Smoking Ban Upheld in Quebec

August 2019

Since the legalization of marijuana (cannabis) in 2018, many condominium corporations have become increasingly interested in and willing to adopt rules prohibiting the smoking of tobacco and cannabis inside units and enclosed common elements. The adoption of smoking bans have led to concerns regarding their effect on ownership rights and rights of use. The Quebec Superior Court of Justice in El-Helou v. Syndicat de la Copropriété du 7500, 7502 et
7504, rue Saint-Gérard, Montréal, 2019 QCCS 2238 (only available in French), recently addressed this issue when it held a ban on smoking tobacco and cannabis inside units and common elements to be both legal and enforceable.

Section 58 of the Condominium Act, 1988 states a condominium board may
make rules respecting the use of the units, common elements, or assets of the
corporation to:
1. Promote the safety, security or welfare of the owners and of the
property/assets; or
2. Prevent unreasonable interference with the use and enjoyment of the units
and common elements

Under the Condominium Act, the rules must also be reasonable and consistent with the corporation’s declaration and by-laws. If a corporation seeks to make, amend, or repeal a rule, notice must be given to the owners. This notice must include a copy of the rule, a statement of the proposed effective date of the rule, a statement that the owners have the right to requisition a meeting, and a copy of sections 46 and 58 of the Condominium Act. If the owners requisition a meeting, the rule must be voted on and pass accordingly. Should the owners choose not to
requisition a meeting; the rule will become effective 31 days after notice is given.

On route to their decision, the Quebec Court accepted that while owners had the right to the free use and enjoyment of their units and common elements, owners could not impair the free use and enjoyment of others, and had to abide by the corporation’s rules when exercising their rights. The Court also accepted that the
smell and smoke of tobacco/cannabis constituted an “annoyance” going beyond the limits of tolerance owed between neighbours in the building. Regardless of the legality of cannabis, owners do not have an absolute right to smoke if it results in an excessive or abnormal inconvenience to others.
Although the decision is a Quebec decision, it is my view that the same reasoning will be applied in the Ontario context and could apply both to multiresidential condominium buildings as well as rental buildings where smoking
prohibition “Rules” have been implemented in accordance with the exercise of a right to do so in leases. The findings of the Quebec court rest upon general reasoning that can be applied to both Quebec and Ontario, allowing this decision to offer guidance to Ontario courts and the Landlord and Tenant Board, if and when they must deal with the issue.

Author

Laura practises in the area of administrative law, including condominium, residential tenancies,municipal, planning and zoning, expropriations, and property tax and accessibility law. Laura is a member and active contributor to numerous condominium, development and housing industry organizations. More →