Condo Resources

Upon receipt of a complaint, collect information from the complainant to explore if there is a potential bylaw infraction of a specific non-smoking bylaw, or if the smoke constitutes a nuisance under the Standard Bylaws. The question of whether a complaint constitutes a nuisance can be challenging, but is commonly based on what an ordinary, reasonable person would consider being a nuisance, including:

• Is the smoke entering the unit happening on a regular and on-going basis and not just an occasional occurrence? How often does the smoke infiltrate the complainant’s residence, including dates and times?
• Is the smoke ingress unreasonably interfering with the use and enjoyment of the premises? For example, are certain rooms uninhabitable at times, are they unable to open windows or use the balcony due to smoke.
• Does the complaint experience negative health impacts from exposure to the smoke.
• If the complainant has a pre-existing health condition or disability, the resident may be entitled to accommodation from the Strata Council in accordance with the Human Rights Code.
• Has the complainant taken action to mitigate the impact of the problem?

Attend the complainant’s unit to experience the smoke ingress first hand:

• Determine the presence and severity of smoke entering the complainant’s unit. This could mean attending the unit at various times of the day or night when the smoke is occurring.
• Identify the source of the smoke ingress if possible, and whether the neighbouring Strata members or their guests are responsible for the smoke ingress.
• Identify if and how the smoke ingress could be mitigated or prevented.

If the source of the smoke cannot be determined, consider hiring an air quality specialist to submit a report on the source of ingress and recommendations to eliminate the problem.

• Send a bylaw infraction letter to the potential violating resident, and ensure the letter complies with Section 135 of the SPA. (See Tools for sample letter)
• Include details of the complaint including dates and times of the alleged bylaw infractions;
• Refer to the bylaw that has been allegedly breached.
• Give the recipient (owner or tenant) a reasonable time to respond to the complaint prior to making a decision whether to impose fines or take other steps to enforce the bylaw.
• Indicate that the resident has a right to request a hearing.
• Provide a list of possible consequences if council finds there has been a breach of the bylaw, such as a fine.
• Provide a specific deadline that the resident must respond: 1) in writing to the allegation and/or 2) request a hearing at a Strata Council meeting.

• If the complainant has requested accommodation due to a disability, or the medical evidence provided by the complainant warrants consideration of accommodation by Council, according to the Leary decision, Stratas should take a ‘serious and rigorous approach to these complaints, including doing more to search for solutions. See the Pdf download document below called: Guidelines for responding to accommodation requests.
• Consider assigning someone to take the lead in exploring possible solutions to eliminate the impact on affected residents. Do not put the onus on the complainant to find a solution.
• Explore remedies to minimize smoke transfer such as weather-stripping around doors/windows, ensuring building ventilation works efficiently, insulating air spaces around pipes and electrical outlets. Seek recommendations from an air quality specialist if necessary.
• Work with all parties to attempt an amicable solution. It’s possible that the smoking resident(s) doesn’t understand the extent of the problem and may be amenable to changing or stopping the behaviour in the unit and/or balcony.
• Consider creating a designated smoking area outside on the building property away from windows, doors or air intakes. Some Stratas have built gazebos for their smoking residents, although there can be significant building and maintenance costs involved.
• Consider seeking ownership support to pass a bylaw to ban smoking on the entire property, including Strata lots and balconies – with no provisions for ‘grandfathering’. Implementing a 100% non-smoking bylaw could help solve the current problem and prevent future ones. This does not exempt the Strata from resolving the second-hand smoke complaint in a timely fashion. 

• Hold a council meeting once the deadline to respond to the allegations has passed, and after a hearing if one was requested, to review all the evidence, submissions and correspondence in an impartial manner. 
• Based on the evidence, determine if there has been a bylaw infraction. Collect further information about the complaint as needed to make a decision, such as further medical information if considering an accommodation request. Read the Leary decision from the 2016 BC Human Rights Tribunal setting out guidelines for responding to smoking complaints when accommodation is requested.
• If a breach of the bylaws has been found, the council votes on enforcement remedies that could include: 

1. A warning letter;
2. A fine, up to the maximum allowed by the bylaws;
3. With continuing infractions, a fine could be imposed every 7 days until the resident remedies the infraction;
4. Costs to remedy the breach, such as work to the owner’s strata lot or the common property, charged back to the violating resident;
5. Denial of a recreational facility (but only if the bylaw contravention relates to the facility).

• Record the decision in the Strata Council meeting minutes without including individual names. Failure to record enforcement decisions in the minutes could undermine the Strata’s decision if they need to defend their position before a Court or Tribunal.
• If a hearing was held, within one week of the hearing, the Council or Strata Manager sends a letter to the resident (and the owner if a tenant is involved) advising of the decision. 

• Enforcement of smoking infractions includes requiring the smoking resident to stop the behaviour that is causing the nuisance. It is not enough to just issue a fine and not follow-up to ensure the infraction has stopped.
•  If the smoking continues, consider filing a complaint at the BC Civil Resolution Tribunal.
• Council can make a determination on whether a resident has breached a bylaw based on a ‘balance of probabilities.’ Council doesn’t have to prove that a resident breached a bylaw beyond a reasonable doubt – just based on whether it’s more likely than not that the bylaw was breached.
• Strata Councils must deliver decisions that are in compliance with the Human Rights Code.
• If the Strata receives an accommodation request from the resident who is violating the bylaw, based on approval for medicinal cannabis, there are many cases out of the CRT and HRT that upholds bylaws banning the smoking of medical cannabis. In balancing the rights of owners, Stratas have successfully argued for accommodations that don’t compromise the health of other residents, including designating outdoor smoking areas, or finding that the owner can ingest the cannabis rather than smoke it. Read The Owners, Strata Plan LMS 2900 v Mathew Hardy, 2016 BCCRT.

