If a strata corporation does NOT have a non-smoking bylaw, how can complaints of second-hand smoke be addressed?
There are many different legal avenues for strata corporations and individual owners to address unwanted second-hand smoke in a strata complex, including the following:
1) Common Law of Nuisance
Strata corporations and all residents of strata corporations in BC are protected by the common law action of ‘nuisance’. If an individual is bothered by smoke in a strata complex, both the strata corporation and the individual in the complex can apply to Court for injunctive relief that the individual who is causing the problem cease doing so.
As explained below, where the nuisance complaint involves people living in a strata complex, the Courts have recognized additional factors to consider in cases of nuisance. In this type of communal living arrangement, the residents are required to exhibit more cooperation and respect for others to ensure that each resident is able to enjoy their property to the fullest extent.
Even if a strata corporation does not have a Smoking Prohibition Bylaw, smoking that is a nuisance can be addressed as a breach of the bylaws.
2) Breach of the Schedule of Standard Bylaws
Pursuant to the Schedule of Standard Bylaws in the Strata Property Act, virtually all strata corporations in BC prohibit in their bylaws behavior that creates a nuisance or hazard to another person, or that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot. This can include smoking, regardless of whether there is a Smoking Prohibition Bylaw in place.
Strata corporations need to be willing to enforce these bylaws by dealing appropriately with complaints of second-hand smoke, including following the bylaw enforcement procedure and applying for relief in Court if necessary. Failure to enforce the nuisance section of the bylaws may result in an owner bothered by smoke taking the position that the strata corporation has a statutory duty to enforce its bylaws and that the failure to enforce the bylaw is significantly unfair to him or her. As a result, the non-smoker could seek an order of the Supreme Court of British Columbia that the strata corporation enforce its bylaws. Section 26 of the Strata Property Act supports the concept that a strata council has a positive duty to enforce the strata corporation’s bylaws. It is recommended that legal advice be obtained before enforcing a nuisance bylaw.
3) Tobacco Control Act – See BC Laws section
4) Human Rights Code – See BC Laws section