A BC strata was ordered by the Civil Resolution Tribunal to cancel smoking fines it imposed on a tenant.
The small claims case included some bold claims against the tenant, including an email from a third party which stated that “the management should be notified; he [the tenant] could blow up the building.”
According to the tribunal decision posted online, the strata said it fined Mike Mendiburu for smoking, but he didn’t stop and the strata asked the tribunal for an order “compelling Mr. Mendiburu to comply with the strata’s smoking bylaw.”
It also asked for an order to have an independent third party enter his strata lot to determine why smoke was coming from his apartment.
Mendiburu filed a counterclaim asking the tribunal to cancel the fines, and here’s how the tribunal decided the case.
In addition to asking the tribunal to cancel the fines, Mendiburu also requested reimbursement of $11,602.52 in legal fees. Mendiburu is a tenant of a unit that his family owns. The strata prohibits smoking of tobacco, marijuana, or vape products in the building, including balconies.
Two complaints were made about Mendiburu’s smoking on February 8, 2022, and he was asked to abide by the no-smoking bylaw in a brief and informal letter.
On April 9, 2022, the strata president sent him a “more formal letter” alleging another bylaw breach. That allegation came from another strata owner who claimed that cigarette smoke was preventing them from enjoying their property.
In a letter from Mendiburu’s lawyer, he denied that anyone had smoked in his strata lot and that the strata provided no evidence of the alleged smoking.
The tribunal decision states that a technician testing smoke alarms found that on April 6, Mendiburu was “on oxygen” and smoking. In July of that year, Mendiburu was hit with a $200 fine, before he had an opportunity to have a hearing. The strata threatened him with $200 fines every seven days if he continued to break the rules.
Because the tribunal found that the strata did not comply with the Strata Property Act (SPA) when imposing the fines against Mendiburu, it did not have the authority to fine him. The SPA requires the strata council to consider a complaint at its next meeting and then give notice of the decision in writing, which the strata did not do.
Therefore, the strata was ordered to cancel the fines and pay Mendiburu $125 in tribunal fees. Both parties’ remaining claims were dismissed.