A homeowner has been awarded damages after his strata failed to deal with his complaints about his neighbour’s cigarette and marijuana smoking, the BC Civil Resolution Tribunal says.
The smoke regularly drifted into his home, according to the homeowner, preventing him from opening his windows or using his patio. As well, tribunal member Deanna Rivers wrote in her reasons for decision, he and his family sometimes had to move their baby away from rooms that were affected by the smoke.
The tribunal says the evidence shows that, between December 2024 and February this year, the homeowner sent a total of 24 complaints to the strata about the issue. He also says he provided two doctors’ letters stating that second-hand smoke is a health risk and recommending exposure be limited.
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The strata agreed that second-hand smoke is harmful, but it says the homeowner had no evidence the smoke entered his unit or “caused a substantial interference with [his] use and enjoyment of his property,” according to the decision.
“It argues [he] must provide objective evidence of the result of the cigarette or marijuana fumes, such as air testing, building airflow analysis, or documented repeated infiltration, to prove the smoke is a nuisance,” Rivers wrote.
The main issue, she says, is not whether or not the neighbour is allowed to smoke, but whether the smoke created a nuisance as defined under the strata’s existing bylaws.
The tribunal says the strata does not have a no-smoking bylaw. But, Rivers says, although “owners have a right to smoke and enjoy their property,” the smoke interfered with the applicant’s use and enjoyment of his own property.
The decision orders the strata to take steps to prevent smoke from entering the homeowner’s unit, but it does not require it to enact a no-smoking bylaw.
Rivers has ordered the neighbour to pay the homeowner $2,500 in damages, plus fees and interest.