Strata Alert: An “odious” situation: the impact of a disability on a strata’s obligation to investigate and enforce smoking and nuisance bylaws

An “odious” situation: the impact of a disability on a strata’s obligation to investigate and enforce smoking and nuisance bylaws

By Naomi Rozenberg and Amanda Magee


Naomi Rozenberg, Partner                                                    Amanda Magee, Associate
Phone:  604-685-3911                                                               Phone:  604-685-5438
Email:                                                               Email:

When a person’s medical condition is aggravated by smoke or fragrances, they would typically remove the source from their home. But what happens when the offending odour passes through the shared walls or ventilation system of a condominium?

The Human Rights Tribunal previously held in Leary v. Strata Plan VR1001 that a strata corporation is subject to a higher duty to investigate smoking complaints where the complainant suffers from a disability that is impacted by second-hand smoke.

The Civil Resolution Tribunal’s (CRT) recent decision in Cheslock v. Strata Plan NW 3158, 2021 BCCRT 712 reinforces the proposition that strata corporations must be diligent and respectful in investigating and determining smoking and nuisance bylaw complaints, particularly where there is medical evidence that could lead to a claim of discrimination.

Background Facts

Cheslock concerned a claim between two strata lot owners (the Cheslocks) and a strata corporation over an alleged nuisance caused by odours infiltrating the Cheslocks’ unit from their downstairs neighbour. The smell of cigarette and marijuana smoke, air fresheners and essential oils entered the Cheslocks’ unit and negatively impacted Mrs. Cheslock’s health. This claim was supported by the doctor’s notes detailing her exacerbated allergies and asthma. The Cheslocks claimed that these health problems constituted a disability and that the strata failed to accommodate Mrs. Cheslock’s disability to the point of undue hardship, as required under the Human Rights Code.

CRT Ruling

The CRT found that the strata’s investigation was deficient and demonstrated a lack of respect for the Cheslocks. For example, emails between a strata council member and the downstairs neighbour described the Cheslocks as “trouble makers” and suggested that Mrs. Cheslock might have “mental problems”. The CRT stated that this council member should have been removed from the investigation. The CRT concluded that the strata corporation had failed to meet its duty under the Code and that the Cheslocks had experienced discrimination.

In contrast, in Mundel et al v. Hastings-Evans et al, 2017 BCCRT 108 the strata corporation was found to have dealt fairly with a similar complainant in similar circumstances. In that case, while the Mundels had medical problems that were aggravated by smoke, neither one alleged having a disability. The strata corporation’s investigation was considered sufficient because discrimination was not an issue.


When a complaint involves a human rights element, a strata corporation has a heightened responsibility to investigate and determine the matter adequately and respectfully. Strata council members and property managers should keep this in mind when approaching situations where a medical condition is a factor.

In particular, if a smoking or nuisance bylaw complaint is made by a person with a disability, the strata corporation should consider:

  • requesting relevant medical information from the complainant;
  • inspecting the premises with a consideration of where the odours are coming from and whether they can be blocked;
  • hiring an air quality expert; and
  • whether there are biases that may influence the investigation.

If your strata corporation has received smoking or odour complaints and medical conditions are present, seek legal advice on the best way to handle the investigation to ensure that the strata comes out of it smelling like roses.


WHAT WE DO:  Lesperance Mendes has been advising strata corporations on strata governance issues since 1997. If your strata corporation requires legal advice with respect to responding to a  bylaws infraction or human rights complaint, please contact Naomi R. Rozenberg at 604-685-3911 or or Amanda M. Magee at 604-685-5438 or


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