The individual's liberty to satisfy a nicotine fix and society's desire to be free from second-hand smoke are important issues which must be balanced in regulating smoking in our communities.
Section 2.3 of the Tobacco Control Act, RSBC 1996, c 451 (the "Act") is provincial legislation that came into force in 2008 and rendered smoking tobacco illegal in, or within 3 metres of, any building that is substantially enclosed and a "place to which the public is ordinarily invited or permitted access". This law was intended to, and effectively does, address many of the nuisance and public health impacts of smoking. The Act permits smoking within private residences, but strata properties are able to pass non-smoking bylaws and landlords are able to include no-smoking clauses in their tenancy agreements. However, the Act says nothing about smoking in and around parks, schools, and other public areas that are frequented by children and families.
Municipal bylaws also play an important role in regulating smoking and such bylaws often go further than the Act. This was recently shown in the Supreme Court of British Columbia decision Bonavista Management Inc. v. Absolute Star Design Ltd., 2015 BCSC 1002. The defendant, Absolute, leased commercial premises in a building in the District of West Vancouver for a jewelry store and related activities. One of the related activities was the sale of cigars which over the years had become a prominent part of the business. The plaintiff, Bonavista, was the property manager of the building who had received numerous complaints from other tenants about cigar smoke emanating from Absolute's premises on numerous occasions.
Absolute's lease prohibited activities that were a nuisance or contrary to any bylaw. The District of West Vancouver's Smoking Regulation Bylaw (the "Bylaw") imposes more severe restrictions than the Act does. The Bylaw defines building more broadly as "a portion of a building or structure which is used or intended for supporting or sheltering any use or occupancy and includes premises" and it extends the 3 metre ban to 6 metres away from buildings. The Bylaw does, however, like the Act, exempt private residences from this prohibition.
The court found that the activities of Absolute constituted a nuisance but also were in violation of the Bylaw. On that basis, the court issued a permanent injunction restraining Absolute and its owners and operators from permitting any smoking on the premises.
This decision underscores the power that local governments have in regulating smoking in their communities. It also illustrates that even if the local government does not prosecute for a violation of its smoking bylaw, such a violation can result in a breach of a lease which could lead to an injunction to restrain the smoking.
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