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
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
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
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
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