Why are so many condos passing non-smoking rules?

In this week's Reasonable Doubt column, lawyer Tim Duggan examines why so many Toronto condominiums have passed restrictions on both tobacco and marijuana smoking

A little over a year ago, I wrote about the pending legalization of marijuana for recreational use. In that article, I noted that “a handful” of condominium buildings had put into place blanket prohibitions on the smoking of cigarettes on the property, and that such a blanket prohibition would also apply to the smoking of marijuana post-legalization. Since the date of that article, this “handful” of buildings has increased significantly.

In recent months, as noted in several stories (including in NOW), a significant number of condominium corporations have passed new rules prohibiting or restricting both tobacco and marijuana smoking. The primary impetus for condominium corporations to pass these rules now is the issue of grandparenting.

Generally speaking, grandparenting (or grandfathering), in a condominium context, arises where the rules change such that a previously permitted activity or use is no longer permitted. A person who resided in the building prior to the rule change would generally be entitled to be grandparented if they engaged in the now-prohibited activity or use prior to the rule change.

For example, if a condominium corporation passed a new rule restricting unit residents to one pet per unit, an existing resident who has two dogs would generally be permitted to keep both dogs until one of the dogs died, or until the resident moved out of the building. At its heart, grandparenting is a fairness issue: a unit resident who moves into a condominium building under a certain set of rules should not have a fundamental condition of his or her occupancy changed without, at a minimum, allowing for a reasonable transition period.

For a condominium unit resident who smokes tobacco, if the condominium corporation was to enact a rule prohibiting smoking on the property, the resident would generally be grandparented and therefore permitted to continue to smoke tobacco subject to certain restrictions (for example: the resident might only be permitted to smoke in the unit, and not on the balcony or any outdoor common areas). The grandparenting could be time-limited (for example: the resident would be permitted to smoke for x number of years following which time the grandparenting would expire), or could be effective for the duration of the resident’s occupancy of the unit.

The need to grandparent a tobacco smoker arises because the smoking of tobacco in a condominium unit would have been a lawful activity prior to the rule change. However, the same consideration would not apply to recreational marijuana smokers, as recreational use of marijuana is not (yet) legal.

For this reason, condominium corporations that intend to pass rules prohibiting smoking on the property are doing so now, before recreational use of marijuana has been legalized, so that an absolute prohibition on marijuana smoking can be included in the rules without the need to grandparent marijuana smokers. For condominium corporations that pass such a rule after recreational use of marijuana has been legalized, unit residents would have a reasonable argument that they are entitled to be grandparented in the same manner as tobacco smokers.

It should be noted that any rule prohibiting the smoking of marijuana, whether passed before or after legalization, would remain subject to human rights considerations. If a unit resident has a disability as defined in the Human Rights Code, and needs to smoke marijuana as a means of ameliorating or treating that disability, the condominium corporation would have an obligation to accommodate the unit resident’s need to smoke regardless of any restriction or prohibition in the corporation’s rules that might otherwise apply to the smoking of marijuana in the building.

Accommodation under the Human Rights Code is determined on a case-by-case basis and each case turns on its own particular facts, so condominium corporations that have implemented (or plan to implement) prohibitions on smoking marijuana will need to carefully consider each unit resident’s request for accommodation.

It should also be noted that, just because a unit resident has been grandparented to smoke (whether tobacco or marijuana), that does not absolve the unit resident of the need to do so in a way that does not interfere with other unit residents’ reasonable enjoyment of their respective units. Depending on the terms of the grandparenting, if a unit resident’s smoking causes a nuisance to other unit residents, the smoker may even have their right to smoke revoked by the condominium corporation.

Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.

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