A Vancouver woman has lost her lawsuit, in which she claimed $132,234 in damages from her strata, arguing that barbecues were a nuisance or hazard to her.
In a March 2021 B.C. Civil Resolution Tribunal complaint, former strata tenant Tamara Heitner claimed her strata failed to investigate and enforce its bylaw about an alleged restriction to allow barbecues on balconies and patios. Specifically, the occupants of the suites around her used barbecues, sometimes nightly, tribunal vice-chair Garth Cambrey said in his May 30 decision.
She said the dispute caused her to incur significant expenses and lose quiet use and enjoyment of her suite.
“I accept Ms. Heitner was affected by barbecue smoke, and possibly heat,” Cambrey said. “However, I find there is no objective evidence that supports Ms. Heitner’s assertions that the strata’s nuisance bylaws were violated or that the strata unreasonably investigated her complaints. I dismiss Ms. Heitner’s claim.”
Heitner said she had complained to both her landlord and the strata of the problems. It was undisputed that Heitner began complaining of smoke and heat from neighbouring barbecues in March 2020.
Cambrey said the landlord reviewed what had transpired and asked Heitner to mitigate the impact of the smoke by suggesting she close her windows during the dinner hour. “The landlord also suggested Ms. Heitner could end her month-to-month lease,” Cambrey said.
She alleged the strata treated her differently than other residents because she was a tenant, failed to recognize her alleged disability, and caused her landlord to evict her.
Heitner produced statements from witnesses who said they experienced smoke and heat while visiting her.
“They found it very uncomfortable even though Ms. Heitner closed windows and 'turned fans around,'” Cambrey said. “They described the smoke as being ‘very difficult on the throat’ and the heat as simply uncomfortable.”
However, Cambrey was not persuaded the statements helped in confirming a nuisance occurred. “Specifically, I find the statements provided fall short of proving the barbecue smoke entering [the unit] occurred frequently and for a duration to be a substantial and severe interference,” he said.
Cambrey also said two doctor notes gave no details about an alleged disability. The strata had asked for specifics.
"Ms. Heitner said the strata’s questions about her disability were inappropriate and that all the strata needed to know was that she was home more often than she would otherwise be, so the quiet enjoyment of her strata lot was of great importance,” the ruling said.
On Feb. 3, 2021, Heitner’s landlord sold the unit with the new owners requesting she vacate the unit, which she did by May 22, 2021.
Heitner also claimed dispute-related expenses totalling $4,410 for legal fees, $50 for a a doctor’s note and $350 for an expert opinion.
The strata claimed $21,846 in dispute-related legal fees.
Cambrey said the strata’s bylaws said barbecues can be used on its patios.
“I dismiss Ms. Heitner’s claim that barbecues were not permitted on balconies and patios,” the tribunal member wrote.
Cambrey dismissed her claim that the strata had treated her unfairly and said the deterioration of her relationship with her landlord was due to her complaint to the Residential Tenancy Branch and for a B.C. Supreme Court judicial review of a branch decision.
“I find the strata did not cause Ms. Heitner’s eviction and I dismiss her claim,” Cambrey said. “I have dismissed all of Ms. Heitner’s claims. It follows that Ms. Heitner is not entitled to any of her requested remedies.”
He also dismissed the strata’s claim for legal fee compensation.
