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Interim Injunction - Cigar Smoking Prohibited on Condominium Property

February 22, 2013

Benjamin Rutherford

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In what is certain to prove a ground-breaking decision in Ontario condominium law, we were successful in obtaining an interim injunction from the Ontario Superior Court of Justice prohibiting the residents of a unit in a Toronto condo from smoking cigars on the condominium property.

The evidence filed with the court included numerous affidavits from residents of the first-floor of a Toronto condo who complained that the cigar smoking from the residents of one of the first-floor units could be smelt on an almost-daily basis, and permeated the common elements and units. There were children (one of whom has a chronic cough) on the floor, pregnant women, and a man with asthma. Extensive remedial steps had been taken to mitigate the cigar smoke, all to no avail.

The injunction was granted in the context of a compliance application brought under section 117 of the Condominium Act (which prohibits dangerous activities on condominium property), the Toronto condo’s rules which prohibit nuisance, and the Smoke Free Ontario Act. The injunction will remain in place up to the hearing of the application which is currently scheduled for June, 2013. The application will, essentially, seek to make the injunction permanent.

An “injunction” is an order of the court that prohibits someone from doing certain acts.

An “interim injunction” is granted, essentially, to prevent harm until a court case can be heard on all of its merits. In deciding whether to grant an “interim injunction” the court will go through a three part test by asking the following questions: (i) Is there a serious issue to be tried?; (ii) will irreparably harm result if the injunction is not granted?, and; (iii) does the balance of convenience favour the granting of the injunction?

The Honourable Justice Kiteley of the Ontario Superior Court of Justice addressed this three part test as follows:

Serious Question to be Tried: Justice Kiteley found that there was a serious question to be tried, namely, whether the cigar smoking constitutes a breach of section 117 of the Condominium Act, whether it constitutes a breach of the rules prohibiting nuisance, and whether it constitutes a breach of the Smoke Free Ontario Act. The Smoke Free Ontario Act prohibits the use of tobacco in the “common areas” of condominiums. In this case it was argued that the prohibition in the Smoke Free Ontario Act should include prohibiting smoking in a unit where the smoke escapes to the common elements.

Irreparable Harm: Irreparable harm is harm that cannot be compensated for in monetary damages. Irreparable harm includes a risk of personal injury. In this case, Justice Kiteley found that there would be irreparable harm to the health of the residents if the injunction was not granted. This is significant. It is recognition by the court of the harmful effects of cigar smoke. Cigar smoke is not akin to cooking smells; tobacco smoke is a known and recognized carcinogen.

Balance of Convenience: The balance of convenience requires a balancing of the interests and the impact of the injunction on the parties. In this case, the respondent cigar smokers tendered no evidence to address this point.

We will update the blog with any further decisions in this case.

A copy of Justice Kiteley’s endorsement and the order can be found here.