CAT Finds No Smoking Rule to Be Reasonable

In the case of CCC 95 v. Frederick, the condominium corporation had passed a rule to prohibit smoking in all of the units and in most areas of the common elements. The rule said that smoking is only permitted in an outside area of the common elements which has been designated as a smoking area by the board, an area which is at least nine meters from any entrance.

The rule also included a legacy provision allowing existing smokers to register in order to continue smoking for two years. The Respondent was a long-standing resident who had been registered as a legacy smoker. When her temporary right to continue smoking expired, she argued that the rule was unreasonable. She noted that she had an air purifier in her unit, and she argued that there was no evidence that her smoke was migrating and causing any harm to anyone else. She also claimed that sometimes it is not feasible for her to leave her unit to smoke outside.

The Tribunal held that the rule is reasonable and ordered the Respondent to stop smoking (except in the designated smoking area).

The Tribunal said:

…I appreciate that Ms. Frederick believes that the application of the rule to her is not reasonable. She has lived in the building for many years and the fact that she considers the rule to infringe on her use and enjoyment of her property is understandable. She has noted in communications with CCC 95 that quitting smoking is not easy. But a board enacts rules for the condominium as a whole. It must balance the use and enjoyment of all residents. As noted by Ms. Iordanidi in her submissions, there is no right to smoke, but the board through the legacy provisions recognized that an immediate change in 2018 for residents who smoked might be unreasonable and unfair and allowed for a grace period of two years for the transition to a non-smoking building. I find that the rule is reasonable.

One comment I would like to add is as follows: although the Tribunal mentioned the two-year grace period (the legacy provision), the Tribunal did not say that the legacy provision was necessary (for the rule to be considered reasonable). Other cases have suggested that a legacy provision (in a no smoking rule) may not be necessary. That said, in my view the decision about whether or not to have a legacy provision is something for the Board (and the owners) to consider (taking into account the nature of the particular community and its residents) when contemplating such a rule.

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