Legacy Agreement and Smoking in Condominiums

The Smoke-Free Ontario Act, 2017 prohibits smoking in all indoor areas of a condominium corporation’s common elements. Condominium corporations may also prohibit smoking via their Declaration or a Rule.

In the recent case of HCC No. 61 v. Kolarovaliev, the Court distinguished how an owner’s smoking can result in a breach of the recently amended Section(s) 117(1) and 117(2) of the Condominium Act.  The Court commented that the known health risks associated with secondhand smoke shall constitute a condition that could cause an injury or an illness to an individual thereby breaching Section 117(1) of the Condominium Act.   At the same time the Court also recognized that the nuisance created by smoke migration can result in a breach of Section 117(2) of the Condominium Act. 

The Court’s distinction confirms that condominium corporations still have multiple forums to pursue enforcement of no smoking rules.  However, the decision of where to enforce will ultimately come down to the nature of the complaints.  If the complaint is that the owners smoking is annoying or a nuisance, then the appropriate forum is the CAT.  However, if the complaints are based on concerns for an owners health, this would be outside the scope of the CAT’s jurisdiction as it would deal with a potential breach of Section 117(1) of the Condominium Act.

With more condominium corporations seeking to prohibit smoking on the common elements (whether it be indoors or outdoors) and within the units themselves by implementing “No Smoking Rules,” they are often subject to a “legacy provision”^[1] allowing existing smokers to continue smoking for a limited period and subject to certain conditions.

When the prohibition is found in the Declaration and thereby in place since the inception of the condominium corporation, issues rarely arise. However, if the prohibition is implemented decades later via a Rule, condominium corporations may be faced with pushback from unit owners who smoke.

In HCC No. 61 v. Kolarovaliev, an owners’ pushback resulted in a lengthy dispute with the condominium.  In 2018, the condominium corporation successfully updated its Rules to, among other things, prohibit smoking on the property except for those owners who signed a “Grandfathering Agreement”.  The Smoking Grandfathering Agreement set out the conditions which allowed smoking in a unit. However, it provided that smoking remained prohibited on the common elements and exclusive use common elements, including the exclusive use balcony.

Mr. and Ms. Kolarovaliev entered into the Grandfathering Agreement in 2018 shortly after the smoking rule was passed. However, in Spring 2021, HCC 61 began receiving several complaints about the presence of smoke odour preventing the reasonable use and enjoyment of their respective units and the common elements adjacent to same.

Despite multiple warnings provided to the unit owners, the Corporation continued to receive complaints about smoke odour emanating from their unit. To avoid the costs and time associated with prolonged mediation, the Corporation proposed to mediate the issue and even paid the entire costs of the mediator.

The parties reached a settlement, or so they thought, which imposed various conditions on the parties including an agreement to review the condition of the owner’s unit and adjacent common elements to determine if anything can be done by either party to mitigate the transfer of smoke.

The condominium hired a professional to review the owner’s unit and adjacent common elements who came up with a scope of work.  The owners refused to undertake the scope of work attributable to their unit and thereby accepted the condition of HCC 61’s common elements and their unit “as is” pursuant to the terms of settlement.

Regrettably the owners continued to smoke in such a way that it impacted other unit owners’ enjoyment of their units and HCC 61 continued to receive complaints about Mr. Kolarovaliev’s smoking impacting other owner’s health and safety.

In light of the nature of the complaints received, the Corporation sought court intervention. In its decision, the Court noted the Corporation’s significant efforts to resolve the issue before proceeding to court, including paying for a mediation, entering into minutes of settlement, paying for an inspection report, and being willing to pay for its share of any remediation called for in the inspection report attributed to the common elements.

The Court also noted the robust evidence the Corporation had against the owners such as HCC 61 producing 27 written complaints from five different owners, three of those owners having provided affidavit evidence and other complaints which were independently verified by a third party.

Ultimately, the Court granted HCC 61’s request for a Court Order prohibiting the owners and any other visitor or resident of the unit from smoking in the unit or within a 9-meter distance of all doorways, operable windows, and air intakes of the HCC 61 building.

The Court explicitly pointed to the extensive due diligence and efforts made by the condominium corporation prior to commencing a court such as verifying that the state of its common elements were in good condition and the production of direct evidence against the offending party by not just the condominium corporation’s directors but the complaining owners.

This case, once again, demonstrates that patience and due diligence are key in investigating smoking complaints.  Especially now with the expansion of the CAT’s jurisdiction because depending on the substance of the complaints themselves, condominium corporations will have to determine whether it is dealing with a nuisance or a substantive health/safety issue.