Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: It’s my strata, and I’ll smoke if I want to

A two part series of a legal battle between two strata residents and second-hand smoke

The British Columbia Human Rights Tribunal recently issued an interesting decision regarding second hand smoke in a strata, Bowker v. Strata Plan NWS 2539.

The case involved a woman, Ms. Bowker. She and her husband viewed and then purchased a residential unit within a complex owned by a strata. When they had initially viewed the unit before purchasing it, it was smoke-free.

Being smoke free was important to Ms. Bowker, because she has pulmonary fibrosis, a lung disease. The symptoms are primarily coughing and an increasing shortness of breath and the symptoms are worsened by exposure to fumes and toxins or chemicals in the air, including cigarette smoke.

Before the Bowkers moved in, the unit directly below theirs was purchased by another person [LR] and her husband, both of whom were regular smokers.

Upon taking possession of her new home, Ms. Bowker was “horrified” to find that it smelled heavily of cigarette smoke. It soon became apparent the smoke was coming from the downstairs unit. Ms. Bowker began opening the patio doors even though it was late November, and purchased large fans to try to blow the smoke outside. She also bought two air purifiers. These measures were largely ineffective.

When she contacted the strata council president, she was told to speak with the lower residents. She did so, but LR only became defensive and the smoking continued.

Ms. Bowker wrote letters to the strata council, provided a note from her physician regarding her medical condition which required a smoke-free environment, and asked that the strata invoke its nuisance bylaw. That bylaw prohibited strata owners from using their strata lot in a way which caused a nuisance to another person. All Ms. Bowker wanted was for LR to stop smoking in the unit.

About one year after Ms. Bowker had first expressed concerns, the strata started taking some steps to minimize the smoke’s impact on Ms. Bowker’s unit. It tried to seal the units, provided air purifiers, paid for an ozone treatment and undertook an air quality assessment. These efforts were largely to no avail.

The council also put a nonsmoking bylaw to a membership vote. However, the requisite 75 per cent majority was not obtained. So, the vote failed twice, although on one occasion was within 10 votes of passing. By the time the third meeting rolled around, the strata council president was not interested in putting it forward again.

For more than a full year, the strata council failed to raise the nuisance bylaw with LR.

After Ms. Bowker submitted a complaint under the B.C. Human Rights Code (the Code), it finally did so. LR then asserted that nicotine addiction is a physical disability under the Code.

Ms. Bowker’s lung condition worsened. She became in need of supplementary oxygen. Until September 2017, she had to carry oxygen tanks around with her wherever she went.

In September, 2017, 22 months after Ms. Bowker first raised concerns, the strata council finally sent a cease and desist letter to LR. It stated that if the smoking in the unit did not stop within 2 weeks, the strata would commence an action.

Also in September, 2017, LR’s husband died. The smoke exposure Ms. Bowker experienced fell to significantly lower level, but LR continued to smoke in her unit.

An action was commenced against LR, and the decision in the matter has not yet been rendered.

Ms. Bowker continued to be subjected to second hand smoke. She was impacted by this in ways that included increased coughing, dyspnea and nausea, loss of sleep, an inability to be in certain rooms of her unit, the need to always have the patio doors fully open and the fans/air purifiers on full despite noise or severe temperatures outside, the inability to have certain family members stay over because of their own sensitivity to smoke and significant stress about the situation.

In the second part of this series, the Tribunal decision will be analyzed.

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