It seems that smoking and odour problems are on the rise these days in condominiums. The reason? Likely a combination of municipal planning departments approving more high density developments and our growing intolerance for smoking (cigarettes at least). The solution? It depends.
In a few rare cases, there may be smoking indoors on common areas, such as corridors or elevators. Smoking is illegal (see the Smoke Free Ontario Act) in any common area of a condominium, including elevators, hallways, garages, party rooms, laundry facilities, or exercise areas. Smoking is legal on the exterior common elements as long as they are not covered.
More often than not, the problem arises when a unit owner is smoking within a unit or on an exclusive-use common element, such as a balcony or patio, or where a unit owner has non-traditional cooking times or uses more fragrant ingredients. While such conduct may be legal, it may be prohibited by the condominium’s declaration or rules.
Most condominium declarations contain general nuisance and/or unreasonable interference clause(s) that could apply to smoking and odour complaints. The board of directors has a duty to take all reasonable steps to ensure the owners are complying with the Act, declaration, by-laws and rules, including those nuisance provisions. Failing to investigate the complaint and address the issue could result in the directors being found to have breached their duties under the Act. More concerning, it could lead to a repeat of the notorious fire that struck one condominium in Toronto a few years ago, which caused significant damage to the building and left thousands out of their homes.
Typically, the solution to the problem is simple (at least legally, perhaps not practically) – the unit owner must change her behaviour to ensure that her smoking or cooking (or other behaviour) is not a nuisance to the other owners. She may use a fan to blow the smoke or odour away from the building or her balcony, use the bathroom or exhaust fans in her unit, limit smoking or other behaviour in the unit, or seal any air leaks that may exist within the unit.
Unfortunately, there may be more serious common element deficiencies, such as improper holes in the walls between units, that may be the cause of, or contributing factor to, the complaints. For this reason, it may be wise for a condominium to investigate smoke and odour complaints to rule out deficiencies before demanding that an owner change his or her behaivour. That said, it will depend upon the nature of the complaint and the specific circumstances. If a deficiency is discovered, the declaration will determine who is responsible for the repair work.
While an owner may suggest that he has a right to smoke, he does not. The courts and tribunals have consistently stated that nicotine addiction is not a disability that would require accommodation under the Human Rights Code. However, a sensitivity to smoking and/or other odours could be a disability in certain circumstances. Such a finding could mean that condominiums must accommodate a person with smoke or odour sensitivity up to the point of undue hardship (the most common consideration being the cost).
I would be remiss if I did not mention that some condominiums have decided to go “smoke-free”. The exact requirements, such as any “grandfathering” that may be required, should be discussed with the condominium’s lawyer as this area of the law is still developing and changing regularly.
When responding to smoke or odour complaints, directors should be cognizant of their duty to ensure compliance with the Act, declaration, by-laws and rules. When investigating a complaint, the directors should seek the advice of the condominium’s professionals, such as the lawyer, engineer, fire safety expert, or other qualified person. Failing to respond to complaints, investigate them properly, or act too hastily, may expose the condominium and directors to liability.
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