Kamloops strata loses fight with tenant smoking on balcony: court
- This article was originally published May 1, 2022.
A Kamloops strata has lost its fight to stop a tenant from smoking on their balcony because it addressed the $100 fines to the landlord and not the tenant.
According to a Feb. 25 Civil Resolution Tribunal decision, the strata of the Battle Street condo building issued four $100 fines to the tenant of a unit, whose landlord is the Kamloops (Pacific No. 52) Branch of the Royal Canadian Legion.
The strata asked the online tribunal for an order that the Legion pay the $400 in fines and order that the Legion stop its tenant from smoking at the property.
However, the Tribunal dismissed the claims because the strata had failed to follow the correct procedures.
According to the decision, the strata says it has received multiple complaints of the tenant smoking on their balcony going back to 2019.
In 2021, the strata issued four $100 fines to the Legion, sending copies to the tenant.
The Tribunal said both parties dispute whether the tenant was smoking on their balcony or not, but it wouldn't decide which side was telling the truth, as it dismissed the case anyway.
The Tribunal found that as the fines and the attached letters were only copied to the tenant, the tenant did not have the opportunity to defend themselves against the allegations.
"The (tenant) had no opportunity to answer the complaints or request a hearing. I, therefore, find that the strata had no right to fine the Legion for the actions of the (tenant), the Tribunal ruled.
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The Tribunal went on to say that even if the letters were addressed to the tenant, it still wouldn't accept them.
"A strata must notify an owner or tenant about a complaint and give a reasonable opportunity to respond to it before imposing a fine," the decision read.
The strata also ask for an order that the Legion stop the tenant from smoking on their balcony.
However, again the Tribunal refused to intervene.
"The difficulty with the order the strata asks for is that the Legion cannot control (the tenant) behaviour," the Tribunal said. "If I grant the order and (the tenant) later smokes on their balcony, the Legion would be in breach of a court order for something someone else did. I find that an injunction can only impose obligations on the Legion that the Legion is actually capable of obeying through its own actions."
Ultimately, whether or not the tenant was smoking was not proved, the Legion didn't have to pay the fines, and the strata is back at square one, with no doubt more complaints about cigarette smoke to come.
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