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Fraser Valley man ordered to stop smoking cannabis from his strata property patio

Civil Resolution Tribunal decision said cannabis smoke in this case was a ‘nuisance to neighbours’
Dasi Menakadasi (not the subject of this article) celebrates by smoking recreational cannabis, in Vancouver on Oct. 17, 2018 on the one-year anniversary of legalization. (THE CANADIAN PRESS file/Darryl Dyck)

A Chilliwack man was ordered to immediately stop smoking medical cannabis on the patio of his strata townhouse, following a Civil Resolution Tribunal (CRT) decision Nov. 29 in favour of the strata.

Giles Danny St. Pierre of Chilliwack filed the initial primary claim against his strata saying it discriminated against him by failing to “accommodate” his disability, which is contrary to the BC Human Rights Code.

St. Pierre said 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.”

His assertion was that he smokes medical cannabis to manage symptoms of disabilities, and that he must smoke the cannabis on his back patio, rather than in front of, or inside his unit.

St. Pierre was seeking accommodation from the strata, whereby they would permit him to smoke cannabis on his patio, remove all fines and warning letters, reimburse him for the cedar hedge, and pay him $5,000 in damages.

The final decision this past week was in favour of the strata, with the reasons for decision provided by CRT vice-chair Kate Campbell on Nov. 29. The decision requires St. Pierre to pay the strata imposed fines of $1,000, as well as $125 in tribunal costs.

“Based on the evidence before me, including the written statements from his neighbours, 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.”

A video showed that his patio chair is about seven feet from the fence line.

While the parties acknowledged St. Pierre had disabilities, and smoked three or four times a day, it was a question of the proximity to other strata lots, and whether the smoke drifting interfered with their enjoyment of their properties.

“I find that this evidence about frequency and proximity of use supports the conclusion that the cannabis smoke is a nuisance to his neighbours. I therefore find it breaches strata bylaws contrary to strata bylaws 3.1 and 3.3(b),” Cambell stated in the decision.

St. Pierre “must immediately stop smoking cannabis” in locations where the smoke enters common property or other strata lots.

It said although the strata has no bylaws specifically about smoking or cannabis use, the strata said that cannabis smoke was “a nuisance to his neighbours,” and contrary to bylaws 3.1 and 3.3(b), which state in part as follows:

• an owner must not use a strata lot or common property in a way that causes a nuisance or hazard to another person, or unreasonably interferes with the rights of other persons to use and enjoy common property or another strata lot;

• an owner must not make, cause or produce undue smell in or about any strata lot or common property, or do anything which will unreasonably interfere with another owner, tenant or occupant.

The question of whether St. Pierre could consume cannabis in another form came up, although his doctor’s letter said he obtained relief by smoking.

Campbell noted that he had “not proven that he must smoke cannabis” rather than ingesting it in another form such as edibles.

“I also find the strata met its duty to accommodate Mr. St Pierre by permitting him to smoke elsewhere in the strata. Similarly, I find there is no persuasive medical evidence in this case that establishes that Mr. St Pierre must smoke cannabis, rather than ingest it in another form.”

St. Pierre was also respondent in the strata’s counterclaim against him.

The strata said it had a duty to enforce its bylaws, including bylaws against nuisance or hazards. In its counterclaim, the strata requested an order that Mr. St Pierre comply with strata bylaws, and cease smoking marijuana in areas where the smoke drifted onto neighbouring properties, and the latter was upheld in the decision.

Campbell did not address the allegations of harassment by neighbours, finding the CRT did not have jurisdiction there, and she dismissed St. Pierre’s other claims.

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