11/10/2023 – Jurisdiction British Colombia
Part 84 published on 01/12/2023
Tribunal orders residents to stop smoking. No violation of B.C. Human Rights Code.
The strata corporation had passed a bylaw against smoking. The bylaw said that a resident could not smoke in any interior space, including within the units, or on exterior common property within 3 meters of a door, window, or air intake.
The occupants of one of the units argued that the by-law should not apply to them for various reasons:
- First, the occupants said that the by-law should not apply to them because they entered into occupancy of their unit long before the by-law was passed. The Tribunal rejected this argument. The Tribunal said that “in the absence of an explicit exemption for existing smokers” (ie. a legacy exemption), the by-law applied to all residents.
- Next, the occupants said that their tenancy agreement (with their landlord) permitted them to smoke. The Tribunal again rejected this argument. The Tribunal said that the tenancy agreement governs the legal relationship of the occupants with their landlord, not with the strata corporation.
- Finally, one of the occupants claimed that they were required to smoke in the unit due to nicotine addiction and because mobility issues prevented them from smoking outside the unit. The Tribunal held that there was no evidence of a need to smoke in the unit. The Tribunal said:
Even if I did accept that Mrs. Ramsay is addicted to nicotine, I would still find that the Ramsays have not proven that the strata must allow her to smoke inside, contrary to bylaw 31.2. This is because there is no evidence that Mrs. Ramsay must smoke to manage any nicotine addiction. Under the Code, disabled persons are not entitled to perfect accommodation. The strata must only provide a reasonable accommodation that balances Mrs. Ramsay’s interests with the interests of other residents. Here, there is evidence that second-hand smoke from the Ramsays’ apartment has had a detrimental impact on other residents, including one with a physical disability that made them particularly sensitive to second-hand smoke. I find that the Ramsays have not proven that Mrs. Ramsay cannot manage any nicotine addiction in ways that do not involve smoking, such as by using nicotine replacements like patches or gum.
The Tribunal said that the occupant had no right to smoke under the B.C. Human Rights Code.
The Tribunal ordered the occupants to stop smoking in their unit.