In what may be the first case of its kind (at least as it pertains to cannabis), the Québec Superior Court of Justice recently upheld the legality and enforceability of a condo rule preventing tobacco and cannabis smoking inside units and in enclosed common elements. This is good news for those wishing to enforce similar rules in Ontario.
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Facts of the case
In March 2018, as many others did in Québec, Ontario and elsewhere, a condo corporation (known as “co-propriétés” in Québec) adopted a “by-law” prohibiting the “use of any smoked product” within units or within any enclosed common elements (whether of exclusive use or not). The by-law provided for increasing fines for every infraction, ranging from $100 to $500. [Such fines would not be allowed in Ontario].
It is to be noted that, while this case deals with a “by-law”, its Ontario equivalent is a “rule”. Indeed, in La Belle Province, by-laws can deal with “the enjoyment, use and maintenance of the private and common portions” of condos. Such “by-laws” can be adopted by “a majority vote of the co-owners present or represented at the meeting”. As you can see, this is very similar to our Ontario rules, which deal with the promotion of the safety, security or welfare of owners/property and/or which are aimed at preventing unreasonable interference with the use and enjoyment of the units/property. Ontario rules are adopted if no meeting of owners is called to vote on it or, if such a meeting is called, the rule is effective unless defeated by a majority of the owners participating at the meeting.
Not that it changes anything to the outcome of the case, but it is interesting to note that this condo is comprised of only 3 units. From the outside, it would probably appear as a triplex to someone walking by.
Objections raised by the complaining owner
The owner contesting the rule, raised the following objections (amongst others):
- He claimed that the prohibition required a modification of the declaration (which, in Québec, require the support of 75% of the owners);
- The prohibition imposed an illegal restriction on the owner’s right of use or ownership rights;
- The rule was in essence modifying the residential nature or characteristics of the condominium (which would require the support of 90% of the owners);
- The rule contravened Québec’s Charter of Human rights and Freedoms, and in particular the owner’s right to privacy and to the inviolability of his home.
We summarize the above objections and somewhat adapt them to the Ontario legal reality. For a more comprehensive legal analysis, it is best to read the actual case (written in the language of Molière).
The Superior Court of Justice accepted that it was impossible to completely seal a unit and that the smell and smoke of tobacco and/or cannabis constituted an “annoyance” that went “beyond the limits of tolerance owed between neighbours” in the context of this residential building. While the court recognized that each co-owner had a right to the free use and enjoyment of the private portions (the units) and of the common portions (the common elements) of the condo, these rights were subject to the corporation’s rules. Moreover, the exercise of these rights could not impair those of the other co-owners. Basically, one’s right to exhale smoke stopped where someone else’s right to inhale clean air started.
The court also pointed out that the legalization of cannabis did not grant someone an absolute right to smoke it if it resulted in “excessive or abnormal inconvenience” to others.
The court also concluded that the smoking restrictions were not inconsistent or contrary to the declaration and that it did not change the nature, characteristic or fundamental use to be made of the residential building, which would have required the support of 90% of the owners to change. This concept is loosely referred to as the “destination” of a building in Québec laws. In this case, the complex remained residential in nature and continued to serve as a dwelling.
The Québec Charter of rights was of no assistance to the complaining owner. There is, indeed, no inalienable right to smoke in one’s home. It is interesting to note that the Ontario Human Rights Commission has already issued a policy confirming that smoking recreational cannabis is not a protected Human right. If anything, the court opined, the Québec Charter‘s rights to life and security would support one’s right not to be exposed to smoke over one’s right to smoke.
Finally, the court concluded that the rule did not resulted in any breach of privacy nor did it breach the sanctity of the owner’s home.
What about in Ontario?
While this decision is from Québec, we are of the view that many of its legal conclusions are directly exportable to Ontario. Certainly, if this decision is not, strictly speaking, legally binding on Ontario courts, it would provide very useful guidance to Ontario courts.
Share your views on tobacco or cannabis in condos:
- Smoking cannabis is not a protected human right
- Must condos grandfather cannabis smokers
- Is your condo ready for the legalization of cannabis