heat.
 Coroner’s Report at page 5.
 Brishti Basu, “‘They were trying to figure out how to stay alive’: Disability advocates slam heatwave response” Capital Daily (June 7, 2022), online: https://www.capitaldaily.ca/news/disability-advocates-slam-heatwave-response
 2017 BCHRT 255.
 There does not appear to be a final decision in this case, suggesting that the parties were able to resolve it through a settlement.
 2009 BCHRT 438.
 Mutiso, Rose, Morgan D. Bazilian, Jacob Kincer, and Brooke Bowser, Air Conditioning Should be a Human Right in the Climate Crisis, Scientific American, May 10, 2022, online: https://www.scientificamerican.com/article/air-conditioning-should-be-a-human-right-in-the-climate-crisis/
 Deen, Thalif, Amidst Rising Heat Waves, UN says Cooling is a Human Right, not a Luxury, Inter Press Service – News Agency, August 6, 2018, online: http://www.ipsnews.net/2018/08/amidst-rising-heat-waves-un-says-cooling-human-right-not-luxury/