At last night's North Vancouver City council meeting, Mr. Sean Soper made an interesting presentation recommending that the City prohibit smoking in multi-unit dwellings.
While 85% of British Columbians do not allow smoking in their homes, very often residents of rental or strata buildings are forced to endure second-hand smoke in their own homes. Mr. Soper, noting that the City has already outlawed smoking at bus stops, asked Council to consider passing a bylaw prohibiting smoking in such buildings.
Council unanimously voted to ask staff to consider the measure and prepare options for Council's consideration.
What do you think? Should this be something left to strata councils and rental property owners or should the government act?
Tuesday, July 07, 2009
Should the City outlaw smoking in multi-unit buildings?
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44 opinions/comments:
I watch this on the net last night (and John's good presentation on the Report) and I completely disagree.
I have never smoked and support smokers being booted outside in public spaces but I wouldn't support this.
I found the research all coming from special interest groups and quite suspect and weak. The opinion that this would pass a Charter challenge didn't look realistic.
The California city the presenter was using as an example is meaningless to what our Canadian legal system would do.
I would think it fine if the owner of the building decides to designate it such .. otherwise the government has no business butting in (or out).
After last night's meeting I would think the City could focus on other issues. Disgraceful.
What is the real story behind the Hollyburn delay? The City's old "solicitor recommendation" doesn't wash.
Once again Smokers get burned. Maybe Council should allow smoking-only multi-unit buildings?
Strikes me as an unenforceable and probably pointless law. We've reached a sensible place with respect to smoking prohibition and I doubt that any elected official will push it further.
Why place another bylaw on the books that won't get enforced? Have you sat at a bus stop lately? Where are the bylaw officers in this city? Either enforce the existing bylaws or stop creating them.
I support this idea to a point. I know it has been hard to enjoy my balcony at times when the unit below is puffing away. I have even had the smoke wafting in the window. I am a non-smoker and sit on my own strata council and would support a motion to pass a by-law to eliminate smoking. I know of others living here especially with with children and who feel the same about the second hand smoke. However the building I am in was not designated non-smoking when the original owners signed on so those who are 'grandfathered'(original owners) wouldn't have to abide by such rules but, a by-law, if passed could be phased in with new owners. To have the government step in on this seems a tad invasive.
Isn't there a building on 3rd street in the City built about 5 years ago that was sold as non-smoking? I think that was a great innovative move by that developer.
http://www2.canada.com/vancouversun/news/westcoastnews/story.html?id=b2572dab-d8b7-4bbf-8469-5c18121dce4c&k=53178
May 24, 2007
Developer James Fox and his company, Wedgewood Ventures, is building Canada's first non-smoking strata building, Envy, at 170 West Third in North Vancouver.
He said the developer sets out the initial strata bylaws, which can be changed with 75 per cent approval of the strata owners.
"If 75 per cent suddenly decide they want to start smoking, it could change," Fox said, adding he has been contacted by a number of strata councils who have requested a copy of Envy's non-smoking bylaws and are considering going non-smoking.
Strata councils can prohibit the use of barbecues on balconies. Why not smoking? I'd say it's prevalent throughout the year whereas barbecues are more common in nice weather. Someone has to sniff the wind, so to speak....
Yes it should and I expect it will begin to happen in the not too distant future. I recall the same reaction about unenforceability and unacceptability when the discussion was about banning smoking in restaurants, bars and then public buildings.
It will come for the same reason that those places were made smoke-free. It's the rights of the majority who don't smoke and don't want to be breathing smoke versus those who smoke. It has already begun through the Residential Tenancy Branch where a non-smokers are making complaints about smoke in their suites.
We have nuisance by-laws that keep other intrusions like noise at bay...why not smoke?
Vincent Santacroce
The problem is, how are they to be enforced. I have to deal with smokers nearly every morning at the bus stop. There is no enforcement.
If memory serves in regards to some neighbourhood noise, a guy driving a DNV Toyota shows up with his clipboard and if there is an infraction, a fine is sent to the homeowner.
VS
Hotels manage to have smoking and smoke-free units -- usually on alternating floors. In the end, that call has to be made by the developer/owner of the multi-unit building.
That decision may be based on what a stale, smelly, smokey unit does to the resale value of that unit. Gaaag! But we can't ban all people from smoking in their own domain.
The City should not get involved in these kinds of decisions at all. The onus should be placed on the developer/owner. People can choose to live where they wish, but must have the right of choice.
