Posts Tagged "smoking"


‘Your home is not your castle’ when it comes to smoking in a condo

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Conflicting decisions from two tribunals have left an Abbotsford strata council stuck in the middle of a struggle between a woman with a chronic lung condition and the smoker who lives below her.

In both cases, the strata at 32691 Garibaldi Dr. was declared the loser — the B.C. Human Rights Tribunal says the strata failed to accommodate the needs of the non-smoker, while the Civil Resolution Tribunal says it failed to prove the smoker is a nuisance.

The decisions have left the strata without a clear answer on how to juggle the rights of the two homeowners.

“It’s not an uncommon conflict,” Tony Gioventu, executive director of the Condominium Home Owners Association of B.C., told CBC.

“We see a much greater increase in the number of buildings that are smoke-free environments now, with bylaws that prohibit smoking anywhere in the property or the consumption of any products in any combustible way.”

Smoking in condo developments has become a hot-button issue in B.C., as stratas try to balance the health concerns of non-smokers with the personal freedoms of their neighbours. A petition to ban smoking in multifamily buildings is expected to be presented at the B.C. legislature this spring.

‘When you live in a condo, your home is not your castle’

Gioventu estimates that more than half of strata corporations in higher density areas like Metro Vancouver and the Victoria area have brought in non-smoking bylaws. He explained that part of living in a condo is understanding that there might be limits on your freedoms when it comes to behaviour that might affect your neighbours. 

“Someone said, ‘When you live in a condo, your home is your castle.’ That’s actually quite incorrect. When you live in a condo, your home is not your castle — you just happen to [occupy] an area of the castle,” he said.

Bowker’s neighbour was defensive when she complained about the smoke, according to the decision. (Google Maps)

The Abbotsford dispute pits Ruth Bowker, a senior who suffers from pulmonary fibrosis, against Lillian Renpenning, who lives below Bowker and is a habitual smoker.

Bowker says the secondhand smoke from Renpenning’s cigarettes has permeated her home, exacerbating her condition and leaving her depressed and suicidal. Renpenning says her nicotine addiction is a disability — and her rights need to be protected, too.

The strata has held two votes on a no-smoking bylaw in response to Bowker’s complaints, but it’s failed both times. 

As CBC has reported, the B.C. Human Rights Tribunal recently heard a complaint Bowker filed against the strata, and found that it “did very little” to help Bowker, ordering the council to pay her $7,500.

The tribunal held off on ordering the strata to implement a bylaw banning smoking in the complex, anticipating a decision from the Civil Resolution Tribunal on whether Renpenning had violated a nuisance bylaw. If the CRT ruled in favour of the strata, the problem might effectively be solved by forcing Renpenning to stop smoking in her unit.

Strata plans another vote

But now, the CRT has dismissed the strata’s dispute, saying it didn’t prove Renpenning was the source of the smoke leaking into Bowker’s home. Renpenning hasn’t responded to requests for comment

Bowker’s lawyer, Jonathan Blair, said he was hopeful that his client won’t have to return to the human rights tribunal to find some relief.

“The more ideal situation [would be] the parties working together to come to a resolution that works for everybody,” he said.

That’s what the strata wants, too. Lawyer Jamie Bleay, who represented the strata at the human rights tribunal, said the council is planning to hold yet another vote this spring on an anti-smoking bylaw, and owners will be advised of their responsibility to accommodate Bowker’s disability under the Human Rights Code.

“What they have learned is that you do have to look at how to balance the interests of different individuals. Certainly, when it comes to a situation involving an individual with a disability … looking at options and steps for accommodation needs to be taken seriously and dealt with as soon as possible,” Bleay said.

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‘A matter of life or death’: Woman with lung disease wins complaint over neighbour’s smoking

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The secondhand smoke in Ruth Bowker’s new home was so pervasive, she was forced to spend most of her time hiding in her bedroom, the only room she described as “consistently livable.”

The Abbotsford senior has pulmonary fibrosis, a chronic and progressive lung disease, and when she first viewed the condo as a potential buyer in 2015, there was no smoke smell, according to a decision from the B.C. Human Rights Tribunal. But before she and her husband took possession of the suite that November, two habitual smokers had moved in downstairs.

This week, the tribunal ruled the strata had failed to accommodate Bowker’s disability, and ordered it to pay her $7,500 for injury to dignity, feelings and self-respect.

Bowker told the tribunal she was “horrified” to discover the smoke odour when she moved into her new place in the Clearbrook neighbourhood.

“Ms. Bowker began opening the patio doors even though it was late November, and purchased large fans to try to blow the smoke outside. She also bought two air purifiers. These measures were of little avail,” tribunal member Emily Ohler wrote.

Ohler said the condo complex’s strata “did very little” to help Bowker for a full year after she first complained about how the smoke was affecting her, and her health deteriorated during that time.

The lack of action from the strata, “prevented her from enjoying a regular existence within the confines of her home; it exacerbated her disability; it had a negative impact on her mental state; and it added to her already heavy mental load during a time she was dealing with her husband’s deteriorating health,” Ohler wrote.

‘But a person’s home is their castle’ 

The tribunal’s ruling provides an interesting discussion of how to balance individual property rights with the responsibility to accommodate a disability, and the need for strata councils to educate themselves on human rights law.

