Strata corporation’s handling of smoking complaint found not to be significantly unfair
February 3, 2016
BY Kevin Zakreski
The BC Supreme Court has issued its third judgment in one month on a strata-property smoking dispute. After considering a blanket no-smoking bylaw and an order that a strata-lot owner cease and desist from smoking in his unit, in Chorney v The Owners, Strata Plan VIS770, 2016 BCSC 148, the court considered a strata corporation’s application of the procedure for handling alleged bylaw infractions set out in section 135 of the Strata Property Act to a complaint about secondhand smoke. The court concluded that the strata corporation wasn’t significantly unfair under section 164 of the act in the way it treated the complainants in handling their complaint.
Chorney involved a “relatively unique” strata property, made up of “a 1912 character building originally built as a single family residence. It remained a single family residence until it was converted into the eight strata lots in the early 1970s.” Its “construction allows air to flow (a) between strata lots, and (b) from strata lots into the common property, and vice versa.”
The “basis for the petition” to the court was “the petitioners’ complaints about second‑hand cigarette smoke,” beginning in 2010. By summer 2014, each of the petitioners had sent a written complaint to the respondent strata corporation, asking it to enforce its bylaws prohibiting nuisances and hazards (the strata corporation didn’t have a no-smoking bylaw) against another strata-lot owner. These complaints resulted in an investigation and, ultimately, a fine of $25 being levied against that owner.
The petitioners had further complaints about secondhand smoke in 2015. But, also in that year, the owner they had complained about moved out of the strata property:
As the respondent points out, what makes this situation somewhat unique, having regard to the relief sought by the petitioners, is that the alleged perpetrator, Ms. Pepperdine, has sold her unit and has moved out as of the summer of 2015, prompting the respondent to submit that there is now no outstanding issue between the parties and what the petitioners seek with respect to potential breaches of a rule or bylaw in the future is speculative, inappropriate, and unnecessary, given the strata corporation is required to comply with the many procedural rules outlined in the Strata Property Act, in addition to not acting significantly unfairly to any strata owner, as mandated in s. 164.
Nevertheless, the petitioners continued to have concerns about “the procedures the strata corporation followed during their investigation of these allegations and what might follow in the future, if indeed there are any further complaints about second‑hand smoke ingress.” These concerns led the petitioners to launch this court proceeding, seeking two orders related to their secondhand-smoke complaint:
- A declaration that the respondent strata corporation made decisions that were significantly unfair to the petitioners during its investigations into the petitioners’ complaints concerning violations of the strata corporation’s no-hazard and no-nuisance bylaw in regard to the ingress of second hand cigarette smoke into the petitioners’ strata lots.
- An order pursuant to section 164 of the Strata Property Act that the conduct of the respondent strata corporation when investigating any future complaints of a bylaw violation comply with principles of procedural fairness and the requirements of section 135 of the Strata Property Act.
The court’s consideration of the first requested order centered on correspondence between the petitioners and the respondent after the petitioners made their complaints. The petitioners were particularly concerned about the course of the respondent’s investigation and its desire to “question” one of the petitioners, which the petitioners viewed as amounting to “embarking upon a ‘hearing’ without giving Ms. Carey notice of this so‑called hearing.” The court rejected this argument, concluding:
the difficulty I have with this submission is that s. 135 refers to the procedural requirements a strata corporation must undertake if it intends to impose sanctions against a person who has violated a rule or bylaw. The section, in my view, clearly refers to a person who is alleged to have breached a rule and, prior to imposing any penalties, mandates the strata corporation must first provide the alleged offender particulars of the complaint in writing, and then provide that person with a reasonable opportunity to answer the complaint “including a hearing if requested by the owner or the tenant.”
Although the court noted that the respondent “might very well have done some things differently,” it declined to grant the petitioners the requested order because
there is insufficient evidence to establish the corporation exercised its discretion oppressively, nor is there sufficient evidence to establish there was any procedural unfairness on the part of council, given the misguided submission by the petitioners as to the applicability of s. 135 of the Act.
From there, it was a short step for the court to refuse to grant the relief sought in the second requested order:
As I have already found that the strata corporation did not act significantly unfairly in dealing with the petitioners’ complaints, coupled with the fact that the requirements of s. 135 are not applicable to the petitioners’ concerns with respect to them being the persons who were filing a complaint, this aspect of the petition is dismissed as well.
In addition, I will also state I see no practical utility in recommending any particular procedure for council to follow in the future, as this is not contemplated by the Strata Property Act which, in my view, allows strata corporations to deal with matters of complaints pursuant to bylaw violations as it sees fit, as long as it complies with the principles of procedural fairness and not be significantly unfair to any person who appears before it.
In the result, the petitioners were unsuccessful on both parts of the petition relating to the respondent’s procedure for dealing with their secondhand-smoke complaint.