It will be important to do the groundwork to build your case and provide evidence to the Strata or the neighbouring resident. You will need to prove that the smoke is a significant and on-going nuisance, and is adversely impacting your health and/or use and enjoyment of your home. If there is a specific non-smoking bylaw, then you will only need to prove the presence of the smoke – not whether the amount constitutes a nuisance.

Document the source and extent of the smoke ingress: See Tools section for a sample tracking log

• If possible, identify how the smoke is entering your unit i.e. from the bathroom fan, or electrical outlets, or a neighbouring balcony.
• Keep track of how often the smoke enters your unit on a daily or weekly basis? Do you smell the smoke all the time or at certain times of the day – list the dates, times and frequency of occurrences.
• Identify when the problem started? Did you start smelling the smoke as soon as you moved into your unit? Did you notice the smoke when a new resident moved in?

Document health impacts on you and your family

• Document symptoms caused by the smoke infiltrating your home. Symptoms may include headaches, burning and watery eyes, sore throats, bronchitis, ear infections, to name just a few. 
• Is the smoke worsening a pre-existing health problem or disability such as asthma, allergies, heart disease, high blood pressure, fibromyalgia or cancer? You may have grounds to request accommodation in accordance with the Human Rights Code. See our Strata Corporation resource for responding to requests for accommodation of a disability in relation to second-hand smoke. 
• Indicate whether the smoke seeping into your home is causing anxiety or fear due to the potential or actual health impacts on you or your family members. 
• Indicate if you have a newborn in the family. Babies who are exposed to second-hand smoke have a higher risk of dying from sudden infant death syndrome (SIDS). 

Document the impact on the use and enjoyment of your home 

• Has smoke exposure interfered with the use and enjoyment of your home? Have parts of or your entire home become uninhabitable at times?
• Are you unable to open your windows or balcony door because of the smoke? 
• Are you unable to use your balcony because of the smoke? 
• Are you unable to use your fans or heating system because it exacerbates the problem? 
• Have you been forced to leave your home on certain days or at specific times to avoid the smoke? 
• Are friends and family with health conditions unable to visit you because of the smoke seeping into your unit? 

Collect supporting evidence: 

• Review your bylaws to determine if there is a specific bylaw that restricts or prohibits. smoking in the building or on the property. 
• Obtain written proof from neighbours, friends and family concerning the amount and frequency of smoke entering your home. The more people who can verify your complaint, the stronger your case. 
• Obtain a letter from your physician to verify how the smoke is impacting your health or the health of a family member. 
• If you have a disability or pre-existing medical condition and request accommodation be considered by your strata, provide sufficient medical information for them to understand the nature of your disability and how it is adversely impacted by exposure to second-hand smoke. Please note that your doctor may charge a fee for this request.

Consider taking all reasonable steps available to reduce or prevent the smoke from entering your unit. It will be important to demonstrate that you have attempted to minimize the problem yourself, if possible, before taking further actions or legal recourse.

Talk to your neighbours 

• If you feel comfortable, consider talking to your smoking neighbour. They might not realize that the smoke is a problem for you. Try to focus on solutions by asking the neighbour to smoke outside, smoke in another area, close doors or windows, or seal the source of the smoke.
• Seek support from other neighbours in the building. They might be experiencing the same problem, and may be willing to support your efforts. 

Try measures to seal off the smoke 

• Install door sweeps and weather stripping around windows. 
• Fill or patch cracks in walls and ceilings. 
• Seal plumbing penetrations with caulking or spray-in foam.
• Place covers over electrical outlets. 

This may be difficult for many people, especially if you don’t know how the smoke is entering your unit. 

Multi-unit buildings can have various ways that air moves throughout the building, including under doors from common areas, electrical outlets, wiring and plumbing penetrations, ducts, and poorly functioning ventilation systems. You may want to discuss options with your caretaker before taking any action. If you notify your property manager or strata council, suggest that they hire an air quality specialist to measure smoke ingress, identify the entry pathways and suggest solutions.

Note: Air filters, purifiers and ventilation systems do not remove all the chemicals in second -hand smoke and should not be considered viable solutions to smoke ingress. Visit the Why Smoke-Free section for more information on how second-hand smoke cannot be controlled. 

If efforts to resolve the problem yourself are unsuccessful, write a letter of complaint to your property manager or Strata Council to request that they take immediate action to rectify the problem. See sample complaint letter and consider the following: 

• Include your documented evidence of the various pathways of smoke ingress, the frequency of the occurrence, its duration, the impact on your health, and the impact on the use and enjoyment of your home. 
• Include any supporting evidence from your physician concerning the impact on your health or letters from friends and neighbours to verify your claims. 
• If you have a disability or health condition that is adversely impacted by exposure to the smoke, advise them that you are seeking accommodation in relation to your disability, and provide sufficient medical information to confirm your disability and how it is impacted by the smoke. 
• Identify what steps you have taken to resolve the problem to date. 
• Indicate your willingness to work with the Council to resolve the problem and propose potential solutions that you think might work and ask for a response by a specific date. 
• Send a group letter if there are others in the building experiencing the same problem. 
• Keep all records of correspondence and discussions concerning this issue. If the Strata fails to address this issue, you will need evidence to support your complaint before future Tribunals if necessary.  

If your strata has a specific no-smoking bylaw, request that the strata enforce the existing bylaw as they would any bylaw infraction. Further, the strata has a duty to thoroughly investigate complaints of second-hand smoke and cannot place the onus on complainants to prove that bylaws are being contravened. See Leary and Cheslock decisions under Case Law Highlights below.

