The information that follows comes from a legal opinion prepared by David H. Hill, C.M., Q.C of Perley-Robertson, Hill & McDougall. It was commissioned by the former Ontario Tobacco-Free Network, a provincial interagency network consisting of the Canadian Cancer Society, Ontario Division, the Heart and Stroke Foundation of Ontario and the Lung Association, with input from the Non-Smokers’ Rights Association.
It should be noted that there can be both member and non-member units at a housing co-operative. This legal information pertains to member units only.
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 housing co-operative corporations dealing with specific legal questions on this matter seek independent legal advice.
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Yes, it is absolutely legal for a new or existing housing co-operative to adopt a no-smoking policy. This could be achieved by including appropriate provisions in the articles of incorporation or the bylaws or both.
A co-operative may be incorporated under the Co-operative Corporations Act “…for any lawful objects to which the authority of the Legislature extends…” (section 4 (1)). It is incorporated by five or more persons applying for articles of incorporation which articles shall set out “all restrictions on the business that the co-operative may carry on or on the powers that the co-operative may exercise” (sections 5(1) and (2)). The articles may set out any provision authorized by the Co-operative Corporations Act or that “…could be the subject of a bylaw of the co-operative” (section 5 (4)).
Section 21 of the Act provides: “Subject to this Act and the articles, the directors may pass bylaws that regulate the business and affairs of the co-operative.” Bylaws must be confirmed by a two-thirds vote at a general meeting of the members of the co-operative (section 23 (b)).
Section 151 (1) of the Act states that the articles of incorporation of a co-operative can be amended to “extend, limit or otherwise vary its objects” (c), “delete or vary any provision in its articles” (j) or “provide for any other matter or thing that is authorized by this Act to be set out in the articles or that could be the subject of a bylaw of the co-operative” (k).
The articles of incorporation for a housing co-op could specifically state that its object is to provide smoke-free accommodation and that the restrictions on the business that it may carry on are that it cannot allow smoking on its property. Likewise, there is nothing in the Co-operative Corporations Act and normally nothing in the articles of incorporation that restrict a co-operative’s bylaw from indicating that in operating its business it shall do so based on its housing units being non-smoking.
No, there is no legal requirement that members be grandfathered.
If a housing co-operative chose to grandfather members who were not in favour of a no-smoking policy, the grandfathering would very much depend upon the wording of the amendment to the articles of incorporation and the bylaws which would also determine the length of such grandfathering.
For example, members could be grandfathered for a particular length of time (i.e. 6 months or one year) or until they choose to withdraw their membership from the co-op and move out.
Similar to the enforcement of no-smoking policies in residential tenancies, it is recommended that at least one warning letter be delivered to the resident in question prior to initiating termination proceedings. Termination of a co-operative membership should only be left as a last resort, after other ways to solve the problem have been explored.
The Co-operative Corporations Act provides a process for terminating the membership and the occupancy rights of a co-operative member. Similar to a landlord terminating a tenancy and evicting a tenant, this would be the tool used by the co-operative to enforce its no-smoking policy.
Section 171.8 (2) of the Act sets out the procedure for terminating membership and occupancy rights of a member of a non-profit housing co-operative. They may be terminated on a ground set out in the bylaws provided such ground is not unreasonable or arbitrary (section 171.8 (2) 2). The termination is decided by a majority of the board of directors of the co-operative (section 171.8 (2) 1) and the member terminated can appeal the decision of the board to a meeting of members of the co-operative (section 171.8 (2) 9) and the appeal is decided by a majority vote of the members (section 171.8 (2) 14).
The co-operative may regain possession of a member unit by obtaining a writ of possession from the Superior Court of Justice (sections 171.12 and 171.13 of the Co-operative Corporations Act).
If a co-operative converts from a smoking permitted property to a no-smoking property by grandfathering members, the co-op would be well advised to make this situation as clear as possible to any new co-op members who will occupy member units.
The best protection for the co-operative is transparency so that no one becomes a member and occupies a unit without knowing of the conversion situation and the grandfathering terms.
However, even in the absence of such transparency, it is unlikely that a co-operative would be held liable for damages suffered by a member due to involuntary exposure to second-hand smoke infiltrating his or her unit. Nonetheless, a transparency strategy would add protection to the co-operative.
Some housing co-ops in Ontario were developed under provincial housing programs and follow operating rules in the Social Housing Reform Act, including those pertaining to waiting lists. See our legal opinion in the landlord section for more information on no-smoking policies in subsidized housing and waiting lists.
In the absence of a housing co-operative coming within the terms of the Social Housing Reform Act, 2000, there is no legal requirement for handling waiting lists to become a co-operative member and occupy a member unit.
Presumably the co-op would only accept people on the waiting list it maintained who would be eligible to become members, that is, who would commit to adhere to the no-smoking policy. Under section 60 (1) of the Co-operative Corporations Act membership in a housing co-operative is governed by the co-operative bylaws, subject to the Act and the articles of incorporation. A person must apply for membership and be approved by the co-op’s board of directors and must have “…complied fully with the bylaws governing admission of members” (section 61 (2) of the Act).