Earlier this year, the province of Ontario prohibited smoking on patios of restaurants and bars. We already blogged on whether this new prohibition prevented smoking on exclusive-use balconies in condominiums.
While this recent change in the legislation does not appear to have changed the law with respect to condominiums, it is worth remembering that pursuant to section 2 of the Smoke-Free Ontario Act it is prohibited to smoke (or hold lighted tobacco) in any common area of a condominium – which includes the elevators, hallways, parking garages, party or entertainment rooms, 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 does not appear to be the case.
The Smoke-Free Ontario Act further imposes a positive obligation on the proprietor of such 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 our view, in this context, the proprietor refers to the condominium corporation.
The Act therefore imposes on the corporation 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 place, in appropriate locations and in sufficient numbers, to ensure that the public is aware that no smoking is permitted in the enclosed public area. 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 very hefty fines.
Now may be a good time to walk around the common elements to ensure the corporation complies with this legislation.
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