In a multi-dwelling unit there has to be health concerns for those who are non-smokers. Obviously if you are in a single dwelling home you can smoke like a chimney if you want.
Laws stay intact largely by people honouring them but, there are always those who don't. I agree with Vincent that, "It's the rights of the majority who don't smoke and don't want to be breathing smoke versus those who smoke."
The only 'enforcement' I see happening is through people reporting an infraction which result in a warning or fines to the violator.
For those people who don't have the courtesy at bus stops if you have a cell, try reporting it next time it happens. You might be pleasantly surprized.
John, you try phoning a complaint at 5:30 in the morning. You'll not be pleasantly surprised.
Point taken. That is early. I would still call it in during business hours and file the complaint. The law is there to protect the interests of all non-smokers who have a right to that 3 metere distance.
John, there are no bylaw officers up at 5:30AM to come give a ticket. When I called the bylaw officer, I was told to call the police. Well, the police don't arrive before the bus does. It's a bylaw that does not get enforced. Oh, and when you point out the bylaw to the offending party, more often than not you are subjected to some pretty foul language.
My own view of this is that it would be too aggressive for a municipality to all at once outlaw smoking in multi-unit dwellings. That is simply not going to happen in the short term.
What could happen however is:
a) A small education/communication effort to strata councils and renters in the City to inform them of their rights, and the health costs of smoking. I have not looked into it, but I would assume that fire insurance premiums for buildings that are officially non-smoking would be lower, giving building owners and managers a financial as well as a health incentive to act. Informing people of this would also move it forward.
b) During the planning and development process for new multi-unit dwellings, municipal staff and planning bodies could encourage developers and managers to establish their buildings as smoke-free zones. It should certainly be a question asked and answered at public hearings.
Political correctness has gotten out of hand....
Why not ban fat people - quite frankly they disgust me, they smell badly and are a huge drag on health care resources in this country and our city.
Or why not ban fat people from eating at fast food restaurants or at least limit thier food intake through rationing.
And those joggers and cyclist who keep whizzing by, they're dangerous! What if they hit someone?
Also passing gas in public (farting) needs to be controlled, I was at Park Royal the other day and well...I don't have to tell you ...when this fat person in the line at London Drugs let one go...man oh man...
Noisy kids have to be controlled as well. How can anyone sleep or have an afternoon nap with those little rug rats running around like little banshee's? All over the place they are, parks, balconies, planes, decks of multi-unit buildings...
Seniors too, man they take forever to cross a road. To top it off thier cranky. We need to have curfews to limit when they can be out mucking up traffic and business in general...
And what about people that don't recycle effectively? Don't get me started there. I'm talkin' jail time.
Lets make some laws to hammer those that annoy us! Let's go to it and see where it ends.
Seriously folks, have not all the social engineers in our midst had enough of a run? Can we stop trying to control each other, particularly using the most obvious hammer at hand - the political correct automatic public fear weapon?? Did someone here say they called the cops on someone having a cigarette? Really?
Aren't we simply being a little over-sensitive about this? I'm willing to talk about banning balcony smoking, but inside your living space I don't give a rats ass what you do.
We have a provincial smoking regulation that prohibits the activity near operable windows and doors...but the legislation is (intentionally?) vague on its applicability to smoking on balconies (most of which would fall within the "prohibited" category under the letter of the law). Why not have municipalities simply formalize this restriction? No smoking on balconies, but feel free to do as you wish in your interior space. If the ventilation system in the building is so poor as to allow migration to other suites and corridors, then have the owner or strata council upgrade it. Drifting smoke from a resident who habitually lights up on a balcony (to avoid having their own living space stunk up) is a significant problem for nearby neighbours - particularly during warmer weather when windows are open.
Items like this should be enacted on provincial basis to ensure consistency.
Councils fail when they try to enact media aimed bylaws like the bus shelter anti smoking laws. Can you see the tiny signs? The advertisers probably stopped them by using part of "their" space.
Not that smokers would pay attention at 6:30 in North Van rain to go 7.5 meters away.
Although some may say that the government has no right to tell people what to do in their own home, they do have a responsibility (and the right) to protect citizens from health hazards (including drifting second-hand smoke, and the major fire hazard posed by smoking inside buildings). Such by-laws are already in place in many public places (workplaces, bus stops, etc.), and many private places (including bars, restaurants, etc.). The same argument that applies to these by-laws would apply to a by-law prohibiting smoking in multi-unit dwellings: a person’s right to breathe clean air and a child’s right to be protected from second-hand smoke trump a smoker’s right to smoke wherever he/she likes. Many people said that the aforementioned by-laws would never be passed, but they have been. As the trend continues for the protection of non-smokers from second-hand smoke, it’s really just a matter of time before all multi-unit dwellings across the Country are smoke-free. People will resist it, just as they resisted being asked to stop smoking in bars and restaurants, but this outcome is inevitable.