Be prepared to co-operate with the Council to explore possible solutions. In the Leary case (2016 BC Human Rights Tribunal decision) where the owner requested accommodation due to a disability, the Tribunal found that the person seeking accommodation is not entitled to a perfect accommodation, but to one that reasonably addresses their needs and upholds their dignity in their housing.  Potential solutions include: 

Hire an air quality specialist paid for by the strata to:

• determine the presence and severity of smoke entering your home; 
• identify the various pathways of the smoke ingress and whether the neighbouring strata members or their guests are responsible for the smoke;
• identify if and how the smoke ingress could be prevented.

Work with the neighbour who smokes to negotiate solutions:

• Have the neighbour attend the complainant’s unit to experience the smoke. They might not realize the extent of the problem.
• Request that the neighbour stop smoking in specified areas where the smoke can enter your unit or agree to smoke outside in a designated area away from windows or doors. 

Consider an outside designated smoking area

• Some stratas have designated space for smoking on the property, or funded a gazebo as a compromise.  
• Designated smoking areas should be restricted to areas far enough from the building (at least 9 meters) to prevent second-hand smoke from entering open windows, doors or air intakes.

Advocate for a Smoke-Free Bylaw

• Request that Council put forward a no-smoking bylaw at the next AGM. If necessary, seek support from other strata members about creating a no-smoking bylaw. If you have the necessary 20% support of voting owners, request the Strata to hold a Special General Meeting in accordance with S. 43 of the SPA to vote on the bylaw. To pass, the Bylaw will need 75% support, so make sure you have sufficient support in advance of the meeting.
• It should be clarified that while the strata might agree to put forward a non-smoking bylaw to the membership, this does not exempt them from addressing the current complaint of second-hand smoke. They cannot offload dealing with a smoking complaint by claiming they have put the issue on the next AGM agenda.

Request a hearing before the Strata Council

If a negotiated solution cannot be reached and prior to potentially filing a dispute with the BC Civil Resolution Tribunal, you must have requested a hearing before the Strata Council to fully inform the council about your complaint and relief sought to resolve the matter (as set out in section 189.1 of the Strata Property Act). In the case of Ball v. The Owners, Strata Plan EPS 3286, 2019, the CRT considered relief sought by an owner against the strata corporation, but found that since the owner had not requested a hearing before the council, the dispute was not within the tribunal’s jurisdiction. 

Relief sought from the Council at the hearing could include requiring the strata to issue fines or take other actions in accordance with the SPA until the smoking behaviour is no longer causing the adverse impact on the complainant. Further, it is not enough for the strata to just issue a fine and not follow-up to ensure the infraction has stopped. If the smoking continues, further action may be required at the CRT.   

Apply to the BC Civil Resolution Tribunal or the Human Rights Tribunal

If after the Strata hearing you are not satisfied that the Strata’s decision will stop the smoke from infiltrating your home, you may want to consider filing your complaint at the Civil Resolution Tribunal or making an application to the Human Rights Tribunal for resolution and compensation. Before initiating legal proceedings, consider seeking legal advice.    

Examples of various orders sought at Tribunals and courts include: 

• Order that the Strata enforce the existing bylaws;
• Reimbursement for various expenses incurred during the infraction period (ie cleaning costs, air quality professionals, hotel accommodations, etc);
• Damages for pain, suffering and injury to dignity, feelings and self-respect;
• Reimbursement of various fees, such as CRT or HRT fees  or legal fees (but legal fees would only be considered in extraordinary circumstances, such as the complexity of the dispute, involving novel or complicated legal issues and including large amount of evidence or submissions – see Cheslock decision for further information on this).

For more information: check out the section under Case Law Highlights. Many decisions are cautionary tales of Strata Corporations that have failed to adequately respond to complaints of second-hand smoke.

Note: This document is for informational purposes only and is not intended to be and should not be construed to be legal advice. 

It is legal for Strata corporations (or sections) to create a non-smoking bylaw, by a 3/4 vote of owners, or create a rule to limit or ban smoking.

• A non-smoking bylaw can ban smoking in the strata lot as well as on common property and limited common property.
• A rule can only limit or prohibit smoking on common property.

Further, Strata corporations are able to amend their bylaws that would apply to all residents in the complex (unless a ‘grandfather’ clause is included). While section 123 of the Strata Property Act recognizes pre-existing rights in relation to pet and age bylaws, it does not deal with pre-existing rights for a behaviour such as smoking. 

Even if a strata doesn’t have a bylaw that specifically addresses smoking, almost all stratas have standard bylaws ensuring owners, strata residents and visitors cannot cause a nuisance or hazard to another person or unreasonably interfere with the rights of other persons to use and enjoy the common property, common assets or another strata lot. 

Section 3(1) of the Schedule of Standard Bylaws states:

3(1) An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that:

(a) causes a nuisance or hazard to another person,

(b) causes unreasonable noise,

(c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot,

These bylaws can be used to address second-hand smoke issues.

In most jurisdictions across Canada, including British Columbia, smoking is banned in all indoor public places and workplaces, including restaurants and bars. (The smoking ban in workplaces also applies to apartment units when workers are painting or conducting renovations). While there are no provincial laws that regulate smoking in private residences of multi-unit housing, BC enacted legislation to ban smoking in common areas and entrances of apartment buildings and condominiums.

Under the Tobacco and Vapour Products Control Act and Regulation, smoking is banned in apartments and condominiums in common enclosed areas, including:

• Elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies; and
• Within 6 metres (buffer zones) of a doorway, open window or air intake of common enclosed areas.

