Deep Cove senior wins human rights case after strata refuses to build hillside tram

A senior in Deep Cove has won a $35,000 human rights award against his strata, and the right to install a costly tram to and from his hillside home to accommodate his health and mobility issues

Gerald Testar and his wife Coralee live in their detached home in a strata development with three other homes on a steep property. He developed health problems including congestive heart failure, lung disease and osteoarthritis that made navigating a lengthy series of stairs up to the strata parking lot so difficult he has been housebound since 2020.

“The Testars’ home is unique within the strata plan because it is landlocked,” read a summary of the case . “In order to leave their home, the Testars need to climb seven flights of stairs with a total of 102 steps. Mr. Testar is now 84 …

“He says his health has now declined to the point that he has a physical disability, because he cannot go up and down the stairs and has not left his home in two years.”

Testar asked the strata to allow a tram on the hillside and got a quote for one in January 2020. A lengthy back and forth with the other owners ensued, and included a recommendation for a chairlift, improvements to the stairs and ramps along the hill and other potential solutions.

But the issue wasn’t resolved, and Testar’s lawyer sent a letter to the strata warning that is would be the subject of a human rights complaint based on it failing to accommodate his disability.

The hillside tram would have been on common property in the strata plan, but would have been exempt from complex elevator regulations because it was for single-family use, or for use by first responders in an emergency. (There have in fact been several paramedic calls in recent years to the Testars’ home with slow response times because of the difficulty of getting down the stairs.)

The chairlift proposal was accepted in a meeting of the other strata owners in April 2020, and they agreed to pay $17,500 each to get it built. But the Testars said the lift wasn’t a safe and appropriate solution, and offered to pay the difference for the construction of the tram, which was quoted at about $150,000.

Meanwhile, Testar’s health worsened. “Mr. Testar testified that he used to be able to safely climb the stairs to the parking lot, but the progressive effects of COPD cause him to feel breathless, dizzy and fatigued. His uncontradicted evidence was that December 2019 was the last time that he successfully climbed the stairs to get to a family event.”

His family doctor told the hearing he believed “it is medically dangerous for him to walk up or down the seven flights of stairs between the parking lot and his house. Any attempts to do so can predispose him to falls and cardiac arrest.”

While some of the other owners said they opposed the tram due to safety concerns, over aesthetics or possible hidden costs, Amber Prince of the B.C. Human Rights Tribunal ruled those weren’t good enough reasons not to proceed with the tram.

The ruling noted the company that made the quote has successfully built 80 such devices, including hillside trams.

“I also find that the strata took a resistant and inflexible approach to Mr. Testar’s tram proposal.”

The ruling awarded $35,000 as “compensation for injury to his dignity, feelings, and self‐respect,” and ordered the strata to accommodate the construction of a tram within six months.

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