Smoking in Condominium Units: Tobacco & Marijuana

With the federal government legalizing marijuana across the country, it should not be unexpected for condominium corporations to experience an increase in smoking-related issues in their common elements and owners’ units. Notwithstanding one’s personal views on marijuana legalization, an extended sense of entitlement about smoking indoors may result from the federal government’s policy direction on this issue.

On the west coast, 70-year-old Canadian Forces veteran Paul Aradi was recently ordered by a trial judge of the British Columbia Supreme Court to cease and desist from smoking cigarettes within his condominium unit.[1] However, the Court in The Owners, Strata Plan NW 1815 v. Aradi (“Aradi”) left it to the B.C. Human Rights Tribunal to decide whether the condominium corporation’s by-law prohibiting smoking in the units and common elements, was discriminatory against Mr. Aradi on the basis of his alleged disability, namely his addiction to cigarettes.

In this province, the Ontario Superior Court of Justice recently held that while a unit owner’s tenants were liable for smoking within the unit, which was in contravention of the condominium’s rules and the terms of the lease, the unit owner had taken all reasonable steps aimed at having his tenants refrain from smoking indoors. Accordingly, the Court in Toronto Standard Condominium Corp. No. 2032 v. Boudair (“Boudair”) ruled that the tenants were responsible for the legal costs of both the condominium corporation and the unit owner. However, the Court found that because the condominium corporation had acted too quickly in seeking a compliance order under Section 134 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) without attempting to first assist the unit owner in his efforts to obtain compliance from his tenants (for example, the condominium corporation did not provide the unit owner with any copies of the actual complaints about his tenants’ smoking or the findings of a smoke intrusion investigation by environmental scientists), the Court ruled that the condominium corporation was only partially entitled to its legal costs.

These 2 decisions, released in January of 2016, have the general public and many Boards of Directors wondering: Can a condominium corporation in Ontario restrict an owner from smoking in their own unit? The short answer is a heavily qualified "Yes". If it can be demonstrated that the indoor smoking poses a dangerous condition and/or the smoke cannot be prevented from intruding out of the smoker’s unit, then a condominium corporation may enact a by-law or rule prohibiting smoking inside the units; however, existing smokers will need to be grandfathered, and there will likely be a need for further exceptions to be made for persons with disabilities.

A Person’s Unit is Still Their Castle

In Canada, people (including condominium unit owners and tenants) are constitutionally protected against discriminatory government actions by the Charter of Rights and Freedoms (the “Charter”), and in Ontario, against discriminatory private actions by the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”); the latter of which applies to condominium corporations in this province. Moreover, pursuant to Section 135 of the Act, unit owners of a condominium corporation who are oppressed by the majority can apply to the Superior Court of Justice for relief.

Although a person’s conduct within their condominium unit may be subject to certain restrictions placed on it by the “4^th level of government”, that does not mean that the person’s home has ceased being their castle – even if they are required to lower the drawbridge once in a while whenever their king demands entry (upon receiving advance notice and for the purposes of performing the kingdom’s duties, of course). A unit owner may not be an entirely sovereign free man on the land, but a unit owner is not required to surrender all degrees of proprietary independence simply because they live in a condominium.[2] As Madam Justice J.B. Veit of the Alberta Court of Queen’s Bench noted, when discussing whether “a condo owner [is] more like a bee in a hive or a queen in a castle”:[3]

Condominium owners are real real property owners; they are not some kind of second or inferior type of real property owners. The common law of England has always demonstrated respect for real property owners, especially where the real property consists of residences. This is partly because of the unique nature of real property: its location is not reproducible. […] I do not see the necessity of treating condo owners differently from the way that the law deals with other real property owners relative to municipal regulation. In both cases, the owners of real property are subject to appropriate restriction but in neither case is the integrity of the common scheme paramount.

The Smoking Must Cause a Dangerous Condition and/or Nuisance

There may be instances where the activity of smoking inside one’s unit does not present a dangerous condition in breach of Section 117 of the Act; i.e. where the smoking is not likely to damage the condominium corporation’s common elements or other units, and is not likely to cause injury to individuals.[4] There may also be instances where the smoking does not constitute a nuisance or unreasonable interference with other occupants’ use and enjoyment of their property; thereby not breaching the condominium corporation’s governing documents. In these instances, it might not be reasonable for a condominium corporation to limit the unit owner’s decision about whether to smoke inside their own “castle” or not – after all, only their own health and property will be impacted.

