WHERE THERE IS SMOKE…
Living in a condominium, second-hand smoke can enter your living space in a number of ways, including open windows, patios, and even through building ventilation systems. So what can you do if you smell smoke? This article will provide you with the information you need to exercise your rights as a non-smoker.
Going up in Smoke
The Smoke-Free Ontario Act, S.O. 1994, c. 10 (the “SFOA”), which came into effect in 2006, prohibits smoking in any common area of a condominium. According to the Act, common areas include, but are not limited to, lobbies, hallways, elevators, garages, party rooms, and laundry facilities. Under the SFAO condominium corporations are statutorily required to enforce the Act’s prohibitions; failure to do so can result in the condominium corporation being charged with an offence under the Act, punishable by a fine of up to $300,000.00.
Smoke Gets in Your Eyes
While the SFAO does not specifically address the issue of smoking in individual units, fear not! There are a number of ways condominium corporations, and unit owners themselves, can create a smoke-free living environment.
Condominium Corporation Declarations
In Ontario, condominiums are created by registering a document called a Declaration with the Land Registry Office. The Declaration is essentially the constitution of the condominium corporation, describing the condominium’s location, features, as well as the rights and responsibilities of unit owners. Under the Condominium Act, 1998, S.O .1998, c. 19 (the “Condo Act”), a Declaration may impose restrictions with respect to the use of units, including a no-smoking policy.
The first opportunity to create a no-smoking policy for a condominium is upon the registration of its Declaration; however, if no such policy was included in the Declaration when it was registered, it may be added down the road. Amending a condominium’s Declaration requires the Board of Directors of the condominium corporation to pass an amendment resolution, as well as the written consent of the owners of at least 80% of the condominium’s units. Though this may sound like quite the process to achieve a no-smoking policy, the good news is that once the amendment has been registered the same process is required to get rid of it!
Rules
Section 58(1) of the Condo Act allows a condominium’s Board of Directors to enact certain rules relating to the units of the condominium which “promote the safety, security or welfare of the owners and of the property and assets of the corporation; or prevent unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation”. Once created, the Board must notify unit owners of these new rules. The unit owners then have the opportunity to call a meeting of owners to approve, amend, or repeal the rule. If no meeting is called within 30 days of the notice being given, the rule takes effect.
Creating a no-smoking policy using this process is certainly much easier than amending a condominium corporation’s Declaration; however, reversing such a policy is also much easier to do. It should also be noted that if a Board of Directors has unsuccessfully attempted to pass a no-smoking rule within the preceding two years, a new attempt at such a rule will require the express approval of unit owners at an owners meeting called for that purpose.
By-Laws
A no-smoking policy could also be achieved through a condominium’s by-laws. Section 56(1) of the Condo Act allows a condominium’s Board of Directors to establish certain by-laws to “govern the maintenance of the units and common elements” as well as to “govern the use and management of the assets of the corporation”. The owners of the majority of the condominium’s units must vote to approve the by-law and the same must be registered with the Land Registry Office before such a by-law becomes effective.
Put That in Your Pipe and Smoke it
So what do you do if Smokey and the Bandit next door are not following your condominium’s no-smoking policy? We’ve already talked about the fines condominium corporations can face by allowing smoking in common areas, but that is not the only way to make sure everyone follows the rules. According to the Condo Act, disagreements between condominium corporations and unit owners relating to the Declaration, rules, or by-laws are dealt with through mediation and arbitration. If all else fails, the Act also allows for feuding parties to bring an application in the province’s Superior Court of Justice to order compliance with a Declaration provision, rule, or by-law.
With the continued decline of tobacco use in Ontario, along with the increase in demand for green living spaces, it is not likely that your battle to establish a no-smoking policy for your condominium will be an uphill one; however, if you encounter any fuming opposition we hope this article has armed you with the information you need butt them out.
Our thanks to Samantha Higgins, J.D. a former associate for drafting this article.