Living in a condo during a pandemic has exacerbated the nuisances that come with close quarters. One source of contention can arise between non-smokers and owners exempt from following no smoking rules, particularly if smoke travels where it’s not invited. Condo lawyers Nancy Houle and Mohiminol Khandaker of Davidson, Houle, Allen LLP, discuss prohibiting smoking in units by rule and answer the question: Can grandparented rights be revoked?

The enactment of the Smoke-Free Ontario Act, 2017 continued the apparent legislative intent in favour of regulating smoking in common and public areas. Over the past few years, we have seen this intent from a condo governance perspective, mirrored in the regulation of smoking within units.

Prohibiting smoking in units by rule

Among other things, the Smoke Free Ontario Act, 2017 prohibits smoking in the interior areas of the common elements of all condominiums, and prohibits smoking on outdoor patios of bars and restaurants (including such outdoor patios on condominium property).

While the Smoke-Free Ontario Act provided some much-needed guidance about smoking on the common elements, condominiums and condo lawyers in Ontario have disagreed and/or struggled with the required procedures for prohibiting smoking in units. Some felt that prohibiting smoking in the units required an amendment to the condominium’s declaration, while others became confident that this could be achieved by way of a rule.

In our view—and one which has been supported in court decisions—condo boards can prohibit smoking in the units by passing a rule to that effect. Section 58 of the Condominium Act, 1998 sets out the conditions for a rule passed by the board of directors to be valid. Under Section 58(1), the board may make, amend or repeal rules respecting the use of the units and the common elements for reasons related to security, safety or welfare, or to prevent unreasonable interference with the use and enjoyment of the property.

Considering the risks associated with smoking and second-hand smoke, a rule prohibiting smoking inside the units would, in our view, fall squarely within the categories of matters that are contemplated by Section 58.

Moreover, prohibiting smoking by way of a rule, rather than by amending the declaration, may be recommended, as a rule provides flexibility – both procedurally (i.e., in adopting the rule) and for potential amendments. Once the board votes in favour of a rule, a copy and associated documents must be circulated among the owners who then have 30 days to requisition a meeting to submit the rule to a vote. If at least 15 per cent of the registered owners of the condo do not requisition a meeting within this period, the rule automatically comes into effect. This process is less arduous than having to make an amendment to the declaration.

However, boards should keep in mind that, in addition to the purposes outlined in Section 58, a rule is also required to be reasonable. By contrast, a provision in the declaration is not required to be reasonable. Therefore, prohibiting smoking by a rule may be the most straightforward and cost-effective way to implement a smoke-free environment, where desired.

Can grandparented rights be revoked?

As a result of the health risks associated with second-hand smoke and the nuisance related to smoke migration, many condos have put in place rules that restrict residents’ ability to smoke on the common elements and inside units.

However, these rules can sometimes make exceptions for certain residents by way of a grandparenting provision—a practice by which condos can shield owners who purchased their units before certain activity was prohibited. This process allows condos to achieve a balance between the flexibility of creating or changing governing documents and residents’ need for predictability. In the context of smoking, a grandparenting provision shields existing smokers from the “no smoking rule” by allowing them to continue smoking for a set period of time after the rule comes into effect.

While grandparenting can protect existing owners’ rights, a recent decision in Ontario has showcased the need to use the exemption reasonably or face the possibility of having the exemption revoked.

Highlights of recent case

An owner who is a lifelong smoker purchased her unit 10 months before the condominium approved a rule prohibiting smoking anywhere on the property. The corporation allowed existing smokers to be grandparented, and the owner was among the residents who were exempted from the rule. However, the condo’s rules also stated that the grandparenting exemption could be removed in respect to a unit if the corporation received complaints of smoke odours entering other units. The corporation also put in place a procedure to deal with such complaints.

Shortly after the owner moved into her unit, the corporation began receiving complaints about smoke migrating from the unit into other units and disturbing the neighbours. The complainant, a neighbouring resident, had a severe allergy to smoke and began facing adverse health consequences as a result.

In accordance with its procedure, the condo sent numerous letters and engaged in communications with the owner about the smoke migrating from her unit. The corporation and property management also attended at the unit on several occasions, taking steps to seal and insulate the vents. But it did not solve the problem. As the issue remained unresolved, the corporation ultimately revoked the owner’s grandparenting exemption. However, the owner continued to smoke inside the unit, requiring the condo to initiate a court application for compliance.

The court held that the owner’s actions were contrary to Section 117 Condominium Act as her smoking was adversely affecting the neighbouring resident’s health and was causing injury to the resident. The court also found the owner to be in breach of the condo’s rules, given that she had continued smoking inside the unit despite her grandparenting exemption having been revoked. The court held that the Condominium Act required the corporation to ensure the protection of the health and safety of all owners and residents and that, if an activity being carried on is likely to cause injury to another individual, the corporation was required to ensure that it ceases. The court also highlighted the corporation’s adherence to its procedure and the efforts it made to resolve the issue before revoking the owner’s grandparenting exemption.

This case is a reminder that a grandparenting provision, while a useful tool to protect the rights of existing owners, is not permanent and can be taken away. Owners who benefit from such an exemption need to use it in a reasonable manner—failing which, courts will intervene to enforce the rules.

Condominiums can prohibit smoking inside the units by way of a rule; and while existing smokers may benefit from a grandparenting exemption, the exemption can be revoked if it impedes on the rights of other residents.

Nancy Houle is a partner at Davidson Houle Allen LLP. Mohiminol Khandaker is an associate lawyer with Davidson Houle Allen LLP. dhacondolaw.ca

Photo by Andres Siimon