Smoke and Vapour
If you have any questions about any of the information on the CAO’s guided steps to common issues, please contact us directly.
Smoke and Vapour
Unwelcome smoke and vapour can be caused by someone else’s behaviour, or the design and/or construction of the condominium.
Examples of common smoke and vapour issues include:
- The smoke from tobacco, cannabis, or other substances that one owner or occpant 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 (e.g. the production of edible cannabis products, which may cause unwanted odour) rather than smoke or vapour, you may be dealing with an Odour issue.
Because living in a condo often means living close to your neighbours, many condo corporations have provisions in their governing documents (i.e. their declaration, by-laws, and rules) to prohibit activities such as smoking and vaping. These provisions would most likely be found in the corporation’s declaration or rules, though they may also be found in the by-laws.
Under section 58 of the Condominium Act, 1998 (the Condo Act), condo corporations can adopt rules to:
- Promote the safety, security, or welfare of the owners and of the property.
- Prevent unreasonable interference with the use and enjoyment of the units or common elements of the corporation.
Also, condo corporations will often have rules 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 condo corporation (e.g. tobacco or recreational cannabis).
If you are experiencing a smoke or vapour issue, you may want to first review your condo corporation’s governing documents for any smoke or vapour-related provisions or obligations.
A condo corporation’s governing documents are required to be consistent with the Condo Act. In addition, a condo 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.
Don’t have a copy of your condo corporation’s declaration, by-laws or rules?
How does the Condo Act apply?
Under subsection 119 (1) of the Condo Act, if your condo corporation’s governing documents deal with smoke or vapour, everyone is required to follow them.
Under the Condo Act, owners and condo corporations are also required to maintain and repair their respective portions of the condo. Most commonly, condo corporations are responsible for the common elements of the condo, while owners are responsible for their units and the common elements that they have exclusive use over.
Smelling unwanted smoke or vapour over a prolonged period of time could impact an individual’s overall health or enjoyment of their unit. Therefore, it is important for you to notify your condo corporation immediately if you notice that smoke or vapour is an issue in a unit or common elements.
If a smoke or vapour issue does occur, it may need to be addressed immediately. Section 117 of the Condo Act prohibits anyone from allowing or causing any condition to exist, or carry on with any activity in a unit or in the common elements, that are likely to damage the property, or to injure someone. In some instances, smoke or vapour may pose a health risk to owners or occupants of nearby units.
Furthermore, under section 17 (3) of the Condo Act, condo corporations are required to take all reasonable steps to ensure that everyone complies with the Condo Act and the condo corporation’s governing documents.
Therefore, if your condo corporation is aware of a smoke or vapour issue that violates the corporation’s governing documents, they are legally required to take action to address it. For this reason, it is important for you to notify your condo corporation if you have a smoke or vapour issue.
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 condo owners or occupants have an absolute right to grow or consume cannabis in their units or the common elements. Your condo’s governing documents may restrict certain activities, and owners or occupants should be aware of the restrictions on creating smoke and vapour in both the units and common elements.
If your condo 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.
Condo 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 condo corporations can work together with owners 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 the smoking of cannabis in any indoor common area of a condo, including parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
Have a Question?
Mediation and arbitration are effective ways to resolve disputes where the parties are unable to reach a resolution themselves. Mediation and arbitration are commonly used to help resolve difficult condo disputes and are sometimes called alternative dispute resolution (ADR).
Under section 132 (4) of the Condominium Act, 1998, all condo corporations in the province are deemed to have a provision in their declaration which says that disputes regarding the declaration, by-laws or rules must be filed for mediation or arbitration. Your condo corporation may also have a by-law that establishes the procedure that must be followed in the event of a dispute.
If you have been asked to participate in a mediation or arbitration, you are likely legally required to participate.
If you want to try mediation or arbitration for an unresolved issue, you will need to find a mediator or arbitrator who can assist you. You can search for a mediator or arbitrator online and through organizations that provide ADR services, such as the ADR Institute of Ontario.
Mediation is a process where a neutral facilitator tries to bring the parties to a mutually agreeable solution. Mediation is the preferred approach because it’s often less costly and it gives the parties an opportunity to collaborate on finding a solution that everyone is comfortable with.
If mediation fails, binding arbitration is the next step. Arbitration is a process where an arbitrator (or panel of arbitrators) conducts a hearing and makes a ruling on the issues in the dispute. The parties involved in the dispute bring evidence to this hearing and then the arbitrator makes a binding decision. There are some cases where an arbitration decision can successfully be appealed to court.
Further legal actions
If you are considering legal action against a neighbour or your condo corporation, you may wish to talk to a lawyer or paralegal. It is recommended that you try mediation and/or arbitration before taking a dispute to court.
Seeking legal advice
If you have a cannabis-related dispute and need advice on what to do, you may wish to seek legal advice from a paralegal or lawyer licensed by the Law Society of Ontario.
If you do not already have a lawyer or paralegal, you may be interested in the Law Society Referral service, which is an online service provided by the LSO to connect people in need with licensed lawyers and paralegals. The service is free, and you may receive up to a half-hour free consultation.
Please note: The CAO and its staff are not permitted to provide legal interpretations or advice.
For more information: