What is the overlap between smoking bylaws and nuisance bylaws as they relate to smoking in B.C.? Smoking bylaws are supposed to protect the people’s health and nuisance laws are designed to ensure someone can reasonably enjoy their property. What has happened in B.C. is that the distaste for smoking has risen to a level that practically bans smoking, even if done in one’s apartment.

Smoking bylaws

In the Vancouver’s Health By-law No. 9535, smoking is defined as including “burning a cigarette or cigar, or burning any substance using a pipe, hookah pipe, lighted smoking device or electronic smoking device.” The Bylaw attempts to regulate adult behaviour and eliminate smoking in public spaces. Many cities in B.C. have similar bylaws but some have grandfathered in businesses.

B.C.’s Tobacco and Vapour Products Control Act, RSBC 1996, ch. 451 regulates the sale and promotion of tobacco and vape products. It does not appear to regulate controlled substances or non-tobacco hookah use. It does not stop adults from using tobacco and vape products but does regulate the sale and promotion of them.

Smoking cannabis is regulated by the B.C. Cannabis Control and Licensing Act SBC 2018, Ch. 29, which bans smoking in common areas of apartments, condominiums, and dormitories, meaning a person cannot smoke cannabis in many places outside their home.

There are also strata bylaws that ban smoking in common areas of condominiums.

The only thing these various laws have not been able to do is stop someone from smoking at home. The B.C. government webpage titled “Strata non-smoking bylaws” states:

“Strata corporations (or sections) can create a bylaw, by a 3/4 vote of owners, or create a rule to limit or ban smoking.

• A non-smoking bylaw can ban smoking in the strata lot as well as on common property and limited common property.
• However, a rule can only limit or prohibit smoking on common property.

Even if a strata doesn’t have a bylaw that specifically addresses smoking, almost all stratas have bylaws ensuring owners, strata residents and visitors cannot cause a nuisance or hazard to another person or unreasonably interfere with the rights of other persons to use and enjoy the common property, common assets or another strata lot. These bylaws can be used to address second-hand smoke issues.”

Nuisance Bylaws

This is where nuisance strata bylaws come in. The Supreme Court of Canada’s definition of nuisance has been recently reaffirmed in British Columbia (Minister of Public Safety) v. Latham 2023 BCCA 104:

(38) From these principles, the Supreme Court of Canada identified a “two-part test” to establish private nuisance: “to support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable.” Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 [Antrim] at para. 19.

Therefore, to be a nuisance at law, the interference must rise to a level of substantial and unreasonable. The interference is not a nuisance at law simply because it annoys you.

Second-hand smoke cannot rise to a nuisance at law unless one is able to prove that it significantly interferes with a person’s use or enjoyment of their property. The mere act of smoking in one’s home cannot constitute a nuisance at law. Currently, non-smoking strata bylaws eliminate the key requirement for a party to prove that smoking interferes with the use and enjoyment of their property.

Arguably, the BC Civil Resolution Tribunal should not be enforcing these strata smoking bylaws without doing the nuisance test.

Conclusion

Smoking anything, like drinking any type of alcohol, is not good for you. There are different levels and quantities of unhealthy behaviours in society. The legal issue is: have antismoking laws gone too far in attempting to take away adults’ freedom to make informed decisions as to their vices? Some would say yes, but they should say it quietly in their own homes