31/05/2023 – Jurisdiction Ontario
Part 82 published on 01/06/2023
No Smoking Rule found to be reasonable.
The condominium corporation made application to enforce the provisions of the corporation’s no-smoking Rule against a smoker in the building. Among other things, the smoker asserted that the Rule was not reasonable (and therefore not enforceable) and that the Rule had not been properly enforced against her.
The Tribunal held that the Rule was reasonable and had been properly enforced by the condominium corporation in this case. The Tribunal said:
…I appreciate that Ms. Frederick believes that the application of the rule to her is not reasonable. She has lived in the building for many years and the fact that she considers the rule to infringe on her use and enjoyment of her property is understandable. She has noted in communications with CCC 95 that quitting smoking is not easy. But a board enacts rules for the condominium as a whole. It must balance the use and enjoyment of all residents. As noted by Ms. Iordanidi in her submissions, there is no right to smoke, but the board through the legacy provisions recognized that an immediate change in 2018 for residents who smoked might be unreasonable and unfair and allowed for a grace period of two years for the transition to a non-smoking building. I find that the rule is reasonable.
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I accept Ms. Frederick’s evidence that she has an air purifier and that she has made a genuine effort to ensure that smoke does not migrate from her unit; however, that is not the issue at this time, though it may have been relevant when the legacy provision was in effect. CCC 95 need not prove “without a doubt” (as suggested by Ms. Frederick) that smoke is coming from her unit. Migration of smoke and odour is not the issue. The fact is that smoking in her unit is prohibited by the non-smoking rule and she does not deny that she is smoking there. Pursuant to s. 119(1) of the Act, an owner or occupier of a unit shall comply with the declaration, by-laws and rules of the corporation.
Perhaps there are other residents who are smoking in violation of the non-smoking rule. CCC 95 may or may not be taking measures to seek their compliance with the rule. Whether CCC 95 is appropriately investigating complaints about other residents for smoking or for any other matters is not an issue before me. There is no evidence before me that the enforcement action taken by the board in relation to Ms. Frederick has been targeted or capricious. In this instance and given the history of complaints made about Ms. Frederick’s smoking after the legacy provision ended, I find that it is appropriate that deference be given to the board’s exercise of its enforcement efforts. The board has a duty under s. 17(3) of the Act to take reasonable steps to ensure that owners comply with the rules.
Carleton Condominium Corporation No. 95 v. Frederick, 2023 ONCAT 74 – Blog