15/10/2020 – Jurisdiction Ontario
Part 73 published on 01/03/2021
Court upholds condominium’s revocation of smoker’s grandfathering
The condominium corporation had passed a “no smoking” Rule, subject to grandfathering of existing smokers. The Rule permitted the grandfathering to be revoked in the event of complaints (about the smoking) that could not be resolved.
Due to ongoing complaints (from the owner of the unit above), the condominium corporation revoked the grandfathering of the smoker. The Court upheld this decision (and confirmed that the smoking had to stop).
The Court ordered the smoker to pay minimal costs to the condominium corporation ($500). On the question of costs, the Court said:
In considering the issue of costs, I note Ms. Linhart’s attempts to address YCC’s concerns by, inter alia, purchasing an expensive air purifier at YCC’s request. I also note that the Applicant’s factum indicates that the configuration of Ms. Linhart’s condo unit and the Complainant’s condo unit are such that it was not possible for YCC to address the smoke transmission issue through the sealing and insulating of vents. This is unfortunate as Ms. Linhart, a smoker for her entire adult life, purchased her condo unit with the understanding that she could smoke in her residence. I have taken into account that Ms. Linhart was the first condo resident to have her Grandparenting Exemption revoked by YCC after the changes were made to the Rules in 2018, and that it is anticipated that other condo unit owners will similarly have their status revoked. Having this first matter decided by the court in favour of YCC will be of precedential value and importance for YCC if they revoke other unit holders’ Grandparenting Exemptions. It is a very important issue for YCC, as the corporation responsible for taking all reasonable steps to enforce the Condo Act, the declaration and the Rules, pursuant to the Condo Act.