Armstrong strata ignored second-hand smoke complaints; it now owes tenant $4,000

A North Okanagan strata has been ordered to pay a resident $4,000 after it repeatedly failed to enforce its no-smoking bylaw, leaving the tenant to endure second-hand smoke.

According to a June 11 BC Civil Resolution decision, Strata K628 in Armstrong repeatedly failed to address the resident’s complaints about people smoking and only sporadically responded. Out of dozens of complaints, the Strata only issued one $200 fine.

“Given the volume of complaints and the strata’s acknowledgment that there are residents who repeatedly contravene the (smoking) bylaws, I would expect the strata to have issued more than one fine for smoking in recent years,” the Tribunal ruled.

The Tribunal found the Park Glenn Strata had treated resident Lisa Marrs significantly unfairly and made its complaint procedure burdensome. 

The Patterson Street Strata had existing bylaws about smoking, which became stricter in 2024, but it lacked enforcement.

The decision said Marrs began renting a unit at the strata in 2019, and has since had ongoing problems with residents and guests smoking around the property.

She made numerous complaints to the Strata’s manager, who is also her landlord, and no-smoking posters were put around the property.

“She says that residents promptly tore down the posters and harassed her for posting them,” the decision reads.

Throughout 2022 and for most of 2023, Marrs didn’t complain about the smoking because she was frustrated by the strata’s lack of action.

However, she said by November 2023 the situation had become “unbearable,” and she began regularly complaining to the strata manager, often with the help of her caregiver.

She wrote to the Strata saying she had to walk through cigarette smoke to get to her apartment, and if she opened her window, smoke came into her apartment as people smoked right outside.

“She said she asked her neighbours to stop smoking outside her apartment, but that they continued to do so,” she said.

In response to her letter, the strata admitted that smoking was a problem that it had been trying to deal with. New bylaws had been passed that “clearly defined smoking areas” and it built a gazebo for smokers.

The decision gave details of the formal complaints Marrs made to the strata, along with a weekly emails from legal advocate Megan Mears about smoking bylaw contraventions she observed each week, including the unit numbers, date and time.

The Strata argued it had responded reasonably to Marr’s complaints and had issued 11 non-compliance letters to residents who smoked.

When this was insufficient for repeat offenders, the strata claimed it escalated its enforcement.

The Strata argued that the second-hand smoke was caused by a few persistently non-compliant residents, and not by a failure of its governance.

However, the Tribunal disagreed.

“I find the strata repeatedly failed to address many of (Marrs) specific complaints. For instance, the strata has not provided evidence that it took any investigation or enforcement actions related to the 11 complaints of smoking,” the Tribunal said. “The strata has not explained why it did not investigate these complaints or enforce the alleged bylaw contraventions.”

The Tribunal ruled that the Strata only “sporadically responded” to the complaints.

The Strata argued it adopted “escalating steps” to manage and enforce its bylaws.

However, the Tribunal didn’t buy it.

“I find the strata has failed to take any enforcement steps against certain residents who (Marrs) says repeatedly contravene the smoking bylaws… (she) has complained multiple times about the smoking of the residents of units 20 and 4. The strata has not provided any evidence showing that it issued a formal warning or notice about the alleged bylaw contravention to those residents,” the Tribunal ruled.

The Strata argued it requires written, non-anonymous and detailed complaints to ensure fairness.

Again, the Strata didn’t buy the argument, saying it put the responsibility to investigate bylaw contraventions on the complainant.

“Under the strata’s strict requirements for complaints, (Marrs) would essentially need to attend the patio and register the names and units of those in attendance. I find this level of investigation is not (her) responsibility,” the Tribunal ruled.

The Tribunal said that it acknowledged that most condo owners, and therefore Strata members, did not live there, but that did not excuse them from reasonably investigating or from hiring someone to do so.

The Tribunal ruled the Strata had treated Marrs “significantly unfairly” and ordered it to pay her $4,000 compensation.

The Tribunal also ordered the Strata to find a designated smoking area where second-hand smoke wouldn’t interfere with residents. 

“Given the long and narrow shape of the strata, it may be that there is no place on strata property suitable for smoking. However, I leave it to the strata to determine how to comply with the above order,” the Tribunal ruled.

If no area can be found, the Strata will have to ban smoking altogether.