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Changes to the Smoke-Free Act Affecting Condos

As our readers know already [unless you have been hiding under a rock or have been under the influence of some recently legalized substance], cannabis was legalized in Canada on October 17, 2018. On that same day, but some 17 hours later, Ontario adopted Bill 36, which modified its Smoke-Free Ontario Act.  This was required to address the new reality of cannabis but also that of electronic cigarette (also known as vaping). Some of the changes brought in by these amendments will have a direct and significant impact on condos across Ontario. It’s time to review your rules and practices. You may no longer be as smoke-free as you thought you were.

Cannabis in Ontario

Naturally, the province first needed to address the question of where cannabis (both recreational and medicinal) could be smoked.

In essence, Ontario has chosen to pretty much allow cannabis smoking wherever you can smoke tobacco (subject to some exceptions, such as a prohibition against smoking cannabis in most vehicles and other exceptions aimed at allowing municipalities to regulate consumption by way of by-laws).

This is very much in line with the approach we have taken with our condo rules on tobacco and cannabis: If you are going to tackle one, it makes sense to tackle both at the same time [with the distinction that you may want to implement a grandfathering provision for tobacco, for reasons discussed in a prior post]. In fact, we are of the view that a rule prohibiting cannabis only may raise challenges as to its reasonableness.

The takeaway here is that, unless a condo corporation has adopted a rule restricting the consumption of cannabis, as far as the province is concerned, condo dwellers can smoke cannabis wherever they can smoke tobacco.

We would add this: if your rule specifically dealt with tobacco only, it may not automatically apply to cannabis. You really want to have a look at the precise language of any existing rule.

Vaping and electronic cigarettes

Bill 36 also addressed vaping and electronic cigarettes. Doing so, the Smoke-Free Act is simply catching up with this new reality. Indeed, surprisingly enough the prior version of the Smoke-Free Act, which was adopted in 1994, did not address vaping in any way.

Much like it did with cannabis, the province is dealing with vaping the same way as it is with tobacco. Wherever you can smoke one, you can smoke the other. Again, this means that, unless a condo has adopted a rule prohibiting vaping, condo dwellers can vape away.

The fact that Ontario is lumping together traditional cigarettes and vaping may help some corporations with the internal debate that has been raging over whether smoking rules should also address vaping and electronic cigarettes.  While some may be of the view that vaping is less disturbing to the neighbour than traditional smoking, it may make sense to treat them the same, just like the province did. If you prohibit one, you may want to prohibit the other.

Smoking in Common Areas

The most important changes to the Smoke-Free Act will have an immediate and drastic impact on whether smoking is allowed in common areas!

Indeed, the prior version of the Smoke-Free Act prohibited smoking in “any common area in a condominium“. In its new version, the province has added a single word that makes a world of difference.  It is now prohibited to smoke (tobacco, cannabis or vaping) in “any indoor common area in a condominium”. This therefore means that, as far as the province is concerned, Ontarians can smoke in any outdoor common area  such as rooftop terraces, gardens, driveways, sidewalks and common patios or terraces.

This is a significant change. Indeed, many corporations relied on the old Smoke-Free Act to prohibit smoking in all common areas – including outdoor ones.  In fact, some corporations even relied on it to prohibit smoking on exclusive-use balconies, relying on the fact these were “common elements”.  I note in passing that both versions of the Smoke-free Act referred to “common areas” and not “common elements“. Regardless of this semantic distinction, condo corporations can no longer rely on the provincial legislation to prohibit smoking on outdoor common areas.  Stated otherwise, all condos are now required to adopt their own rule if they want any of these outdoor areas to remain smoke-free.

Children’s playgrounds

Are you ready for another zinger?

The Smoke-Free Act specifically prohibit any form of smoking (tobacco, cannabis or vaping) within 20 metres of any children’s playground.  So far, so good….

This restriction however does not apply to children’s playground forming part of a condominium complex!  (Say what?!) As far as the province is concerned, unless a condo corporation has adopted its own rule, Ontarians can smoke at outdoor condo playgrounds. I guess condo kids don’t need the same protection. What can I say: it’s tough growing up in the condo-hood.

Condos wishing to prohibit smoking at their playground must adopt their own rules to this effect.

Takeaways

  • The province continues to prohibit any kind of smoking (tobacco, cannabis and electronic cigarettes) in any indoor common areas (hallways, gym, elevator, indoor garage, party room…);
  • Other than that, condo corporations have to adopt their own rules to deal with tobacco, cannabis and electronic cigarettes;
  • If you have not adopted such rules, your condo occupants can smoke (tobacco, cannabis and electronic cigarettes):
    • in their units;
    • in any outdoor common areas;
    • on their balconies and terraces.

Thanks Sean for a great blog idea!

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