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

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.

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.