BC Supreme Court issues ruling in strata-property smoking dispute

5 January 2016

By Kevin Zakreski

In a judgment released on Christmas Eve, the Supreme Court of British Columbia has once again ruled in a strata-property case involving second-hand smoke. Andrushko v The Owners Strata Plan KAS 1041 McIntosh Grove, 2015 BCSC 2445 will be of interest to strata councils and their advisors, who are increasing being called upon to manage these kinds of disputes.

The case involved “an 80-unit strata complex for residents aged 55 and older” located in Salmon Arm. The strata property was made up of two three-storey buildings and an underground parking lot. Each strata lot had a balcony “designated as limited common property to be used exclusively by the owner or resident.”

The petitioner lived on the second floor of one of the strata buildings. He had “repeatedly complained” to the strata council about second-hand smoke from his upstairs neighbor, smoking on her balcony.

The petitioner was vocal but wasn’t alone in his concerns about second-hand smoke. Over the course of two years, “the issue of smoking on balconies became an increasingly divisive and acrimonious source of controversy among the owners.”

Matters came to a head at the strata corporation’s annual general meeting for 2013. The petitioner had asked the strata council to amend the strata corporation’s bylaws and “prohibit all smoking in the strata complex.” The strata council, which was concerned “about balancing the interests of smoking and non-smoking owners,” instead brought forward, with the advice of a solicitor, a bylaw containing a more limited prohibition on smoking. The relevant part of this bylaw read as follows:

3(7) Smoking is not permitted on any common property of the strata corporation. Notwithstanding this smoking prohibition, smoking is allowed on balconies which are designated as limited common property, provided that the smoker maintains strict compliance with the Tobacco Control Act and Regulation, which directs that the smoker must remain a minimum of three (3) meters from the doorway, window or air intake, and the balcony must not be fully or substantially enclosed.

This bylaw was adopted at a subsequent special general meeting, with only the petitioner and another owner voting against it.

The petitioner, concerned that “the administration of s. 3(7) might be difficult,” asked the strata council to “obtain further legal advice on the interpretation of the proposed amendment.” His request was refused.

The petitioner’s concern turned out to be prescient. Over the next year and a half, he repeatedly complained to the strata council about second-hand smoke from his neighbor smoking on her balcony. The strata council repeatedly had to “grapple with the petitioner’s demands that the bylaws be enforced,” by holding meetings, conducting investigations, and seeking advice from lawyers, the local health authority, and other advisors. Dissatisfied with the strata council’s efforts to enforce the bylaw, the petitioner ultimately commenced this court proceeding.

The petitioner applied for relief under section 165 of the Strata Property Act, asking the court for the following three orders:

  • an order requiring the strata council to “enforce its bylaw prohibiting smoking on balconies that are ‘substantially enclosed’ ”;
  • an order requiring the strata corporation to “remedy the nuisance of second-hand smoke infiltrating adjoining units”; and
  • an order compelling the strata corporation to “implement a smoke-free environment until the nuisance of second-hand smoke has been eliminated.”

The court ultimately dismissed the petition, refusing to grant any of the three requested orders.

The court’s detailed reasons for dismissing the petition are worth reading in full. Some highlights from them include:

  • The court confirmed its general view, articulated in past cases, that it “will limit its intervention in strata disputes to circumstances where the Strata Council or administrator is incapable of remedying the problem.” Although the strata council in this case may have made some missteps, the court found that “the Strata Council has demonstrated that it is willing and able to investigate complaints, and is capable of taking action to enforce its bylaws.” The council’s willingness ultimately to seek legal and other advice contributed to this finding.
  • The court considered the test for nuisance resulting from second-hand smoke and concluded that “on the evidence adduced on this application, the petitioner has not established that he has suffered any substantial or unreasonable interference with his enjoyment of his property as a result of other owners smoking within the confines of their own units.”
  • The court was unwilling to order the strata corporation to impose greater limits on smoking than those already found in its bylaws, which “would prohibit smoking by owners within the privacy of their own units where the petitioner has not shown that such smoking constitutes a nuisance.”

The judgment concluded with an extended discussion of which party should bear the costs of the proceeding. The petitioner argued that the strata council had acted in bad faith “in failing to perform their duty to enforce the bylaws.” The court rejected this argument, making the following comments:

I am satisfied that members of Council were struggling to find a solution that would serve the best interests of all the owners. At the very worst, their delay in acting on the petitioner’s complaints may be characterized as involving poor judgment at times, together with confusion concerning both the interpretation of bylaw 3(7), and their duties for enforcement of the bylaw. However, all of that falls short of a dishonest purpose or intention to mislead or harm the petitioner, or any other owner. In short, the petitioner has not established that the individual respondents acted in bad faith.

But the court did depart from the general rule that costs are awarded to the party that succeeds in the proceedings, finding that “it was only as a result of the petitioner bringing these proceedings that the Strata Council sought and obtained the advice they required in order to fully appreciate their duties under the bylaw.” As a result, each side had to bear its own costs.

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