The information that follows comes from a legal opinion prepared by David H. Hill, C.M., Q.C of Perley-Robertson, Hill & McDougall.

It should be noted that this information is intended for the use of condo corporations that are solely residential. If you are considering a no-smoking policy in a commercial or “mixed-use” condo corporation, it is necessary to consider further issues, including the application of provincial and municipal public place smoking restrictions.

As this section represents our interpretation of the legal opinion, and does not address all of the issues raised in the opinion, it should be used for informational purposes only. If you are planning to implement a no-smoking policy, it is recommended that the complete legal opinion be reviewed. It is also recommended that condominium corporations dealing with specific legal questions on this matter seek independent legal advice.

Download the legal opinion.

In the absence of an explicit no-smoking policy, could a condominium corporation enforce its rules regarding nuisance to stop second-hand smoke infiltrating into neighbouring units?

Some condominium corporation rules include a general restriction prohibiting a unit owner from creating any “nuisance” which disturbs the comfort or quiet enjoyment of the property by other owners. Nuisance has a particular meaning in law–it is an unreasonable interference with the use and enjoyment of property. The appropriate test to determine whether there is an actionable nuisance involves a balancing between the plaintiff’s interest and the defendant’s interest. To prove nuisance it is not necessary to prove the intent, negligence or fault of the person causing the nuisance.

Whether or not a condominium corporation could prevent smoking in private units because such smoking is a nuisance that disturbs other owners will very much depend upon the exact wording of the condominium rule relating to nuisance. Very often the nuisance rule, while including general language, is part of a specific issue such as fire hazards or noise. Whether or not nuisance exists which is covered by the nuisance rule is many times specifically left to the discretion of the condominium’s board of directors to determine.

How can a condominium corporation establish no-smoking restrictions?

A condominium corporation could conceivably establish no-smoking restrictions in any of the declaration, the bylaws or the rules.

The declaration deals with the framework of the condominium corporation and is the equivalent to its constitution. It may specify conditions or restrictions with respect to the occupation and use of the units or common elements (section 7 (4) (b) of the Condominium Act, 1998). An amendment to the declaration requires at least 80% of the condominium’s owners to vote in favour. Although this option for banning smoking in the private units of a condominium is the most onerous of the three, we contend that it has the best chance of sticking, as it would again require an 80% vote to get rid of it. We are currently aware of just one condominium in Ontario that has amended its declaration to prohibit smoking in the private units.

Bylaws are enacted by a condominium corporation’s board of directors and tend to deal with management issues and matters of corporate governance. Before taking effect, a bylaw enacted by a condominium’s board of directors must be approved by a majority of the condominium unit owners. It would be rare to find a ban on smoking in the private units in a condo’s bylaws, and we are currently unaware of any Ontario condominiums that have banned smoking using a bylaw.

Section 58 (1) of the Condominium Act, 1998 allows a condominium’s board of directors to make rules respecting the use of the common elements and the units to:

(a) promote the safety, security or welfare of the owners and of the property and assets of the corporation; or

(b) prevent unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation.

Rules made by a condominium corporation board of directors take effect 30 days after notice of them is given to the unit owners unless the unit owners require a meeting of owners which can amend or repeal rules. It is most likely that the rules, which are most easily enacted and amended, would be used by a condominium corporation to create a no-smoking building. However, it is precisely for this reason that a condominium’s no-smoking rule might not have sticking power.

How would a condominium's no-smoking policy be enforced?

Section 132 (4) of the Condominium Act, 1998 provides “Every declaration shall be deemed to contain a provision that the corporation and the owners agree to submit a disagreement between the parties with respect to the declaration, bylaws or rules to mediation and arbitration in accordance with clauses 1(a) and (b) respectively.”

The duty of the mediator is to “endeavour to obtain a settlement with respect to the disagreement…” (section 132 (5)) and if a settlement is not possible the matter will be sent to binding arbitration pursuant to the Arbitration Act, 1991 (section 132 (1) (b)). An arbitrator’s decision will be enforced by the courts if it is not complied with by the parties.

