Societal views on smoking in public places have definitely changed over recent years. Not so long ago, smokers would likely have been the majority amongst adults. Smoking was permitted at the workplace, in dark movie theatres, in planes and, until recently, in bars and restaurants.
As society's views changed, smokers were eventually pushed out to the great outdoors.... and pushed further and further away from public entrances. Many municipalities have by-law establishing a minimal smoke-free perimeter around public entrances.
Still, smokers could enjoy lighting up in their homes and cars. That was slowly becoming the last frontier... until provincial legislation even prohibited smoking in one's own vehicle in the presence of children under the age of 16 – even if the windows, doors and sunroof are opened. Smokers were left with their home as their sole smoking refuge. But even this may no longer be permissible if one lives in a condominium.
Smoking in common elements is actually prohibited by the Smoke-Free Ontario Act, a provincial legislation. In addition to this provincial prohibition, there is little doubt that a corporation can also prohibit smoking in units. In Ontario, such a prohibition would have to be enshrined in the declaration or in a rule adopted by the corporation.
Until recently however, there was very little guidance from the courts as to whether these smoking bans were enforceable. Sure, there were some cases dealing with a corporation's obligation to promptly deal with complaints of smoke migration between units. But these cases generally dealt with nuisance complaints between owners or with a corporation's obligation to maintain common elements – when the source of the smoke migration could be attributed to issues with common elements.
Three recent cases shed some further light on this thorny question of smoking in condominiums.
So what is the law on smoking in condos in Ontario?
Is Smoking permitted in common elements?
The Smoke-Free Ontario Act prohibits smoking (or holding lit tobacco) in any common area of a condominium – which includes the elevators, hallways, parking garages, party room, laundry facilities, lobbies and exercise areas. While no one would likely think of lighting up in the exercise room (these two activities being somewhat mutually exclusive) one may mistakenly think that occupants are entitled to light up in the party room during a private function. This is not permitted under the Smoke-free Ontario Act.
This Act further imposes a positive obligation on the proprietor of the common areas to prevent smoking in them. A "proprietor", for the purpose of this section of the act, is the "owner, operator or person in charge". In my view, in this context of the Smoke-Free Act, the proprietor refers to the condominium corporation. It is therefore the Corporation who has this positive obligation to prevent smoking in the common elements.
The legislation imposes on condominium corporations a positive duty to:
- Ensure compliance with the Smoke-Free Ontario Act;
- Give notice to each person in the common areas that smoking is prohibited;
- Post signs prohibiting smoking throughout the common area, including washrooms;
- Ensure that no ashtrays or similar equipment remain in the common area; and
- Ensure that individuals not complying with the smoking prohibition do not remain in the common area.
The signs prohibiting smoking must be posted at each entrance and exit of the common area or enclosed public space, in appropriate locations and in sufficient numbers, to ensure that the public is aware that smoking is prohibited. The regulation is very specific as to the specification, size and colour of these no-smoking signs. Failure to comply with these obligations may expose the corporation to hefty fines.
Is smoking permitted on the balconies?
As of January 1st, 2015, it became illegal in Ontario to smoke on or around children's playgrounds, publicly owned sports fields/surfaces and all bar and restaurant patios (whether covered or not). For many, this raises again the question of whether it was permitted to smoke on condominium exclusive-use balconies or terraces.
In my view, this new provincial prohibition does not apply to condominium exclusive-use terraces and balconies.
What the Smoke-Free Ontario Act does is prohibit smoking in any "enclosed public place". An "enclosed public place" is defined as including the inside of any place, building or structure that is covered by a roof and to which the public is ordinarily invited or permitted access. This likely excludes exclusive-use balcony.
It is also safe to assume that the prohibition against smoking in "common areas" (as opposed to "common elements") was not meant to apply to exclusive-use balconies – although courts may be called to interpret this. On this, the Court of Appeal ruled that the Smoke-Free Ontario Act must be interpreted in a manner consistent with its objective, which is to eliminate smoking in public places in order to protect members of the public from contact with second-hand smoke.
