Strata Alert: BC Human Rights Tribunal holds strata accountable for failing to deal with second hand smoke complaints

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BC Human Rights Tribunal holds strata accountable for failing to deal with second-hand smoke complaints
Leary v Strata Plan VR1001, 2016 BCHRT 139

Paul G. Mendes, Partner
Phone: 604-685-4894


In a ruling likely to have repercussions across British Columbia, the BC Human Rights Tribunal has found a strata corporation liable for failing to accommodate an owner’s disability in relation to second-hand smoke.

As is often the case with second-hand smoke complaints, the unit owner had complained about second-hand smoke for years.  She suffered from “allergic and asthmatic bronchitis” triggered by exposure to second-hand smoke.  Although little detail is provided about the history of the complaints, it was clear from the written decision that the unit owner complained a lot and that the council did not take her complaints seriously. For example, the tribunal member wrote:

“I easily conclude that Ms. Leary is a demanding and difficult member of the Strata. This has clearly impacted the way her concerns were treated by the Strata. I conclude that, due to the volume of other complaints, the Strata concluded that her concerns about smoking lack credibility.”

Nonetheless, the council took some steps to try to deal with the problem including asking owners who smoke to take measures to reduce the escape of smoke from their units and to avoid smoking near windows, doors, and vents. In 2014 and 2016 the council put smoking restriction bylaws on the agenda, but those bylaws were defeated by the owners.

One of the things that the council failed to do, however, thoroughly investigated the complaints. Many councils fall into this trap when dealing with nuisance complaints.  They put the onus on the complainant to prove that the bylaws are being contravened, or, if the evidence between the complainant and the “nuisance maker” is contradictory, they throw their hands up because they “don’t know who to believe”.

Under the Human Rights Code, once the complainant establishes a basic case of discrimination, the onus shifts to the respondent to justify its actions, including by showing that it has accommodated the complainant up to the point of undue hardship.

One of the curious things about this particular case is that the strata claimed “privilege” over its accommodation efforts and refused to disclose what steps it took to accommodate the complainant’s disability. The strata may have put all its eggs in the wrong basket, however, by hoping to prove that the complainant lacked credibility and was not in fact disabled.

Unfortunately for the strata, the Tribunal Member had no difficulty concluding that the complainant was in fact disabled. With no evidence to show what steps the strata took to accommodate the disability, the Tribunal Member had no choice but to find the strata in breach of the Human Rights Code.

Every strata owner, strata council member, and strata manager in BC should read this case because it contains a helpful set of guidelines under the heading: How Should a Strata Address a Request for Accommodation Related to Second-Hand Smoke?  I will not summarize the guidelines here so that you actually have to go and read the decision. I will, however, add my own pointers that would apply to most bylaw infraction complaints:

  1. Investigate the complaint. It is not enough to write infraction letters and hope for the best. If the complaint is about smoke, smells, or noise, council members should attend at the complainant’s unit to experience the situation firsthand.
  2. Do not leave enforcement decisions to the strata manager. The strata manager’s job is to assist the council to enforce the bylaws. They may receive complaints, but strata managers require the council’s direction to take enforcement actions. The manager’s job is not to resolve disputes between owners.
  3. Record enforcement decisions in the council minutes. It is possible to record bylaw enforcement decisions in council minutes without compromising privacy. Failing to record the enforcement decisions in the minutes may undermine the strata’s position if the complaint goes to court, the Civil Resolutions Tribunal, or the Human Rights Tribunal.
  4. Make sure your bylaw infraction letters comply with section 135 of the Strata Property Act (SPA). Section 135 requires the strata corporation to give an owner written the notice of the complaint and a reasonable opportunity to be heard, including a hearing if requested, before making an enforcement decision. I cannot tell you how many strata corporations fail to follow this basic requirement of the SPA.  If you need to defend your bylaw enforcement decisions before the Court or a Tribunal, proving that you complied with section 135 will be crucial.
  5. Hold a hearing if requested, and issue your decision after the hearing within one week. The only thing worse than failing to follow section 135 of the SPA is refusing an owner’s request for a hearing.  An owner’s right to a hearing is guaranteed by section 34.1 of the SPA.  Failing to hold the hearing when requested will completely nullify the strata corporation’s bylaw enforcement efforts.

WHAT WE DO:  Lesperance Mendes has been practicing strata law since 1997.  We advise strata owners, strata councils and strata managers on all aspects of bylaw drafting and enforcement.  If you find yourself dealing with a difficult bylaw enforcement issue, contact Paul G Mendes, Partner at 604-685-4894 or by email at


THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on upon without independent legal advice.

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567