Friday, August 3, 2012

Smoking in common areas and units of a condominium

The issue of prohibiting smoking in condominiums is gaining momentum.  At the date of this blog entry neither the Alberta Courts nor the Alberta Human Rights Commission has issued a decision on the topic of smoking in a condominium.  However there have been a few salient decisions from outside of Alberta.

In a Yukon case referred to as Sider v. Yukon Housing Corporation, 2012, YKTC 18 (the "Sider Case") a landlord enforced a non-smoking policy which the landlord had created in respect of the rented premises upon a tenant.  Though this case does not involve a condominium corporation, it is relevant in the circumstance as the Honourable Judge Faulkner considered the interpretation of the Canadian Charter of Rights and Freedoms (the "Charter") and whether or not smoking is a right which is protected by the Charter.  Judge Faulker ruled in favour of the landlord and dismissed the tenant's claim that the landlord's non-smoking policy was unenforceable finding, among other things, that smoking was not protected by the Charter.

In  a British Columbia case referredto as Chorney v. The Owners, Strata Plan ViS770, 2011 BCSC 1811 (the "Chorney Case") the petitioners alleged that the cigarette smoke emanating from the Respondents unit was affecting the health of the petitioners and the enjoyment of their units.  The Honourable Mr. Justice Schultes examined the facts and the subject bylaws and noted that the subject bylaws provided the corporation with the power to impose fines for bylaw violations.  As a consequence, Justice Schultes directed that the proper course of action would be to follow the process set out in the bylaws which included providing written notice of the breach, allowing a period for rectification, and imposing a fine 
if the breach continues.  This case is authority that condominium corporations can and should have rules and policy in respect of smoking in the common areas and that they can and should, if their bylaws allow, impose fines where conduct of one owner by smoking impacts another owner.

This positive duty is also reflected in the British Colimbia Human Rights Commission decision in McDaniel v. Strata Plan LMS 1657, 2012 BCHRT 167 (the "McDaniel Case").  In the McDaniel Case the complainants alleged that smoke was entering their unit primarily through open windows.  The complainants both suffered from health conditions that made them sensitive to smoke. The B.C. Human Rights Commission ruled that the Condominium Corporation failed to enforce an existing by-law that prohibited residents from causing "a nuisance or hazard to another person" and granted a judgment against the Condominium Corporation in the sum of $8,018.88.  This decision demonstrates that condominium Boards may have a positive duty to control smoking.

I anticipate that it will not be long before somebody challenges smoking before the Alberta Courts or the Alberta Human Rights Commission.  In the meantime it behooves condominium Boards to review their bylaws and policy on smoking and develop a consistent approach to dealing with smoking.  Though I have limited my comments to the common area I also anticipate either a direct or collateral attack on the right, or lack thereof, of an owner to smoke in the owner's unit.  This issue may well be resolved on the whether the unit is in a multi-unit building (versus town house or bareland condominiums) and in this context the strength of the HVAC system in the condominium building.  If the condominium building does not have adequate ventilation the Courts and the Commission may well conclude that smoking can be prohibited in units.  This will be an interesting issue to follow.