In Wellington Condo. Corp. No. 31 v. Silberberg et al, 2019 ONSC 6594, the Silberbergs smoked on their balcony from time to time. The condominium’s rules permitted smoking on balconies. However, the condominium began to receive complaints about smoking from other people living in the building.
Due to the complaints, the applicable rule was changed to prohibit smoking in the common elements and the exclusive use balconies. The Silberbergs continued to smoke on their balcony, prompting further complaints and, ultimately, legal action by the condominium corporation.
The Silberbergs argued that a portion of their balcony was owned by them exclusively and was not a common use element. Justice LeMay rejected this argument. The Declaration of the condominium corporation clearly stated that the balconies are exclusive use common elements.
The Silberbergs also argued that the rule was unreasonable since there was no direct evidence of any harmful effects of second-hand smoke.
Justice LeMay disagreed, referring to two Ontario statutes which address the harmful effects of smoking. Moreover, Justice LeMay noted that it has long been accepted that odours can be grounds for a claim of nuisance. Therefore, it was not unreasonable for the condominium to regulate smoking in areas where the fumes could affect other units.
Lastly, Justice LeMay rejected the Silberberg’s argument that the rule should have permitted current unit holders to smoke on their balconies or, alternatively, that there should have been a reasonable period of grandparenting to allow the Silberbergs to consider selling their unit.
Justice LeMay indicated that grandparenting is not required by the Condominium Act. Moreover, grandparenting would defeat the purpose of the rule, which is to prevent smoking in areas where the fumes can reach other residents.
As a result, Justice LeMay ordered the Silberbergs to stop smoking on their balcony effective immediately.