It’s often said that the most frequent issues among condo living revolve around the three P’s. Pets, parking and people. But there’s a new one cropping up in the conversation. Smoking. In Ontario, the Condominium Act, 1998, which Condominium Corporations are subject to, is fairly silent on the issue of smoking. Yet Canadians, Ontarians and Torontonians are not following suit, and they’re getting increasingly vocal on the topic. Your home may soon be added to the list of places were you can no longer freely light up, without breaking a law. Remember patios? Bars? Think further back. Airplanes? So when did things change? What affects condos?
The Smoke-Free Ontario Act, (the “SFOA”), effective in 2006, prohibits smoking in any common area of a condominium. According to the Act, common areas include, but are not limited to, lobbies, hallways, elevators, garages, party rooms, and laundry facilities. Under the SFAO condominium corporations are required to enforce the Act and failure to do so can result in the corporation being charged, and fined up to $300,000.00.
Some people wonder if balconies are encompassed in this definition of common area. Rod Escayola from the Gowlings Condo Team explains that this restriction in the Smoke Free Ontario Act doesn’t likely apply to areas which are part of a private dwelling, as it’s not an enclosed public space (meaning covered by a roof or available to access by the public.) The Act does however specifically prohibit smoking in the common areas of condominiums, which includes elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
Another concern reflective of today’s day and age is the concern of E-cigs electronic cigarettes, (see Vape’em if You’ve Got ’em) particularly in common areas, which currently doesn’t get covered by legislation. That’s about to change. Bill 45, and the Healthier Choices Act 2015 from the Ontario government addresses e-cigarettes and specifically prohibits their use in common areas as well. This Bill is expected to become law in January 2016.
Ontario also has a provincial Smoke-Free strategy. Gradually, people lost the privilege to smoke in public areas. 2015 marked the beginning of being unable to smoke in or around playgrounds, sports centres and patios. As a city, some people think we’re merely “catching up.”
Apparently Toronto lags behind other Canadian cities when it comes to smoke-free housing, according to non-smoking proponents advocating for change. And they’re not the minority. An Ipsos Reid poll in November 2011, on behalf of the Canadian Cancer Society revealed that 67 per cent of Ontarians believe that all apartments, condos and co-ops in the province should be 100 per cent smoke free. The number is even higher among younger adults aged 18-34 years of age. Another poll in 2010, shared that four out of five Ontarians living in apartments, condominiums or housing co-ops want to live in a smoke-free building. Is that even possible? In a word, yes! And while some believe it to be too intrustive, several people have done it. Here’s how.
If it’s a brand new condominium being developed, never having been occupied, some developers establish smoking restrictions in their condominium declaration. This hasn’t been widespread in any province yet. If however, the condominium is already in existence and has residents, the following options are available.
- the corporation can consider amending the declaration which requires the support of 80% – 90% of the owners, depending on the item (difficult).
- implementing a new bylaw. An easier option, but still requires participation and approval of 51% of the owners.
- In both cases, existing smokers would have to be “grandfathered” and the new restriction would only apply to new residents.
- Finally, if you are not going to amend the declaration or adopt a rule, and if you need to only deal with one specific problematic situation, have a look at your governing documents. They may already prohibit any form of nuisance. If it can be established that one’s smoke indeed constitutes a nuisance that goes beyond the disturbance that one may expect from living in close-quarters with a neighbour, then the corporation may be able to deal with the situation through compliance.
Here are some recent examples of smoke free places and spaces.
- Ottawa Community Housing, with over 32,000 residents, officially smoke-free.
- Whilstler Blackcomb, officially smoke-free.
- Vancouver residential tower – entirely smoke free
- One of NYC’s of the first in NYC.
- Domicile developments in Ottawa said their proudest moment in 2010 when they decided to make all condominiums moving forward, smoke-free.
- Artscape in Toronto at St. Clair & Christie – a 60,000 sqft community centre with housing desgnaated their live/work studios as smoke-free, claims the no-smoking policy in their lease make sense for economic, environmental, health and social reasons, and that is was also what the tenants were asking for.
It’s global too. Elsewhere, jurisdictions in California, Australia and Germany are looking at bans or restrictions on smoking in apartments.
But isn’t that a little extreme? Some might think so. There have been other options brought forward. Some condo corporations have opted to dedicate a specific area in the community to smoking, and some opt to ban smoking merely on the balconies. But this latter option leads us to another relevant topic. More and more people are opting to smoke “outside” of their homes, and it no longer becomes just a lifestyle issue. It becomes a safety issue.
This year alone both Calgary and Edmonton had major condo fires related to smoking material. And in mid September just a few weeks ago, a community at the corner of Yonge and Eglinton had 12 firetrucks and 45 firefighters called in for a class two fire that started on a balcony. These fires are completely preventable yet it remains a battle that condos face regularly.While smoking is a choice, so is the way in which you dispose of a cigarette. Make it a smart one.
Edmonton has had 97 balcony fires over the past five years, causing $45M in damage. As a result, if buildings don’t prohibit smoking, Edmonton Fire Rescue is now making it mandatory that buildings have proper cigarette receptacles installed on every balcony. Something to think about.
So far, there haven’t been province wide movements beyond this, but the conversation is gaining momentum and it’s surely going to be an interesting one. And with one of three Ontarians living vertically, one that’s definitely going to have a ton of participants wanting to be heard. Let’s make sure we keep our ears and minds open to all the possibilities.