Grandparented Smoker Has Right to Smoke Revoked Under Corporation’s Rules

As a result of the health risks associated with secondhand smoke and the nuisance related to smoke migration, many condominium corporations have put rules in place which restrict the ability of residents to smoke on the common elements and inside the units. These rules will sometimes include “grandparenting provisions” which allow existing smokers to continue smoking for a certain period of time after the rules come into force or for the length of that resident’s occupancy of the unit.

But what happens when a smoker who has been grandparented under a “no smoking” rule is causing a nuisance or aggravating an existing health condition of another resident?

In a recent decision, the Court confirmed that a condominium corporation was entitled to revoke a grandparented smoker’s right to smoke, when complaints were received and the smoking was causing injury to another resident.

In York Condominium Corporation No. 266 v. Jaromira Linhart, the condominium corporation brought an application for an order directing the owner to comply with section 117 of the Condominium Act, 1998, and the corporation’s rules by ceasing to smoke inside her unit and on her balcony.

Ms. Linhart, a lifelong smoker, had purchased her condominium unit in December 2017. The corporation passed “no smoking” rules in October 2018, which prohibited smoking anywhere on the property, but permitted existing smokers to be grandparented under the rules. Ms. Linhart was one of the residents who was granted this grandparenting exemption. The “no smoking” rules provided that the grandparenting exemption could be revoked if the corporation received complaints of smoke migration into other units; and the corporation created a procedure to deal with such complaints.

Shortly after Ms. Linhart had moved into her unit, the corporation began receiving complaints about smoke from her unit. One of the neighbouring residents had a severe allergy to smoke, which was aggravated by the smoke migrating from Ms. Linhart’s unit. As a result of the complaints, the corporation sent several letters and had various communications with the owner in accordance with their procedure, asking her to take steps to resolve the issue. The corporation was unable to address the smoke migration through sealing and insulating the vents and although the owner took some steps to reduce the smoke (such as purchasing an air purifier to run in her unit), the steps were not sufficient to adequately resolve the issue.

As a result, the corporation revoked Ms. Linhart’s grandparenting exemption. When Ms. Linhart continued to smoke in the unit, the corporation was required to bring the Court application for compliance.

The Court found that Ms. Linhart’s smoking was seriously affecting the health of the neighbouring resident and causing injury to the resident, contrary to section 117 of the Condominium Act, 1998. The Court also found that since Ms. Linhart’s grandparenting exemption had been revoked in accordance with the corporation’s rules, the owner was in breach of the corporation’s rules if she continued to smoke in her unit.

However, the owner was required to pay only $500.00 in costs to the corporation, just a fraction of the corporation’s legal fees (the corporation requested costs on a partial indemnity basis in the amount of $7,424.15). In making this award for costs, the Court noted that Ms. Linhart was the first resident to have her grandparenting exemption revoked by the corporation, and that other residents were likely to have their grandparenting status revoked as well. As a result, the Court felt that this case likely held some precedential value and importance to the corporation in dealing with other grandparented residents.

In this particular case, the corporation’s rules confirmed that a resident’s grandparenting exemption could be revoked by the corporation where complaints were received and not adequately resolved. Here the injury to others in the building was clear where another resident had a serious medical condition which was directly impacted by the owner’s actions.

I think it’s important to note that the condominium corporation in this case had made efforts (sealing vents, etc.) to try to resolve the smoke migration problems.  I think that most Courts would expect a condominium corporation to make such efforts – particularly to fix any defects – before revoking a smoker’s grandparented status.

Overall, I think this is a very good decision, and it again confirms that smoking rules (including limits on grandparenting) will be enforced by the Courts.

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