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Smoke and vapour

Step 2 – Legal Considerations

The Condo Act prohibits anyone causing unreasonable nuisances related to smoke and vapour. Corporations often also have similar restrictions in their governing documents.

In addition, there is federal and provincial legislation regarding cannabis and smoking that everyone must follow.

What counts as “unreasonable” smoke and vapour?

Smoke and vapour can be considered unreasonable and a nuisance if they interfere with someone’s right to use and enjoy their unit.

The Condo Act prohibits unreasonable smoke or vapour in units or common elements regardless of what the condo’s governing documents say.

Whether smoke and vapour are unreasonable depends on:

The source of the smoke and vapour

The amount of smoke and vapour

How long it lasts

How often it occurs

Whether it affects a person’s right to use and enjoy their property

What does the Condo Act say?

Section 119 (1) of the Act requires condo residents to comply with the corporation’s governing documents.

Section 17 (3) of the Act states corporations must take all reasonable steps to ensure everyone complies with the Act and governing documents.

Section 117 (2) of the Act prohibits anyone from carrying on an activity or permitting activity that results in smoke or vapour issues that are a nuisance.

The smoke-free Ontario Act, 2017 subsection 12 (2) prohibits smoking either cannabis or tobacco or using electronic cigarettes in any indoor common area of a condo, including parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.


Condo governing documents

Each condo corporation has unique provisions for dealing with smoke and vapour in the governing documents and what is allowed varies from community to community. Generally speaking, smoke and vapour provisions are intended to ensure residents enjoy their units in peace. Everyone must comply with the governing documents and boards must take reasonable steps to enforce compliance.

Examples of smoke and vapour provisions may include prohibiting the creation of smoke or vapour inside units and common elements.

Your first step should always be to check what your governing documents say if you are dealing with a smoke and vapour issue. Provisions on smoke and vapour are most likely to be in the declaration or rules.

 


Necessary repairs

Poor maintenance of the condo can also lead to smoke and vapour issues, such as smoke or vapour leaking from a neighbouring unit or from the ventilation system. You need to determine who is responsible for repairs before you can address the smoke and vapour. Your condo’s declaration will outline responsibilities for repairs and maintenance. Generally, condos are responsible for repairing common elements.


Cannabis

Federal and provincial legislation governs the lawful production, possession, and use of cannabis for recreational purposes in private residences. Ontario adults who are at least 19 years old can:

  • Use recreational cannabis
  • Grow up to four plants per residence for recreational use

This does not mean that unit owners or occupants have an absolute right to grow or consume cannabis in their units or common elements. Check your condo’s governing documents to understand what exactly is allowed in your building


Ontario Human Rights Code

Some individuals may create or consume smoke or vapour for cultural purposes or medical reasons. These activities are protected under the Ontario Human Rights Code, which safeguards 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 to the point of undue hardship, even if a condo’s governing documents prohibit the creation of smoke or vapour.

Corporations should work closely with residents to ensure they are treated fairly and free from discrimination.

Visit the Ontario Human Rights Commission’s webpage for more information.


Addressing smoke and vapour issues

Condo boards or owners may take legal action against residents that cause unreasonable smoke and vapour, including by filing an application with the Condominium Authority Tribunal.

Owners can also act against a condo corporation that is not taking adequate steps to address smoke and vapour concern created by other residents.

Only owners and condo corporations can file cases with the Tribunal. Tenants or other non-owner occupants should contact the unit owner if they have a smoke and vapour issue.

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