IMPORTANT CLARIFICATION: This legislation does not apply to individual units or balconies in apartments or condominiums. It specifically avoids any attempt to regulate smoking in private residences.

Note: You may live in a community/municipality that has greater restrictions on smoke/vape use. If your community has such a bylaw, it takes precedence over the provincial requirement. For instance, some communities have buffer zones that are larger than 6 metres or they may ban use on outdoor spaces, such as beaches or playgrounds. Whichever requirement is more restrictive - that is the requirement you must follow. 

Read more about Tobacco and Vapour-Free Places  

Strata corporations in BC are subject to claims under Section 8 of the Human Rights Code, which states that a person must not be discriminated against regarding any accommodation, service or facility customarily available to the public. 

Regardless of what a Strata’s bylaw says about smoking or vaping, the Strata has a duty to accommodate any resident who has a legitimate disability or medical condition that is adversely impacted by second-hand smoke exposure. 

Increasingly, the Human Rights and Civil Resolution Tribunals in BC have been holding stratas accountable for failing to adequately respond to second-hand smoke complaints. In some cases, such as Leary v. Strata Plan VR1001, 2016 BCHRT 139, the Strata was ordered to pay damages of $7500 to the owner impacted by the smoking, despite the fact that smoking was allowed in the building. 

While stratas may have a duty to accommodate residents, owners and tenants who are using Health Canada approved medical cannabis, CRT and HRT decisions have upheld bylaws banning the smoking of medical cannabis. In balancing the rights of owners, Stratas have successfully argued that enforcing the nuisance or no-smoking bylaw to restrict smoking is reasonably justified on the basis of protecting residents from the known harms of second-hand smoke. 

To accommodate smokers, the Strata could consider options that won’t compromise the health or enjoyment of other owners, such as designating an outdoor smoking area or using edibles to ingest the cannabis rather than emitting second-hand smoke. In the case of The Owners, Strata Plan LMS 2900 v Mathew Hardy, 2016 BCCRT, the CRT upheld the strata’s ban on smoking medical cannabis, finding that the owner could ingest his medicine rather than smoke it, thus protecting the other residents from exposure to smoke.

For further information, see section above on addressing second-hand smoke complaints.

For more case law on second-hand smoke, see Case Law Highlights below.

On October 17, 2018 the federal government legalized non-medical cannabis in Canada under the federal Cannabis Act. Each province and territory also has passed their own legislation governing non-medical cannabis.

British Columbia changed the provincial Residential Tenancy Act so that:

For leases signed before October 17, 2018:

1. cannabis smoking is prohibited for non-medical purposes (but not vaping) under existing leases that already prohibit smoking tobacco; and
2. the personal cultivation of non-medical cannabis is prohibited.

For leases entered into after October 17, 2018 landlords and tenants can negotiate the terms of leases with respect to cannabis smoking, vaping and cultivation of non-medical cannabis (subject to a strata's bylaws and rules).

Strata owners, visitors and renters in stratas who are non-medical cannabis users must still comply with any strata bylaws including strata bylaws banning or limiting smoking. 

Municipal governments have the authority to ban or restrict smoking in public places within their geographic limits and to create smoking bylaws that exceed Provincial smoke-free regulations. In fact, many local governments such as Campbell River, Penticton, Prince George, Vancouver, Victoria, Whistler, and Williams Lake have bylaws to restrict smoking in public places.

With regard to multi-unit housing, some municipalities have enacted stronger buffer zone requirements than the province, including Vancouver, Surrey, Richmond and the Capital Regional District.  To enforce these buffer zone restrictions, complaints should be made to the municipal bylaw enforcement department.

It should also be noted that municipalities in BC could pass bylaws regulating smoking in apartment and condominiums, though none have to date. The City of St. John’s in Newfoundland and Labrador recently adopted new non-smoking rules for its non-profit housing. The rule means that tenants who sign tenancy agreements with the City will have to agree not to smoke inside their units. The rules do not apply to existing tenants, who may continue to smoke in their units until they vacate the premises.

Strata corporations are responsible to take reasonable steps to prevent people from smoking/vaping within the six metre buffer zone on their property. The legislation does not apply to the private units or balconies, but does apply to areas that are common to all residents, workers and guests of the building.

Tips for ensuring compliance with provincial smoke-free legislation:

• Notifying residents of the smoke-free areas;
• Posting no-smoking signage;
• Removing ashtrays from areas where smoking is banned;
• Ensure smokers keep at least 6 meters away from the building doorways, windows or intakes (unless the municipal bylaw is stricter).

If a Strata is not able to enforce the legislation, they should contact their local Health Authority, and ask for a representative in the tobacco control area. Tobacco Enforcement Officers through the various Health Authorities are charged with the day-to-day enforcement of BC tobacco control legislation.

Note: Where municipal bylaws are stricter than provincial legislation, unresolved complaints should be made to the municipal bylaw enforcement department.

Read more about enforcing BC tobacco laws.

A strata was ordered to pay about $4500 for failure to properly investigate and enforce the nuisance bylaws or to accommodate the owner’s disability adversely affected by exposure to second-hand smoke.

Key Findings: 

• Mrs. Cheslock claimed the strata failed to enforce its no-smoking and nuisance bylaws despite numerous complaints about the adverse impacts on her health. (The strata’s non-smoking bylaw allowed smoking inside units as long as the smoke didn’t escape their units and banned smoking on interior or exterior common property).

• Mrs. Cheslock provided various medical evidence to prove her disability, which should have triggered a duty by the Strata to accommodate her disability to the point of undue hardship.

