Grandparenting Not Required for Rule to Be Reasonable

man holding cigarette

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A recent application (Wellington Condominium Corporation No. 31 v. Silberberg) before the Superior Court considered whether a condominium corporation’s newly enacted rule prohibiting smoking within the common elements of the condominium plan was unreasonable.

The Facts

The facts of the dispute are not complicated:

  • The owner of a unit (the “Owner”) had been smoking on the balcony adjacent to the Owner’s unit (the “Balcony”) since first occupying the unit in 2009;
  • There was no rule prohibiting such activity until, in response to complaints of smoke migration, the condominium corporation proposed a new rule that prohibited smoking within the common elements (including the exclusive use balconies) of the condominium plan;
  • The proposed rule did not prohibit smoking in the units of the condominium plan;
  • The condominium corporation held a meeting of owners after receiving an invalid request for same;
  • Some owners requested the Rule be amended so it would not be enforced against those occupants that smoked in the common elements prior to the rule coming into effect;
  • A majority of eligible owners voted not to amend the rule as proposed by the condominium corporation;
  • The rule came into effect June 21st, 2018 and read as follows:

Smoking of any kind, including without limitation by using vaporizers or e-cigarettes is not permitted in any part of the common elements or exclusive use balconies at any time.

(the “Rule”);

  • The Owner admittedly continued to smoke on the Balcony after June 21st, 2018 and believed the condominium corporation could not stop him from doing so;
  • The condominium corporation contacted the Owner demanding compliance with the Rule;
  • Counsel for the condominium corporation sent multiple letters to the Owner/Owner’s counsel demanding compliance with the Rule; and
  • The Owner continued to smoke on the Balcony.

 

The Application

The Court was asked to consider 3 issues:

  1. Is the Balcony unit or exclusive use common elements?
  2. Was the Rule properly passed?
  3. Is the Rule reasonable?

Is the Balcony unit or exclusive use common elements?

The Court was satisfied that the Balcony was an exclusive use common elements area of the condominium plan.

The Owner alleged the Balcony or a portion of the Balcony was owned exclusively by the Owner.  Other than the viva voce evidence of the Owner during cross examination, photos of the Balcony, and the Owner’s sketch of the Balcony depicting its dimensions, the Owner offered no evidence to support this assertion.

The Court preferred the wording found in the condominium corporation’s declaration that provides:

the Owner of each Unit shall have the exclusive use of that portion or portions of the Exclusive Use Common Elements as set out in Schedule “F” attached hereto.

Schedule F to the condominium corporation’s declaration provides:

The Owner of each Unit shall have the exclusive use of any balcony to which the Unit shall provide direct and sole access as shown on Parts 1, Sheets 2 and 3.

The Court found that “[a]bsent some modifying words in the [declaration] itself, balcony should be taken to mean the whole balcony”.  The Court went on to find that this interpretation was supported by the design of the Balcony and found no evidence to otherwise support the assertion that the Owner has exclusive ownership of part of the Balcony.

Was the Rule properly passed?

The Court found the Rule was properly passed.

As the Owners attended the meeting of owners by proxy, the Court was satisfied subsection 47(9) of the Condominium Act, 1998 prevented the Owner from objecting to a failure of the condominium corporation to give the required notice.  With respect to the meeting itself, the Court was satisfied that the uncontradicted minutes of the meeting of owners included in the condominium corporation’s application materials disclosed that a quorum of owners was present at the meeting of owners and that the Rule passed without amendment.

Is the Rule reasonable?

After recognizing the Court should only interfere with a rule properly enacted by a condominium corporation where such rule is clearly unreasonable, the Court was satisfied the condominium corporation had a reasonable basis for enacting the Rule.  The Court found that:

  1. given the current legislative environment, it was not unreasonable for the condominium corporation to impose further restrictions on smoking within the condominium plan;
  2. it was not unreasonable for the condominium corporation to regulate smoking in areas where fumes could affect other units;
  3. given the broader public context, the Rule was reasonable in and of itself;
  4. owners had an opportunity to discuss the proposed rule at a meeting of owners; and
  5. there had been complaints about smoke migration.

The Court then went on to consider whether the Rule was unreasonable for want of “grandparenting” occupants that smoked within the common elements prior to the Rule coming into effect.  The Court concluded that a period of grandparenting for the Rule was not necessary as such was not required by the Condominium Act, 1998.

The Court went on to note that the Owner was permitted to smoke within the Owner’s unit and that the Rule did not prohibit the Owner from smoking within the entire condominium plan.  Further, the Court as in Thunder Bay Condominium Corporation No. 15 v Ewen, found the Owner could walk off the condominium plan and smoke there.  The Court went on to state that including a grandparenting provision in the Rule would defeat the purpose of the Rule – to prevent smoke migration – and that the Rule does not contain any grandparenting provisions is neither unexpected nor unreasonable.

The Court concluded that the Rule was entirely reasonable and did not leave the Owners without options.

Takeaway

This decision illustrates that reasonableness is highly context dependent.  The decision clearly demonstrates that the Court will consider the broader legislative and public context in making a determination as to whether a rule is reasonable.

Although the Court concluded that a grandparenting provision was not required in this instance, it is essential to note that the circumstances surrounding the Rule appear to have had significant value to the Court in reaching its decision.  Further, the Court concluded that grandparenting in this context would defeat the purpose of the Rule.

It remains possible that a grandparenting provision could be required where:

  1. such a provision would not defeat the purpose of the rule; or
  2. the rule prohibits an activity in its entirety.

