Condominiums

The Smoke-Free Ontario Act, 2017, prohibits smoking of tobacco, the use of electronic cigarettes to vape any substance, and the smoking of cannabis (both medical or recreational) in common areas of public places. This includes common indoor areas of condominiums, apartments, and buildings including the corridors, elevators, and laundry rooms.

Municipal governments have the authority to ban or restrict smoking and vaping in public places within their geographic limits and to create smoking by-laws that exceed Ontario’s smoke-free legislation. Contact your local municipality to find out if any such by-laws apply to your building.

Yes. It is legal for a condominium to include a no-smoking policy in any of the declaration, bylaws, or rules. Condominium boards of directors have the ability to protect the health and safety of their residents and to protect their property, as long as their by-law does not interfere with other federal or provincial laws.

Resources:

• Legal opinion section
• How to implement a no-smoking policy for a multi-unit dwelling: A protocol for condominiums and housing co-operatives.
• Watch Smoke-free condos: Making legal sense of smoke-free policiesa video report prepared by Condo Business.

Enforcement Officers from local public health units will carry out inspections and investigate complaints in common areas of apartments, condominiums, and college and university campuses in order to enforce the Smoke-Free Ontario Act, 2017. Call your local public health unit to report a violation of the Smoke-Free Ontario Act.

Under the Smoke-Free Ontario Act, 2017, board of directors have a responsibility to:

• Ensure that everyone is aware that smoking is prohibited in common areas;
• Remove ashtrays and any object that serves as one;
• Ensure that no one smokes in the common areas of these residences;
• Post “no-smoking and no-vaping” signs at all entrances, exits, washrooms, and other appropriate locations.

Indigenous people have been using traditional or sacred tobacco for thousands of years. Traditional or sacred tobacco differs from commercial tobacco in that it is used in a variety of ways including ceremonial or sacred rituals for healing and purifying and in social customs where it is given or exchanged as a sign of respect. Traditional or sacred tobacco is grown and dried without additives.

The ceremonial use of tobacco is not exempt from smoke-free policies in multi-unit housing unless explicitly stated. However, under human rights legislation all Ontarians are under a duty to accommodate the religious beliefs and practices of others. The duty to accommodate goes both ways, as such any resident(s) using tobacco for ceremonial purposes should ensure they are not causing other residents undue harm. Tips for supporting ceremonial use of tobacco include:

1. Engaging the tenant(s) to understand their ceremonial use of tobacco.
2. Learning the duration and frequency of intended ceremonial tobacco use.
3. Finding ways to accommodate ceremonial tobacco use that does not expose other tenants to second hand smoke exposure. For example, if possible, recommend outdoor use and remove any barriers that might inhibit the ceremony from taking place outdoors.

If the ceremonial use of tobacco is to be used indoors, establish a communication system to inform other residents about the ceremonial use of tobacco in order to avoid complaints and bridge any religious or cultural misunderstandings.

There is no “right to clean air” enshrined anywhere in Canadian law. In the absence of a no-smoking policy, condominium residents can try seeking relief from involuntary exposure to second-hand smoke using the corporation’s general rules pertaining to nuisance.

Nuisance is defined by 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. However, whether or not a condominium’s board of directors would recognize second-hand smoke as a nuisance 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.

There is no such thing as “the right to smoke.” However, in the absence of a no-smoking policy, residents have a right to smoke in their units.

It should be stressed that this right is not absolute and is limited by other people’s right to enjoy their property. While an individual who smokes chooses to accept the known risks associated with smoking, they do not have the right to require others in the building to share those risks. If there is evidence that second-hand smoke is entering a unit on a frequent and ongoing basis, and is substantially interfering with use and enjoyment, approach the condominium board of directors or the person who smokes to discuss.

This issue has been considered numerous times throughout the years, and Canadian courts have consistently ruled – with one exception – that addiction to nicotine is not a disability.

In a residential situation, even if people who smoke were found to be a protected group on the basis of their addiction, they would be under a duty to co-operate with alternative solutions for their addiction that do not expose neighbours and bystanders to harmful second-hand smoke. This could include smoking outside or obtaining nicotine through alternative means that do not emit second-hand smoke, such as nicotine gum, nicotine lozenges or nicotine inhalers.

There is no legal precedent to repeal a smoke-free policy to accommodate a resident with a nicotine addiction. Just because someone exercises their freedom to smoke does not mean they have an absolute right to smoke regardless of others in the building.

A disability designation is very individual. If an adjudicator were to rule that a smoking tenant was disabled, it does not mean that all tenants who smoke, or all tenants in Ontario, would also be recognized as disabled.

Resources:

• Ontario Human Rights Code, 1990
• Guide to your rights and responsibilities under the Human Rights Code
• Human Rights and No-Smoking Policies for Multi-Unit Dwellings.

Accommodations for medical cannabis must be made on a case-by-case basis. Accommodations are fact specific and need to address the disability-related needs of the person being accommodated. Accommodations could include:

• Smoking outside
• Using forms of cannabis aside from smoking such as vaping products, tincture, pills, or edibles
• Moving to a unit where outside access is easier.

To justify smoking a number of things would normally need to be established including:

1. Smoking is the prescribed method the patient is to consume cannabis to achieve the desired therapeutic effect for the treatment of a disability or disability related symptoms – medical evidence can be requested.
2. Smoking outside is too much of a hardship (e.g., the person is not ambulatory).

If the above is established, the Housing Provider would need to consider accommodation measures to the point of undue hardship. A housing provider must provide an accommodation, but this does not necessarily mean the person has the right to smoke in their unit. Also, it is important to remember that challenges may arise regardless of whether they have any basis. To avoid litigation, some housing providers may simply allow smoking of cannabis if medical status can be demonstrated.