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March 2009 - view full issue

Smoking in Strata Corporations

By Kristine All

Many strata corporations are currently grappling with the issue of smoking in the condominium complex: should there be a non-smoking bylaw and, if so, whether there should be a complete ban on smoking not only on common property, but also in individual strata lots.

The new Tobacco Control Act imposes restrictions on smoking in public places, including parts of condominium complexes. However, this Act is not the only law that governs smoking in BC strata corporations. The following outlines some of the various ways that strata corporations can ensure that they comply with the various laws concerning smoking, while trying to minimize the infringement on any competing rights of owners who smoke.

Provincial Legislation: the Tobacco Control Act

Effective March 31, 2008, new provisions in the BC Tobacco Control Act and Regulation ban smoking in indoor public spaces and workplaces. The purpose of this ban is to reduce tobacco use and the effects of second-hand smoke by ensuring that public spaces and workplaces are smoke-free.

According to section 4.21 of the Regulation, the following places are prescribed as places in which a person must not smoke tobacco or hold lighted tobacco: common areas of apartment buildings, condominiums and dormitories. Of particular note to strata corporations and their managers is that they are responsible for enforcing the smoking ban in common areas of the building, including elevators, hallways, parkades, and common rooms like reception areas and swimming pools, laundry rooms, and lobbies, or in the buffer zones three metres around public areas. The "three metre buffer zones" provide that one cannot smoke within three metres of an entryway, open window or air intake of a building area or an area that is substantially enclosed.

While the 2008 amendments to the Tobacco Control Act serve to ban public smoking, they do not apply to individual units, or to balconies in condominium or apartment complexes unless within the three metre buffer zone.

The Common Law of Nuisance and the Strata Property Act

In BC, the common law of nuisance deals with the use of property of one owner that interferes with a neighbouring owner’s ability to use and enjoy their property. Section 3(1) of the Standard Bylaws in the Strata Property Act imports the law of nuisance into the bylaws of the strata corporation by prohibiting an owner, tenant, occupant, or visitor from using a strata lot or the common property in a way that causes a nuisance or hazard to another person. This can include smoking even if the strata corporation does not have a more specific non-smoking bylaw in place.

Drifting smoke from one unit into another unit can constitute a nuisance or hazard. This has in fact been tested by the courts, in the case of Raith v. Coles, a 1984 BC Supreme Court Case in which one owner complained of health problems caused by the cigar smoke from the downstairs neighbour. The smoke from the cigars came into the Raiths' apartment, causing nausea, indigestion, sore throats and emotional anxiety. The Judge found that the smoking had become harmful to others in the complex and granted an injunction stopping the neighbouring owners from smoking.

Municipal Bylaws

In BC, some municipalities have enacted bylaws that are either similar to, or stronger than the provincial Tobacco Control laws, including Vancouver, Surrey, Richmond, and the Capital Regional District. Where municipal bylaws are stricter than provincial legislation, unresolved complaints should be made to the municipal bylaw enforcement department.

For example, Vancouver Health By-Law No. 6580 bans smoking in all public places. The Vancouver no-smoking zone is six metres of an entryway, open window or air intake of a building, while the provincial act only bans smoking within three metres of these areas. The Vancouver bylaw also imposes the duty on responsible persons to post no-smoking signs.

Depending on which municipality the condominium building is located, strata corporations and managers should check the local bylaws for applicable smoking rules.

Human Rights Code

The BC Human Rights Code can be used in two ways: it can assist the enforcement of non-smoking bylaws, but may require that a strata corporation accommodate the owner who is addicted to smoking.

To assist the enforcement of non-smoking bylaws, the Human Rights Code protects the rights of individuals who have a demonstrated allergy or sensitivity to second-hand smoke. An owner may be able to turn to the Code for protection if they have a disability that is exacerbated by second-hand smoke, and can take the position that the strata corporation has a responsibility to limit or ban smoking in order to accommodate the owner's disability.

On the other hand, there is support for the premise that nicotine addiction is within the meaning of physical disability under the Code. While there is no inherent right to smoke, smoking is still a legal activity, as long as it is carried out in places where the smoke does not harm others. Therefore, smoking prohibition bylaws should only ban smoke in areas where non-smokers are put at risk, and the strata corporation should be mindful that they may have to accommodate people who are addicted to nicotine.

Unfortunately, to date, there are no cases reconciling the interests of persons with allergies to smoking with those of residents who have an addiction, leaving strata councils struggling to resolve smoking disputes. Addressing competing interests may require creative solutions, including such things as alterations to the ventilation systems of the building.

To Ban or not to Ban?

Strata corporations and managers face the difficult task of balancing the competing interests of owners, while ensuring that they comply with the laws in place in the province.

What is clear is that there is now a positive obligation to ensure that public spaces are smoke free. While nothing in provincial legislation and applicable municipal bylaws imposes an obligation on a strata corporation to pass a bylaw to that effect, a strata corporation will be more easily able to discharge its obligation to enforce the ban on smoking in the identified public areas if a bylaw is formally adopted. The benefit of having something in writing, in the form of a bylaw, is that it makes it clear to owners where they are or are not allowed to smoke. Bylaws are registered in the Land Title Office, and as such, everyone is deemed to have notice of the bylaw, including persons who purchase a strata lot. Further, strata corporations then have the ability to enforce the bylaw and respond to complaints by imposing bylaw infraction penalties under the Strata Property Act, including fines.

And while an outright ban on smoking, including in individual strata lots, may not be necessary, or, for that matter, easy to pass, the law of nuisance provides protection for owners from second-hand smoke in specific instances where they can demonstrate they are personally being negatively impacted by someone else smoking.