Furthermore, “an owner, an occupier of a proposed unit, a corporation, a declarant… of a unit may make an application to the Superior Court of Justice for an order enforcing compliance with any provision of the Act, the declaration, the bylaws, the rules…” (section 134 (1)). Section 134 (2) provides that “if the mediation and arbitration processes described in section 132 are available, a person is not entitled to apply for an order under subsection (1) until the person has failed to obtain compliance through using those processes.”

Do condo corporations have to grandfather (exempt) condo owners who are not in favour of a no-smoking policy?

No. If the condominium corporation prohibits smoking in the private units via the declaration, bylaws or rules, it will immediately be effective in accordance with the terms of the amendment, bylaw or rule. In other words, a grandfather clause could be included to allow existing owners to continue smoking in their units for a period of time. The period of time would be fixed by the wording of the amendment, bylaw or rule and could be while the unit continued to be owned by the existing unit owner or for a fixed time period. There is no legal requirement for there to be a grandfather provision or to have such a provision extend for any particular time.

If such a grandfather clause was not a part of the declaration amendment, bylaw or rule, the condominium corporation would be under a duty to enforce the no-smoking policy immediately. The declaration, bylaw or rule would apply equally to all unit owners whether or not they had voted in favour of the amendment to the declaration (or bylaws or rules if the members required a meeting with regard to the rules).

Could a condo owner be forced to sell her unit if she was found to be in breach of a no-smoking policy?

Yes. There are precedents in Ontario case law for requiring the unit owner who does not comply with a court order, or even the condominium rules, to sell his or her unit.

In the case of a condo gradually going smoke-free through attrition, how can the corporation protect itself from possible litigation based on owners' interim exposure to second-hand smoke?

It would be wise for the condominium corporation to be completely transparent with new owners that the building is being transitioned into a smoke-free environment under grandfathering terms, and that during the grandfather period there could be smoke infiltration into the new owner’s no-smoking unit from a grandfathered unit for which the condominium corporation accepts no liability.

There is no liability in ordinary circumstances on a condo corporation for damages suffered by a unit owner caused by the infiltration of smoke from another unit. The fact that the condominium corporation is moving towards a smoke-free environment indicates an intention to improve the situation over time but there is no statutory or other legal duty on the condominium to do so.

However, there is a duty on the condo corporation to maintain the common elements (section 90 (1) of the Condominium Act, 1998) unless the declaration provides otherwise, and a failure of the corporation to undertake maintenance that results in the incursion of smoke from one unit to another could conceivably leave the condominium corporation open for damages. If the corporation fulfills its maintenance duties there should be no liability.

Would a condominium corporation have the power to enforce its no-smoking policy in a situation where no one was complaining of involuntary exposure to second-hand smoke?

Yes. A condominium corporation has the duty to enforce the condominium declaration, bylaws and rules whether or not there are complaints from owners. Accordingly, if any of the declaration, bylaws or rules prohibit smoking in private units they must be enforced by the corporation even if no owner considers a breach of the prohibition to be a nuisance or hazard. The duty of a condominium corporation in this regard does not extend as far as treating smoking as a nuisance and enforcing a nuisance rule in the absence of complaining owners.

Who would be responsible for communicating with potential buyers about a condominium's no-smoking policy?

If the vendor is not the developer and the transaction is a re-sale of the unit, the purchaser can request a status certificate from the condominium corporation. It is, however, up to the purchaser to make the request. Section 76 (1) of the Condominium Act, 1998 sets out what a status certificate must contain. While it is required that the status certificate include a copy of the current declaration, bylaws and rules there is nothing specified requiring it to indicate the status of the condominium as prohibiting smoking or otherwise.

Similar to the disclosure statement, it is up to the purchaser to read these documents to see if they contain anything regarding smoking in the condominium units. Accordingly, there is no legal responsibility on the seller or the condominium corporation to communicate with potential buyers about the no-smoking status of the condominium other than providing copies of the declaration, bylaws and rules.

For new condominiums, what would be required for a developer to declare a building 100% smoke-free from the outset?

If a developer of a new condominium wished to prohibit smoking in the private units the developer could put that restriction in any or all of the declaration, bylaws and rules. Prior to the sale of any units the developer is the sole owner of the property, is responsible to prepare and register the declaration and can then form a board of directors and enact the bylaws and rules. Implementing a decision to make the building 100% smoke-free is quite straight forward.

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