• Mrs. Cheslock provided medical evidence that she has allergies and asthma impacted by second-hand smoke in her home. The doctor said cigarette smoke, vaping fumes, and air fresheners had a negative effect on Mrs. Cheslock’s recovery from eye surgery and her general respiratory health.

• Odours entered her unit through their fireplace, windows, electric heaters, and from under the kitchen sink.

• While the strata originally sent letters to the smoker that she was violating the nuisance bylaw, they later back tracked because of an apparent lack of evidence of a breach of bylaw and stopped its investigation.

• The Tribunal accepted that Mrs. Cheslock had a disability in accordance with the Human Rights Code and followed the approach of Leary v Strata Plan VR1001, 2016 BCHRT 139, that stratas have a duty to accommodate owners who have a disability adversely affected by second-hand smoke. 

• Leary found that stratas are required to do more to investigate and search for solutions – and must take a “serious and rigorous approach” to smoking-related complaints when accommodation is requested. 

• Further, in following Leary, if a strata lot owner asks the strata to address second-hand smoke to accommodate a disability, the strata cannot simply refuse due to a lack of evidence of smoke. Rather, once adverse impact is established, the strata has a duty to investigate, and take steps to cooperate with the owner to address the problem. Thus, there is a higher burden on the strata to investigate an alleged bylaw violation where the duty to accommodate under the HRC is triggered, as compared to a bylaw complaint where the Code is not engaged.

• Following Leary, a “sniff test” undertaken by another strata member will rarely be sufficient to evaluate the extent of a problem with smoke in a suite. The strata may have to retain air quality experts and pay for any tests or expert reports.

• The strata did not prove that it made reasonable attempts to accommodate Mrs. Cheslock after they were aware of her disability. 

• Passing a no-smoking bylaw did not meet the duty to accommodate, since the strata did not take steps, other than council member “sniff tests”, to investigate alleged breaches of that bylaw.

• The strata did not take the other steps suggested in Leary, such as addressing Mrs. Cheslock’s accommodation requests promptly and seriously, obtaining an expert opinion on air quality, or investigating possible solutions.

The Orders:

• The Strata was ordered to pay the Cheslocks $4,478.34.16, broken down:

     o $79.46 for a fan,

     o $156.59 for hotel accommodations,

     o $4,000 in damages for injury to dignity contrary to the Code,

     o $17.29 in prejudgment interest under the COIA, and

     o $225 in CRT fees.

Note: The tribunal did not reimburse the Cheslocks for air purifiers and air filters since there was no evidence establishing that these items would reasonably reduce odours or smoke.

A strata was ordered to pay $7500 for failure to accommodate an owner with a disability that was negatively impacted by exposure to second-hand smoke.

On March 5, 2019, Ms. Bowker who had lung disease won her Human Rights Tribunal (HRT) complaint over her condo neighbour's smoking. She argued that the strata failed to reasonably accommodate her because the strata was not serious, was not respectful and delayed taking action. Her complaints to the condo association were not remedied, so she went to the HRT which ruled that this violated the BC Human Rights Code for discrimination on the basis of disability and ordered the pay $7,500.   

Key findings: (Source: outlined by Susan Kootnekoff, a lawyer based in Kelowna):

• Previous Human Rights Tribunal decisions state that stratas must take “a serious and rigorous approach to complaints related to smoking.”

• The tribunal observed that “fear of reprisal from neighbours who feel sovereignty in their homes and … may be a significant barrier for people with disabilities who require accommodation.”

• The strata failed to educate itself of its legal responsibilities. Instead, it regarded a non-smoking bylaw as a lifestyle choice rather than a way of meeting its legal obligations.

• Even if the strata eventually accommodated Bowker, it remained liable for its delay in doing so.

• For at least a full year, Bowker had to experience the effects of its lack of action. She endured inappropriate remarks and felt ostracized. The strata council failed to defend her or support her.

• The tribunal observed that “what we do within our own homes is curtailed in a variety of ways already, more so in a shared living environment such as a strata.”

• Fire Code regulations, noise bylaws and pet bylaws, for example, already restrict our actions. Adopting a smoking bylaw was “low hanging fruit” that would have allowed the strata to act. It failed to demonstrate that this would have amounted to undue hardship.

• If the smoker had a nicotine addiction, then the strata may also be required to accommodate that. However, it observed that “while a person addicted to nicotine may be able to go outside of their unit to smoke, a person with a smoke-sensitive disability cannot be expected to go outside to safely breathe.”

• The conclusion was that the strata failed to accommodate Bowker to the point of undue hardship. For an extended time, she was prevented from enjoying a regular existence within the confines of her home. Her disability was exacerbated. Her mental state was negatively impacted.

• The tribunal also observed that taking legal proceedings against the smoker did not “vitiate the strata’s obligation to accommodate Ms. Bowker to the point of undue hardship.”

• The tribunal declined to direct the strata to implement a non-smoking bylaw, but ordered it to stop contravening the Code. It stated that “the ultimate goal is for Ms. Bowker to be able to live a relatively normal life in her unit without cigarette smoke adversely affecting her health.” Ms. Bowker was “not to be left enduring a persistent adverse health impact in her home.”

Decision:

• The complaint is justified on the basis that the Strata failed to reasonably accommodate her disability despite knowing that her disability was exacerbated by second-hand smoke from the downstairs unit.

• The strata cease the contravention and refrain from committing the same or similar contraventions in future.

• The Strata pay Ms. Bowker $7500 for injury to dignity, feelings and self-respect.

