Has the Smoke Cleared!
Just when you thought the smoke had cleared and it was safe to light up, the clean air campaign is taking aim at the condominium community. For the past few years most smokers have begrudgingly adjusted to the new rules governing smoking bans in public spaces. The next challenge will take the campaign into the private property of strata dwellers.
When the anti-smoking legislation was introduced in BC in 2008, the main focus had been the ban on puffing inside public places and a ‘prescribed’ distance outdoors from entrance ways, usually around six meters. Since then there has been much debate as to whether this ban includes strata complexes.
While there seems to be general acceptance that the ban includes common property, such as hallways, lobbies and elevators, there still remains much interpretation when it comes to patios, balconies and inside the units.
Several strata corporations throughout the province have managed to muster enough support to pass bylaws effectively making their complexes ‘smoke free’. While it is one big step to adopt smoke free bylaws, it is another matter entirely when it comes to enforcing them.
The province has no condo cops and the legislation passed by the government anticipates that condominiums will be self-policing. There is little case law in Canada to establish any template for all corporations to follow, but there are a few precedents and principals to help clear the smoke.
There is no right to smoke enshrined in Canadian law and the federal Charter and provincial Human Rights legislation does not recognize smokers as a protected class of people, nor are they recognized as having a disability. In the few cases heard, the courts have been sympathetic to the plight of non-smokers who have won their law suits based on the premise of nuisance.
If a bylaw prohibiting smoking in strata lots cannot be passed due to some smokers in the complex, says Kelowna lawyer Christy Lovig, the law of nuisance and complaints under Standard Bylaw 3 - Use of Property section would provide alternate remedies for owners bothered by smoke coming from other owners' suites.
Given the current circumstances, smokers are getting the uneasy feeling that their castles are being invaded. However, in a condo, one person’s castle is another’s common property. Complaints are becoming wide-spread that smoke (from both cigarettes and marijuana) routinely drifts from inside a unit into hallways. Furthermore, arguments are being made that second hand smoke (SHS) is not only affecting the health of individuals, but taking a toll on strata infrastructure as well.
Although the courts have upheld the common law notion of nuisance, future challenges could be made on the grounds that SHS is causing property damage to HVAC systems, air filters and all manner of sensitive digital and mechanical devices that are common property and essential for the functioning of a complex. It wouldn’t come as a surprise to see a multi-million dollar, precedent setting law suit launched against a person smoking inside their private home for smoke damage caused to the common property of a condominium.
StrataScene is intended for general information purposes only.
Gunnar Forsstrom is a licensed Strata Manager with Coldwell Banker Horizon Realty.
Send your questions to: gforsstrom@coldwellbanker.ca or call: 250-860-1411