It is legal for a condominium corporation to limit smoking to certain areas or to prohibit smoking completely. This section shows you how.

New Buildings

If you are an owner/developer and want to make your building 100% smoke-free from the outset, including a no-smoking policy in the declaration prior to selling any units is the simplest way forward.

The inclusion of a no-smoking policy in a new condominium’s declaration prior to units being sold is easy to do and makes good business sense.  A developer won’t have trouble attracting buyers due to market demand for smoke-free housing in Ontario, and the condominium corporation will avoid the problems, costs, and fire risks of maintaining a building where smoking is permitted.

Moreover, the popularity of “green” construction is on the rise with more and more buildings becoming LEED (Leadership in Energy and Environmental Design) certified. A 100% smoke-free environment is perhaps the easiest and least expensive way that a developer can work to improve the quality of indoor air in a building. Check out our success stories section to read about an example of a 100% smoke-free “green” condominium in British Columbia.

a. Consider the type and scope of a no-smoking policy for the declaration

A no-smoking policy in a condominium’s declaration can include many variations, so it is important to clearly stipulate which areas will be designated as non-smoking. Examples include:

  • In private units only;
  • In private units including private use balconies or patios;
  • Within a certain distance (i.e. 9 m) from doorways, operable windows and air intakes;
  • On outdoor common areas such as patios, swimming pools, gardens, etc.;
  • On the entire condominium property up to the property line.

Developers also have the choice to provide a designated outdoor smoking area if the size of the property allows it. Ideally, such an area would have a roof, somewhere to sit, somewhere to dispose of cigarette butts safely, and would be situated well away from outdoor common areas like pathways, patios, etc. In choosing the appropriate policy for the complex, it is important to keep in mind the nature and layout of the complex, and ensure the policy is connected to protecting the health of residents.

Regardless of the scope of the policy chosen, it must comply with relevant legislation, including the Condominium Act, 1998 and the Ontario Human Rights Code.

b. Consider potential legal challenges

Those opposed to smoke-free multi-unit dwellings sometimes claim that no-smoking policies are discriminatory and abuse human rights. It is critically important for people to understand that:

  • A smoke-free environment is not a smoker-free environment, and smokers are not prevented from buying or renting condominiums;
  • No one is being forced to quit smoking; and besides,
  • Smoking is not a protected right in Canada.

There are plenty of examples of ways that condominium corporations can limit or prohibit behaviour in private spaces that have much more mundane goals than protecting people’s health, such as maintaining a consistent look to the front of a building by requiring certain types of window treatments or by banning clotheslines on balconies.

In 2007 the Ontario Human Rights Commission held a series of public hearings to examine the issue of human rights and rental housing. It subsequently published a report entitled Right at home: Report on the consultation on human rights and rental housing in Ontario. On the issue of smoking, the report concluded that “there are conflicting decisions as to whether or not smoking can be considered a disability and whether allowing people to smoke is an appropriate accommodation.”

This issue has been considered a number of times over the years, and Canadian courts have consistently ruled–with one exception–that addiction to nicotine is not a disability. The one exception was a British Columbia Labour Relations Board decision in an employment context. Cominco, a nickel smelter, had banned smoking on the plant site, and while the Board found that the ban discriminated against heavily addicted smokers, it also recognized that the employer’s no-smoking policy was reasonable and was adopted to protect non-smokers from a known hazard. The matter was referred back to the parties to resolve how to accommodate the heavily addicted smokers and Cominco’s smoking ban remains in effect today. More on Cominco…

It is important to note that this decision applied to an employment situation. With respect to housing, it is unlikely that an arbitrator or judge would prefer to have someone be continually exposed to second-hand smoke rather than infringe on someone else’s supposed right to smoke. Just because someone exercises their freedom to smoke does not mean they have an absolute right to smoke regardless of the health or well-being of their neighbours.

With regard to smoking as a disability, the key issue is nicotine withdrawal. Even if in the future an adjudicator or judge ruled someone’s smoking as a disability, the focus then becomes one of reasonable accommodation by the corporation to the point of undue hardship. This could potentially include the provision of an outdoor smoking area, physical modifications to the smoker’s unit or provision of nicotine replacement therapy, etc.

It should also be noted that a disability designation is very individual. If an adjudicator were to rule that a unit owner who smokes is disabled, it does not mean that all residents who smoke, or all condo owners in Ontario who smoke, would also be recognized as disabled.

Download the Ontario Human Rights Code.

Download the Guide to Your Rights and Responsibilities Under the Human Rights Code.

Download more information on smoking and human rights case law.

