Enforcement of a strata nuisance bylaw made its way to the BC Civil Resolution Tribunal hearing due to second-hand smoke entering a resident’s unit.
Daryl and Tanya Foster are the applicants in the strata dispute against Strata Plan LMS 35.
Another resident was also named in the case as the potential source of the smoke, but the tribunal determined the applicants couldn’t sufficiently prove that. However, the applicants were able to force the tribunal to push the strata to take action.
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According to new rules established by this specific strata in 2018, residents and visitors are prohibited from smoking “inside the buildings.”
It also states that a resident or visitor must not use a strata lot or common property in a way that causes a nuisance or hazard to another person.
May 2021 was the first time the applicants complained about smoke entering their units. There were 51 dates and times logged of instances of smoke. Four potential sources, including Ms. Clark, were identified one month later.
The strata council president informed residents that bylaws did not restrict smoking on balconies but also informed at least one resident that her smoking was considered a nuisance.
By May 2022, 281 complaints were logged by the applicants, some of which included photographs of people smoking on Clark’s balcony, which was several floors away from the applicants’ unit.
The applicants had contacted a lawyer who wrote a letter to the strata about the issues with smoke entering the applicants’ unit. The lawyer urged the strata to issue a bylaw contravention notice, which the strata dismissed.
The tribunal found that the applicants did not prove Ms. Clark was creating a nuisance, but it did find that the strata did not fulfill its obligation to investigate the Fosters’ claims properly.
“In order to meet its objective investigation requirements, I find the strata must at least attend [the unit] when applicants smell smoke.”
The tribunal added that the BC strata must do the work to rectify the second-hand smoke issue no later than July 2024.
No further smoke damages were awarded in this case.