26/10/2015 – Jurisdiction Ontario
Part 64 published on 09/04/2018
Court enforces no smoking by-law and subsequent rule placing a time limit on grandfathering
In 2009, the condominium corporation passed a by-law to prohibit smoking in the units, but with grandfathering of existing smokers. The grandfathering was permanent in the sense that it didn’t include any time limit. In 2015, the condominium corporation passed a rule to place a time-limit on the grandfathered smoking (in terms of smoking in the units).
The long-time owners of one of the units, who were smokers, challenged the rule. They argued that a rule could not properly amend a by-law. They also argued that the rule was unreasonable.
The Court held that the by-law was properly passed in accordance with Section 56 of the Condominium Act, 1998; and also that the rule was valid (including the time limit imposed upon grandfathered smoking in the units). The Court said:
Looked at together and in conjunction with sections 56, 58 and 117 of the Act, I am of the opinion that the intention and purpose of the impugned Rule and its general application are consistent with the By-law – both the By-law and Rule are intended to make the entire condo complex smoke free in order to promote the safety and welfare of the owners and to prevent unreasonable interference with the use and enjoyment of the common elements and units.