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Condominiums Can Prevent Smoking in Units

We already blogged on smoking restrictions in common elements and on exclusive-use balconies.  But what about smoking in units? Can a condominium corporation prevent an occupant from smoking in his own home?  The short answer is yes.

In Ontario, such a prohibition would have to be enshrined in the condominium’s declaration or in a rule adopted by the corporation.  Amending your declaration can be a difficult undertaking (requiring the support of 80% of the owners).  Adopting a rule can be far easier.  While a corporation can adopt a rule respecting the use of units to promote the safety, security or welfare of the owners or to prevent unreasonable interference with the use and enjoyment of the common elements and units, a rule has to be reasonable and consistent with the Act, with the declaration and with the by-laws.

Until now, there was very little guidance from the courts as to how enforceable were rules preventing smoking in units. There were some cases which dealt with a corporation’s obligation to promptly deal with complaints of smoke migration between units. These cases focused on the corporation’s obligation to repair and maintain common elements when the source of the smoke migration could be attributed to issues with common elements. Other cases dealt with condominium rules preventing nuisance by an owner (or how to deal with a chain smoker residing next to you).

Two very recent cases shed some further light on this issue and deal with “smoke free condos”.

The BC case involving an owner

On January 25, 2016, a British Columbia court issued an interesting decision where it had to balance the corporation’s right to enforce its smoking ban and the interest of a smoker.

Mr. Aradi is a 70-year old veteran with reduced mobility who has been a life-long smoker. When he bought his condo in 2002, there were no restrictions with respect to smoking in units. However, in 2009 the strata corporation (as condos are known in BC) passed a by-law which prohibited smoking inside the units. Still, this by-law was not enforced against him until December 2013, when complaints started to come in from neighbouring units. Mr. Aradi ignored the various warnings from the corporation. He was eventually fined by the corporation (something that cannot be done in Ontario). He did not pay these fines, eventually contested them, and continued to smoke in his unit.

Eventually, the strata went to court, seeking an order that he immediately cease and desist from smoking in his unit.  The corporation argued that, in addition to breaching the by-law, Mr. Aradi was causing a nuisance and disturbance to others.  The corporation also expressed concerns about the risks associated with second-hand smoke, with fire hazard and with the fact that the smoke diminished the use and enjoyment of others in addition to having a negative impact on the value of the units.

Mr. Aradi eventually brought an application to the Human Rights Tribunal, seeking to be accommodated based on his disabilities. Indeed, he argued that he had a disability resulting from his addiction to cigarettes and from his limited mobility, which affected his ability to get to the sidewalk to smoke. The Human Rights hearing had yet to take place when the corporation’s hearing proceeded. The strata corporation felt that it could not wait for this hearing to take place considering the existence of the by-laws, the repeated offenses and the complaints from the other owners.

In this case, the judge concluded that the no-smoking by-law was valid and that the strata and other residents had a reasonable expectation that it would be enforced.  It is to be noted that the judge concluded that Mr. Aradi could walk (albeit with some difficulties) to the sidewalk to smoke and that he was able to drive his car to go to a location where smoking would be permitted.

The Ontario case involving tenants

The above case emanated from British Columbia. One would assume that many of the legal principles found in this case would apply here. Having stated this, it is important to keep in mind that the BC legislation is different from the Ontario one.

Interestingly, three days before the BC case came out, the Ontario Superior court of justice rendered a decision involving smoking tenants.  In this case, the unit belonged to Mr. Dong, who leased the unit out in August 2015. The lease specifically provided that the tenants would abide by the corporation’s rules and regulations. While the decision does not make it clear, it appears that the corporation had in place rules preventing smoking in the units. In addition to this, the tenants had expressly agreed not to smoke in the unit.

Shortly after the tenants moved in, the adjoining neighbours started to complain about the smell of tobacco smoke originating from the unit. The corporation notified the owner, who immediately advised his tenants of the allegations.  He instructed them not to smoke within the unit. They ignored this and the complaints kept coming in.  More warning letters came from the corporation, and the owner kept trying to convince his tenants to comply with the rule, the lease and their promise not to smoke. He even threatened to terminate the lease early, but the tenants sought to get compensated for this.

On November 27, 2015 (only 2 months after the first warning letter) the corporation brought a court application seeking compliance. Once the owner became aware of the court proceeding, he applied to the Landlord and Tenant Board for an early termination of the lease but the hearing was scheduled to proceed only in February, after the corporation’s own legal proceeding. Eventually, the tenants agreed not to smoke anymore in the unit and they consented to an early termination of the lease.

What is interesting about this case is that it focused, as often is the case, on who should pay the legal fees. The corporation sought to have $32,000 in legal fee paid by the owner and by the tenants. The owner submitted that he should not have to pay any of this and sought to have the tenants pay his own legal costs of $25,000. The tenants did not seek any legal costs but were of the view that they should pay none of the corporation or of the owner’s costs.

The judge agreed that the corporation had a duty to control, manage and administer it common elements and to take all reasonable steps to ensure that owners and occupiers comply with the Act, the declaration, the by-law and the rules. The judge also confirmed that a corporation could seek from the owner costs resulting from a tenant’s breach of the corporation’s rules.  But this is not a case of strict liability, where the owner is automatically on the hook when a tenant breaches the rules. The owner must be advised of the issue and one would assume that the owner must be provided with a reasonable opportunity to resolve the issue.

In this case, the owner took reasonable steps to obtain compliance and felt that an application to terminate the tenancy was a faster, cheaper and more effective method of resolving the issue. The corporation was of the view that the owner should have acted earlier.

The judge concluded that the owner took all reasonable steps required under the Condominium Act to ensure compliance.  This was not a case where he sat and did nothing. He was very active in his attempts to resolve the situation. He threatened his tenants with termination and hoped that he could convince them to move out voluntarily so as to avoid a lengthy eviction process. The judge also reminded the parties that the owner could not be blamed for renting out his unit to third parties and that he even took the precaution of putting in the lease the smoking prohibition. The judge also suggested that the corporation should have provided the owners with copies of the various complaints to assist him in building his case against the tenants. Indeed, the owner only became aware of the details of the complaints when he was served with the corporation’s court proceeding.

The judge was less sympathetic to the tenants.  Still, the judge did not feel that it would be fair to impose on them the totality of the corporation’s and of the owner’s legal costs. The judge felt that the corporation was too quick in jumping the “smoking gun” when it moved to court without first trying to assist the owner in his efforts.

At the end of the day, the tenants were ordered to pay $10,000 to each of the corporation and of the owner. The corporation therefore had to absorb some $22,000 in fees and the owner some $15,000. The tenants were on the hook for a total of $20,000.  That is a hefty cost to pay to light up.

Lessons learned

  • A properly adopted smoking-ban is enforceable in Ontario.  The devil is in the details and legal counsel should be involved from the outset when a corporation is considering to adopt such a prohibition;
  • When amending the declaration or passing a rule, keep in mind the potential requirement to grandfather certain occupants. There too, the specific scope of the grandfathering should be carefully considered;
  • When dealing with a tenant’s breach of applicable rules, the corporation should try to work with the owner and give the owner a reasonable period of time to resolve the issue.  What is a reasonable period of time may vary on the breach in question;
  • Landlords dealing with tenants in breach of the corporation’s rules and regulations should act quickly, document their efforts and should not hesitate to consider an early application to the Landlord and Tenant Board. In such a case too, landlords should consider retaining legal counsel early;
  • Finally, consider adding the tenants to the corporation’s legal proceeding.  In this case, it allowed the corporation (and the owner) to recover a portion of their legal fees.

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