Ontarians are protected from second-hand smoke at work and in public places, yet many condo owners are regularly exposed to unwanted second-hand smoke migrating into their homes from neighbouring units. The intrusion of a toxic substance is more than an annoyance or inconvenience. It is a serious health hazard, and is especially severe for people with chronic illnesses and conditions. As a result, more and more residents are demanding that their condo corporation take action to address this problem.
Surveys have found that roughly one-third of people living in multi-unit dwellings experience second-hand smoke infiltrating their homes on a regular basis. Further, people rarely complain to management–not because they are not bothered by it, but because they think there is nothing that can be done. However, condominium corporations have a duty to address complaints of second-hand smoke if there is evidence that the smoke is “unreasonably” disturbing other residents.
Unfortunately, when condo corporations receive complaints about second-hand smoke migrating between neighbouring units, they are often reluctant to take action because the behaviour of smoking is not specifically addressed in the declaration, bylaws or rules. But they would be wrong to assume that they have no authority or responsibility to address these complaints–especially if there are issues concerning maintenance of the common elements.
Further, it is important for condominium corporations to know there could be a liability issue if they refuse to act on legitimate nuisance complaints. Refusing to act when informed of second-hand smoke that is causing a nuisance could lead to unnecessary lawsuits.
While there are no black and white answers for addressing this issue, this section provides a range of strategies that condominium corporations or unit owners can take to deal with the nuisance of migrating second-hand smoke in condo complexes.
Steps that condo owners can take:
If you are a condo owner suffering from second-hand smoke exposure in your home, you may want to consider collecting information about the source, extent, frequency and impact of the problem before approaching your neighbour or condominium board of directors. Taking an informal approach at the beginning may result in a satisfactory resolution to the problem, and may be less expensive and less time consuming than initiating more formal measures, such as mediation, arbitration or lawsuits.
Document the source and extent of the problem
Consider using this sample resident log to track your efforts to address the problem.
- Identify how the smoke is entering your unit i.e. through your bedroom window, through your bathroom or kitchen fan or from the electrical outlets, etc.;
- Determine where the smoke is coming from i.e. neighbour’s balcony, inside neighbour’s unit, outside smoking area or some other area;
- Identify how often the smoke enters your unit on a daily or weekly basis. Do you smell the smoke all the time or at certain times of the day? List dates and times.
- Identify when the problem started. Did you start smelling the smoke as soon as you moved into your unit, or when a new resident moved in?
Document the health impacts on you and/or your family
- Document symptoms or illnesses caused by the smoke infiltrating your home. Symptoms could include asthma attacks, headaches, burning and watery eyes, chronic sore throats, bronchitis, ear infections and heart problems, to name just a few;
- Indicate if the smoke is worsening a pre-existing health problem such as asthma, allergies, heart disease, high blood pressure, fibromyalgia, cancer, etc.;
- Indicate whether the smoke seeping into your home is causing anxiety or fear due to the potential or actual health impacts on you or your family members;
- Indicate if you have an infant in the home. Babies who are exposed to second-hand smoke have a higher risk of dying from Sudden Infant Death Syndrome (SIDS).
Document interference with the normal use and enjoyment of your home
- Are you forced to stay out of certain rooms because of the smoke?
- Are you sealing up doors at night and unsealing in the morning to get out?
- Are you unable to open your windows or balcony door?
- Are you unable to use your balcony because of the smoke?
- Are you unable to use your fans or heating system?
- Have you been forced to leave your home on certain days or at specific times to avoid the smoke?
Collect supporting evidence
- Obtain a copy of the declaration, bylaws and rules. There may be bylaws or rules already in place concerning behaviours or nuisances that will strengthen your case;
- Obtain written proof from neighbours, friends and family concerning the amount and frequency of smoke entering your home. The more people who can verify your complaint, the stronger your case;
- Obtain a letter from your physician to verify that exposure to second-hand smoke is making you or your family members sick, or aggravating an existing condition or illness;
- Inform yourself on the dangers of exposure to second-hand smoke.
Consider taking steps to mitigate the problem yourself before taking more formal steps. This could include such actions as sealing up cracks and gaps, blocking vents or fans, negotiating with your neighbour who smokes and talking to your property manager about ventilation in the building. Here are some steps you might consider:
a. Block or reduce the smoke
- Seal up cracks and gaps around electrical outlets, ceiling and wall fixtures, telephone jacks, plumbing, etc.;
- Fill or patch cracks in walls and ceilings;
- Install door sweeps and weather stripping around windows;
- Close windows and doors;
- Seal windows/doors with shrinkable plastic sheeting or caulk;
- Block ventilation grilles.;
- Insulate the air spaces around plumbing pipes;
- Insulate and place covers over electrical outlets.