The legislation does not appear to attempt to regulate the use of private dwelling.
Can corporations prevent smoking in units?
As indicated in the introduction, a condominium corporation can prohibit smoking in units provided that such prohibition is found in the condominium's declaration or in its rules. By-laws do not deal with smoking bans.
The situation is easy to deal with when the smoking ban is in the declaration from the inception of the corporation. Everyone buying knows (or should know) what he or she is buying into. Still, corporations could amend their declaration if they want to convert an existing condominium into a smoke-free one. Such an amendment to the declaration would require the support of 80% of the owners, which is not an easy task to accomplish. One should also keep in mind that amending the declaration would likely require that all existing smokers be grandfathered.
An alternative to the difficult task of amending the declaration is to adopt a rule preventing smoking in units. Indeed, a corporation can adopt a rule with respect to the use of units if the rule promotes the safety, security or welfare of the owners or prevents unreasonable interference with the use and enjoyment of the units or the common elements. It is to be noted that rules must be reasonable and consistent with the Condominium Act, the declaration and the by-laws.
Given society's current views on second hand smoke, a rule preventing smoking in units would likely have a fair chance of passing the test of reasonableness.
As would be the case with amending the declaration, the adoption of a new rule would also require that existing smokers be grandfathered.
It is to be further noted that, while the "new Condo Act" provides some changes to the language pertaining to the adoption of rules, it does not bring any substantive changes on this question.
Cases until now
As indicated in the introduction, we had little court guidance on the enforceability of smoking bans. Most cases dealt with situations where, in the absence of a smoking ban, condo neighbours were complaining of the nuisance coming from the neighbouring unit. Indeed, many corporations prohibit any form of nuisance between neighbour (be it noise ...or smoke). Corporation felt they could intervene (of felt they had to) if it could be established that one's smoke constituted a nuisance that went beyond the disturbance that one may expect from living in close-quarters. The reader should note, however that not all noise and not all smoke amounts to nuisance. One should expect some disturbance when living in close quarters.
Other cases, imposed on the corporation the duty to intervene when/if smoke migrated between units through common elements. The question was to determine the extent to which condominiums had to go to ensure complete air tightness between units? This was addressed in the lengthy battle involving MTCC 985 and two of its owners.
The MTCC 985 case of smoke migration
It all started when the owners of a unit perceived a strong smell of cigar in their unit one quiet June evening of 2013. It turned out that cigar smoke had migrated from the unit immediately above theirs, most likely through opening in the slabs separating the unit.
In one of the first hearing in this matter, in 2014, the judge found that, while the corporation was not in breach of its obligations to repair units/common elements after damage and to maintain common elements, it had not acted with sufficient dispatch to address the owners concerns. At the time, all felt that a solution was in sight and expected the experts retained by the owners and by the corporation to find a solution to stop this smoke migration.
Fast forward to 2015, the same parties ended up before the same judge. It appeared that the parties were still unable to reach a consensus as to what work needed to be done. The question became "the reasonable fix versus the perfect fix".
- The corporation's expert felt that the building was performing as it should, according to its age and design and that a certain amount of smoke migration was to be expected and tolerated. To complete the perfect repair, the corporation felt it would be required to tear out the expensive finishes in many units.
- The owners' expert felt that, even after the repair of the drywall, there remained numerous other opening such as recessed lights, exhaust grills, smoke detectors, sliding door tracks, pictures hung on the walls – all of which would remain potential pathways for smoke transfer. He felt that event equalizing the air pressure in the hallways would not necessarily resolve the issue. It was felt that all opening between all units were required to be sealed.
The judge felt that what the owners were seeking amounted to a guarantee that there would be no further reoccurrence. The judge felt that this went further than what was reasonably required. He felt that this would be wholly disproportionate considering the expense and disruption and the likely outcome of such repair. The judge reminded the parties that a board of director must balance the private versus communal interests of owners. This standard requires reasonableness, not perfection. He concluded that the corporation had met its obligations.
