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bringing a claim against the strata corporation, as opposed to the individual
whose behaviour the owner wants to change.
Small Claims Court offers no relief to the individual who wants his neighbour
to stop creating a nuisance, as the jurisdiction of the Small Claims
Court does not include prohibiting behaviours.
It is possible for an individual owner to apply to the Supreme Court of
British Columbia for relief against a neighbour by pleading nuisance, but it
is necessary to commence the proceedings by way of a notice of civil claim,
and the costs are prohibitive.
Commencing proceedings against the strata corporation, as opposed to
the other owner, is often the least costly approach. For instance, under s. 8
of the B.C. Human Rights Code,2 the strata corporation has an obligation to
accommodate, to the point of undue hardship, physical and mental disabilities
of individuals living in the complex. As a result, those suffering from a
medical condition exacerbated by second-hand smoke may choose to seek
relief against the strata corporation from the Human Rights Tribunal
(“HRT”). However, the owner who is smoking generally cannot be named
in these proceedings. HRT proceedings might result in an order that the
strata corporation must take more effective steps to enforce its bylaws and
so on, but the remedy will not directly deal with the issue.
An individual involved in the dispute, if dissatisfied with how the council
responds to his or her request for personal information, can file a complaint
with the Office of the Information and Privacy Commissioner (“OIPC”).
This process again puts the strata corporation front and centre in the dispute
instead of the two individuals directly involved.
The B.C. Civil Resolution Tribunal (“CRT”) may prove to be the most
effective legal venue in which to deal with nuisance disputes between strata
residents. However, based on the decisions rendered by the CRT thus far,
the matter of nuisance behaviour is being addressed as an issue between
one of the owners and the strata corporation, as opposed to an issue
between two individuals.
The courts, the HRT, the OIPC and the CRT have varying ways of settling
disputes on a non-adversarial basis before a decision is rendered. However,
the added strain placed on the relationships of those living in the strata
community cannot be avoided once the proceedings are commenced.
Voluntary mediation using lawyers as advocates may be a suitable option
to avoid this problem. Unlike the CRT, voluntary mediation allows the parties
free rein to decide the role that lawyers will play in the process. By participating
in mediation, the parties may arrive at a creative solution. For
instance, perhaps the woman who enjoys smoking cigars on her patio can