The Strata Corporation was ordered to pay $7500 in damages to the owner with a disability adversely impacted by second-hand smoke, despite the fact that smoking was allowed in the building. 

Key findings:

• In this case, the owner suffered from asthmatic bronchitis and had complained for a number of years about the impact of second-hand smoke from a neighbouring unit. 

• Ms. Leary proved that she had a disability negatively impacted by exposure to second-hand smoke by providing evidence that when the smoke invaded her apartment, she had difficulty breathing, it woke her up some nights and caused her to take refuge in her bathroom or in her car. 

• The strata claimed that Ms. Leary had not proven her disability -  yet the tribunal found that when Ms. Leary tendered her doctor’s letters to the Strata, it did not question them, nor did it claim that the letters were deficient or seek further clarification. 

• The tribunal found that Ms. Leary had a disability related to exposure to second-hand smoke, that her disability is an allergy that makes her asthmatic with shortness of breath for which she uses medication.

• Unfortunately, the strata did not take her complaints seriously. Once the strata received a complaint to accommodate – it was up to the strata to respond by taking appropriate steps to accommodate her disability up to the point of undue hardship.

• The Strata put forward a bylaw change to making the building non-smoking but while this gave the Strata members the choice to make the building non-smoking, it did not accommodate Ms. Leary’s disability once the amended bylaw was unsuccessful.

• The tribunal concluded that the Strata’s search for solutions lacked diligence and thus it violated s. 8 of the Code.

Decision:

• Ordered the Strata to pay Ms. Leary the sum of $7,500 to compensate her for injury to dignity, feelings and self-respect. 

• Ordered the Strata to engage an air quality specialist to investigate the smoke infiltration, and to work with the claimant to find a reasonable solution. 

• Provided a blue print for strata corporations when dealing with second-hand smoke complaints, and is a good decision to support any person seeking accommodation from a strata, based on his/her medical condition. 

For more information on the Leary decision for Guidelines on responding to requests for accommodation in relation to second-hand smoke:

• See Tools for document on Guidelines for Responding to Accommodation Requests based on Leary decision. 

• Read articles about the Leary decision from Amanda Magee, and Paul Mendes, Lawyers at Lesperance Mendes Lawyers.

The CRT upheld a Non-Smoking Bylaw banning the smoking of medical cannabis. An owner sought accommodation for his disability and be exempted from the bylaw. The Tribunal found that there was no reason he couldn’t ingest his medicine rather than smoke it and was ordered to refrain from smoking in his unit and the entire property.

Key findings:

• The respondent claimed due to his disability he needed to smoke marijuana.

• The strata argued that the owner disobeyed the No-Smoking Bylaw by smoking in his unit in a manner that created a nuisance for other owners and interfered with their health, safety, and the enjoyment or use of their property.

• The owner has not shown that the strata’s decision caused him to be adversely affected or treated differentially because of his disability.

• While the respondent clearly prefers to smoke marijuana, there is no persuasive evidence that smoking marijuana, rather than ingesting it in another form, is necessary to accommodate his disability. 

The Orders:

The owner breached the strata’s smoking bylaw and:

• is prohibited from smoking tobacco or marijuana on the entire property, including without limitation, any strata lot, common asset, limited common property or common property, whether indoors or outdoors, including patios, gardens, walkways, and balconies; and

• must reimburse the strata for any Tribunal fees.

The Strata failed to enforce its nuisance bylaws by properly investigating an owner’s complaint of Second-hand smoke. The strata was ordered to pay costs and arrange for second-hand smoke testing by qualified professionals, without giving advance notice to the offending residents. 

Key findings: 

• The applicant’s expectation that the strata properly investigate her second-hand smoke complaints is a reasonable expectation. The applicant made contemporaneous complaints about the smoking, attended at a council meeting, as well as emailing the council and submitting a smoke log.

• The strata has not made a consistent effort to attend the owner’s strata lot when the smoke was occurring and it has not provided evidence to support its claim that it has followed up in any way since the air testing of 2017.

• The strata must properly investigate the owner’s ongoing complaints and it must enforce the bylaw against nuisance. The strata should arrange for additional testing to properly investigate the owner’s second-hand smoke complaints. Other owners in the strata, including the council member who lives beneath the owner, should not be given advance notice of the testing. Giving advance notice provides an opportunity for manipulation of the results.

• The strata should also consider arranging for additional testing of other strata lots if it determines that second-hand smoke amounting to a nuisance is entering the owner’s strata lot. If second-hand smoke amounting to a nuisance is discovered, the strata must take steps to enforce the standard bylaw, so long as the second-hand smoke continues. The strata’s goal must be to have the bylaw violations stop.

The Orders:

• Given that the strata failed to reasonably investigate the owner’s complaints, the strata must reimburse the applicant for tribunal fees.

• The Strata is ordered that within 60 days it must arrange for a qualified professional to perform second-hand smoke testing in the owner’s strata lot without providing advance notice to those who may be responsible for the second-hand smoke. The strata should also attend at the owner’s strata lot when second-hand smoke is reported.

Yes. It is legal for a strata corporation to adopt a non-smoking bylaw that bans smoking on common property, limited common property, and in strata lots. 

Non-smoking bylaws may be adopted by the owner/developer prior to the sale of any strata lots or by the owners by a ¾ vote resolution. Bylaws registered by the owner/developer prior to selling strata lots have the added advantage that all owners had notice before purchasing.

Restrictions and prohibitions should be reasonably connected to the purpose of protecting the health and/or comfort of non-smokers. Further, bylaws must comply with all legislation to be enforceable, including the Strata Property Act, the Residential Tenancy Act, and the Human Rights Code. Once passed by the owners, bylaw amendments must be filed in the Land Title Office in order to be enforceable.