However, the concept of no-smoking policies for condominiums is new and there is not a lot of specific case law to guide us on this issue. See our legal opinion section for more information.

c. Draft and register the declaration
  • Draft the declaration. See a sample no-smoking policy
  • Seek legal advice;
  • Register the declaration at an appropriate registry office.
d. Promote your smoke-free condominium
  • Emphasize the benefits of 100% clean, smoke-free air in all your advertising. This is a unique amenity and will appeal to the vast majority of potential condo buyers;
  • Post “no-smoking” signage in appropriate locations on the property. Contact your local public health unit for assistance.
  • Contact us and share your good news!

Existing Buildings

If you are a condo owner or director and want your condo corporation to consider banning or restricting smoking in your complex, this section will provide you with some steps on how to make it happen.

A no-smoking policy can be applied to an existing condominium via an amendment to the declaration or the passing of a bylaw or rule.

It is thus a good idea to do the groundwork first before putting this issue before the general condominium membership. It will be important to build support for the issue–make sure you are well prepared in advance of attending any board of directors meetings, owners’ meetings or an annual general meeting. Be prepared to address resident concerns and opposition. Due diligence is important, and building support over time may result in the best outcome.

It is important to convey that your no-smoking policy is not about targeting or passing judgment on smokers, but about protecting non-smokers from the known health hazards of exposure to second-hand smoke. Residents with chronic health problems, infants and children with developing immune systems and older residents in declining health are especially at risk.

Download our How to implement a no-smoking policy for a multi-unit dwellings: A protocol for condominiums or housing co-operatives in Ontario.

a. Do your homework
  • Collect as much information as possible about how the second-hand smoke is infiltrating units in the building, the number of residents experiencing the problem and the impact on the health of residents. (See do the groundwork.)
  • Inform yourself about the dangers of exposure to second-hand smoke and the benefits of going smoke-free;
  • Review the legal section of this website to learn about the legalities of no-smoking policies for condominium corporations;
  • Review our surveys section which contains information confirming that smoke infiltration is a problem for approximately one-third of Ontarians living in multi-unit dwellings, and that there is strong support for smoke-free multi-unit housing in this province. Plus, the vast majority of condo owners don’t smoke, and no-smoking policies for Canadian households are already a social norm.
b. Share information and seek support
  • Talk to your neighbours to identify support for a no-smoking policy;
  • Talk to your board of directors to raise awareness and to seek support;
  • Consider conducting a survey of owners to determine whether others have similar problems with smoke migration. A survey will help to gauge support for a possible no-smoking policy, as well as to help identify the extent of prohibition that would be supported by a majority of residents;
  • With the approval of the board of directors, form a committee to study and work on the issue;
  • Attend meetings and propose the idea of either amending the declaration or creating a no-smoking bylaw or rule for the complex. This is a good opportunity to present the information collected on the benefits of and support for no-smoking policies.
  • If your board of directors is not supportive, you can try to 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.
    • Quorum for an owners’ meeting is eligible owners of 25% of the units (one vote per unit).
    • If voting is to take place at the meeting, this must be clearly indicated in the notice of the meeting.
c. Decide on the scope of the policy

A no-smoking policy can include many variations, so it is important to clearly stipulate which areas will be designated as non-smoking. Ideally, survey results will help to guide the scope of the policy. Examples include:

  • In private units only;
  • In private units including private use balconies or patios;
  • Within a certain distance (i.e. 9 m) from doorways, operable windows and air intakes;
  • Outdoor common areas such as patios, swimming pools, gardens, etc.;
  • On the entire condominium property up to the property line.

You also have the choice to provide a designated outdoor smoking area if the size of the property allows it. Ideally, such an area would have a roof, somewhere to sit, somewhere to dispose of cigarette butts safely, and would be situated well away from outdoor common areas like pathways, patios, etc. In choosing the appropriate policy for the complex, it is important to keep in mind the nature and layout of the complex, and ensure the policy is connected to protecting the health of residents.

Regardless of the scope of the policy chosen, it must comply with relevant legislation, including the Condominium Act, 1998 and the Ontario Human Rights Code.

d. Consider "grandfathering" issues

In Ontario there is no legal requirement for a condominium corporation to grandfather (exempt) current unit owners who are not supportive of a no-smoking policy.

A grandfather provision could be for a specified length of time (i.e. smoking will continue to be permitted for 6 months or one year), or for the duration of the ownership of the unit until the unit is sold.

If there are no residents in the building who smoke, there may not be much opposition to a complete prohibition without a grandfather clause. On the other hand, there may be unit owners in your building who would be in favour of a no-smoking policy only if it included a grandfather provision. It may be quite difficult to get a no-smoking policy passed if the policy is inflexible and offers no adjustment period for people who smoke.  At the same time, a policy that grandfathers unit owners indefinitely will likely offer no relief to those residents who are currently suffering from involuntary second-hand smoke exposure.

e. Declaration amendment, bylaw or rule?

