Surrey condo strata ordered to pay owners over $4,000 because it failed to investigate smoking complaints

Civil resolution tribunal found that because one of the owners had a disability made worse by second-hand smoke, the strata had a higher “duty to accommodate” her

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A South Surrey couple was awarded over $4,000 by a B.C. court because their condo strata failed to properly investigate and address complaints about odours from a neighbour’s smoking and air-fresheners entering their unit.

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The civil resolution tribunal ruled that the strata corporation at Parkview Gardens had a “duty to accommodate” owner Carol Cheslock’s physical disability — allergies, asthma, an eye condition that required surgery and respiratory problems — worsened by the cigarette and cannabis smoke and other odours that entered into her and her husband Andrew’s second-floor suite from the unit below.

“Mrs. Cheslock has a physical disability and provided medical notes stating the smoke and odours (were) aggravating her health conditions,” wrote tribunal vice-chairwoman Kate Campbell. “Under the B.C. human rights code, the strata therefore had a duty to accommodate Mrs. Cheslock to the point of undue hardship.”

Campbell found the “strata failed to enforce its no-smoking and nuisance bylaws, despite numerous complaints” and the “strata had a higher duty to investigate … in these circumstances than it would have had if there were no issue of disability under the code.”

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The Cheslocks told the tribunal that the strata refused to consider their complaints as the months passed by and was “colluding” with the owner of the other unit, Shannon Perka, to “make sure the bylaws were not enforced against her.”

The Cheslocks first complained about the smell of smoke coming from Perka’s unit in August 2018, before the strata officially banned smoking, in December 2018. They said the smell entered their suite through the fireplace, windows, electric heaters and from under the kitchen sink.

Early in 2020, they complained about “sweet” and “toxic” odours that appeared to come from air-fresheners or essential-oil diffusers. And “G.W.”, the owner of the suite next to Perka’s, sent six letters to the strata complaining of a “sickly sweet smell” that burned her eyes and made her vomit.

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Also, a plumber who did work in Perka’s suite noted on his invoice an “extreme perfume odour.”

The strata at first sent letters to Perka in August 2018 and in July 2020, threatening fines if the smells didn’t stop. In August 2020, it imposed a $50 fine for “bylaw breach.” But a month later, it reversed the fine because “there was no conclusive evidence of bylaw breach.”

Campbell said simply conducting a sniff test didn’t adequately investigate the complaints because a 2016 human rights tribunal had ruled in a similar case that a strata must carry out a number of steps to investigate second-hand smoke if a complainant has a disability, including gathering information, calling in an expert, investigating possible solutions and determining whether a strata can accommodate the disability.

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Campbell also noted an owner has a right to have her complaints handled in a respectful manner and noted that a council member, identified only as L.S., had emailed derogatory comments about the Cheslocks, including calling them “troublemakers” and suggesting Perka could “give the Cheslocks ‘the finger’ as she left the strata for the final time.”

The Cheslocks had named Perka and the strata as respondents in the lawsuit but Campbell dismissed the claim against Perka because she wasn’t responsible for duties under the human rights code or strata property act.

But Campbell ruled the strata must reimburse the Cheslocks $79.59 for a fan purchased in August 2020 (but not a $650 air-purifier bought in September 2018); $156.59 for a night’s hotel stay when Carol Cheslock was recovering from eye surgery; and $4,000 in damages for “pain, suffering, anxiety and loss-of-dignity (they had asked for $5,000 in damages).

The strata council or property management company couldn’t be reached, and Perka didn’t return a request for comment. The Cheslocks declined to comment.

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