The judge felt that the matter had gone far too long and had mushroomed out of all proportion to the issues involved. For this reason, amongst other, the judge ordered each party to absorb its own legal costs, leaving each of them with legal fees exceeding $100,000 each (on a partial indemnity scale).
The BC case involving Paul Aradi
On January 25, 2016, the Supreme Court of British Columbia (comparable to our Superior Court of Justice despite its name) issued an interesting decision where it had to balance the corporation's right to enforce its smoking ban and the interests of a stubborn smoker.
Mr. Aradi is a 70-year old veteran, with reduced mobility. He was a life-long smoker. When he bought his condo in 2002, there were no restrictions with respect to smoking in the units. However, in 2009, the strata corporation (as condos are known in BC) passed a by-law which prohibited smoking inside the units. This by-law was not enforced against him until December 2013. This is when complaints started to come in from neighbouring units. Mr. Aradi ignored the various warnings from the corporation, other than to complain that there was no prohibition when he moved in and that this by-law was creating two classes of citizens. He was eventually fined by the corporation (something that cannot be done in Ontario) but he did not pay these fines, which totalled $2,300. He eventually contested these fines in court – as he appears allowed to do.
Eventually, the strata went to court, seeking an order that he immediately cease and desist from contravening the by-law. The corporation argued that, in addition to breaching the by-law, he was causing a nuisance and a disturbance to other owners. It also expressed concerns about the health risks of second hand smoke, the fire risk associated with smoking and the fact the smell of smoke diminished the use and enjoyment of other owners (and perhaps even the value of other units).
Mr. Aradi eventually brought an application to the Human Rights Tribunal, seeking to be accommodated based on his disabilities. Indeed, he argued that he had a disability resulting from his addiction to cigarettes and from his limited mobility, which affected his ability to get to the sidewalk to smoke outside of his unit. The Human Rights hearing had yet to take place when the Supreme Court heard the matter. The strata corporation, however, felt that it could not wait for this hearing to take place considering the existence of the by-laws, the repeated offenses and the complaints from other owners.
In BC, when occupants fail to abide by the by-laws, the strata is authorized to fine the owner, remedy the contravention or deny access to a recreational facility. When this fails, the strata can then seek the assistance of the courts to order a person to abide by the rules. Much like in Ontario, a strata corporation appears to have the obligation to enforce its by-laws.
It is interesting to note that one of the expert witness called to the hearing testified that the addiction is not to cigarettes but to the chemical nicotine. This expert opined that Mr. Aradi could satisfy his addiction by using nicotine patch, gum or inhalers – which appear to be provided free of charged by the BC government. Mr. Aradi had his own expert which opined that the second hand smoke could be mitigated by better sealing the units, replacing the bathroom exhaust, installing an air cleaning device and by replacing the carpet.
The judge concluded that the "no smoking by-law" was valid and that the strata and other residents had a reasonable expectation that it would be enforced. The judge noted that he was not referred to any decisions of the Human Rights Tribunal which suggested that a strata occupant should be accommodated by allowing him to smoke in his unit despite a by-law preventing smoking in units. The judge felt that waiting 6 months for the Human Rights Tribunal to rule on Mr. Aradi's case would not be reasonable for the other owners who had expressed concerns about the smell of cigarette and the second-hand smoke effect on their health.
It is to be noted that the judge concluded that Mr. Aradi could walk (albeit with some difficulties) to the side walk to smoke and that he was able to drive his car to go to a location where smoking is permitted.
Finally, the judge wrote:
While I accept that the respondent may have an addiction to cigarette smoking and has limitations on his mobility in terms of walking and standing, I must consider [his] wish to be able to smoke within his unit in the context of the scheme of the Act which includes [...] the duty on the strata corporation to enforce the bylaws and the rights of other owners to enjoy their units without being exposed to nuisance such as smoking in areas prohibited under the bylaw.
The Ontario case involving a tenant
The above case emanated from BC. One would assume that many of the legal principles found in this case would apply here. Having stated this, it is important to keep in mind that the BC legislation is different from the Ontario one.
