The British Columbia Supreme Court recently ordered
a condominium unit owner to cease smoking in his unit in contravention of the strata corporation’s bylaws.
The unit owner was a 70-year old “life-long smoker”, who purchased his unit in 2002. In 2009 the strata corporation passed a bylaw which prohibited smoking in the building, including in the units. However, the corporation did not attempt to enforce the bylaw against the unit owner until 2013, after receiving complaints from other residents. Numerous notices of violations were sent to the owner, detailing the days and times when he was alleged to have smoked in the unit. As the British Columbia governing legislation permits strata corporations to impose fines on non-compliant owners, the unit owner was fined for his numerous violations and at the time of the court hearing the fines (which were unpaid) amounted to $2300. Despite the notices of violation and the fines, the owner continued to smoke in his unit. For that reason the strata corporation sought a declaration from the court that the owner was in contravention of the bylaw and an order that he immediately cease and desist from contravening the bylaw.
The strata corporation took the position that the owner’s ongoing smoking in the unit:
- caused a nuisance and disturbance for other residents;
- created health risks relating to second-hand smoke;
- increased the risk of fire;
- diminished the other owners’ use and enjoyment of their property due to the smell of smoke;
- negatively affected property values; and
- encouraged other residents to ignore the bylaw.
While the owner admitted that he smoked in his unit, he disputed the number of violations and claimed that he was being discriminated against due to his addiction to smoking and mobility problems which he claimed prevented him from walking off the strata property in order to smoke. Consequently, the owner filed a complaint with the British Columbia Human Rights Tribunal, claiming that his addiction to cigarettes and his mobility problems constituted a disability that the corporation was obligated to accommodate. The human rights case had not yet been heard when this decision was delivered.
As the owner admitted that he did smoke in his unit, the Judge readily concluded that the owner repeatedly breached the no-smoking bylaw. After noting that there were repeated violations of the bylaw by the owner, and that the strata corporation and the other owners had a reasonable expectation that the no-smoking bylaw would be enforced, the Judge ordered that the owner immediately cease and desist from smoking in his unit in contravention of the bylaw.
“The old adage that ‘a man’s home is his castle’ is subordinated by the exigencies of modern living in a condominium setting. Living in a condominium necessarily involves a surrender of some degree of proprietary independence and owners are subject to the collective’s bylaws and rules. At the same time, owners have the benefit of the bylaws and rules which provide a measure of control over their environment.”
As noted by the Judge on more than one occasion, the owner did not challenge the validity of the bylaw. (In its zeal to impose the smoking prohibition, the corporation did not offer to grandfather any existing owners who smoked for as long as they continued to reside in their units.) Had the owner challenged the validity of the bylaw itself, the outcome of this case may have been different.
It will be interesting to see the decision of the Human Rights Tribunal, especially in view of the fact that human rights legislation prevails over other legislation in the event of a conflict.
