Strata corporation obtains order that owner cease and desist from smoking in strata lot


26 January 2016

By Kevin Zakreski

The British Columbia Supreme Court has had occasion to rule on another case involving smoking in a strata lot. In The Owners, Strata Plan NW 1815 v Aradi, 2016 BCSC 105 the court granted a strata corporation an order under section 173 of the Strata Property Act that an owner refrain from contravening the strata corporation’s no-smoking bylaw—by ceasing to smoke within his own strata lot.

Facts and issues

The case involved a petitioner strata corporation and a respondent owner. The respondent was described as “a 70 year-old retired gentleman,” who

has been a “life-long smoker.” He purchased his strata unit in 2002. At the time he purchased the unit, there were no restrictions with respect to smoking in his unit.

This changed in 2009, when the petitioner brought in its first no-smoking bylaw, “which prohibited smoking inside individual units, including the respondent’s unit.” Nevertheless, the respondent acknowledged continuing to smoke in his strata lot. Beginning in December 2013, the petitioner began to enforce its bylaw against the respondent, in response to complaints from neighbouring owners. The court cited an example of one such complaint:

He expressed concerns as a strata owner about the health risk of second hand smoke, the fire risk associated with smoking, the smell of cigarettes diminishing the use and enjoyment of strata lots, the possible negative effect on property values and the prospect of other owners following the respondent’s lead by ignoring the bylaw.

This resulted in fines ultimately totalling $2300 being levied against the respondent. The respondent, arguing that “he has a disability resulting from his addiction to cigarettes and from his limited mobility, which affects his ability to smoke outside of his unit,” refused to pay the fines and ultimately brought a complaint to the British Columbia Human Rights Tribunal. The petitioner applied to the supreme court for an order that the respondent “immediately cease and desist from contravening the bylaw” and “a declaration confirming that he is in contravention of the bylaw.”

The court noted that this proceeding only brought before it a relatively limited part of the dispute between the petitioner and the respondent. Neither the validity of the petitioner’s bylaw nor the respondent’s human-rights complaint was before the court. Further, the respondent had not requested an adjournment “pending the hearing of the human rights complaint.” The court defined the issues before it as:

the principal issues I must determine are whether the respondent has breached the bylaw and whether this is a proper case for the exercise of my authority under s. 173 of the Act to declare that the respondent has breached the no smoking bylaw and/or to order the respondent to cease and desist from contravening the bylaw.

Has the respondent violated the no smoking bylaw?

The court began its discussion of the issues with a general statement about the nature of strata-corporation bylaws.

Bylaws of a strata corporation are established to define how property owners are to live in common. As stated by the Court of Appeal in The Owners Strata Plan LMS 2768 v Jordison, 2013 BCCA 484 at para. 25, the old adage that “a man’s home is his castle” is subordinated by the exigencies of modern living in a condominium setting. Living in a condominium necessarily involves a surrender of some degree of proprietary independence and owners are subject to the collective’s bylaws and rules. At the same time, owners have the benefit of these bylaws and rules which provide a measure of control over their environment; Bruce H. Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010) at 366.

The court ultimately found that based on the evidence, “including the admission of the respondent that he has smoked in his unit, the observations of other owners, and the bylaw violation notices and fines issued to the respondent for smoking in his unit, I conclude that the respondent has repeatedly violated the no smoking bylaw.”

Is this an appropriate case for the exercise of judicial discretion?

The court addressed this issue in two parts. First, it considered the appropriate test for granting relief under section 173. After reviewing a number of leading past cases, it concluded that

the court has a broad discretion under s. 173 of the Act. The exercise of its authority is to be guided by a consideration of the scheme of the legislation, its overall objectives, and the circumstances giving rise to the application. The interests of the strata corporation must be balanced against the interests of the owner or other person against whom the order is sought, within this legislative context.

Second, it considered the application of the test to the facts of this case.

On the one hand, the court noted “the strata corporation had an interest in enforcing its bylaw,” because “the statutory scheme contemplates that strata bylaws will be consistently enforced. While the strata council has some discretion under the Act not to require strict enforcement, that discretion is limited.” On the other, the court considered “the circumstances of the respondent, who is a long term resident of the strata complex. In particular, I have considered the respondent’s contention that I should not make an order under s. 173 until he has an opportunity to proceed with his human rights complaint that he has been discriminated against on the basis of his addiction and mobility limitations.”

Ultimately, the court concluded that relief should be granted, noting in particular the following considerations:

In my view, it is significant that the report of his occupational therapist described his functional limitations but did not address what measures or devices may be available to assist him with his mobility. There was also no report submitted by the respondent in respect of his addiction to cigarettes. In the absence of such evidence, and having regard to the rights of the strata corporation and other owners, I am not prepared to decline the relief sought by the petitioner where to do so would have the effect of allowing the respondent to continue to disregard the no smoking bylaw for an extended period.

Result

In the result, the court granted the petitioner “a declaration that the respondent has contravened the bylaws of the strata corporation by smoking cigarettes in his unit” and ordered the respondent to “immediately cease and desist from contravening the bylaws of the strata corporation by smoking cigarettes within his unit.”

In the course of the judgment, it was noted that the respondent had brought separate proceedings before the human rights tribunal and the petitioner had commenced an action in the provincial court, in which the “respondent has also challenged the fines which were imposed by the strata council.” So there may be further rulings as this dispute continues in 2016.


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