Smoke and Vapour
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Smoke and Vapour
Unwanted smoke and vapour issues can be caused by:
- Someone else’s behaviour within the condominium (e.g., neighbours who vape scented products),
- A defect in the design and construct of the condominium (e.g., smoke from outside seeping through a window); or
- An external source outside of the condominium (e.g., nearby pedestrians smoking).
Examples of common smoke and vapour issues include:
- The smoke from tobacco, cannabis, or other substances that one owner or occupant may be using seeping into another unit.
- Fire pits, barbeques, gas-powered machinery or other sources of smoke and vapour in the common elements entering an owner’s unit.
If your issue is with a particular smell rather than smoke or vapour (e.g. the odour from the production of cannabis products), you may be dealing with an Odour issue.
Every condominium owner and occupant is required to comply with the Condominium Act, 1998 (the “Condo Act”), and with the condominium corporation’s governing documents (i.e. its declaration, by-laws, and rules).
If you are experiencing a smoke or vapour issue, or if you received a complaint about smoke or vapour, you may want to first review your condominium corporation’s governing documents. Because living in a condo often means living close to your neighbours, many condominium corporations have provisions in their governing documents to prohibit or restrict activities that create smoke or vapours that can affect other people.
If your condominium corporation has provisions in its governing documents relating to smoke or vapour, these provisions would most likely be found in the corporation’s declaration or rules, though they may also be found in the by-laws.
By reviewing these documents, you can determine what is and isn’t allowed in your condominium corporation when it comes to smoke and vapour. You may also want to review your condominium corporation’s governing documents for other provisions that might be relevant, even if those provisions do not specifically mention smoke or vapour.
For example, your condo corporation’s governing documents may contain provisions that:
- Prohibit the creation of smoke or vapour inside of both the units and common elements of the corporation.
- Prohibit the consumption of specific substances in the condominium corporation that is likely to create smoke and / or vapour (e.g., tobacco or recreational cannabis).
- Only allow smoking or vaping any substance while outside of a unit (e.g., on a balcony).
If you are experiencing a smoke and vapour issue, you may want to first review your condominium corporation’s governing documents for any relevant provisions or obligations.
A condominium corporation’s governing documents are required to be consistent with the Condo Act. In addition, a condominium corporation’s by-laws and rules must be consistent with the declaration and must be reasonable.
For an overview of declarations, by-laws and rules, visit our website by clicking here.
Don’t have a copy of your condominium corporation’s declaration, by-laws or rules?
Owners can request a copy from your condominium corporation using the mandatory Request for Records form, available on our website.
How does the Condo Act apply?
Section 119 (1) of the Condo Act, requires everyone, including unit owners, occupants and your condominium corporation to comply with the Condo Act, and your condominium corporation’s governing documents. Accordingly, if your condominium corporation’s governing documents deal with smoke and vapour, everyone is required to follow them.
Furthermore, under section 17 (3) of the Condo Act, condominium corporations are required to take all reasonable steps to ensure that everyone complies with the Condo Act and the condominium corporation’s governing documents.
If a smoke and vapour issue does occur, it may need to be addressed immediately. Section 117 (2) of the Condo Act prohibits anyone from carrying on an activity or permitting activity in the unit or common elements if the activity results in the creation of or continuation of any unreasonable smoke or vapour issue that is a nuisance, annoyance, or disruption in the condominium corporation.
Smoke and vapour issues that interfere with a person’s right to use and enjoy their unit may constitute an unreasonable nuisance, annoyance, or disruption. Whether a smoke and vapour issue is considered an unreasonable nuisance, annoyance, or disruption depends on several different factors, including:
- the source of the smoke and / or vapour;
- the amount of smoke and / or vapour;
- how long it lasts;
- how often it occurs; and
- whether it affects a person’s right to use and enjoy their property.
The Condo Act prohibits everyone from causing an unreasonable nuisance, annoyance, or disruption in a condominium, regardless of what a condominium corporation’s governing documents say.
Prolonged exposure to unwanted smoke or vapour could impact an individual’s enjoyment of their unit.
A condominium corporation is legally required to take action to address a smoke or vapour-related issue that:
- Is causing an unreasonable nuisance, annoyance, or disruption; or,
- Violates the Condo Act and/or corporation’s governing documents.
Accordingly, If you have a smoke or vapour-related issue, you should notify your condominium corporation as soon as possible so they can deal with it.
If an owner or occupant is causing an unreasonable nuisance, annoyance, or disruption (either by doing something or failing to do something), or if they are not complying with the condominium’s governing documents, then the condominium corporation or another owner may take legal action against them, including filing an application with the Condominium Authority Tribunal (CAT).
Likewise, if a condominium corporation causes an unreasonable nuisance, annoyance, or disruption (either by doing something or failing to do something) then a unit owner may take legal action against them, including filing an application with the CAT.
Repairs and Maintenance
Some smoke or vapour issues might b e the result of malfunctioning components and might require repairs or maintenance to fix them (e.g., an improperly sealed window).
Under the Condo Act, owners are responsible for maintaining their own units and condominium corporations are responsible for maintaining the common elements. Condominium corporations are also responsible for repairing both the units and the common elements after damage.
