B.C. couple ordered to stop smoking in their unit, on their patio

A B.C. couple has been ordered to stop smoking in their home and on their patio, losing a bid for an exemption to their strata's bylaw.

The owners of the apartment building asked the province's Civil Resolution Tribunal to issue an order saying that Sylvia and Richard Ramsay must "immediately" stop smoking in prohibited areas. The strata was also asking that the residents be ordered to pay $400 in outstanding fines for breaching the bylaw.

"The Ramsays do not deny smoking in their strata lot or on their patio. They make several arguments about why the smoking bylaw should not apply to them," tribunal vice-chair Eric Regehr's decision says.

The pair made three arguments for an exemption the bylaw – all of which were rejected. First, they said it was not in place when they moved in in 2008 and was introduced 10 years later.

While the Strata Property Act allows for "retroactive exemptions" to some bylaws, smoking-related rules are not included, the decision says. Further, the bylaw itself was found to apply to all residents, regardless of tenure, because it did not include any "explicit exemption for existing smokers."

Next, the Ramsays, who rent their suite from the owner, said their tenancy agreement allows them to smoke. The tribunal said it was "irrelevant" whether permission was granted by the landlord because the agreement has no bearing on the relationship between the Ramsays and the strata.

"I find that the landlord has no authority to exempt the Ramsays from valid strata bylaws," Regehr wrote.

The third thing the Ramsays said was that Sylvia has mobility issues and can't easily or independently come and go from the second-floor unit or patio in order to smoke.

Regehr noted that this argument amounted to a claim that Sylvia has a disability that the strata has a duty to accommodate under the province's Human Rights Code. While he found that a doctor's note saying that Sylvia needs to use a walker or a wheelchair proved she had a disability, he also found the strata did not have an obligation to allow her to smoke in the unit or on the balcony.

While there is precedent for treating nicotine addiction as a disability, Regehr said there was no medical evidence submitted saying that this was the case with Sylvia. Even if there had been, he said he would not have found the strata was required to allow smoking.

"Under the code, disabled persons are not entitled to perfect accommodation. The strata must only provide a reasonable accommodation that balances Mrs. Ramsay’s interests with the interests of other residents," the decision explained.

"Here, there is evidence that second-hand smoke from the Ramsays’ apartment has had a detrimental impact on other residents, including one with a physical disability that made them particularly sensitive to second-hand smoke. I find that the Ramsays have not proven that Mrs. Ramsay cannot manage any nicotine addiction in ways that do not involve smoking, such as by using nicotine replacements like patches or gum."

The decision also says that the strata was asking to be reimbursed $6,000 for a settlement paid in a provincial court case "about second-hand smoke from the Ramsays." The tribunal found it did not have jurisdiction to consider this request. No additional information about that case is publicly available.

Regehr did find in the Ramsays' favour when it came to the $400 in bylaw fines, saying they were not required to pay them because the strata had not followed the correct procedure for informing them and for levying the penalty.