However, this is not often the case, since smoke, by its very nature, is difficult to contain within a unit.[5] A condominium corporation must also consider that the unit is a workplace and the condominium's consequent duty to ensure a safe, smoke-free workplace (for any contractors and/or employees of the condominium corporation who enter the unit), pursuant to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”) and the Smoke-Free Ontario Act, S.O. 1994, c. 10 (the “SFOA”).

Accordingly, a unit owner’s right to smoke inside their unit may need to be restricted in view of the competing rights of their neighbours not to be subjected to the harmful effects of secondhand smoke, unreasonable nuisance, increased risk of fire, and other associated risks. 

Effecting a Change in Culture

As per Section 56(6) and Section 58(2) of the Act, a condominium corporation’s by-laws and rules must be reasonable; while a condominium corporation’s declaration is not required to be. A condominium corporation’s declaration is afforded a special, greater status in the hierarchy of governing documents: the Act > the Declaration > the By-laws > the Rules. However, amending a declaration which does not already contain a no-smoking prohibition, would require the approval of 80% of the unit owners – which is no simple feat, particularly in larger high-rises.

Therefore, a condominium corporation that wishes to prohibit smoking within units may begin by enacting a no-smoking by-law or rule, and gauging the subsequent reaction from its owners and residents to same. If no meeting is requisitioned (in the case of a no-smoking rule) or the by-law is approved by a majority of the unit owners, the smoking prohibition can have the effect of beginning to shift the condominium community’s “culture” around lighting up indoors. Prospective tenants and unit owners who wish to smoke within their units may be turned off by the smoking ban, and gradually, the number of unit owners who wish to live in a smoke-free building may rise. Eventually, the condominium corporation may have enough unit owners to reach the 80% threshold to amend its declaration to expressly prohibit indoor smoking.

Exceptions to a No-Smoking Prohibition

A condominium corporation that wants to enact a reasonable no-smoking by-law or rule ought to be mindful of at least 2 exceptions that should be made to the blanket ban. Even where 80% of a condominium corporation’s unit owners have voted in favour of a declaration amendment, it would be prudent for the declaration to allow for, at minimum, these 2 exceptions – otherwise, the condominium corporation may open itself up to a claim for oppression under Section 135 of the Act.

Firstly, as a matter of fairness, existing occupants of units at the condominium should be permitted to smoke within their units, subject to requirements for the smoke to be self-contained and the mitigation of risk to others’ property and well-being. These existing owners and tenants bought in and/or moved in to the building without any notice that they would not be permitted to smoke within their unit, and should not be banned from doing so for as long as they reside in their unit.[6]

Secondly, the smoking of cigarettes inside one’s unit is not – and likely will never be – a human right in and of itself protected by the Code. The Code defines “disability” broadly, and courts and the Human Rights Tribunal of Ontario have held that an addiction may constitute a disability for which the Code prohibits discrimination on the basis thereof. But given the lack of evidence that a person can be addicted to smoking cigarettes as opposed to nicotine, and the absence of any medical benefits to cigarette smoking, it is unlikely that an “addiction to smoking cigarettes” will ever constitute a mental “disability” under the Code requiring a condominium corporation to permit an individual to light up inside their unit.

In Aradi, the unit owner claimed that he was addicted to smoking cigarettes. In Boudair, the self-represented tenant claimed to suffer from a mental health issue (but he did not draw a linkage between same and his cigarette smoking). The Ontario Superior Court in Boudair noted that the tenant’s allegations of a mental health issue were not substantiated by any medical evidence, and similarly, the B.C. Supreme Court noted that Mr. Aradi had not submitted any medical evidence to demonstrate he was addicted to smoking as opposed to the chemical nicotine.[7] Moreover, the B.C. Supreme Court found as instructive the fact that Mr. Aradi was physically able to walk a short distance to the public sidewalk to smoke outdoors (as recorded in a CTV News video) or drive to a location where smoking would be permitted. The Court thus ruled that the collective interests of the other unit owners outweighed Mr. Aradi’s individual interest in smoking within his unit, and ordered that he refrain from doing so.

However, many individuals with physical disabilities choose to live in condominium corporations to help cope with their physical limitations. With the expected legalization of marijuana and the increased attention paid to cannabis’ medical benefits, indoor smoking by unit occupants may be on the rise even if cigarette smoking is on the general decline in Canada.