That said, a condominium corporation’s declaration may alter who is responsible for repairs and maintenance – for instance, a condominium corporation’s declaration could specify that owners are responsible for repairing their own units after damage, or that owners are responsible for maintaining some of the common elements. If you have a smoke or vapour issue related to repairs and maintenance, you should check your condominium corporation’s declaration to determine who is responsible.
For more information on repair and maintenance obligations, please click here.
Other Legal Considerations
Federal and provincial legislation governs the lawful production, possession, and use of cannabis for recreational purposes in private residences. In Ontario, the federal Cannabis Act permits adults who are at least 19 years old to:
- Use recreational cannabis in their unit or exterior common element space; and
- Grow up to four plants-per-residence for recreational use.
While the Cannabis Act permits the growth and consumption of lawful cannabis in private residences, that does not mean that unit owners or occupants have an absolute right to grow or consume cannabis in their units or the common elements. Your condominium corporation’s governing documents may restrict certain activities, and owners or occupants should be aware of the restrictions on creating smoke and / or vapour in both the units and common elements.
If your condominium corporation is specifically concerned about cannabis smoke or vapour, they can consider specifically prohibiting smoke or vapour from recreational cannabis.
Medical cannabis is not covered or affected by the Cannabis Act.
Ontario Human Rights Code
Many individuals create or consume smoke or vapour for cultural purposes, or as prescribed by their doctor to treat a range of medical conditions. These activities may be protected under the Ontario Human Rights Code (the “Code”), which protects all people from discrimination on certain grounds, including race, colour, sex, sexual orientation, and disability.
Condominium corporations may have a duty to accommodate owners or occupants, even if a condo’s governing documents prohibit the creation of smoke or vapour. The accommodation process is an important way that condominium corporations can work together with owners and occupants to ensure that they are treated fairly and that the governing documents are not implemented in a discriminatory way.
For more information on the duty to accommodate, and for helpful tips on how your condo corporation can handle the accommodation process, please visit the Ontario Human Rights Commission’s webpage.
Smoke-Free Ontario Act, 2017
It is important to note that subsection 12(2) of the Smoke-Free Ontario Act, 2017 prohibits smoking either cannabis or tobacco, or using electronic cigarettes in any indoor common area of a condominium, including parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
Have a Question?
If you have a question about any of the information you’ve read, please contact us. We have a team available to answer any questions you may have.
If you have tried the steps above and your issue still hasn’t been resolved, you may be able to file an application with the CAT to resolve your dispute. The CAT is an online tribunal dedicated to resolving condominium disputes.
The CAT is pleased to provide an online dispute resolution system (CAT-ODR) to help Ontario’s condominium communities resolve their condominium disputes conveniently, quickly, and affordably.
To file with the CAT, your application must deal with:
- An unreasonable nuisance, disruption or annoyance related to Smoke & Vapour;
- One or more provisions of your condominium corporation’s governing documents which relate to Smoke & Vapour; and / or,
- Indemnification or compensation (commonly called “chargebacks”) related to Smoke & Vapour.
How can the CAT help resolve my dispute?
The CAT has a three-stage dispute resolution process:
- In Stage 1 – Negotiation, you will work with the other parties to try to resolve the issues.
- In Stage 2 – Mediation, you will work with a CAT Mediator to try to resolve the issues.
- In Stage 3 – Tribunal Decision, a CAT Member will conduct an online hearing, during which both sides will make their case. The Member will then issue an order resolving the issues.
Who can file a Smoke & Vapour-related application with the CAT?
Unit owners, mortgagees, and condominium corporations can file applications with the CAT.
What kinds of disputes can be filed with the CAT?
The CAT can deal with two different types of disputes involving Smoke & Vapour:
- Disputes about unreasonable nuisances, annoyances or disruptions.
- You can file an application about an unreasonable nuisance, annoyance or disruption regardless of what your condominium corporation’s governing documents say.
- Disputes about the provisions in your condominium corporation’s governing documents that deal with Smoke & Vapour.
What might be considered an unreasonable nuisance, annoyance or disruption?
The Condo Act prohibits unreasonable Smoke & Vapour-related nuisances, annoyances or disruptions. While the Condo Act does not define the term “unreasonable,” the following criteria may be relevant:
- The source of the Smoke & Vapour;
- The intensity of the Smoke & Vapour;
- How long it lasts;
- How often it occurs;
- Whether it is permitted or prohibited by the condominium corporation’s governing documents; and,
- Whether it affects a person’s right to use and enjoy their unit.
What kinds of disputes about the provisions of the condominium corporation’s governing documents can be filed with the CAT?
You can file a dispute about the Smoke & Vapour related provisions of your condominium’s governing documents. This includes issues involving:
- Compliance with provisions in the corporation’s governing documents related to Smoke & Vapour;
- The consistency and/or reasonableness of those provisions;
- The applicability of those provisions; and
- Any related indemnification / compensation.
Want to learn more about previous CAT cases?
There is a non-refundable $25 fee to file an application with the CAT.
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Please note: The CAO and its staff are not permitted to provide legal interpretations or advice.