Further still, condominium corporations may wish to consider including a grandparenting provision for political purposes – to ensure a majority of eligible owners will vote in support of the proposed rule should the condominium corporation receive a requisition for a meeting of owners to vote on the rule.

Marijuana in Condos

marijauna

As you likely know, in April of 2017, the federal government introduced legislation to legalize and regulate marijuana in Canada. In September of 2017, Ontario introduced its own legislation to address the regulation of marijuana. In Ontario, the exclusive right to the sale of marijuana has been granted (at least for now) to the LCBO.

The legalization of marijuana is sure to be a popular topic for 2018. It is already discussed in mainstream media, on social media, and around the water cooler. It has been discussed at condo industry conferences and seminars. The discussion most recently focuses on what condominiums can do about the legalization of marijuana. I was asked for my thoughts on the matter recently by GlobalNews. You can read the full article here: https://globalnews.ca/news/3985115/condos-marijuana-rules-smoking-ban/.

 

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New (Condo) Rules

It is impossible to draft rules that will work forever. The residents change. The community changes. Technology changes. The legal landscape changes. Everything changes. For these reasons, I usually suggest that boards review their rules regularly to see if any rules need to be changed, removed, or added.  Here are a few issues that you may want to consider next time you revise the rules: Continue reading

Enforcing Against Landlord Owners

I am sure that we have all been to meetings where the issue of unruly tenants is raised by a director or owner. The complaints are often about noise, overcrowding, damage to the property, or parking. Sometimes the complaints are about risky behaviour, or even criminal activity. The other residents may try to address the problems with the tenants, but many file complaints with the property manager or board instead. The owner is often unaware of the problems with their tenants until he receives a letter from the manager or board.

Once the owner receives the demand letter he is in the difficult position of trying to get his tenants to comply. Most owners know that if their tenants don’t comply with the condominium’s demands a lawyer will be hired by the condominium to write a letter and the cost may be charged back to the owner. If the owner cannot get his tenants to comply with the rules he is left with the nearly impossible task of trying to get an order for eviction from the Landlord and Tenant Board.

While the board of directors is in the difficult position of trying to elicit compliance from the tenants by enforcing against the owner, there are many provisions in the Act that it can rely upon. Section 119(2) requires the owner to take “all reasonable steps” to ensure that his tenants comply with the Act, the declaration, by-laws and rules. This section is similar to section 17(3) of the Act, which requires the condominium to take “all reasonable steps” to ensure that the owners comply.

What is “all reasonable steps”?

A recent case discussed the term. In Toronto Standard Condominium Corporation No. 2032 v. Boudair et al (2016) the condominium commenced an application against the tenants and owner of a unit after it received complaints about smoke escaping from the unit and entering the adjacent units.

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Looking Forward: New Legal Requirements for 2015

There are plenty of important legislative changes coming into force in January 2015. Some apply to condominiums, some apply only to larger condominiums. Some apply to property management companies. Here are a few:

1) Building Code – amendments come into force in January to promote greater accessibility for persons with disabilities. The amendments apply to most new construction and extensive renovations to existing buildings. Specific items include:

  • Visual fire alarms to be installed in all corridors of multi-unit residential buildings;
  • Power door operators to be provided at entrances to a wider range of buildings, and at entrances to barrier-free restrooms and common areas in multi-unit residential buildings;  and
  • New requirements for barrier-free and universal restrooms.

For more information on specific requirements you should speak with the condominium’s engineer or accessibility expert.

2) Smoke-Free Ontario Act – smoking will be prohibited in places where it was previously permitted, such as public playgrounds, public sports fields, and restaurant or bar patios. While these amendments won’t change anything for residential condominiums, commercial or mixed-use condominiums may be able to piggyback on these amendments to eliminate smoking on patios.

3) Accessibility for Ontarians with Disabilities Act (AODA) – more of the integrated standards requirements come into force on January 1st, 2015. Small organizations (1-50 employees) must create accessibility policies. Large organizations must provide training to employees and volunteers, and ensure feedback processes are accessible.

There are plenty of other legislative changes coming into force next year. More on those in a future post.

Top Condo Cases of 2014

The courts have been busy this year! While that is good news for law bloggers, it means far too many condominiums are spending money on lawyers when they could be spending it on solutions. Here are the highlights from cases in Ontario:

10. Declarants may use s.152(6) of the Condominium Act, 1998 to regain control of phased condominiums years after they became entitled to request a meeting of owners to elect a new board. Such conduct may not be oppressive, even when the reason for the request was to end litigation started by the condominium against the declarant: Middlesex 643 v. Prosperity Homes LimitedContinue reading

What’s that Smell? Smoke and Odours in Condos

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.

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Condo fails to address smoke complaints

Smoking in condominiums has become a popular topic in recent years. A number of condominiums have amended their declarations to prohibit smoking on the common elements. Some condominiums have even amended their declarations to prohibit smoking anywhere on the property. Notwithstanding all of the amendments, there have been very few reported cases on smoking in condominiums.

In one recent case (MacKay v. Metropolitan Toronto Condominium Corporation No. 985) the owners claimed the condominium was in breach of its duty to maintain and repair the common elements and their unit. The owners complained of cigar smoke entering their unit from an adjacent unit. The owners’ insurance adjuster determined that the unit was uninhabitable. The insurer paid for the owners to stay in a hotel for 10 months. The owners reported their complaints to the condominium. The condominium did very little to address their complaints so the owners commenced an application.

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