Chorney v. the Owners, Strata Plan VIS 770, 2011 BCSC 1811
This case involves the frequent conflict that arises between smokers and non-smokers living in close proximately to one another.
The petitioners sought an injunction to prevent their neighbor from smoking anywhere in the building to prevent second-hand smoke from entering their units.
One of the petitioners was highly allergic to cigarette smoke. The other petitioner was a two-time cancer survivor and was concerned about the effects of second-hand smoke on her health. The petitioners repeatedly complained to the administrator (previously appointed by the court in place of council) who in turn warned the smoker that she was breaching the strata’s bylaws that prohibit an owner from using a unit in a way that causes a nuisance, emits an offensive smell or interferes with an owner’s right to enjoy the common property or their unit. The smoker responded by pointing out that the bylaws did not prohibit smoking and that like other owners in the building, she had a right to smoke in her unit.
The administrator sought approval from the owners to take enforcement action in court against the smoker, however, the special resolution was defeated. The administrator informed one of the petitioners of the result and indicated he would lend support to any court the petitioner might consider. As a result, the petitioners felt they had no recourse other than to seek the assistance of the court on this dispute.
The court refused to grant the order sought and held that the courts should only intervene in strata disputes when the governing council or administrator is incapable of resolving the issue. It was pointed out that the administrator should have pursued other remedies available to him, namely the power under the bylaws to impose fines for violations. As such, the court ordered that the administrator follow the process set out in section 135 of the Strata Property Act which provided both the ability to impose fines for bylaw infractions and procedural safeguards that dictate the circumstances under which fines can be imposed. The court emphasized that if this procedure failed to remedy the problem, then relief could be sought through a further application to the court.
Cases like this emphasize the reluctance of the courts to intervene in strata disputes until owners and councils exhaust all remedies available to them before taking the risky and expensive step of asking the courts to resolve the issue.
Read the reasons for judgment here: Chorney v. the Owners, Strata Plan VIS 770, 2011 BCSC 1811
You can expect more cases smoking in the future. Also, many new developments are now entirely smoke-free.
What we do: Lesperance Mendes advises strata corporations and owners on matters such as construction defects, warranty claims, bylaw enforcement and collections. We have also successfully represented strata corporations to obtain injunctions and significant fines against troublesome owners (see: The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc., 2009 BCSC 473 and The Owners Strata Plan VR 2000 v. Grabarczyk, 2006 BCSC 1960). For more information about our strata law practice, contact Paul G. Mendes at 604-685-4894 or by email at pgm@lmlaw.ca.
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