As part of the province’s Smoke-Free Ontario Strategy, Ontario has taken a further step towards a smoke-free Ontario. As of January 1st, 2015, it is illegal to smoke on or around children’s playgrounds, publicly owned sports fields/surfaces and all bar and restaurant patios (whether covered or not). This raises again the question of whether it is prohibited to smoke on condominium exclusive-use balconies or terraces.
In our view, the new prohibition against smoking in restaurant and bar patios would not apply to condominium exclusive-use terraces and balconies as this new prohibition does not likely apply to areas which primarily form part of a private dwelling. What the Smoke-Free Ontario Act does is prohibit smoking in any “enclosed public place’. However, 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.
In our view, an exclusive-use balcony does not constitute an “enclosed public place”. It is also safe to assume that the prohibition against smoking in “common areas” (as opposed to “common elements”) was not meant to apply to exclusive-use balconies – although courts may be called on interpreting this. On this, the Court of Appeal ruled that the Smoke-Free Ontario 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. The Act does not appear to attempt to regulate the use of private dwelling – although it does prohibit smoking in cars when youths are also in the vehicle.
What has not changed in January is that the Smoke-Free Ontario Act continues to specifically prohibit smoking in the common areas of condominiums, which includes elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
So what can condominium do when the smoke of a neighbour inconveniences another?
- To live in a truly smoke-free condominium, a corporation has to rely on its declaration. If the declaration does not already prohibit smoking in the condominium, the corporation can consider amending it. This would require the support of 80% of the owners, which is likely difficult to obtain. One should also keep in mind that amending the declaration would likely require that all existing smokers be grandfathered. For more information on how to amend the declaration, have a look at our post entitled Amending a Condominium Declaration Is Not an Easy Task.
- An alternative is the adoption of a rule. Indeed, a corporation may adopt a rule that promotes the safety, security and welfare of the owners or which is 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. As would be the case with amending the declaration, the adoption of a new rule would also require that existing smokers be grandfathered.
- Finally, if you are not going to amend the declaration or adopt a rule, and if you need to only deal with one specific problematic situation, have a look at your governing documents. They 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.
If you are going to implement a change, you want to get the owners to buy into the project. These kinds of debate are healthy, but can unfortunately be very divisive as well. You should also consider involving your lawyer in the earlier stages to avoid problems in the future.