Smoking is a polarizing issue, typically smoker vs non-smoker. This debate can become heated in the strata complex when people live close together and it is a question of who has the greater right: the person who wants to live in a smoke-free home or the smoker who has been smoking for many years and is most likely addicted.
This has come up twice now in reported CRT decisions: The Owners, Strata Plan LMS 2900 v. Mathew Hardy, 2016 BCCRT 1; and Mundel et al v. Hastings-Evans et al, 2017 BCCRT 108.
In the case of Hardy, the strata corporation sued the owner to stop him from smoking tobacco and marijuana in his unit. The strata had a bylaw that banned smoking on the strata plan in a way that was a nuisance to others.
Mundel was an individual owner suing her neighbour and the strata corporation to stop the neighbour from smoking in her unit. In the case of Mundel, the strata had a no smoking bylaw anywhere on the strata plan, but had ‘grandfathered’ owners residing in their unit when the bylaw was passed. Mundel, however, argued that her neighbour’s smoking was a nuisance, even if she was grandfathered.
Both cases had clear evidence that Hardy and the neighbour in Mundel were smoking in their unit and multiple complaints were received by the council in both cases. In both cases, the CRT found that there was a breach of the bylaws.
However, in determining whether to order that the people in question stop smoking in their units, the CRT also considered whether it would be discriminate to ban an owner from smoking in their unit.
In Hardy, the owner had a chronic pain condition wherein he was medically recommended to smoke marijuana, but there was no evidence that he had a disability that required tobacco smoke. As there was no disability that required smoking tobacco, there was no discrimination from banning tobacco smoking. Further, the owner wasn’t required to smoke marijuana to ingest it – there are other ways to consume marijuana to alleviate his condition that will cause less of a nuisance.
As a result, the owner, in Hardy was banned from smoking tobacco and marijuana in his home.
In the case of Mundel, the neighbour claimed that she was 80 and it was difficult, unsafe, unfair and inconvenient for her to leave her unit to smoke on the street. The CRT noted that there was no specific disability that prevented her from smoking elsewhere other than in her unit and was banned from smoking anywhere on the strata plan.
It is clear from the decisions that the interests of the health and safety of the non-smokers, and the desire to live in a smoke-free environment is winning against the smokers. The smokers are, therefore, being inconvenienced by having to find other locations to smoke than their own homes.