Read our sample non-smoking bylaw under tools and resources.

No. Strata Corporations are able to amend their bylaws from time to time, and those amendments generally apply to all residents in the complex (unless a ‘grandfather’ clause is specifically included). While section 123 of the Strata Property Act recognizes pre-existing rights in relation to pet and age bylaws, it does not deal with pre-existing rights for a behaviour such as smoking. We are not aware of any case law to support the premise that an owner who purchases a strata lot is not subject to a bylaw that governs behaviour after the purchase. Otherwise, bylaws governing behaviour would only apply to those individuals that take up residence after the bylaw is passed, which would create a situation where not all residents would be treated the same.

In 2016 the BC Supreme Court in The Owners, Strata Plan NW 1815 v. Aradi, 2016 BCSC 105 upheld a Strata Corporation’s right to adopt bylaws which completely prohibited smoking without grandfathering existing smokers. 

See Case Law Highlights for more info.

There may be a conflict between the Residential Tenancy Act and the Strata Property Act in that Section 14 of the Residential Tenancy Act requires all changes to a rental agreement (except those expressly excluded), be consented to by both parties. However, the Strata Property Act does not support tenants being exempted from bylaws. It can be argued that an owner transfers only those rights to a tenant that he or she has – so if an owner cannot smoke in a strata lot, neither can the tenant. 

It is recommended that legal advice be sought before enforcing a non-smoking bylaw against a tenant who resided in the complex prior to the Bylaw being passed and registered.

Regardless of whether or not a Strata corporation has a specific bylaw that prohibits or restricts smoking, the strata council has a duty to adequately investigate all complaints of second-hand smoke. Residents are protected by the common law of nuisance. The Schedule of Standard Bylaws in the Strata Property Act (SPA), Section 3(1)(a) and (c), states that an owner, tenant, occupant or visitor must not behave in ways that creates a nuisance or hazard to another person or unreasonably interferes with the use and enjoyment of their home. If residents are unreasonably bothered by smoke exposure, the Strata has a duty to enforce the nuisance bylaws and have been found liable for not enforcing these bylaws. In the case of Leary v. Strata Plan VR1001, 2016 BCHRT, the Strata Corporation was ordered to pay $7500 to the owner impacted by the smoke despite the fact that smoking was allowed in the building.  

Many Councils have failed to thoroughly investigate and take the lead on nuisance complaints when dealing with second-hand smoke. They often put the onus on complainants to prove the source of the smoke and that the smoke constitutes a nuisance. Some Stratas refuse to take appropriate action when there is contradictory evidence between residents and leave it up to the owners to resolve.  Yet Stratas should recognize that they will be held liable if the BC Civil Resolution Tribunal finds they have failed to adequately resolve the issue.

Read our section on the website: Addressing second-hand smoke complaints.

Stratas are subject to claims under Section 8 of the Human Rights Code, which states that a person must not be discriminated against regarding any accommodation, service or facility customarily available to the public. Regardless of what a Strata corporation’s bylaws say about smoking, the Strata has a duty to accommodate any resident who has a legitimate medical condition that is adversely impacted by second-hand smoke.  If a resident can prove that they have a medical condition or disability that is negatively impacted by exposure to second-hand smoke, they will establish a basic case of discrimination. Once discrimination is proven, then the onus shifts to the Strata to justify its actions, including showing that it has accommodated the complainant up to the point of undue hardship. 

In Leary, the Strata was ordered to pay $7500 to an owner who suffered from asthmatic bronchitis for failure to take meaningful action to address her complaints of second-hand smoke.

Strata’s also have a duty to address complaints of cannabis smoke, even in cases where a resident has been approved for medicinal cannabis. In the case of The Owners, Strata Plan LMS 2900 v. Mathew Hardy, 2016 BCCRT, the Civil Resolution Tribunal upheld a bylaw banning the smoking of medical cannabis. The tribunal found there was no reason the respondent couldn’t ingest his medicine rather than smoke it to protect neighbouring residents from the harms of exposure to second-hand smoke.

More and more strata residents with disabilities are successfully filing claims at the Civil Resolution Tribunal and the Human Rights Tribunal against strata corporations that have failed to adequately eliminate excessive smoke invading their homes and jeopardizing their health.

Read the case law highlights on this website for more information.

A Strata corporation has the ability to develop bylaws that protect the health and safety of residents, and protect their property, as long as the policy does not conflict with federal or provincial laws. Adopting a smoke-free policy is similar to adopting other policies, such as a no-pets or no-barbecues policy.

Smoking is a public health issue, and smoke-free policies are not discriminatory because they do not prohibit anyone from renting or owning a unit. They merely set rules for activities permitted on the property. A resident’s status as a smoker or non-smoker is irrelevant. Current and prospective residents need to know that they are allowed to smoke, just not in the areas that have been designated non-smoking. 

Strata corporations in BC are subject to claims under Section 8 of the Human Rights Code, which states that a person must not be discriminated against regarding any accommodation, service or facility customarily available to the public. 

While Stratas may have a duty to accommodate residents who are using Health Canada approved medical cannabis due to a disability, Civil Resolution and Human Rights Tribunal decisions have upheld bylaws banning the smoking of medical cannabis. In balancing the rights of owners, Stratas have successfully argued that enforcing the nuisance or no-smoking bylaw to restrict smoking is reasonably justified on the basis of protecting residents from the known harms of second-hand smoke. To accommodate smokers, the Strata could consider options that won’t compromise the health or enjoyment of other residents, such as designating an outdoor smoking area or recommending the use of edibles to ingest the cannabis rather than emitting second-hand smoke. 