Yes, people have the choice of where they live, but they don’t have the choice of who their neighbours are. If you are one of the people who has a neighbour who smokes and their smoke drifts into your home, sure you can choose to move, but for many this is not a viable solution (financially or otherwise), and if you can afford to move, you may just end up in the same situation in another building (whether you move in next to a smoker, or a smoker moves in next to you at a later time). Someone should not have to move to get away from second-hand smoke – that simply isn’t right.
Good luck getting a building owner or strata to fix the ventilation system so smoke doesn’t drift from one unit to another. I have tried this, and was told that it is simply not feasible.
Also, good luck getting an apartment rental building owner to make their building smoke-free.
Smokers have the option of leaving the building to smoke. It may be a hassle, but non-smokers don’t have the same option. Yes, they can choose to leave their unit when the second-hand smoke is drifting in, but it will still be there when they return (it infiltrates everything from the furniture to the carpet to the walls) and often it can come in when people are sleeping, or it is there when they get home, etc. What we are talking about here is a hassle for one party versus potentially serious health concerns for the other. That’s not to mention that danger that all residents are put in, knowing that smoking is a major cause of building fires and fire-related deaths.
Getting a strata corporation to adopt a non-smoking by-law is very difficult. This requires a ¾ vote, which can be very difficult to obtain because many people are aware of all of the reasons to go smoke-free (i.e., the fire hazard associated with smoking), or are indifferent because they have not experienced drifting second-hand smoke personally, not to mention that many people don’t show up or vote at these meetings (except in this case you can be sure the smokers will be there). When it comes to a public health and safety issue, it only makes sense that the City step in.
I thought the research presented to City Council was very thorough and reliable. Although some of the references may indeed be considered ‘special interest groups’ (The Lung Association of BC, the Clean Air Coalition of BC, the Non-smokers’ Rights Association), they are all credible sources, and many of them are government or government-funded sources: i.e., the BC Ministry of Healthy Living, Act Now BC which is a cross-government health promotion initiative, and Smoke-Free Housing BC (a provincially-funded project).
For those interested in learning more about the issue of second-hand smoke in multi-unit dwellings, there is a very comprehensive website funded by the provincial government (Ministry of Health) to educate the public on this issue:
www.smokefreehousing.bc.ca
Wow, the lobby groups came out in force.
There is not a chance in the world that the CNV will pass a bylaw.
With regards to enforceability, it would be no different than enforcing a noise by-law or any other such by-law that is currently in place.
There are difficulties with the enforcement of a by-law prohibiting smoking at bus stops; still, this does not take away from the fact that this is a by-law that serves the interest of the public. Some will choose to disobey the law, but many will in good conscience obey the law, so non-smokers are still better off that they were before.
A by-law in multi-unit dwellings would be much easier to enforce because unlike bus stops where it is difficult to get someone there in time before the bus leaves, this is not an issue in a building. It would be as easy to enforce as a noise by-law.
I can’t see there being a huge difference between American law and Canadian law on this issue. If a similar by-law has been passed in the States, I don’t see why it couldn’t be done here in Canada.
I think it’s the next logical step in the ongoing progress towards the protection of non-smokers from second-hand smoke. Never going to happen, you say? That’s what skeptics and critics said about a smoking ban in restaurants and bars, the workplace before that, and airplanes and grocery stores before that… This is sure to happen at some point – it’s not a question of if - it’s just a matter of when.
It will take a great deal of vision and courage on the part of City Council to be the first city in Canada to do so. They City of North Van is known for its strong leadership. I am confident that they possess these qualities and that they have what it takes to demonstrate the type of leadership required to make this happen.
Regarding the legalities of this issue, there is some interesting Canadian case law that highlights the limitations that the law places on one’s right in his/her home, and that supports the protection of non-smokers from second-hand smoke in their home. The Canadian courts have set the precedent, so the government would have legal ground to stand on:
Raith v. Coles, 1984, County Court of Westminster, British Columbia
A nuisance case involving drifting cigar smoke from one condominium unit to another above. The judge granted an injunction to prevent the smoke from continuing to bother the plaintiffs.
