In the recent BC Supreme Court decision of Strata Plan NW
1815 v Aradi, 2016 BCSC 105, the Court clarified its authority
to step in and enforce bylaws enacted by strata councils. The bylaw
at the centre of this dispute between the strata corporation (the
"Strata"), and the strata lot owner (the
"Owner") was one prohibiting smoking in
individual strata units and around the common areas (the
In response to complaints from neighbours of cigarette smoke and
smell coming from the Owner's unit, the Strata issued numerous
warnings and fines, none of which the Owner complied with or
On his part, the Owner did not deny smoking cigarettes regularly
in his unit. Instead, the Owner alleged that his disability made it
impossible for him to walk to a permitted smoking area and so the
Strata's bylaw unlawfully discriminated against him and could
not be enforced.
This human rights aspect was simultaneously put to the BC Human
Rights Tribunal and was not (really) raised by the Owner
as a defence to the proceeding or considered by the Court in its
decision. Rather, the Court made its decision on the basis that the
Bylaw had been validly enacted by the Strata and that the Owner (in
part by his own admission) had violated the prohibition against
smoking on more than one occasion.
The Court was asked by the Strata to exercise its power pursuant
to section 173 of the Strata Property Act, SBC 1998, ch 43
(the "Act") in order to :
a) declare that the Owner was in contravention of the
b) make an order that the Owner must immediately cease and
desist from contravening that Bylaw (i.e. smoking in his unit or on
the common strata property).
Section 173 of the Act allows the Court, among other things, to
order an "owner, tenant or other person" to comply with
the Act and the bylaws of a strata corporation.
The Court clarified that although section 173 is injunctive in
nature, courts will not analyze it in the same manner as the test
for obtaining an injunction at common law. Instead, the threshold
test is based on the Court's broad discretion under section
173. Namely, a Court's discretion can be exercised "in
appropriate circumstances and in accordance with the overall
objectives of the Act."
In making its decision, a court will balance a strata
corporation's interests against those of the owner or person
against whom the order is sought. The purpose and object of the Act
as well as the particular circumstances of the case will guide the
Court. Appropriate considerations include the number of owners
seeking relief, if the order sought is in the best interests of the
strata, and whether not granting the order would unfairly prejudice
Having taken the above considerations into account, the Court
decided that the Strata was entitled to a declaration under section
173 and ordered the Owner to stop smoking cigarettes in his unit.
Importantly, the Court noted that the strata bylaws are meant to
govern the living arrangements among private owners of property
living in close quarters with one another. The Court confirmed that
the modern condominium setting necessarily requires owners to forgo
a portion of his or her independence for the mutual benefit of the
entire condo community.
The foregoing provides only an overview and does not constitute
legal advice. Readers are cautioned against making any decisions
based on this material alone. Rather, specific legal advice should
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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