Once taken for granted, smoking in multi-unit housing developments is now under attack. The hazards associated with smoking and second hand smoke are well-known and the percentage of smokers in British Columbia has been rapidly decreasing. It is now not uncommon for housing co-ops and strata corporations to seriously consider property wide no-smoking policies or bylaws. In fact, there currently exists several strata corporations that were either developed or became completely non-smoking. It is anticipated that this type of development will become more popular with purchasers of strata properties.
There was recently some excitement in the press over a large Human Rights Tribunal award given to a Langley couple against a strata corporation. In that case, the owners were able to prove that they had a disability that was affected by smoke from a neighboring unit. The strata corporation took a hands-off approach to the matter. In making the award, the Human Rights Tribunal said that the strata corporation should have done something, including looking at ways by which the smoke might have been abated such that it would not bother the complainants or by fining the offending owner for the nuisance caused by the smoke.
The case does not really have general application because it is specific to those individuals who have disabilities who are affected by smoke. However, it does provide a warning to stratas, co-ops and landlords that it is not permissible to simply do nothing when confronted with a smoking complaint.
Even if there are no human rights considerations, members who are bothered by smoking may rely on the law of nuisance to make a claim against the Co-op and/or the smoking member. Nuisance is a legal cause of action whereby a member may complain about the smoke escaping from another member’s unit which affects their peace and quiet enjoyment and/or causes a nuisance. There have been several nuisance clams commenced against strata corporations and it is conceivable that a co-op member could do the same if faced with an unbearable situation.
Even though it might be rare, co-ops will have to consider human rights implications. If the co-op is faced with a person with a disability who claims to be adversely affected by smoke, then the co-op will have to act appropriately. Remedies that might be available to the co-op would be to move the complainant and the smoking member to different units within the co-op (an option not available to strata corporation) or consider modifications to the smokers unit so as to abate the smoke escaping from the unit.
The best and easiest way to deal with the matter is to get the members to move. If the members will not move, the co-op has to consider alterations to the smokers unit. The co-op is under an obligation to accommodate the disabled complainant to the point of undue hardship. For co-ops, undue hardship most often translates to economic inability. Co-ops have tight budgets and not a lot of money to throw around on expensive smoking abatement unit alterations.
There is also the issue of smoker’s rights, a topic which rarely comes up as smokers are almost always vilified in these situations. Addiction has been deemed a disability by the Human Rights Tribunal and it is foreseeable that one day a smoker might commence a Human Rights Tribunal complaint alleging that they have faced discrimination on the basis of their smoking disability. This would likely arise if the co-op tried to implement a smoke free property without grandfather provisions or, once having implemented a smoke free property, deny membership to smoker applicants. I have not heard of a complaint if this type. Even so, it is prudent to consider all points of view when implementing a smoking policy.