In 2015, the Supreme Court of Canada ruled, in R. v. Smith (“Smith”), that the federal government’s restriction of medical marijuana users to smoking cannabis in its dried form only, was contrary to the Charter and that medical marijuana users were entitled to use other cannabis derivatives without criminal sanctions, such as cannabis-infused cookies, brownies, oils and tea. But the highest court in the land also noted in Smith that while smoking marijuana subjects its users to carcinogenic chemicals and higher risks of bronchial disorders, smoking marijuana provides quick access to the medical benefits of cannabis.

Accordingly, any restriction against smoking in a condominium corporation’s governing documents must take into account the smoking of marijuana indoors by disabled individuals who are using same for the medical treatment of their disabilities and who have substantial difficulty walking outside to smoke. A marijuana smoker who cannot leave the building without substantial difficulty to apply their medical treatment, may need to be accommodated by the condominium corporation up to the point of undue hardship.[8]

Conclusion

A person’s right to freely swing their arms stops where another person’s face begins, and human rights are inherently bound to conflict in urban settings where individuals live in close proximity to each other. A careful balancing of competing rights, including competing human rights, is at the core of every condominium community. In the case of indoor smoking, a unit owner’s right to do what they wish with their property (and their health) rubs up against their neighbours’ right not to be subjected to secondhand smoke, nuisance, increased risk of fire, or other associated dangers.

The law remains far from clear on the issue of smoking inside a condominium unit. If the smoking presents a dangerous condition and/or the smoke is permeating into other units or the common elements, then a condominium corporation may consider the merits of enacting a by-law or rule prohibiting unit occupants from lighting up inside their castles, provided that exceptions are made for existing smokers and persons with disabilities. A condominium corporation’s legal counsel should be consulted first, if the Board of Directors is considering whether to butt in and tell a unit owner to butt out. 

[1] Although the decisions of British Columbia’s courts are not legally binding in Ontario, and the B.C. Strata Property Act, S.B.C. 1998, c. 43 differs in many ways from the Ontario Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), judges often look for guidance from their nation-wide counterparts when deciding a case with similar facts.

[2] In The Owners Strata Plan LMS 2768 v. Jordison (“Jordison”), the B.C. Court of Appeal stated: “The old adage “a man’s home is his castle” is subordinated by the exigencies of modern living in a condominium setting. […] Participation in condominium projects necessarily involves a surrender of some degree of proprietary independence. An owner is at the mercy of the rules enacted through the internal decision-making process.” This passage was approvingly relied on by the B.C. Supreme Court in Aradi, and is often recited by condominium lawyers as authority for enforcing a condominium corporation’s declaration, by-laws or rules, since these governing documents embody the collective “lifestyle” that all unit owners have chosen to adopt as evidenced by their purchase of a unit in that condominium. However, the above passage from Jordison only holds that “some degree of proprietary independence” is surrendered to the collective will of the unit owners. Any modern, developed democracy also has in place safeguards to protect individuals from the tyranny of the masses – particularly for those whose beliefs, ethnicity, physical and/or mental capabilities differ from that of the majority.

[3] At paragraphs 49 and 54 of the 2010 case of Condominium Plan No. 822 2909 v. 837023 Alberta Ltd.

[4] A novel argument here might be that smoking is causing injury to the individual who is doing the firsthand smoking, even if it is not causing injury via secondhand smoke to other individuals.

[5] We note that the scientifically-proven harmful effects of secondhand smoke differentiate this nuisance from other odorous nuisances often cited as comparators in condominium settings; such as strong smells of cooking, which may not be “unreasonable” interference with a neighbour’s use or enjoyment of the property.

[6] Both unit owners and tenants who occupy a unit at the condominium corporation should be permitted these “grandfather” exceptions, but tenants may have no-smoking provisions in their leases as well.

[7] The endocrinologist retained by the condominium corporation in Aradi had also advised the Court that there were alternative non-smoking options available for nicotine addicts, offered free of charge by the B.C. government; such as nicotine patches, gum, or inhalers.

[8] We note that, unlike the case of Aradi, a physically-disabled occupant’s ability to drive to a place where they could smoke would not be at issue, since driving while under the influence of marijuana will very likely remain criminalized.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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