Smoking in society
In decades past, smoking was accepted broadly in public spaces in Canada. However, over the past number of years, this acceptance has diminished markedly through a combination of health awareness, public opinion, and legislation. The sight of a smoker outside of an office building huddled against the winter cold in order to light up her afternoon cigarette is now commonplace.
On the other hand, at law, a person's home is still very much her castle. Despite the broad range of personal opinions on smoking, there is little legal disagreement that someone ought to be permitted to smoke in her house if she wishes.
Smoking in condominiums
A condominium provides an interesting nexus between public and private space for many legal issues. While one's condominium unit is one's home, there are restrictions on the reasonable activity which may take place in the unit. This is entrenched in the Condominium Act at section 117 which provides that, "No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual."
An issue that has been arising with ever-greater frequency is a complaint made by a resident that her health is being adversely affected by smoke coming from another unit, via balconies, vents or other means of transport.
At one time, the standard position taken by a condominium corporation might have been of the "tough luck" variety, based on the notion that smoking was a common and acceptable activity in one's home. However, the recent treatment of this issue by the Ontario Human Rights Tribunal and the courts means that condominium corporations must now act with far greater sensitivity and responsiveness to smoking complaints.
Ontario's Human Rights Code
Section 2(1) of the Human Rights Code provides that:
2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
For the purposes of section 2(1) "occupancy of accommodation" has been interpreted to include living in a condominium corporation and "disability" includes a medical condition which may be irritated by the presence of smoke.
It is crucial to note that the Human Rights Code takes precedence over all other Ontario provincial laws, including the Condominium Act.
Responding to smoking complaints
Firstly, it bears noting that the simple fact that smoke annoys a resident may not be sufficient to require action. While a responsive condominium should certainly investigate all reasonable complaints, the matter becomes far more serious when the complaining party informs the condominium corporation that the smoke is affecting her health, i.e. a disability.
The corporation must consider what steps are necessary to fix the situation and may need to consult legal counsel to determine what steps it should take. The corporation may be advised that it has an obligation to investigate and if it is determined that smoke is infiltrating another unit, put the smoker on notice that there have been complaints regarding smoke transferring from her unit to another. The corporation must then consider what steps are necessary to fix the situation. These may include repairs to the common elements and/or the demand that the smoker cease smoking at certain times or in certain locations, such as exclusive-use common element balconies. If the smoker does not comply and the problem continues then the corporation must move quickly to commence enforcement proceedings against the offending parties, usually in the form of an application to the court for a compliance order.
It is irrelevant whether smoking is banned in the condominium. As noted above, compliance with the Condominium Act and/or the Human Rights Code is mandatory. Many condominiums have passed rules that prohibit smoking on the common elements, some have included in the rules a ban on smoking on exclusive use common elements and some are considering prohibiting smoking anywhere in the building including the units.
The risks of inaction – Human Rights Tribunal of Ontario
Where a resident suffers from a disability that is caused or affected by smoke, he or she may apply to the Human Rights Tribunal of Ontario ("HRTO") for relief. The HRTO is known as an extremely complainant-friendly body, which can and will make orders requiring a corporation to remedy smoking issues and can impose stiff fines against corporations and/or directors.
The risks of inaction – Ontario Superior Court of Justice
In the recent decision in MacKay v MTCC 985, the court found that the corporation did not act with sufficient dispatch in investigating and retaining engineering advice in order to repair the common elements so as to prevent the infiltration of cigar smoke into a unit where it was irritating residents with a disability. The corporation was ordered to pay the applicants' legal fees in the amount $32,500.
Conclusion
Given the recent legal developments on this issue, smoking complaints must be addressed promptly and properly by condominiums. Failure to do so could result in tribunal/court orders requiring the corporation to take certain steps, pay fines, and pay the complainant's legal fees. A condominium is much better served to deal with the issue itself than endure litigation of this nature.
Newsletter Tip
Management Insurance: Boards should obtain annual confirmation that the property manager is adequately insured. Boards should diarize the expiration date of the insurance certificate in order to remember to follow up with management for an updated certificate.
The Value of an Experienced Condominium Litigator: When responding to an action against the corporation, it is not uncommon for the corporation's insurer to retain its own legal counsel to defend the claim, as opposed to using the condominium corporation's general counsel. Where this is the case, the value of an experienced condominium lawyer cannot be overstated. In this respect, we note the following comments of a senior claims representative, from a prominent condominium insurer, relating to Karen Phung's handling of a recent condominium defence:
Karen was extraordinarily well prepared, had our witnesses prepped and present, argued respectfully, confidently and concisely, adroitly guided His Honour through the complexities of the background and issues of this case and essentially provided the court no option but to rule this Plaintiff's case would not be heard...Condominium litigation is quite unique as you are of course aware and I do not see a lot of these matters in the course of my litigation file management...we benefitted greatly from the advice and conduct of counsel.
Whether small or large, condominium litigation really is a niche area of the law and requires extensive familiarity with the legal framework, management, and operation of condominiums.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
