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Condo owner ordered to pay 16 times more than $800 smoking fine: CRT

No smoking sign

A B.C. condo owner who balked at $800 in smoking fines now owes his strata thousands of dollars more after the dispute went to the province’s Civil Resolution Tribunal.

James Graham’s strata told the tribunal bylaws were repeatedly broken in his home as someone smoked cannabis or cigarettes to the extent that it bothered his neighbour.

Graham denied the smoke came from his lot and didn't pay four $200 fines, prompting his strata to file a claim to collect the $800, along with related legal fees.

Tribunal member Nav Shukla said the decision, including whether strata bylaws were breached, was made based on the balance of probabilities, meaning one scenario was more likely than not.

According to the strata, someone in Graham's lot smoked or vaped tobacco or marijuana since January of last year until at least late March 2022.

Smoke and odours reportedly permeated a neighbouring unit, which the strata says is interfering with their use and enjoyment of the property. Evidence submitted to the tribunal included 20 emails from the resident of the neighbouring unit, complaining of the smoke.

"Many of the complaint emails included detailed logs noting the dates, times, and locations within the neighbouring strata lot where the complainant said the smell was present," Shukla wrote in her decision.

"Taken together, the complaint emails report the smell permeating the neighbouring strata lot over 260 times … In the emails, the complainant said there were days the smell was so bad that she could not work from her home office, take baths in the upstairs bathroom, or make breakfast in the kitchen."

Evidence also included a statement from a strata council member, who went to the neighbouring unit to investigate the claims. That strata member confirmed the smell was coming from Graham's unit, not the unit on the other side.

Shukla said an email sent to strata in February 2021 included a doctor's note saying Graham needed marijuana to treat depression, anxiety, gastrointestinal disorder and pain. Weeks later, the strata's lawyer said Graham would be required to seal his unit to make sure there was an airtight barrier between the units, if he continued smoking.

Shukla explained Graham told the strata he wouldn't complete any of those repairs and would take his smoking outside, beyond strata property.

The various email correspondence, Shukla determined, were Graham acknowledging that he was, in fact, smoking in his unit.

"I find that Mr. Graham breached the nuisance bylaws by creating the smell which interfered with the complainant’s ability to use and enjoy the neighbouring strata lot," Shukla wrote.

While Graham claimed the strata didn't do "reasonable investigations" before issuing fines of $200 on four occasions, Shukla disagreed.

"Before these fines were imposed, the strata sent Mr. Graham letters describing and listing the complaints (including specific dates and times) and setting out the bylaws Mr. Graham was alleged to have breached," Shukla explained.

"In these letters, Mr. Graham was also told that fines might be imposed against him, and he was given an opportunity to respond to the allegations, including requesting a council hearing."

Ultimately, Shukla determined the strata's response was fair and Graham was given an opportunity to address the allegations against him before the fines were issued.

For various reasons, outlined in her decision, Shukla also determined Graham was responsible for paying some of the strata's legal fees, totalling more than $12,000. He's also required to pay about $250 in CRT fees and interest. 

Including the unpaid fines, Graham was ordered to pay a total of $13,336.83 – and to “immediately stop smoking and vaping any substance in (his unit) or on any of the strata’s common or limited common property," Shukla wrote. Top Stories

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