Visit the Canada Mortgage and Housing Corporation website for useful tips on Solving Odour Transfer Problems in Your Apartment.
Visit the US Indoor Environmental Engineering website for information on how to reduce second-hand exposure in multi-unit dwellings.
Note: It should be clarified that structural repairs or improving ventilation systems may reduce some of the smoke infiltrating your home, but will likely not totally eliminate the problem. The Centre for Energy and Environment in Minneapolis conducted an extensive study of air flow in multi-unit dwellings in 2004 and identified a number of measures to reduce smoke transfer between units. The findings show that while about one-half of the units treated had a reduction in contaminants of greater than 50%, close to one-third of the units treated had no reduction of contaminants at all.
b. Investigate the ventilation
It is important to note that while improved ventilation can remove the odour of tobacco smoke and the source of eye and throat irritation, no ventilation system is capable of addressing the health effects of exposure to the many toxic chemicals in second-hand smoke. There is no known safe level of exposure.
The Canada Mortgage and Housing Corporation states that most buildings built since the mid-1960s have corridor ventilation systems in place. These systems are designed to deliver outside air into corridors to maintain positive pressure. Air is continuously pushed under doors, thereby preventing odours from escaping individual units and leaking into the corridors and neighbouring units. Older buildings rely on air coming in through cracks and gaps for ventilation. In addition, many buildings have exhaust systems to ventilate the bathrooms and kitchens, with fans either right in individual units or located centrally elsewhere in the building.
- Ask the property manager to check the corridor ventilation system to ensure that it is operating properly. Sometimes such systems operate intermittently on a timer, and it may be that the schedule needs to be adjusted to increase the amount of fresh air entering the building.
- Check to see if it is possible to restrict the amount of air exhausted through the ventilation system from units where there is smoking.
- If second-hand smoke is entering your unit from a bathroom or kitchen fan, try the tissue test. Turn on your kitchen or bathroom fan and hold a tissue to the grille. The fan should be able to hold the tissue firmly in place. If it doesn’t, or actually blows instead of sucks, talk to the property manager about having the unit cleaned, repaired or replaced.
- Another possible solution is to investigate having your unit pressurized to prevent air (and second-hand smoke) leaking in from other units by having a professional install a HEPA-filtered (High Efficiency Particulate Air) heat recovery ventilation system. The idea is to create positive indoor air pressure by using a fan to force fresh air into your unit, thus preventing smoke from entering. For this to work you will have to keep your windows closed and your windows and doors will need to be well sealed.
- However, there are a couple of drawbacks to this option, the first being expense. Also, positive pressure may cause condensation problems depending on the climate where you live and the ventilation of your unit.
- Before considering this solution, talk to the property manager to see if it is permitted. Many high-rise buildings have pressurization systems in the corridors, and pressuring your own unit may interfere with the ventilation system of your building. Then consult with a ventilation expert to ensure that the installation and operation of the system complies with the requirements of the building code.
c. Negotiate solutions
If you feel comfortable, consider talking to your neighbour who smokes. He or she might not realize that the smoke is a problem for you.
Try to focus on concrete solutions such as asking the neighbour to smoke outside, to smoke in another area, to close doors or windows, or to seal cracks and gaps in their unit too. Seek support from other residents in the building. They might be experiencing second-hand smoke intrusions as well and may be willing to talk to the neighbour who smokes with you.
Before you do anything else, it is highly recommended that you read the Condominium Handbook for Directors, Managers, Owners and Purchasers (sixth edition). This resource is written for a lay audience and is very useful for understanding how your condominium works and what you need to do to effect change. You can order it online from the Canadian Condominium Institute for $15 plus shipping and handling.
- Ask your condo’s board of directors to be added onto the agenda for the next board meeting. Alternatively, you could wait for the next annual general meeting. At the meeting, present your case and ask for their assistance in conducting a survey to determine condominium owners’ experiences with second-hand smoke intrusions and interest in a possible no-smoking policy for the condominium. Existing surveys demonstrate that the majority of people would prefer a smoke-free complex.
- With approval from the board of directors, form a smoke-free committee to work on the issue.
- Refer your condominium’s board of directors to this website. The condo section includes steps on how to go smoke-free, as well as legal information and market research.
If your board of directors is not supportive, you can try to call an owners’ meeting:
- Requisition the board to call an owners’ meeting. You will need at least 15% of eligible unit owners to indicate, in writing, that they desire a meeting. Once a board receives a requisition, it has 35 days to call and hold the meeting.
