B.C.’s Civil Resolution Tribunal has told a B.C. strata to repay all the fines it levied against a tenant after deciding his alleged puffing violated its bylaws.
In his , tribunal member Christopher Rivers said the strata received complaints that Mike Mendiburu was smoking in his strata lot.
“The strata’s bylaws specifically prohibit smoking on strata property, including in strata lots,” Rivers said.
The decision said Mendiburu was smoking and also on oxygen.
Rivers noted an email from a third party which said, “the management should be notified, he could blow the building up.”
The strata fined Mendiburu for smoking and said he has not stopped.
The strata asked for an order compelling Mendiburu to comply with the bylaw and an order that allows it to have an independent third party enter Mendiburu’s strata lot to determine why smoke is coming from his apartment.
However, Mendiburu denied smoking.
In a counterclaim, Mendiburu asked the tribunal to cancel the fines, saying the strata did not follow the proper procedure before issuing the fines and that the strata is treating him in a significantly unfair manner.
“He also asks for an order that the strata reimburse him for his legal expenses of $11,602.52,” Rivers said.
On Feb. 8, 2022, a strata council member wrote Mendiburu that it had received two complaints of him smoking and asked him to abide by the no-smoking bylaw.
On April 9, 2022, the strata president sent Mendiburu a more formal letter alleging that he had breached the no-smoking bylaw.
“The strata president said strata had received an April 3 complaint from another strata lot owner that Mr. Mendiburu’s cigarette smoke was preventing the owner from enjoying their property,” Rivers said. “They also told Mr. Mendiburu that a technician testing smoke alarms had found on April 6 that Mr. Mendiburu was 'on oxygen' and smoking.”
Mendiburu was told he would be fined $200 every seven days if he continued smoking.
Rivers ruled the strata was required under the Strata Property Act to consider a complaint at its next meeting and then give notice of its decision in writing.
“Here, I find the strata has not done so,” Rivers said, ordering the fines cancelled.
Rivers declined to order that a person be allowed to enter the suite to determine why smoke was coming from the unit.
Rivers noted Mendiburu is already required to comply with the strata’s bylaws not to smoke.
“There is no benefit in making an order that duplicates that obligation,” Rivers said. “I dismiss the part of the strata’s claim.”
He did not order the strata to cover Mendiburu’s legal costs.
