THE TEN THINGS YOU NEED TO KNOW ABOUT SMOKING IN CONDOS

1) Smoking is illegal in indoor common areas

The Smoke Free Ontario Act provides, in part, that “no person shall smoke or hold lighted tobacco in…any common area in a condominium, apartment building or university or college residence, including, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.”  Smoking is not illegal in uncovered outdoor common areas.

2) Smoke is a nuisance (and “nuisance” doesn’t mean what you think it means)

Most condominium corporations have rules that prohibit owners from creating or permitting any nuisance that disturbs the comfort or quiet enjoyment of other residents. The word “nuisance”, when used in conversational English, means an annoyance. However, a “nuisance” is also a legal term of art.

A “nuisance” arises in law when one person uses his or her land (which includes a condominium unit) in such a way that it unreasonably interferes with another person’s right to use his or her respective land. Traditional examples of nuisance included creating an offensive odour and creating smoke or pollution that drifted onto a neighbour’s land. The early smoke cases dealt mainly with factories and industry, but the legal concept for cigarettes is the same: if smoke escapes your property and unreasonably interferes with your neighbour, then you have created a nuisance, for which you are responsible at law.

Many declarations also restrict owners from using their units in such a way that will “unreasonably interfere” with the use or enjoyment by other owners of the common elements or their respective units. This common language in condominium declarations and rules means that, in the absence of a specific smoking provision, most condominium corporations’ governing documents restrict owners from allowing smoke to escape their units.

3) Condominium corporations have a duty to respond to smoking complaints

Subsection 17(3) of the Condominium Act, 1998 states, in part, that condominium corporations have a duty to take “all reasonable steps” to ensure that owners and residents comply with the governing documents.

This means that condominium corporations cannot simply ignore smoke complaints, rather, complaints must be responded to appropriately. In this regard, subsection 37(1) of the Condominium Act, 1998 provides that condominium directors have a duty to “exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.”

It’s fair to say that a reasonably prudent person, when faced with a smoke complaint, would conduct an investigation to confirm that there is an actual transmission of smoke from one unit to another unit, and then take steps to attempt to resolve the problem. 

4) Smoke can trigger a duty to maintain and repair the common elements

Sometimes, albeit rarely, smoke complaints arise because of a common element deficiency, such as an improperly insulated demising wall. True deficiencies are rare because condominium buildings are not designed to be airtight (for good reason).

When responding to smoke complaints, condominium corporations should investigate and rule out the possibility of a common element deficiency. If a deficiency is discovered, then it should be rectified promptly. The responsibility for who pays to rectify a common element deficiency will depend on the maintenance and repair obligations set out in the condominium corporation’s declaration.

5) Solving the problem may require a change in the offending resident’s behaviour

If the smoke transmission problem is not caused by a common element deficiency, then the condominium corporation can look to the offending owner of the unit where the smoke is originating to take steps to eliminate the problem at that owner’s cost.

One way to try and solve the problem is to attempt to seal off any air leaks in the units. Sealing techniques have a tendency to reduce, but not eliminate, the problem.

If attempts to seal the units are unsuccessful (or if the offending owner refuses to take steps to rectify the problem), then the condominium corporation will be justified in demanding that the owner cease the offending behaviour.  

6) There is no such thing as a condominium board “setting a precedent”

Boards of directors are sometimes hesitant to take certain steps, even in serious cases, because the directors may fear that they will be forced to do the same thing in future cases.

Rather than striving for a consistent approach, boards should concentrate on taking a contextual approach to resolving disputes. The reason for this is because no two disputes are exactly alike.

Thus, fairness does not require that condominium boards treat all complaints as though they were the same, but instead, that boards respond in a flexible manner that takes into account the particular facts and circumstances of each case.

Condominium boards do not create a “precedent” when they respond to a complaint in a particular way, nor do they create a legitimate expectation among unit owners that different complaints will result in the same response or outcome.   

7) Sensitivity to smoke can be a legitimate human rights issue

The British Columbia Human Rights Tribunal has repeatedly held that sensitivity to smoke can be a form of disability, as the presence of smoke effectively denies the person with the disability-related need from enjoying his or her home. There is little doubt that Ontario’s courts and tribunals would reach a similar conclusion.

In Ontario, the Human Rights Code provides that condominium corporations must accommodate residents with disability-related needs to the point of undue hardship. Furthermore, the Human Rights Code is a super-statute that has priority over other statutes, including the Condominium Act, 1998.