Still, 3 days before the BC case, the Ontario Superior court of justice rendered a decision involving a smoking tenant. In this case, the unit belonged to Mr. Dong, who leased the unit out in August 2015. The lease specifically provided that the tenants would abide by the corporation's rules and regulations. While the reasons of the decision do not make that clear, it appears that the corporation likely had rules preventing smoking in the units. In addition to this, the tenants had expressly agreed not to smoke in the unit.
Shortly after the tenants moved in, the adjoining neighbours started to complain about the smell of tobacco smoke originating from the unit. The corporation notified the owner, who immediately advised his tenants of the allegations of smoke coming from the unit. He instructed the tenants not to smoke in the unit.
The tenants ignored this and the complaints kept coming in. More warning letters came from the corporation, and the owner kept trying to convince his tenants to comply with the rule, the lease and their promise not to smoke.
On November 27, 2015 (2 months after the first warning letter) the corporation brought a court application seeking compliance. Once the owner became aware of the court proceeding, he applied to the Landlord and Tenant Board for an early termination of the lease but the hearing was scheduled to proceed after the compliance hearing commenced by the corporation. Eventually, the tenants agreed not to smoke in the unit anymore and they consented to an early termination of the lease.
What is interesting about this case is that it focused, as often is the case, on who should pay the legal fees. The corporation sought to have its $32,000 fee paid by the owner and by the tenant. The owner submitted that he should not pay any of this and sought to have the tenant pay the owners own costs of $25,000. The tenant did not seek any legal costs but requested that they pay none of the corporation or of the owner's costs.
The judge agreed that the corporation has a duty to control, manage and administer it common elements and to take all reasonable steps to ensure that owners and occupiers comply with the Act, the declaration, the by-law and the rules. It is also clear that a corporation can seek costs from the owner when the tenant breaches the corporation's rules. But this is not a case of strict liability. The owner must be advised of the issue and one would assume the owner needs to be provided with a reasonable opportunity to resolve the issue.
In this case, the court felt the owner took reasonable steps to obtain compliance. The owner felt that an application to terminate the tenancy was a faster, cheaper and more effective method of resolving the issue. Still, the corporation was of the view that the owner should have acted earlier.
The judge concluded that the owner took all reasonable steps required under the Condominium Act to ensure compliance. This was not a case where he sat on his hands and did nothing. He was very active in his attempts to resolve the situation. He threatened his tenants with termination and hoped that he could convince them to move out voluntarily so as to avoid a lengthy eviction process. The judge also reminded the parties that nothing prevented the owner from renting out to third parties and that he even took the precaution of putting in the lease the smoking prohibition. The judge also suggested that the corporation should have provided the owners with copies of the various complaints to assist him in building his case against the tenants.
The judge was less sympathetic to the tenants. Still, the judge did not feel that it would be fair to impose on them the totality of the corporation's and of the owner's costs. The judge felt that the corporation was too quick to "jump the smoking gun". The judge felt that the corporation was to quick to go to court without first trying to assist the owner in his efforts.
At the end of the day, the tenants were ordered to pay $10,000 to each of the corporation and of the owner. The corporation therefore had to absorb some $22,000 in fees and the owner some $15,000.
The old adage "a man's home is his castle" stands for the proposition that people should be free to do as they please in their own homes. This is not entirely true in a condominium setting.
Modern condominium living necessarily involves the surrender of some degree of proprietary independence in exchange for the benefits of common ownership. The degree of what is given up is set out in the condominium's declaration, by-laws and rules. Owners must therefore be prepared to live by the rules in place in the condominium community they are joining. If they are not, they are perfectly free to join another community whose rules may be more in keeping with their particular needs, wishes or preferences.
The restrictions imposed on ownership usually deal with what can be done on common elements. Owners are usually left to fully enjoy their unit – provided that they do not cause a nuisance which negatively impacts the neighbour's enjoyment of their own unit. Still, a growing exception to this is the corporation's ability to prevent smoking even in one's units.
This article was originally published on www.CondoAdviser.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.