The Rights Of Smokers And Non-Smokers Continue To Evolve

The rights of smokers and non-smokers in condominiums continue to evolve across Canada.

The Smoke-Free Ontario Act prohibits smoking in the interior areas of the common elements of all condominiums, and also prohibits smoking on outdoor patios of bars and restaurants (including such outdoor patios on condominium property).

Condominium corporations can also pass Rules to prohibit smoking in other areas of the common elements.

But what about prohibiting smoking in the units?

As revealed by the debate at the most recent ACMO/CCI Toronto Condominium Conference, lawyers in Ontario disagree about the required procedures. Some lawyers feel that prohibiting smoking in the units requires a provision in the condominium’s Declaration. Others feel that this can be achieved by way of a Rule. In my view, a Rule is sufficient. From my perspective, this is precisely the sort of issue that can properly be regulated, in Ontario, by way of a Rule.

I hasten to add, however, that we don’t yet have any Ontario court or tribunal decisions on point – so this is still a grey area.

The other issue is: if a condominium passes a Rule or amends the Declaration to prohibit smoking in the units, are existing smokers grandfathered? Again, there is debate on the point; but we’ve previously felt that there should be reasonable grandfathering of existing smokers. What is “reasonable” may depend upon all of the history and the specific circumstances of the particular condominium, including the configuration of the units and common elements, the availability of “permitted smoking areas” on the common elements, difficulties preventing smoke transfer within the building(s), and other issues.

But it now appears, based on a recent case from B.C., that there may be an argument that grandfathering is unnecessary, at least in some cases.

In the case of The Owners, Strata Plan NW 1815 v. Aradi, the strata corporation passed a “no smoking” by-law; and the Court enforced the by-law against an existing smoker (who had acquired his unit when smoking in the units was permitted). So, the Court confirmed that there was no grandfathering of existing smokers. The smoker in that case has an outstanding claim to the B.C. Human Rights Tribunal, in which the smoker is claiming a right to smoke as an accommodation (for his addiction to smoking). The human rights claim is scheduled to be heard early in 2017 – so there will likely be more to this story.

It is important to note that B.C. law (in relation to the passing of by-laws) is not identical to Ontario law (in relation to the passing of rules); so it’s possible that there may be a distinction between the laws in Ontario and B.C. with respect to this issue.

But the bottom line is as follows: In the future, if a condominium goes “smoke free”, depending upon all of the circumstances, it might not be necessary to grandfather existing smokers, and it may also be possible to consider different durations of grandfathering.

But until we have some more decisions on point, we just don’t know.

For more information about making your condominium “smoke free”,  please contact us.