- If the board fails to call a meeting after 35 days of receiving a requisition to do so, any eligible owner who participated in the requisition can call the meeting instead. In addition, the board is on the hook for reasonable costs related to holding the meeting.
- Unit owners must be given 15 days written notice of the meeting (not including the day the notice is issued or the day of the meeting).
- Notice of the meeting must include information pertaining to the reason for the meeting along with the time and place. Copies of any suggested changes to the declaration, bylaws or rules must also be appended.
- If voting is to take place at the meeting, this must be clearly indicated in the notice of the meeting.
- Quorum for an owners’ meeting is eligible owners of 25% of the units.
- Pursuant to section 53 of the Act, questions proposed for the consideration of the owners at a meeting of owners shall be determined by a majority of the votes cast by owners present at the meeting in person, or by proxy if there is a quorum at the meeting.
- If all your efforts have failed to mitigate the problem, write a complaint letter to your condominium corporation to request that they take action to rectify the problem.
- Provide documented evidence regarding the source of the smoke, the frequency of occurrence, its duration, the health impact on you or your family, and the impact on the use and enjoyment of your home.
- Include any other supporting evidence such as a letter from your physician concerning the impact on your health or letters from friends and neighbours to verify your claims.
- Identify what steps you have taken to resolve the problem to date.
- Indicate your willingness to negotiate a resolution. Propose some potential solutions and ask for a response by a specific date (your bylaws may specify a timeframe for responses to complaints).
- Consider sending a group letter if there are others in the building experiencing the same problem.
- Refer your condominium’s board of directors to this website. This section provides information about the corporation’s duty to address nuisance complaints of second-hand smoke, as well as suggested steps to rectify the problem. It also provides a legal opinion for their reference.
Note: Keep all records of correspondence with the condominium corporation or property manager concerning this issue. If the corporation fails to take action to address this issue, you will need evidence that they knew about the problem, were warned that it was a significant interference, and refused to take steps to address the problem.
b. Request condominium bylaw/rule enforcement procedures be initiated
Virtually all condominium corporations have rules or bylaws that prohibit behaviour that creates a nuisance or hazard to another person. This can include smoking, regardless of whether the condominium corporation has a formal no-smoking rule or bylaw in place. (See our legal opinion section for more information on the challenges of going this route.)
If a negotiated solution cannot be reached with the neighbour who smokes, and there is evidence of significant interference caused by the smoke, the corporation has the authority to notify the smoking resident that they are in violation of the rules or bylaws, and must cease the behaviour that is causing the nuisance. Condominium corporations have a duty to enforce their rules or bylaws, including enacting enforcement proceedings up to and including seeking relief in court if necessary.
Condominium owners should also note that section 117 of the Condominium Act, 1998, “Dangerous Activities,” is a potentially useful clause that should be explored.
Before going any further, you might want to consider joining a condominium owners’ group for guidance and support.
If your condo corporation refuses to act, or you are not satisfied with the solutions taken, here are a few last resort measures that can be taken. Before initiating formal procedures, including initiating a lawsuit, it is recommended that you seek legal advice.
a. Requisition (call) a meeting
- If the board of directors is unwilling to address the issue, or is otherwise uncooperative, owners can requisition (call) a meeting themselves with the written support of eligible owners of 15% of the units.
- They can even vote on bylaws and rules at such a meeting, provided they follow the letter of the law (sections 46 – 53 of the Condominium Act, 1998).
b. Initiate dispute resolution procedures
- If you have provided sufficient evidence that second-hand smoke is unreasonably interfering with the use and enjoyment of your home and causing a significant nuisance, you can try to force the condominium corporation to enforce its own declaration, rules or bylaws under section 132 of the Condominium Act, 1998.
- Pursuant to this section of the Act, parties shall submit to mediation and arbitration to settle disagreements.
- Pursuant to section 134 of the Act, if the corporation fails to act following mediation and arbitration, condo owners can make an application to the Superior Court of Justice for an order enforcing compliance with any provision of the Act, the declaration, the bylaws or the rules, among other things.
- Condo owners also have the choice to sue the neighbour who smokes – in the hopes of getting an injunction to prevent the person(s) from smoking in their unit.
However, this issue is not black and white, and it is recommended that you seek legal advice if faced with applying to court to enforce a nuisance violation caused by smoking. (See legal opinion).
c. Apply to the Human Rights Tribunal of Ontario
The Human Rights Tribunal of Ontario is a quasi-judicial body that exists to resolve discrimination claims filed under the Ontario Human Rights Code on such matters as employment, housing and services. The Codeprovides protection from discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, disability, age, marital status, family status, being a recipient of public assistance and record of offences.