Declaration amendment

It requires a minimum of 80% of eligible unit owners to vote in favour of a declaration amendment, so clearly this is neither the fastest nor easiest route to a no-smoking policy for a condominium. However, we contend that by the very nature of what is involved, this option has the best chance of sticking as it would again require an 80% vote to get rid of the policy.

A suggested amendment would need the board of directors to approve it by resolution, at which point a notice with the proposal would be sent out to all eligible unit owners. The board would then call an owners’ meeting to discuss the proposed amendment. Following the meeting, eligible owners would submit written votes. If at least 80% of eligible owners vote in favour, the amendment must then be registered at a registry office within 30 days of the notice being sent out. Once registered, the amendment is in effect.

Bylaws

A condominium’s board of directors may, by resolution, make, amend or repeal bylaws as long as they are not contrary to the Condominium Act, 1998 or to the declaration. Bylaws are most commonly used to deal with governance matters of the corporation so it would be rare for a no-smoking policy to be implemented in this manner. Nonetheless, our legal opinion states that a condominium corporation could conceivably establish no-smoking restrictions using a bylaw.

Before taking effect, a bylaw enacted by a condominium’s board of directors must be approved by a majority of the condominium unit owners.

Rules

The board of directors can 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 take effect 30 days after notice of them is given to eligible unit owners. However, a minimum of 15% of eligible owners can requisition the board to call a meeting to consider the rule. A rule then becomes effective once approved at the meeting by owners of 25% of the units.

It is likely that the rules, which are most easily enacted and amended, would be used to limit or prohibit smoking in a condominium. However, given that the owners of just a quarter of the units can make or break a rule, it is conceivable that a no-smoking rule might not have sticking power the way a declaration amendment would.

f. Consider potential legal challenges

Those opposed to smoke-free multi-unit dwellings sometimes claim that no-smoking policies are discriminatory and abuse human rights. It is critically important for people to understand that:

  • A smoke-free environment is not a smoker-free environment, and smokers are not prevented from buying or renting condominiums;
  • No one is being forced to quit smoking; and besides,
  • Smoking is not a protected right in Canada.

There are plenty of examples of ways that condominium corporations can limit or prohibit behaviour in private spaces that have much more mundane goals than protecting people’s health, such as maintaining a consistent look to the front of a building by requiring certain types of window treatments or by banning clotheslines on balconies.

In 2007 the Ontario Human Rights Commission held a series of public hearings to examine the issue of human rights and rental housing. It subsequently published a report entitled Right at home: Report on the consultation on human rights and rental housing in Ontario. On the issue of smoking, the report concluded that “there are conflicting decisions as to whether or not smoking can be considered a disability and whether allowing people to smoke is an appropriate accommodation.”

This issue has been considered a number of times over the years, and Canadian courts have consistently ruled–with one exception–that addiction to nicotine is not a disability. The one exception was a British Columbia Labour Relations Board decision in an employment context. Cominco, a nickel smelter, had banned smoking on the plant site, and while the Board found that the ban discriminated against heavily addicted smokers, it also recognized that the employer’s no-smoking policy was reasonable and was adopted to protect non-smokers from a known hazard. The matter was referred back to the parties to resolve how to accommodate the heavily addicted smokers and Cominco’s smoking ban remains in effect today. More on Cominco…

It is important to note that this decision applied to an employment situation. With respect to housing, it is unlikely that an arbitrator or judge would prefer to have someone be continually exposed to second-hand smoke rather than infringe on someone else’s supposed right to smoke. Just because someone exercises their freedom to smoke does not mean they have an absolute right to smoke regardless of the health or well-being of their neighbours.

With regard to smoking as a disability, the key issue is nicotine withdrawal. Even if in the future an adjudicator or judge ruled someone’s smoking as a disability, the focus then becomes one of reasonable accommodation by the corporation to the point of undue hardship. This could potentially include the provision of an outdoor smoking area, physical modifications to the smoker’s unit or provision of nicotine replacement therapy, etc.

It should also be noted that a disability designation is very individual. If an adjudicator were to rule that a unit owner who smokes is disabled, it does not mean that all residents in the same building who smoke, or all condo owners in Ontario who smoke would also be recognized as being disabled.

Download the Ontario Human Rights Code.

Download the Guide to Your Rights and Responsibilities Under the Human Rights Code.

Downoad the Non-Smokers’ Rights Association fact sheet: Human Rights and No-Smoking Policies for Multi-Unit Dwellings

Download more information on smoking and human rights case law.

However, the concept of no-smoking policies for condominiums is new and there is not a lot of specific case law to guide us on this issue. See our legal opinion section for more information.

g. Promote your no-smoking policy
  • Post “no-smoking” signage in appropriate locations on the property. Contact your local public health unit for assistance.
  • If your condominium has a newsletter or website, share information about the new policy and about second-hand smoke.
  • Contact us and share your good news.

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