Bowker’s lawyer, Jonathan Blair, said the decision clarifies the legal obligations of strata councils, which tend to be made up of volunteers with little working knowledge of property law.

“It’s not necessarily legitimate for us to hold on to this sense of, ‘But a person’s home is their castle,’ as a defence against accommodating someone who’s facing a barrier. In the end, sometimes we have to give up … certain freedoms,” Blair said.

As Ohler points out, many cities and strata already place numerous legal limits on what people can do inside their own homes, including noise bylaws and rules against pets.

Bowker’s neighbour was defensive when she complained about the smoke, according to the decision. (Google Maps)

According to the decision, Bowker spoke to her neighbour, identified by the initials LR, shortly after she moved in. But the woman and her husband were defensive and Bowker wrote to the strata to complain on Dec. 15, 2015.

In turn, the strata wrote to LR and said any measures to minimize the smoke coming from her condo “would be greatly appreciated.” It also ensured some physical work was done on the two units in an attempt to contain the fumes.

But these steps did not stop the smoke from entering Bowker’s apartment, the decision says.

By the end of 2016, Bowker was still asking the strata for a solution, but the situation was getting dire. A doctor’s note submitted to the tribunal showed that she was beginning to have suicidal thoughts.

“She said, among other things, that her recent pulmonary function test showed a noticeable deterioration. ‘This is a matter of life or death for me, literally,’ she said,” Ohler wrote.

The strata sent a cease and desist letter to LR and her husband in December 2016, to no effect. A month later, the council threatened to fine her under a nuisance bylaw, but LR replied with a letter pointing out that her nicotine addiction was also a disability that could be protected under the Human Rights Code.

2 failed votes for non-smoking bylaw

According to the decision, the strata council brought a non-smoking bylaw to a vote at two annual general meetings in response to Bowker’s complaints. Both times, it didn’t garner the necessary 75 per cent of votes to pass.

But Ohler said the council did not properly explain to strata members why the bylaw was being proposed.

“It appeared to see the non‐smoking bylaw as a kind of lifestyle choice rather than as a part of its efforts to meet its legal responsibilities. At least in part, the result was that Ms. Bowker was subjected to inappropriate remarks and made to feel ostracized from the community,” Ohler said.

The strata held two votes on a proposed no-smoking bylaw, but both failed. (Sebastien Bozon/Getty Images)

She ordered the strata to stop discriminating against Bowker, but held off on ordering it to enact a non-smoking bylaw. That’s because the strata is waiting for a decision from the Civil Resolution Tribunal on whether LR violated the nuisance bylaw.

Ohler said Bowker and the strata could return to the tribunal if the CRT does not resolve the matter.

And Ohler added that while LR would likely have an argument that her nicotine addiction is protected as a disability, her rights would have to be balanced with Bowker’s if the question came before the tribunal.

“While a person addicted to nicotine may be able to go outside of their unit to smoke, a person with a smoke‐sensitive disability cannot be expected to go outside to safely breathe,” Ohler wrote.

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Most Canadians favour smoking ban in multi-family buildings: poll

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Practically nine-in-ten Canadians agree with banning smoking in indoor public spaces, public transit facilities and workplaces.

Sean Kilpatrick / THE CANADIAN PRESS

Most Canadians are in favour of prohibiting residents from smoking in apartment buildings and condominiums, a new Research Co. poll has found.

An online survey found that almost seven-in-ten Canadians (72 per cent) support banning smoking (tobacco and marijuana) in multi-family buildings, while one-in-four (25 per cent) are opposed to the prohibition.

Almost 74 per cent of women supported the ban as did Canadians aged 55 and above. About 75 per cent of  Quebecers and 74 per cent British Columbians were also in favour.

The poll also found that more than two thirds of Canadians agree with the federal government’s decision to implement plain and standardized tobacco packaging. This was one of several areas covered by Bill C-5, which also established guidelines for vaping products.

Almost 90 per cent per cent of Canadians agree with banning smoking in indoor public spaces, public transit facilities and workplaces, including restaurants, bars and casinos.

Additionally, three-in-four Canadians also agree with banning smoking in private vehicles occupied by children.

“The regulations that have been in place for years to deal with smoking across Canada remain popular,” said Mario Canseco, President of Research Co. “There is a high level of support for bringing multi-family dwellings to the list of places where people should not be allowed to smoke.”

The survey was conducted earlier this month among 1,000 adults in Canada. The margin of error is +/- 3.5 percentage points, 19 times out of 20.


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Daily Poll: Do you support a ban on smoking in multi-unit buildings?

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A smoking-ban petition launched by a Langley mom will be submitted to legislature in February. The petition seeks to ban all smoking inside multi-unit buildings.

Christopher Furlong / Getty Images

A smoking-ban petition launched by a Langley mom will be submitted to legislature in February.

The petition seeks to ban smoking in all multi-unit buildings, noting that while smokers have the choice of smoking outside their home, their neighbours don’t have the same option if second-hand smoke is infiltrating their apartment.

Naomi Baker has collected some 700 signatures for the petition, which is set to hit legislature in February or March.


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