In a housing context, sections 2 (1) and 17 (2) of the Human Rights Code, which deal with disability and accommodation, are of interest concerning smoking and no-smoking policies:
“Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.”
“No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
If you have a disabling health condition such as asthma, allergies, COPD or anything else that is being made worse by your involuntary exposure to second-hand smoke, you could file an application on the basis that the condominium corporation has not taken reasonable steps to prevent second-hand smoke from infiltrating your unit. You could argue that the corporation has a responsibility to act in order to accommodate your disability.
We are not currently aware of any such cases in Ontario, although in British Columbia we know of a couple of cases where tenants have filed human rights applications against social housing providers for failure to eliminate second-hand smoke or to provide smoke-free housing. One of the cases, which involved the Greater Vancouver Housing Authority, was settled before it went to a full hearing, and no further details are available. However, the case is important as the adjudicator denied the landlord’s application to have the tenant’s application dismissed, and determined that the tenant’s application had merit which deserved a full hearing.
The second case involved thirteen tenants filing a discrimination complaint against Kiwanis Park Place in Crescent Beach for being exposed to other tenants’ second-hand smoke. More…
Be aware that if you choose to file a human rights application, it can be a long and time-consuming journey. You can apply for legal representation, but there is no guarantee that you will be provided with free representation. Go to legal resources for a list of organizations that may assist you if you are considering this route.
Steps that condominium corporations can take:
- If your condominium has a newsletter or website, use it to share information about the dangers of exposure to second-hand smoke. Raise awareness about how air can transfer in a building from one unit to the next;
- Make sure the ventilation system is working properly;
- Encourage those with second-hand smoke problems to:
- Install weather-stripping around doors;
- Seal or caulk cracks and gaps;
- Insulate air spaces around plumbing pipes;
- Cover electrical outlets.
- Consider hiring a trained indoor air quality investigator;
- Contact the Canada Mortgage and Housing Corporation at 1.800.668.2642 for more information;
- Conduct a survey to find out about residents’ experiences with second-hand smoke infiltration and their attitudes towards a possible no-smoking policy;
- Hold an owners’ meeting to discuss the problem;
- Strike a committee to study the problem and explore possible solutions:
- Explicitly define second-hand smoke as a nuisance in the rules. This wouldn’t ban people from smoking in their own units, but would remove the burden of proof on complainants;
- Propose a no-smoking policy. Check out our create a no-smoking policy section for more information on how to make this happen.
When boards of directors receive complaints about second-hand smoke causing a significant interference to residents in a condo complex, they are often reluctant to take action because the behaviour of smoking is not specifically addressed in the declaration, bylaws or rules.
Because of this, they assume the behaviour is not prohibited. However, they would be wrong to assume that they have no authority or responsibility. Most 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.
The challenge for board of directors when dealing with second-hand smoke is to determine whether the complaint is considered a legitimate nuisance. Nuisance has a particular meaning in law–it is an unreasonable interference with the use and enjoyment of property. The second-hand smoke from a neighbour who stays in her unit all day long and chain smokes will arguably create more of a nuisance than a neighbour who throws a couple of parties a year and invites guests who smoke.
In a 1988 Supreme Court of Ontario case (Hotel Corp. v. E.B. Eddy Forest Products Ltd.) the court recognized that “although the test of nuisance is generally whether the defendant’s use of its land interfered with the beneficial use and enjoyment of the plaintiff’s lands and whether that interference was unreasonable, there is authority for the proposition that where actual physical damage occurs, the interference is unreasonable.” To prove nuisance it is not necessary to prove the intent, negligence or fault of the person causing the nusiance. In our opinion, actual physical damage could involve second-hand smoke odour permeating soft furnishings, laminates, etc.
Obtain information concerning the nature and extent of the problem. The more information you can collect, the easier it will be to resolve the problem. See the “do the groundwork” section above for more information.
If the smoke cannot be eliminated or reduced to a satisfactory level, work with the affected parties to attempt a negotiated solution.
Perhaps the smoke travels more easily from certain rooms, and the resident who smokes might consider smoking where the second-hand smoke is least likely to affect others. Portable fans and air purifiers will not address the health hazards of exposure to second-hand smoke, but might buy some time while better solutions are explored.
Also consider creating a designated smoking area outside on the building property, with a cover if necessary. The board might also consider offering incentives such as free nicotine replacement therapy to help the residents who smokes deal with times when smoking outside is not possible.
If the board determines that the second-hand smoke is indeed causing a nuisance for residents in the complex and a compromised solution cannot be reached, the corporation has a duty to take all reasonable steps to enforce its declaration, bylaws and rules.
See our enforcement section for more information.