Real Estate Law Blog

The B.C. Supreme Court recently issued a ruling in a strata property case involving second-hand smoke. Andrushko v The Owners Strata Plan KAS 1041 McIntosh Grove, 2015 BCSC 2445 will be of interest to strata councils and their advisors, who are increasingly being called upon to manage smoking-related disputes.

The case involved a strata complex located in Salmon Arm. Each strata lot had a balcony designated as limited common property to be used exclusively by the owner or resident. The petitioner lived on the second floor of one of the buildings and had repeatedly complained to the strata council about second-hand smoke from his upstairs neighbor smoking on her balcony. The petitioner was vocal and wasn’t alone in his concerns about second-hand smoke. Over the course of two years, the issue of smoking on balconies became an increasingly divisive issue among the owners.

The strata corporation tried to balance the interests of smoking and non-smoking owners and adopted a bylaw containing a limited prohibition on smoking. The relevant part of this bylaw reads as follows:

3(7) Smoking is not permitted on any common property of the strata corporation. Notwithstanding this smoking prohibition, smoking is allowed on balconies which are designated as limited common property, provided that the smoker maintains strict compliance with the Tobacco Control Act and Regulation, which directs that the smoker must remain a minimum of three (3) meters from the doorway, window or air intake, and the balcony must not be fully or substantially enclosed.

After the adoption of the bylaw, the petitioner repeatedly complained to the strata council about second-hand smoke from his neighbor smoking on her balcony. The strata council repeatedly tried to grapple with the petitioner’s demands that the bylaws be enforced, by holding meetings, conducting investigations, and seeking advice from lawyers, the local health authority, and other advisors. Dissatisfied with the strata council’s efforts to enforce the bylaw, the petitioner ultimately commenced the court proceeding.

The petitioner applied for relief under section 165 of the Strata Property Act. The court dismissed the petition, refusing to grant any of the requested orders.

The court confirmed its general view, articulated in past cases, that it “will limit its intervention in strata disputes to circumstances where the Strata Council or administrator is incapable of remedying the problem.” Although the strata council in this case may have made some missteps, the court found that “the Strata Council has demonstrated that it is willing and able to investigate complaints, and is capable of taking action to enforce its bylaws.” The council’s willingness ultimately to seek legal and other advice contributed to this finding.

The court considered the test for nuisance resulting from second-hand smoke and concluded that “on the evidence adduced on this application, the petitioner has not established that he has suffered any substantial or unreasonable interference with his enjoyment of his property as a result of other owners smoking within the confines of their own units.”

The court was unwilling to order the strata corporation to impose greater limits on smoking than those already found in its bylaws, which “would prohibit smoking by owners within the privacy of their own units where the petitioner has not shown that such smoking constitutes a nuisance.”