| Strata Corporations > Laws and Legal Issues > Legal Opinion
In February of 2008, the Heart and Stroke Foundation of BC & Yukon commissioned a legal opinion to determine the legality, process and challenges for creating and enforcing non-smoking bylaws in condominium corporations in compliance with the British Columbia Strata Property Act.
Recognizing that not everyone has time to read the opinion in full, this section was created to highlight key aspects of the legal opinion to provide easy reference for strata owners, strata corporations and agents who are dealing with this issue.
As this section represents our interpretation of the legal opinion, and does not address all of the issues raised in the opinion, it should be used for informational purposes only. If you are planning to adopt a non-smoking bylaw, it is recommended that the complete legal opinion be reviewed (posted above). It is also recommended that strata corporations and owners dealing with specific legal questions on this matter seek independent legal advice.
Note: This information is intended for the use of strata corporations that are solely residential. If you are considering creating a non-smoking bylaw in a commercial or “mixed-use” strata corporation, it is necessary to consider further issues, including the application of provincial occupational health and safety regulations, and provincial and municipal public smoking prohibitions.
Yes. It is legal for a strata corporation to adopt a non-smoking bylaw that bans smoking on common property, limited common property, and in strata lots. While there are many variations of bylaws that Strata Corporations can choose, for the purposes of this section, “Smoking Prohibition Bylaw” will refer to a bylaw that bans smoking in strata lots, on the interior common property (but not necessarily exterior common property), and on patios and balconies.
Non-smoking bylaws may be adopted by the owner/developer prior to the sale of any strata lots or by the owners by a ¾ vote resolution. Bylaws registered by the owner/developer prior to selling strata lots have the added advantage that all owners had notice before purchasing.
Restrictions and prohibitions should be reasonably connected to the purpose of protecting the health and/or comfort of non-smokers. Further, bylaws must comply with all legislation to be enforceable, including the Strata Property Act, the Residential Tenancy Act, and the Human Rights Code. Once passed by the owners, bylaw amendments must be filed in the Land Title Office in order to be enforceable.
Yes. Strata corporations are able to amend their bylaws from time to time, and those amendments generally apply to all residents in the complex (unless a ‘grandfather’ clause is included). While section 123 of the Strata Property Act recognizes pre-existing rights in relation to pet and age bylaws, it does not deal with pre-existing rights for a behaviour such as smoking. We are not aware of any case law to support the premise that an owner who purchases a strata lot is not subject to a bylaw that governs behaviour after the purchase. Otherwise, bylaws governing behaviour would only apply to those individuals that take up residence after the bylaw is passed, which would create a situation where not all residents would be treated the same.
This is more complex, as there may be a conflict between the Residential Tenancy Act and the Strata Property Act. Section 14 of the Residential Tenancy Act requires all changes to a rental agreement (except those expressly excluded), be consented to by both parties. Yet the Strata Property Act does not support tenants being exempted from bylaws. It can be argued that an owner transfers only those rights to a tenant that he or she has – so if an owner cannot smoke in a strata lot, neither can the tenant. It is recommended that legal advice be sought before enforcing a Smoking Prohibition Bylaw against a tenant who resided in the complex prior to the Smoking Prohibition Bylaw being passed and registered.
However, it should be noted that if the smoke from a rental unit is causing a nuisance to other residents in the complex, or another resident has a particular sensitivity to the smoke that is considered a disability under the Human Rights Code, the strata corporation could take steps to address these complaints (see sections below on addressing complaints of second-hand smoke and accommodation).
Yes. Effective March 31, 2008, pursuant to the newly amended Tobacco Control Act, BC now has province-wide legislation that protects people from second-hand smoke in multi-unit dwellings, including strata corporations, by banning smoking:
Smoking in these areas would be a breach of section 3(1)(d) of the Schedule of Standard Bylaws from the Strata Property Act, which provides that an owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that is illegal.
Municipalities have the authority to pass non-smoking bylaws that exceed the new provincial smoke-free Regulations, including bylaws that regulate smoking within multi-unit dwellings. Municipalities such as the City of Vancouver, Surrey, Richmond and the Capital Regional District have passed bylaws with more strict buffer zone requirements than the province.
A demonstrated allergy or environmental sensitivity to second-hand smoke could garner the protection of the Human Rights Code and require a strata corporation to take steps to accommodate the disability. This may include enforcing the bylaws that the strata corporation already has, or creating new bylaws that deal with the situation.
It has been established that a strata corporation’s provision of management services comes under the purview of Section 8 of the Human Rights Code. While the Human Rights Code does not define either mental or physical disability, a wide range of physical and mental conditions has been granted disability status under the Human Rights Code. Traditionally, Courts, Tribunals and Arbitrators have given a broad and liberal interpretation of “disability.”
To establish that a strata corporation has discriminated against an owner with respect to an accommodation, service or facility on the basis of a disability, a complainant would need to establish both that he/she had a disability and that the strata corporation knew about the disability.