The judge said:
“This is not a simple dislike of the smell – there is concern based on medical grounds. While the individual must be expected to put up with some inconvenience in today's world there comes a point where the perpetrator of a problem must curtail his actions when they become demonstrably harmful to others... There are many things a person may not do in his house or castle – in the case of these Respondents, one of these things now is that he may not allow there to be emitted or discharged a noxious substance, in this case, cigar smoke and odour, from his premises...”
Another interesting case:
Feaver v. Davidson, 2003 (O.R.H.T.D. No. 103, File No. TSL-52189), Ontario Rental Housing Tribunal - A case involving a landlord (Feaver) seeking to have her smoking basement tenant (Davidson) evicted for substantial interference with her reasonable enjoyment of the residential complex. There was no written lease and no oral agreement that addressed the issue of smoking. The arbitrator determined that the tenant had indeed interfered with reasonable enjoyment. Further, if the tenant did not stop smoking in his unit, the landlord would be able to obtain an eviction order without further notice to the tenant.
The arbitrator said:
“The legislated limits that have been placed on smoking have come about because of the overwhelming evidence that smoking and second-hand smoke pose serious health risks. There can be no debate... It is clear that the risks associated with smoking are so grave that it is prudent to avoid inhaling cigarette smoke... Fear of the threat alone is enough to cause the prudent person to take the measures that the Landlord has taken and to cause continuing anxiety about her health. She has a right to be free of the risks of smoking in her unit.” “...It is not reasonable for the Tenant to expect to continue smoking in this unit where he shares the air with other occupants of the complex, when another occupant of the complex perceives a threat to their health. Although the Tenant may chose [sic] to accept the risks associated with smoking, he has no right to require the Landlord to share them... I find that the Tenant's smoking has substantially interfered with the Landlord's reasonable enjoyment of the residential complex...”
Looks like there's another lawyer blogging...nice work on the research Anon 12:58/1:01 - I will keep those cases 'on file' when I or client need the legal ammo.
VS
Here are some interesting points from the Strata Property Act on the common law of nuisance:
“Strata corporations and all residents of strata corporations in BC are protected by the common law action of ‘nuisance’. If an individual is bothered by smoke in a strata complex, both the strata corporation and the individual in the complex can apply to Court for injunctive relief that the individual who is causing the problem cease doing so.
As explained below, where the nuisance complaint involves people living in a strata complex, the Courts have recognized additional factors to consider in cases of nuisance. In this type of communal living arrangement, the residents are required to exhibit more cooperation and respect for others to ensure that each resident is able to enjoy their property to the fullest extent.
Even if a strata corporation does not have a Smoking Prohibition Bylaw, smoking that is a nuisance can be addressed as a breach of the bylaws.
2) Breach of the Schedule of Standard Bylaws
Pursuant to the Schedule of Standard Bylaws in the Strata Property Act, virtually all strata corporations in BC prohibit in their bylaws behaviour that creates a nuisance or hazard to another person, or that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot. This can include smoking, regardless of whether there is a Smoking Prohibition Bylaw in place.
Strata corporations need to be willing to enforce these bylaws by dealing appropriately with complaints of second-hand smoke, including following the bylaw enforcement procedure and applying for relief in Court if necessary. Failure to enforce the nuisance section of the bylaws may result in an owner bothered by smoke taking the position that the strata corporation has a statutory duty to enforce its bylaws and that the failure to enforce the bylaw is significantly unfair to him or her. As a result, the non-smoker could seek an order of the Supreme Court of British Columbia that the strata corporation enforce its bylaws. Section 26 of the Strata Property Act supports the concept that a strata council has a positive duty to enforce the strata corporation’s bylaws. It is recommended that legal advice be obtained before enforcing a nuisance bylaw.”
http://www.smokefreehousingbc.ca/strata/laws.html
It really should not have to get to the point where someone has to take their neighbour to court. By implementing a non-smoking by-law, the City can save its residents from having to go through this very unpleasant and costly process.
poo pee poo pee poo pee
Smoking should be banned on balconies as a higher priority as it is much more of a nuicense. I cannot move my apartment so I am constantly stuck with second hand smoke from both cigarettes and illegal substances coming into my apartment. What am I to do? The weather has been very hot this summer so I need to open the windows and doors. At least at a bus stop or other public space you can move on pretty quickly. In my opinion then, smoking on apartment buildings should be a much higher priority for a ban
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