A hot topic facing many condominiums in Ontario is the handling of second hand smoke.
The Province introduced the Smoke-Free Ontario Act to help smokers quit, encourage young people to never start, and most importantly, to protect people from exposure to second-hand smoke. Over the years, you have seen first-hand evidence of the Province’s strategy. It is illegal to light or use a tobacco product in a motor vehicle with anyone inside under 16 years of age. Smoking is banned on or around children’s playgrounds, publicly owned sports fields and all bar and restaurant patios.
The Act also prohibits smoking in the common areas of condominiums, which includes elevators, hallways, parking garages, party rooms, laundry facilities, lobbies and exercise areas, but does not attempt to regulate the use of a private dwelling.
A recent Ontario Court of Appeal ruling upheld that the Act must be interpreted in a manner consistent with its objective, which is to eliminate smoking in public places in order to protect members of the public from contact with second-hand smoke.
So what can a condominium do when the smoke of a neighbour inconveniences another (specifically originating from a balcony)?
The first step is to verify how the smoke is entering the unit. A condo corporation is liable to ensure smoke does not migrate between units.
The majority of most second-hand smoke complaints occur when the smoke enters the non-smokers balcony or through an open window. If this is the case, you have three options.
- Check your governing documents, which may already prohibit any form of nuisance. If it can be established that one’s smoke indeed constitutes a nuisance that goes beyond the disturbance that one may expect from living in close-quarters with a neighbour, then the corporation may be able to deal with the situation through compliance.
- Create a rule that promotes the safety, security and welfare of the owners. It should be aimed at preventing unreasonable interference with the use and enjoyment of the common elements or of the units. While rules are easier to pass, they also have to be reasonable. Presumably, such a rule has a fair chance to pass the test of reasonableness. The adoption of a new rule by the board, should also require that existing smokers be grandfathered.
- Amend the corporation’s declarations, prohibiting smoking in the condominium. This requires the support of at least 80% of the owners, not an easy task. Again, existing smokers would likely be grandfathered, but once the ownership changes, you become one step closer to becoming a smoke-free condominium. This process requires the assistance of a lawyer, and can be quite costly to implement.
Boards should focus a great deal of energy on communication with all residents, as a basis to finding a common ground.