A Strata Must Investigate Bylaw Complaints or Could pay Damages to Owners

Once a strata receives a bylaw complaint, the strata has a mandatory obligation to investigate the complaint. Failure to comply with that obligation can result in unfairness to the complaining owner and damages paid by the strata to that owner. 

In the case of Cheslock v The Owners, Strata Plan NW 3158, 2021 BCCRT 712, the owners say the strata failed to enforce is no-smoking and nuisance bylaws, despite numerous complaints. They say smoke from cigarettes and marijuana, and odours from plug-in air fresheners or essential oil devices, entered their strata lot from unit 101. They say these odours were a nuisance and impacted their health, and they were not able to eliminate them. 

The owners also sued the downstairs neighbour. The CRT dismissed all claims against the downstairs neighbour but found that the strata discriminated against the owner contrary to the BC Human Rights Code by not sufficiently investigating or addressing the owner's smoke and odour complaints. 

The CRT accepted that the owner had a disability: she had asthma and allergies that were impacted by second-hand smoke in her home. 

43. As explained in [Leary v Strata Plan VR1001, 2016 BCHRT 139], to establish a prima facie case of discrimination, Mrs. Cheslock must prove that she has suffered an adverse impact in relation of services by the strata, and that her disability was a factor in the adverse impact.  

44. The Cheslocks say there was smoke in their strata lot from at least October 2018 to December 2020, and odours from air fresheners or essential oils throughout most of 2020. 

45. . . However, as explained in Leary, if a strata lot owner asks the strata to take steps to address second-hand smoke due to a disability, the strata cannot simply say there is no evidence of smoke. Rather, once adverse impact is established, the strata then has a duty to investigate, and take steps to cooperate with the owner to address the problem. Thus, there is a higher burden on the strata to investigate an alleged bylaw violation where the duty to accommodate under the Code is triggered, as compared to a bylaw complaint where the Code is not engaged. 

46. Paragraph 69 of Leary states that where the strata has a duty to accommodate a physical disability: 

For second-hand smoke, a "sniff test" undertaken by another strata member will rarely be sufficient to evaluate the extent of a problem with smoke in a suite. The strata may have to retain air quality experts. The strata should pay for any tests or expert reports. 

The CRT found that it was more likely than not there were odours entering the owner's unit, which the strata should have investigated by some means other than a few council member visits and that the owner was discriminated against. 

As a result of the strata's discrimination the strata was ordered to pay the owner: 

• the cost of a fan
• the owner's hotel accommodation
• $4,000 in damages for injury to dignity contrary to the Code
• and CRT fees

TAEYA FITZPATRICK Taeya Fitzpatrick has specialized in strata law for most of her practice, has won cases for her clients in the BC Supreme Court, the BC Court of Appeal, and assisted with a client succeeding in defending a Civil Resolution Tribunal claim. Taeya offers full services to a strata corporation or a strata owner from redrafting the strata’s bylaws, collection of outstanding strata fees or other charges, issues with bylaw enforcement, to amending the strata plan. For more information on the services provided, you can reach Taeya by email, phone: 250-763-4323.