Part 53 published on 01/02/16
Strata corporation did not act unfairly in its investigation of complaints about second-hand smoke
The applicants had complained about second-hand smoke entering their units from a neighbouring unit. The strata council investigated the complaints, which included questioning of the complainants, but without providing advance notice (to the complainants) of these planned enquiries. The smoker left the building. However, the complainants felt that the investigation process undertaken by the strata council (including the impromptu questioning) was not even-handed, but rather was “significantly unfair”, and the complainants sought an order requiring that the council follow proper procedures in the event of any future complaints. The Court refused to grant such an order. The Court said:
Given the totality of the circumstances, I am not satisfied the petitioners have established that council’s conduct throughout both the 2014 and the 2015 investigations of the petitioners’ complaints about second-hand smoke was significantly unfair to them. I am satisfied the corporation acted reasonably and fairly in investigating the complaints and trying to resolve the allegations made by the petitioners, given the denial by (the smoker) and the lack of corroborating evidence to support either version of events.
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I pause here to simply say that I feel it is important to note that I accept the reasonableness of (one of the complainant’s) concerns about second-hand smoke entering her unit, given her unfortunate medical history. In fact, one could probably take judicial notice of the hazard cigarette smoke presents to all persons, whether or not they are allergic to smoke or physically compromised. I also accept bylaw enforcement in any strata property is a matter of great importance, especially in a character building such as this one with its unique characteristics.
Again, however, I am not satisfied council acted significantly unfairly during their investigations.