Unwelcome smoke and vapour are common issues in many condo corporations. Living in a condo community means living in close proximity to your neighbours, where smoke and vapour may travel between units and the common elements.
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 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 (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.
How do my condo corporation’s governing documents apply?
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.
Don’t have a copy of your condo corporation’s declaration, by-laws or rules?
Owners can request a copy from your condo corporation using the mandatory Request for Records form, available on our the CAO website
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 OntarioHuman 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.