Should Strata Corporations be Liable for Second-Hand SmokeMcDaniel and McDaniel v. Strata Plan LMS 1657 (No. 2), 2012 BCHRT 167 (CanLII)
ShouldStrata Corporations be Liable for Second-Hand Smoke? A Commentary on the Standard Bylaws
March 9th, 2018
The vast majority of British Columbia is quickly becoming smoke-free with the lowest smoking rate in the Country. In response to this, many strata corporations have adopted non-smoking bylaws affirming the position that many residents prefer living in a smoke free environment. Strata corporations are able to create a bylaw or rule to limit or prohibit smoking. With a non-smoking bylaw passed by a ¾vote of owners, a strata corporation can ban smoking in strata lots, common property, and limited common property. However, when a non-smoking rule is passed, a strata corporation may prohibit smoking on common property.
Despite the Provincial wide trend of becoming smoke-free, coupled with many strata corporations adopting non-smoking bylaws, a recent survey of strata owners shows that 9% of these owners continue to smoke inside their homes.This leaves many strata owners wondering what legal action they can take and what remedies are available against the strata corporation for second-hand smoke. In this article I focus on whether strata corporations can be held liable for second-hand smoke when there are no non-smoking bylaws.
When Strata Corporations have not implemented non-smoking bylaws, the question becomes whether or not Strata Corporations should be obligated to act on complaints of second-hand smoke and if they can be held liable to Strata Owners for damage caused by second-hand smoke, pursuant to the Standard Bylaw, found in the Strata Property Act.Section 3(1)(c) states that owners, tenants, occupants, or visitors cannot use a strata lot in a way unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets, or another strata lot. I conclude that strata corporations may be held liable for second-hand smoke pursuant to s. (3)(1)(c) of the Schedule of Standard Bylaws (“Use of Property”),and should be held liable, regardless of the existence of specific non-smoking bylaws.
The Act contains Standard Bylaws for when the Strata Corporation has not implemented non-smoking specific bylaws. The relevant provisions of the standard bylaws within the Act state the following:
(c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot
Section 26 of the Act imposes a statutory duty on the strata council to enforce these Standard Bylaws through the strata corporation. Regardless of a non-smoking bylaw in place, the Standard Bylaws prohibit owners from unreasonably interfering with the rights of other persons to use and enjoy the common property, common assets, or another strata lot. Jurisprudence indicates that second hand smoking is sufficient to warrant an unreasonable interference with these rights; specifically, that second-hand smoking contravenes s. 3(1)(c) of the Standard Bylaws.This breach of the Standard Bylaws gives rise to a claim where the Strata Corporation should be found liable for second-hand smoke.
Ac contravention of the Standard Bylaws,or a failure to enforce them, gives rise to broad remedies available in Court pursuant to sections 164 and 165 of the Act. Possible remedies include:
165 On application of an owner, tenant, mortgagee of a strata lot or interested person, the Supreme Court may do one or more of the following:
Pursuant to this section, the Court may order the Strata Corporation to enforce the Standard Bylaws, ensuring that owners are not smoking in a manner that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets, or another strata lot.
There are two instances where the BC Human Rights Tribunal has issued decisions that affirm my opinion. In McDaniel and McDaniel v. Strata Plan LMS 1657 (No. 2), 2012 BCHRT 167 ,the Human Rights Tribunal awarded two strata owners damages for exposure to second-hand smoke. Both owners had health concerns that were exacerbated by the second-hand smoke that infiltrated their home from other strata units and limited common property. The strata corporation had unsuccessfully attempted to pass a bylaw prohibiting smoking. Even without specific non-smoking bylaws, the Human Rights Tribunal held the strata corporation liable pursuant to the Standard Bylaws, s. 3(1)(c), finding it failed to prohibit the owners that smoked from using their strata lots or common property in a manner that would not unreasonably interfere with the use and enjoyment of other owners.
My interpretation of the tribunal’s decision is that complaints about second-hand smoke are not private matters between owners; rather, they are matters which the Strata Corporation must enforce pursuant to the Standard Bylaws, even if only one or two owners are affected.
The Supreme Court affirmed the duty of the strata corporation to enforce these Standard Bylaws in Chorney v. Strata Plan VIS 770, 2011 BCSC 1811.While this complaint did not specifically involve s. 3(1)(c), the BCSC held that second-hand smoke that exacerbates existing health issues can violate the strata’s existing nuisance bylaws which are also found in the Standard Bylaws. As a result, it appears that the courts will hold strata corporations liable for second-hand smoke, even without smoking bylaws..
While jurisprudence is currently limited, the case law makes it clear that second-hand smoke can lead to a breach of the Standard Bylaws. This breach may result in a successful human rights complaint with damages awarded against the strata corporation. However, it’snot yet clear in cases where it’s the smoker themselves with an existing medical condition. For example, there is no case law where a smoker claims a diagnosed medical condition that requires the use of medical marijuana. It is unclear if the results in McDaniel or Chorney would have been different given these circumstances.
Whether strata corporations have specific non-smoking bylaws implemented or not, there is a clear statutory obligation found in section 3(1)(c) of the Standard Bylaws which prohibits owners from unreasonably interfering with the rights of other persons to use and enjoy common property, common assets, or another strata lot. The strata council has a positive duty to enforce these Standard Bylaws, found in section 26 of the Act.A contravention of the Standard Bylaws,or a failure to enforce them, gives rise to a multitude of remedies in Court pursuant to sections 164 and 165 of the Act.
 Smoke Free Housing BC, “Why Go Smoke Free”,online: <www.smokefreehousingbc.ca>.
 Supra, note 1.
 Strata Property Act, SBC 1998, c 43 [“Act”].
 Supra, note 4, s. 3(1).
 StrataProperty Act, SBC 1998, c 43, Schedule of Standard Bylaws, s 3(1) [“Standard Bylaws”].
 Ibid, s 3(1)(c).
 Supra note 5, ss. 164 – 165.
 McDaniel and McDaniel v. Strata Plan LMS 1657(No. 2), 2012 BCHRT 167 [“McDaniel”].
 Chorney v. Strata Plan VIS 770, 2011BCSC 1811 [“Chorney”].
 Supra note 9.