Strata Alert: BC Supreme Court orders smoker to “butt out” pending appeal to Human Rights Tribunal
The Owners, Strata Plan NW 1815 v. Aradi, 2016 BCSC 105
Paul G. Mendes, Partner
Phone: 604-685-4894
Email: pgm@lmlaw.ca
In what is likely to be seen as a landmark ruling in BC, the BC Supreme Court has ordered a condo owner to stop smoking in his strata lot, even while his human rights complaint against the strata is pending.
You will recall that this case was widely covered in the media back in September.
Condo owner and “lifelong smoker” Paul Aradi’s neighbors started complaining about second-hand smoke coming from his unit back in 2013. In 2014, the strata passed a bylaw banning smoking everywhere on strata property, including inside the units. The complaints of second-hand smoke against Mr. Aradi continued, however, so the strata started enforcing the no smoking bylaw by fining Mr. Aradi. When Mr. Aradi refused to pay the fines, the strata sued him in Small Claims Court. Mr. Aradi then filed a human rights complaint against the strata, alleging that his addiction to cigarettes was a disability. Anyone who has quit or tried to quit smoking can certainly understand where Mr. Aradi was coming from.
The strata, however, was not content to wait for the outcome of Mr. Aradi’s human rights complaint. Instead, the strata applied to the BC Supreme Court for an injunction to stop Mr. Aradi from smoking in his unit and on strata property under section 173 of the Strata Property Act. Mr. Aradi opposed the injunction on the basis that it would cause him “irreparable harm”, namely due to the fact that he was also physically disabled and found it difficult to go outside every time he needed to smoke.
The Court was not persuaded and instead ordered Mr. Aradi to “butt out”.
Mr. Aradi tried persuading the judge that his limited mobility made it very difficult for him to go outside to smoke. The judge, however, was not satisfied with Mr. Aradi’s medical evidence, particularly the complete absence of evidence confirming that he was addicted to cigarettes. In the end, the judge found that the strata council had acted in good faith when it enforced the no-smoking bylaw. Taking into account all the evidence, and balancing Mr. Aradi’s interests against the legitimate interests of his neighbors, the Court ordered Mr. Aradi to smoke outside and off strata property.
This case resolves, for the time being at least, the lingering question of whether strata can pass a complete smoking ban that applies to individual strata lots. It also confirms that the Court has the power under s. 173 to issue injunctions against owners who repeatedly violate significant strata bylaws, even while a human rights complaint is pending. This last point is important because human rights complaints are often used to derail a strata’s bylaw enforcement efforts.
WHAT WE DO: Lesperance Mendes advises strata corporations and strata managers on all manners of bylaw enforcement, including bylaw amendments, actions to collect unpaid fines, and injunctions issued under s. 173 of the Strata Property Act. To discuss your case with a qualified strata lawyer, contact Paul G. Mendes, the partner at 604-685-4894 or send an email to pgm@lmlaw.ca.
Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567