Part 53 published on 01/02/16
Court declines to order strata corporation to prevent smoking in the units, without a specific by-law
According to the Court, the strata corporation was taking proper steps (albeit belatedly) to enforce the corporation’s by-law prohibiting smoking in the common areas, including the balconies. The Court said that the delay in enforcement was not the result of bad faith or dishonesty on the part of the strata corporation.
One of the owners also sought an owner compelling the strata corporation to perform its duty under the by-laws to remedy the nuisance of second-hand smoke infiltrating the adjoining units.
The Court held that there was no evidence (in this case) that smoking in the units could cause nuisance to other residents; and the Court declined the requested order. The Court said:
In short, on the evidence adduced on this application, the petitioner has not established that he has suffered any substantial or unreasonable interference with his enjoyment of his property as a result of other owners smoking within the confines of their own units.
The Court also dismissed the owner’s request for an order requiring the strata corporation to implement a smoke-free environment until the nuisance of second-hand smoke has been eliminated. The Court said:
The bylaws of the Strata Corporation do not ban smoking by owners within their own strata units. In order for Council to impose a ban on smoking throughout the strata complex, the Strata Corporation would have to adopt an amendment to the bylaw approved by a three-quarter vote of the owners at an annual or special general meeting, as required by s. 128 of the SPA.
This Court will not order the Strata Corporation to implement a ban on smoking within the strata complex that would exceed the restrictions on smoking under the Strata Corporation’s bylaw and would prohibit smoking by owners within the privacy of their own units where the petitioner has not shown that such smoking constitutes a nuisance.
Although the strata corporation was successful (in that the petition was dismissed), the Court declined to award any costs to the strata corporation because “it was only as a result of the petitioner bringing these proceedings that the Strata Council sought and obtained the advice they required in order to fully appreciate their duties under the bylaw.”