In the case of The Owners, Strata Plan LMS 2900 v Mathew Hardy, 2016 BCCRT, the CRT upheld the Strata’s ban on smoking medical cannabis, finding that the owner could ingest his medicine rather than smoke it, thus protecting the other residents from exposure to harmful smoke.

In Canada, The Charter of Rights and Freedoms does not recognize addiction to nicotine as a disability. This issue has been considered numerous times throughout the years, and Canadian courts have consistently ruled – with one exception – that addiction to nicotine is not a disability. The one exception was a British Columbia labour-arbitration decision in an employment context. Cominco had banned smoking on the plant site, and while the labour-arbitration board found that heavily addicted smokers were disabled, it also recognized that the employer’s smoke-free policy was reasonable and adopted to protect staff from a known health hazard. The matter was referred back to the parties to resolve how to accommodate the heavily addicted smokers, such as giving them more break time to reach the non-smoking area, and the Cominco’s smoking ban was maintained. 

It’s possible a smoker could claim his/her nicotine addiction constitutes a disability under the BC Human rights Code and claim the Strata has a duty to accommodate their smoking addiction. However, in balancing the rights of non-smoking residents, smokers would be under a duty to cooperate with alternative solutions for their addiction that do not expose residents to toxic smoke.  

To accommodate smokers, the strata corporation could consider options such as designating an outdoor smoking area or requesting that the smoker use nicotine replacement products that do not emit smoke, such as nicotine gum, inhalers or patches. It is in fact nicotine that is addictive – not the act of smoking - and there are many ways of managing an addiction to nicotine that do not pollute the air and adversely impact the health of neighbouring residents.  

In the case of The Owners, Strata Plan NW 1815 v. Aradi, 2016 BCSC 105, Mr. Aradi claimed that his addition to smoking was a disability that should be accommodated so that he could continue to smoke despite the smoking ban. The Supreme Court Judge, in balancing the rights of the neighbours not to be exposed to SHS, ordered Mr. Aradi to smoke outside and off the strata property. This decision upheld the Strata’s right to adopt bylaws which completely prohibited smoking without ‘grandfathering’ existing smokers.  

The Judge wrote:

“While I accept that the respondent may have an addiction to cigarette smoking and has limitations on his mobility in terms of walking and standing, I must consider [his] wish to be able to smoke within his unit in the context of the scheme of the Act which includes […] the duty on the strata corporation to enforce the bylaws and the rights of other owners to enjoy their units without being exposed to nuisance such as smoking in areas prohibited under the bylaw.”

Absolutely. Visit the Why Go Smoke-Free section for more information.

Two-thirds of the smoke from a burning cigarette is not inhaled by the smoker, and enters the surrounding area. The way smoke moves throughout a building is unpredictable and it knows no boundaries. Second-hand smoke can drift from one residence to another through cracks in walls, doorways, plumbing and electrical systems, heating and air conditioning ducts and outdoor patios and balconies. Once smoke enters your home, many of the dangerous chemicals remain in the air and settle on surfaces in the room, like walls, drapes, carpets, furniture and clothes. This residue, often called third-hand smoke, contains toxic, cancer-causing substances.

While there are steps people can take to reduce the smoke transfer, such as sealing or better ventilating units, weather-stripping doors and windows or covering electrical outlets, these measures are only temporary, and will not effectively do the job of eliminating the smoke from the home.

Air filters, purifiers and ventilation systems cannot eliminate second-hand smoke. Some of the smoke and larger particles from the air may be removed, but they will not remove the smaller particles or gases found in second-hand smoke. 

The American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), the world’s leading association of indoor air quality standards, determined that there is no air filtration or other ventilation technology that can completely eliminate all the carcinogens in second-hand smoke. In their updated position document on second-hand smoke in 2020, they recommend that indoor environments be 100% smoke-free to fully protect residents from second-hand smoke. In fact, this is why governments across Canada and internationally have banned all smoking in indoor public places like workplaces, restaurants and bars. The evidence is overwhelming that there is no indoor ventilation system that can protect people from toxins in second-hand smoke. It simply cannot be contained or eliminated.

A majority of British Columbians do not smoke, yet a 2018 survey of BC residents living in multi-unit housing have been exposed to unwanted tobacco and cannabis smoke infiltrating their homes from neighbouring units. Further, the vast majority would prefer to live in a smoke free building.

Given the huge demand for smoke-free housing, there is growing public stigma against buying smoke damaged housing. A 2015 survey of BC real estate agents found that a condo’s resale value is lower if the current owner smokes. Further, over three-quarters of BC REALTORS® agree that it is more difficult to sell a home where the current owners smoke.

If you want to live in a 100% smoke-free building, ensure that the Strata Bylaws include a clear bylaw that specifically bans smoking inside strata lots, on limited common property, and common property.

When reviewing the existing bylaws, consider the following: 

• Does it apply to all existing residents of the complex, including renters, or are some residents ‘grandfathered’ from complying with the bylaw?
• If there are existing tenants or owners who have been “grandfathered” (and are permitted to smoke), how many are grandfathered and where are they located?
• Is the no-smoking policy enforced on a regular basis and how does the Strata deal with complaints of second-hand smoke travelling from smoking units into non-smoking units?
• Is there a designated smoking area on the property? If so, is it far enough away to ensure that smoke cannot travel into private units or balconies?
• Did the previous resident smoke in the unit you are considering?  This is important given that second-hand smoke can remain in the air and settle on surfaces in the room like walls, drapes and carpets. This residue is called third-hand smoke and contains toxic cancer-causing substances.