No Smoking Bylaw Enforced by BC Court
The heated debate continues between the ‘rights’ of people to smoke in their own units versus the ‘rights’ of non-smokers to be free from experiencing second-hand smoke in a condominium. Condominium living and the law continues to swing the pendulum away from smoking being a personal choice in condominium homes, towards a community-driven desire to limit the effects of smoking on its residents and property.
In The Owners, Strata Plan NW 1815 v. Aradi, the Strata corporation passed a no smoking bylaw in 2009 and revised it in 2014. This bylaw prohibited smoking in many locations on the property, including inside suites and on patios and balconies.
The owner in question, a senior veteran who claimed to be a lifelong smoker, purchased his unit in 2002 before there was a smoking ban. In December 2013, the Strata corporation began to enforce the no smoking bylaw against the owner, by sending letters and levying fines, following complaints that his smoking was negatively affecting other residents. The owner did not challenge the validity of the bylaw in this case; rather, only its application to him.
The owner disputed the matter in writing to the Strata corporation on a few occasions, including taking the position that the bylaw was discriminatory, that the Board was trying to get him to move out, and that it did not apply to him because there was no prohibition against smoking when he moved to the complex. He didn’t deny smoking in the unit, although he disputed some of the complaints attributed to him. The owner also commenced a human rights complaint against the Strata corporation for discrimination on the basis of his addiction and mobility limitations. He asked the Court to defer a decision on this matter until after his human rights complaint was decided.
In the Court proceeding, the Strata corporation took various positions, including that second-hand smoke was a health risk to residents, that there was a fire risk associated with smoking in units, and that the smell of cigarettes would negatively affect use and enjoyment of the strata lots. The owner took the position that he smoked from time to time in his unit, with the windows closed to prevent the smell of smoke from bothering his neighbors, and that he was unable to go outside to smoke due to mobility issues. The Court reviewed the evidence of both sides to determine whether the owner had breached the no smoking bylaw and, if so, whether the Court should exercise its discretion and grant a cease and desist order against the owner.
The Court determined that the owner had repeatedly breached the no smoking bylaw. Then, in deciding whether to exercise the discretion afforded to it under s. 173 of the Strata Property Act and grant a cease and desist order, the Court commented that the exercise of its authority to do such should be guided by considering the objectives and scheme of the legislation, and the circumstances giving rise to the application. Specifically, that “the interests of the Strata corporation must be balanced against the interests of the owner or other person against who the order is sought”.
The Court did grant the cease and desist order and declared that the owner was in breach of the no smoking bylaw. In doing so it found that the Strata corporation:
- Acted in good faith in seeking to enforce the bylaw; and
- Had an interest in enforcing its bylaw and had only limited discretion to not require strict enforcement
The Court was also unwilling to wait for the owner’s human rights complaint to be decided. It did not have any report in respect of the owner’s addiction to cigarettes, and declining to make the order would have the effect of allowing the owner to continue to smoke in contravention of the bylaw, for an extended period of time.
To read about another case of smoking in a condominium unit, check out our previous blog post.