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Second-hand smoke

I read a piece recently in The Toronto Star that I think bears repeating here. Lawyer Gerry Hyman writes: A condo owner complained that the person living in the unit below her smokes on his balcony and this drifts up to her balcony and ultimately into her apartment. The condo management maintains this is a difficult situation as the man is smoking on common elements. However, when pointed out that according to the rules of the condo corporation, smoking is prohibited in hallways, elevators, lobby and other common elements, management’s reply was  “This is different.”

Gerry Hyman responded: The corporation has an obligation, under The Condominium Act, to enforce the act, declaration and by-laws and rules. Section 117 of the act says that no person shall permit a condition to exist or carry out an activity in a unit, or on the common elements, that is likely to damage the property or cause injury to an individual. There is ample scientific data that second-hand smoke constitutes a danger to persons exposed to it. I believe the corporation is obligated to take steps to prevent the individual from smoking in such a way or a location that permits the smoke to invade your balcony or unit. That could include, if necessary, requiring the owner to stop smoking.

The owner may claim that he is addicted and therefore has a disability and the corporation, under the Human Rights Code, must accommodate his disability by permitting him to smoke. Such an argument, even if valid, would not prevent the corporation from requiring that the owner smoke in a location that does not permit the smoke to enter your balcony or unit.

Although Section 117 of the act constitutes a sufficient requirement for the corporation to act, the corporation might pass a rule consistent with that section and spelling out the smoking limitation.

Gerry Hyman is a former President of the Canadian Condominium Institute and author of Condominium Handbook.

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