Legal Focus On Smoking In Condominiums.

Author:Escayola, Rodrigue
 
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Introduction

Societal views on smoking in public places have definitely changed over recent years. Not so long ago, smokers would likely have been the majority amongst adults. Smoking was permitted at the workplace, in dark movie theatres, in planes and, until recently, in bars and restaurants.

As society's views changed, smokers were eventually pushed out to the great outdoors.... and pushed further and further away from public entrances. Many municipalities have by-law establishing a minimal smoke-free perimeter around public entrances.

Still, smokers could enjoy lighting up in their homes and cars. That was slowly becoming the last frontier... until provincial legislation even prohibited smoking in one's own vehicle in the presence of children under the age of 16 - even if the windows, doors and sunroof are opened. Smokers were left with their home as their sole smoking refuge. But even this may no longer be permissible if one lives in a condominium.

Smoking in common elements is actually prohibited by the Smoke-Free Ontario Act, a provincial legislation. In addition to this provincial prohibition, there is little doubt that a corporation can also prohibit smoking in units. In Ontario, such a prohibition would have to be enshrined in the declaration or in a rule adopted by the corporation.

Until recently however, there was very little guidance from the courts as to whether these smoking bans were enforceable. Sure, there were some cases dealing with a corporation's obligation to promptly deal with complaints of smoke migration between units. But these cases generally dealt with nuisance complaints between owners or with a corporation's obligation to maintain common elements - when the source of the smoke migration could be attributed to issues with common elements.

Three recent cases shed some further light on this thorny question of smoking in condominiums.

So what is the law on smoking in condos in Ontario?

Is Smoking permitted in common elements?

The Smoke-Free Ontario Act prohibits smoking (or holding lit tobacco) in any common area of a condominium - which includes the elevators, hallways, parking garages, party room, laundry facilities, lobbies and exercise areas. While no one would likely think of lighting up in the exercise room (these two activities being somewhat mutually exclusive) one may mistakenly think that occupants are entitled to light up in the party room during a private function. This is not permitted under the Smoke-free Ontario Act.

This Act further imposes a positive obligation on the proprietor of the common areas to prevent smoking in them. A "proprietor", for the purpose of this section of the act, is the "owner, operator or person in charge". In my view, in this context of the Smoke-Free Act, the proprietor refers to the condominium corporation. It is therefore the Corporation who has this positive obligation to prevent smoking in the common elements.

The legislation imposes on condominium corporations a positive duty to:

Ensure compliance with the Smoke-Free Ontario Act;

Give notice to each person in the common areas that smoking is prohibited;

Post signs prohibiting smoking throughout the common area, including washrooms;

Ensure that no ashtrays or similar equipment remain in the common area; and

Ensure that individuals not complying with the smoking prohibition do not remain in the common area.

The signs prohibiting smoking must be posted at each entrance and exit of the common area or enclosed public space, in appropriate locations and in sufficient numbers, to ensure that the public is aware that smoking is prohibited. The regulation is very specific as to the specification, size and colour of these no-smoking signs. Failure to comply with these obligations may expose the corporation to hefty fines.

Is smoking permitted on the balconies?

As of January 1st, 2015, it became illegal in Ontario to smoke on or around children's playgrounds, publicly owned sports fields/surfaces and all bar and restaurant patios (whether covered or not). For many, this raises again the question of whether it was permitted to smoke on condominium exclusive-use balconies or terraces.

In my view, this new provincial prohibition does not apply to condominium exclusive-use terraces and balconies.

What the Smoke-Free Ontario Act does is prohibit smoking in any "enclosed public place". An "enclosed public place" is defined as including the inside of any place, building or structure that is covered by a roof and to which the public is ordinarily invited or permitted access. This likely excludes exclusive-use balcony....

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