If the complainant has a disability-related need to live in a smoke-free environment, then the condominium corporation may well have a corresponding authority to take steps that would not otherwise be considered reasonable.

The important take away from the human rights aspect of smoking disputes is that in cases of disability, the test is not, “what would bother a reasonable person”, but rather, “what would bother a reasonable person with a disability-related need”.

8) There is no such thing as a “right to smoke”

While courts and tribunals have clearly stated that sensitivity to smoke is a legitimate disability, the courts have been equally clear in ruling out nicotine addiction as a potential form of disability.

Condominium residents do not have a right to smoke. Demanding that an addict cease smoking in his or her condominium unit because it constitutes an unreasonable interference on the smoker’s neighbour(s) is not discriminatory within the meaning of the Human Rights Code, and there is no duty on condominium corporations to accommodate smokers.

9) Smokers and hoarders don’t mix

Cigarettes are a notorious fire hazard, both indoors and outdoors. Smokers provide the spark, and occasionally, hoarders provide the kindling.

On September 24, 2010, a resident of 200 Wellesley Street East in Toronto flicked a lit cigarette over a balcony railing. The cigarette fell onto a balcony below that was packed with stacks of paper and other combustibles. 1,700 people were forced out of their homes by the resulting fire.

In the wake of the Wellesley Street fire, condominium corporations have become increasingly concerned with the dangers posed by smokers and hoarders. Section 117 of the Condominium Act, 1998 provides, in part, that no person shall permit a condition to exist in a unit or in the common elements that is likely to damage property or cause injury to an individual.

The discovery by a condominium corporation of hoarding-like conditions within a condominium unit carries an obligation to take steps to rectify the condition, and if the offending resident is non-cooperative, to enforce compliance by way of a court application.

10) Creating a “smoke free” building is difficult, but not impossible

A condominium corporation’s governing documents consists of (1) the declaration, (2) the by-laws and, (3) the rules. Rules can be created upon mere notice to the owners. By-laws require an affirmative vote of the owners of more than half of the units in the corporation. Amending the declaration requires the consent of the owners of at least 80% of the units in the corporation.

While the pendulum is gradually swinging towards building-wide smoking bans, the current state of the law would likely not support a rule or by-law that established a total ban on smoking in condominium units. As rules and by-laws must be reasonable, there could be difficulties associated with enforcing these provisions as against pre-existing smokers where the offending conduct does not actually interfere with neighbouring residents.

In contrast, there is no requirement that condominium declarations be reasonable. Thus, the most assured method of transforming a condominium community into a smoke-free environment is to amend the declaration with the consent of a supermajority of the owners.

Conclusion

When responding to smoking issues, condominium directors should seek legal advice, and where appropriate, the advice of an engineer or other qualified professional. Each dispute will turn on its own particular facts, and the right thing to do will depend on the circumstances.

While the law as it relates to smoking and other forms of nuisance is reasonably well established, new situations are constantly cropping up and applying the relevant principles correctly can be a challenge, even for industry professionals. The risks relating to smoking are both carcinogenic and incendiary. As societal norms shift away from acceptance of tobacco use, one might expect the frequency of smoking disputes to gradually subside, but until then, smoking will continue to ignite conflict in our condominium communities.

Swan v. Goan

Section 46(3) of the Condominium Act, 1998 obliges anyone seeking the removal of a condominium corporation’s director to list in the requisition the reasons why he or she seeks such removal.  This leaves no choice but to publicly criticize the director.  This criticism may be defamatory. 

One of the reasons that Goan listed in a requisition to remove the president of the board, Swan, was that Swan “failed to act honestly and in good faith.”  The Court decided that this was defamation. 

However, Goan successfully defended the defamation.  The Court held that:

1. Goan was justified in making the statements because there was enough evidence to show that Swan acted outside of his jurisdiction as board president and that he acted dishonestly;
    
2. the comments were a fair comment on a matter of public interest, made without malice, and founded on an honest belief about facts that were a matter of public interest; and
    
3. the statements were made without malice in the exercise of a duty, or for the purpose of pursuing or protecting some interest, and made to other people sharing a corresponding interest. 

The lesson learned from this decision is that it is important to ensure that one has a strong factual foundation for any negative statements made about directors as well as a robust legal defence for defamation, before circulating a requisition for the removal of a director.

Interim Injunction - Cigar Smoking Prohibited on Condominium Property

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.