208007

Should stratas be able to ban pot smoking by residents' on their own patios?

Poll: Home smoking bans

A Chilliwack strata owner must stop smoking cannabis on his patio, B.C.'s Civil Resolution Tribunal has ruled.

According to a Nov. 29 decision posted on the tribunal's website, Giles Danny St. Pierre said his strata discriminated against him by failing to accommodate his disability, contrary to the B.C. Human Rights Code. Specifically, he asserted the strata wrongly issued bylaw fines against him for medical cannabis use, harassed him, and permitted his neighbours to harass him about his cannabis use.

He said he smokes cannabis on the patio three to four times a day.

In complaining to the tribunal, St. Pierre sought a removal of all bylaw fines and warning letters, an order that the strata not pursue or enforce his neighbours’ complaints about his cannabis use and reimbursement of $1,000 for a cedar privacy hedge installed along his backyard fence line.

He also sought $5,000 in damages, including damages for injury to the dignity, feeling and self-respect of he and his wife as well as reimbursement of $1,120 in legal fees.

The strata, however, said St. Pierre provided no medical evidence that his disability requires him to smoke marijuana. It had fined him $200 five times.

Tribunal vice-chair Kate Campbell said the parties agree St. Pierre has multiple disabilities.

“This is confirmed by the medical evidence before me,” she said.

However, St. Pierre had not proven his disabilities were adversely affected by the strata’s refusal to permit him to smoke cannabis on his back patio, Campbell said.

“I find Mr. St. Pierre has not proven that he must smoke cannabis rather than ingesting it in another form,” she said. “I also find the strata met its duty to accommodate Mr. St. Pierre by permitting him to smoke elsewhere in the strata.”

She noted St. Pierre had argued edible cannabis takes 60 to 90 minutes to take effective while smoking is immediate.

"I accept that this is Mr. St. Pierre’s opinion,” Campbell said. “However, Mr. St. Pierre is not a medical or psychological expert, and there is no expert evidence before me confirming it. There is also no expert opinion stating that other forms of medication and treatment would be less effective than smoked cannabis.”

The strata has no specific bylaw prohibiting marijuana smoking but cited two bylaws. One says owners must not cause a nuisance or hazard to another person or unreasonably interfere with the rights of other persons to use and enjoy common property or another strata lot.

The second says an owner must not make, cause or produce undue smell in or about any strata lot or common property, or do anything to interfere with another owner, tenant or occupant.

The strata said St. Pierre refuses to participate in the accommodation process, i.e., insisting he must smoke on his back patio, rather than in another location in the strata.

The strata also says it has a duty to enforce its bylaws, including bylaws against nuisance.

In a counterclaim, the strata sought an order that St. Pierre comply with bylaws and stop smoking marijuana in areas where smoke enters neighbouring properties.

“I accept that Mr. St. Pierre’s cannabis smoke is a substantial, non-trivial and unreasonable interference with his neighbours’ use and enjoyment of their properties,“ Campbell said.

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