January 05, 2016 - 8:00 PM
SALMON ARM - There are strict rules in today’s world about where you can smoke and where you can’t, but as a Salmon Arm man found out through a lengthy legal battle with his strata council, there are some grey areas.
Walter Peter Andrushko moved into a Salmon Arm condo for residents aged 55 and up in March of 2012, only to discover the owner of the unit above him liked to smoke outside on her balcony, according to a recent court judgement. Because of the proximity of the balconies to each other, and to doors, windows, and air-conditioners of adjacent units, Andrushko complained the second-hand smoke was interfering with his enjoyment of his home, while also posing a health hazard.
Andrushko complained repeatedly to the strata council and the issue of smoking on balconies quickly became ‘an increasingly divisive and acrimonious source of controversy among the owners’ Judge Paul J. Pearlman said in his judgement on the case.
Andrushko’s demands escalated to include a full ban on smoking in the strata complex. The strata council, for its part, expressed concern about balancing the interests of smoking, and non-smoking owners.
According to the Tobacco Control Act, smokers must remain a minimum of three metres from doorways, windows or air intakes, and not smoke in balconies that are fully or substantially enclosed. Andrushko argued his upstairs neighbour was smoking within three meters of the air intake to his unit, and that the balconies were substantially enclosed.
The Strata council continued to seek legal advice and direction from agencies such as the Condominium Home Owners Association and the Inland Health Authority, stating the issue ‘seems unsolvable aside from preventing other owners from smoking or spending large amounts of Strata dollars to substantially upgrade the venting of the buildings.’
But, in June of 2015 after seeking further legal advice, the Strata council issued a notice to owners stating smoking on balconies was prohibited because they met the definition of substantially enclosed areas, and were within three meters of doorways and windows. Owners were warned that fines of up to $200 could be given for those in contravention of the bylaw. According to the court judgement, Andrushko made no further complaints as of July 2, 2015.
The case still went to court, however, with Andrushko formally petitioning the strata council to enforce its no smoking on balconies bylaw, and also compelling it to remedy the nuisance of second-hand smoke infiltrating adjoining units, and to implement a smoke-free environment until the issue of second-hand smoke has been addressed. Andrushko also argued the strata council should bear the costs of the legal proceeding.
“I find that, albeit belatedly, the strata council has demonstrated that it is willing and able to investigate complaints, and is capable of taking action to enforce its bylaws,” Pearlman said.
Because the strata council was willing to enforce the bylaw, Pearlman dismissed the first part of Andrushko’s petition. He dismissed the rest as well, on grounds that Andrushko hadn’t proven any ‘substantial or reasonable interference’ with his enjoyment of his property due to smoke or that the smoking constituted a nuisance. Pearlman ordered that both parties pay their own costs for the proceedings.
“… I am satisfied that it was only as a result of the petitioner bringing these proceedings that the strata council sought and obtained the advice they required in order to fully appreciate their duties under the bylaw,” Pearlman said.
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News from © InfoTel News Ltd, 2016