Part published on 01/01/70
Court enforces “no smoking” by-law
The strata corporation passed a by-law to prohibit smoking in the units. The respondent was a “life-long smoker”. He argued that the by-law should not be enforced against him because he had an addiction that forced him to smoke, and because there was no proof that prohibition of smoking was necessary to prevent harm to other residents.
The respondent had also made a human rights complaint which was to be heard later in 2016. The respondent said that no order should be considered until his human rights complaint had been decided.
The Court ordered that the respondent stop smoking in his unit. The Court said:
I am cognizant of the special status of human rights legislation. Section 4 of the Human Rights Code provides that it has precedence over other provincial legislation in the event of a conflict. However, as things currently stand, the no smoking bylaw is valid and the strata corporation and other residents, as noted above, have a reasonable expectation that it will be consistently enforced. In that regard, I was not referred to any decision of the Human Rights Tribunal which suggested that a strata owner or resident should be accommodated by allowing him or her to smoke in a strata unit where a no smoking bylaw is in place.
…
While I accept that the respondent may have an addiction to cigarette smoking and has limitations on his mobility in terms of walking and standing, I must consider the respondent’s wish to be able to smoke within his unit in the context of the scheme of the Act which includes, as noted above, the duty on the strata corporation to enforce the bylaws and the rights of other owners to enjoy their units without being exposed to nuisances such as smoking in areas prohibited under the bylaw.
By the respondent’s own report and the photographs from the CTV News video, the respondent has been able to comply with the no smoking bylaw by walking the relatively short distance from his unit to the public sidewalk, albeit with some difficulty. Further, it is not disputed that he is also able to drive his car, which I conclude would allow him to drive to a location where smoking is permitted.
[Editorial Note: I note that there was no consideration of possible grandfathering of this smoker, even though the Court said that “at the time he purchased the unit, there were no restrictions with respect to smoking in his unit.” Perhaps grandfathering was not considered necessary because the smoker could still live in the unit (without smoking in the unit), and could still smoke by traveling to locations where smoking is permitted.]