With people more aware of the health dangers of second-hand smoke, there are more conflicts between smokers and non-smokers in strata corporations. Marijuana is also causing conflict. In fact, with the growing acceptance of medicinal marijuana, it may soon be smoked more openly.
The B.C. Tobacco Control Act (TCA) bans smoking in common areas of condominiums and within three metres of a doorway, window or air intake of common areas. The TCA requires strata corporations and their property managers to enforce the smoking ban. Failure to do so is a contravention of the Act.
Some municipalities in B.C. have bylaws that are either similar to, or more stringent than, the TCA. Strata corporations should check their municipal bylaws to determine whether the bans are limited to the areas specified under the TCA or are broader.
Because the TCA only deals with tobacco products, it cannot be used to prevent smoking of other substances such as marijuana. Although it is illegal to smoke marijuana under the federal Controlled Drugs and Substances Act, the extent to which it is enforced varies from municipality to municipality. As a result, a strata corporation or condo resident cannot rely on the government statutes to ban marijuana smoking in a strata corporation.
While the B.C. Strata Property Act (SPA) does not address smoking directly, condo owners may ban smoking by bylaw or rule. Because smoking bans under the TCA or a municipality’s bylaws must be enforced, a strata corporation should consider creating a no smoking bylaw that mirrors or goes beyond the legislation. Without its own bylaw, a strata corporation may be limited in its ability to enforce government-imposed smoking bans.
Even without a specific bylaw, a strata corporation may have other bylaws to limit smoking. For example, the standard bylaws to the SPA provides that an owner, tenant, occupant or visitor must not use a strata lot or common property in a way that is a nuisance. Nuisance is defined as an unreasonable interference with the use and enjoyment of land. If a complaint about smoke is made, the strata council must investigate the complaint to determine whether it is a nuisance. The investigation may involve hiring an expert or going to the “scene.”
If smoking is found to be a nuisance, it is unlikely the smoker will comply with a complete ban. As a result, a negotiated solution that minimizes transfer of smoke (such as renovations to the strata lot and its ventilation system) may be required. However, according to the Clean Air Coalition of B.C., air filters, purifiers and ventilation systems do not eliminate second-hand smoke. Consequently, the repairs may not be effective and other solutions may need to be found.
Ultimately, if the problem continues, the strata corporation will have to enforce its bylaws by levying fines or denying access to a recreational facility in accordance with the SPA. If these measures do not work, the strata corporation may have to apply for a court injunction to ban smoking or if the smoker is a tenant, an order to evict the tenant. An owner that fails to abide by a court injunction may be found in contempt of court proceedings and be forced to pay a fine or go to jail. Alternatively, the strata corporation could apply for a court order to force the owner to vacate the strata lot.
If the strata corporation fails to enforce the bylaw, an owner has two remedies. An owner may apply to court for an order to force the strata corporation to enforce its bylaws. Alternatively, an owner may bring a claim under the Human Rights Code that the strata corporation has discriminated by failing to provide a smoke-free environment, which the owner requires because of a disability.
While there are examples of human rights complaints by non-smokers, there are very few cases brought by smokers. Where marijuana is involved, the alleged discrimination is often on the basis that smoking is required for medicinal purposes to treat a disability.
The negative effects of second-hand smoke are now well-documented. The demands of non-smoking residents conflict with a smoker’s desire to smoke in the comforts of their home. The strata corporation is obliged to resolve these conflicts. A proactive strata council will take the necessary steps to avoid costly legal action.
Veronica Franco is a partner at Clark Wilson LLP.
I think stratas have no right to enforce any smoking bylaw. If people didnt wsnt to smell smoke they shouldnt have moved into an apartment building that inflates housing prices. Making it unaffordable for smokers or disabled to go elsewhere.
That is a seriously flawed way of thinking. I am an owner, next door to me are two young, male renters. I can smell their pot in my bedroom and my bathroom. I have lived here since 1996, are you seriously suggesting that maybe I move? That will not be happening, complaints will be made to the building management company and action will be taken.
Smokers of tobacco or marijuana have choices. There are alternative methods to smoking to ingest the toxins into their systems. They may take longer, however they still infiltrate. There is no reason for a smoker of either product to pollute the atmosphere of others. A growing number of people are realizing that smoking is rude and abusive behaviour to those around them. E-Cigs are no better in that the vapors affect others. If someone is indeed addicted to tobacco or marijuana, they can ingest the product or use a patch. They have no business polluting the air of a Strata.