In one case, Konieczna v. The Owners, Strata Plan NW2489, 2003, BCHRT 38, the complainant alleged discrimination because of a bylaw that prevented the installation of flooring other than wall-to-wall carpeting. The complainant alleged this was discrimination on the basis of a physical disability as she was asthmatic and carpeting aggravated her condition. The Tribunal concluded that the complainant’s condition was indeed a physical disability, that the strata was aware of the disability, and that she was entitled to protection under the Human Rights Code.
Once a complainant establishes disability discrimination, the onus is shifted to the strata corporation to prove, on a balance of probabilities, that it had a reasonable justification for the discrimination. In this case, the strata did not raise the defence of justification, and the Tribunal ordered that the strata allow the complainant to install hardwood flooring and pay compensatory costs of $3500 for injury to her dignity, feelings and self-respect.
A Smoking Prohibition Bylaw can be supported by the Human Rights Code where the layout of the complex would require a strata corporation to ban smoking in order to accommodate a resident with a physical disability, such as asthma, allergies or some other disability exacerbated by smoke. For example, while it might be impossible to stop smoke travelling from one strata lot into another in a heritage house, it would be more difficult to justify a Smoking Prohibition Bylaw in a bareland strata corporation where a strata lot is comprised of a plot of land.
The Charter of Rights and Freedoms does not recognize addiction to nicotine as a disability, and there is legislative support to enact and enforce Smoking Prohibition Bylaws. However, there is also case law to challenge them, and this case law should be considered when drafting such a bylaw. This section is not exhaustive, and only deals with section 8 of the Human Rights Code (discrimination in accommodation, service and facility). It is recommended that the legal opinion be reviewed in its entirety for a complete analysis of the challenges.
Courts, Tribunals and Arbitrators have adopted a broad approach to what constitutes a physical disability under the Human Rights Code. It was broadened even further with respect to nicotine-addicted individuals following a Labour Relations Board case in BC between Cominco smelter operator and its union in 2000.
At issue in Cominco was a smoking policy that banned the use and possession of tobacco on company property, and didn’t allow sufficient time for staff to leave the property on breaks to smoke. The Union argued that nicotine addiction constituted a disability under the Human Rights Code. They contended the policy discriminated against smokers because if they could not control their addiction, they would lose their jobs. The Union argued that addicted smokers must be accommodated in ways that would permit them to continue to work, and permit them to smoke in an outside area, while taking steps to ensure that the smoke didn’t contaminate the environment of others.
The Arbitrator acknowledged that the Courts have not found nicotine addiction to be a disability as a ground for protection under the Charter, but he held it was within the meaning of physical disability under the Human Rights Code. The Arbitrator determined that there was no inherent right to smoke, but referred the matter back to the parties for further discussion on accommodating the heavily addicted smokers up to the point of undue hardship. Cominco's smoking ban remains in effect today.
It should be noted that the Arbitrator recognized that the increase in public smoking policies was meant to protect others from the harmful effects of second-hand smoke. Further, the trend toward establishing smoking policies is consistent with the position that while smoking is a legal activity, it should not be carried out in places where the smoke might harm others.
Regarding Smoking Prohibition Bylaws in strata complexes, smoking should only be banned in areas where non-smokers are put at risk, and this means that each strata council needs to examine what provisions will offer appropriate protection based on the layout of the complex and the residents. A Smoking Prohibition Bylaw can include provisions that allow for accommodation of residents who are addicted to nicotine. Depending on the situation, accommodation can take a variety of forms, such as providing a covered area outdoors where smoking would be allowed.
1) Internal Remedies:
Assuming that the adoption of the Smoking Prohibition Bylaw has satisfied the procedural requirements under the Strata Property Act and is properly registered in the Land Title Office, there are several enforcement options available, including imposing a fine or restitution costs.
Prior to obtaining a remedy for non-compliance of the non-smoking bylaw however, the strata corporation must first follow mandatory bylaw enforcement procedures in accordance with section 135 of the Strata Property Act. The procedures include providing the owner with notice of the complaint received, the particulars of the complaint in writing and a reasonable opportunity to answer each complaint, including the offer of a hearing before the strata council. Judges always have the discretion to forgive fines charged by a strata corporation for breach of a bylaw, and generally seem inclined to do so if the procedures set out under section 135 have not been properly followed.
If the bylaw infraction involves a tenant, councils need to be aware of additional procedural requirements under section 135. Further, if a tenant continues to breach a Smoking Prohibition Bylaw, the strata council or the owner can, as a last resort, give the tenant notice terminating the tenancy agreement under section 47 of the Residential Tenancy Act.
2) Court-ordered remedy
In addition to internal remedies, a strata corporation can also seek a Court ordered remedy. The strata corporation can petition the Supreme Court of British Columbia for an order that an owner, tenant, occupant or visitor must comply with the bylaws of the strata corporation. Based on case law, it could be argued that an owner who is ordered by a Judge to comply with a Smoking Prohibition Bylaw and fails to do so, could be subject to an order to vacate his or her strata lot.
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
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 laws in BC section
4) Human Rights Code – See laws in BC section