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Condo corporations in Ontario have been unwilling to issue outright smoking bans.iStockPhoto / Getty Images

If you smoke and you live in a condominium in Ontario, a little-noticed ruling may have stubbed out your ability to light up inside your own home. At the very least, it has given new legal heft to a condominium corporation’s ability to ban all smoking indoors if it so chooses.

On Oct. 9, 73-year-old Jaromira Linhart represented herself in a hearing regarding her smoking, where lawyers for The Masters condominiums at 296 Mill Rd. in Toronto (officially, York Condominium Corporation No. 266) argued her cigarettes were affecting an upstairs neighbour who claimed to have an allergy.

In what is seen as a first in Ontario, Justice Jana Steele ruled in the Ontario Superior Court of Justice on Oct. 15 against Ms. Linhart and ordered her to stop smoking in her own home.

“I recognize that this is affecting Ms. Linhart’s ability to smoke cigarettes in her personal residence. However … when a person decides to live in a multi-unit dwelling, such as a condominium, they are obligated to comply with the Rules and the governing statute.”

“Inside your unit that is your home, that’s how I feel,” Ms. Linhart said in an interview with The Globe and Mail. Ms. Linhart has been smoking since her early 20s, about the time she emigrated from the former dictatorship in Yugoslavia. “I left the country because that was a communist socialist country and they were trying to rule you in everything. So I left the country to be free … and look at me now. There’s no freedom whatsoever, they tell you what to do and how to do it.”

Members of the YCC 266 board of directors reached by The Globe declined to comment.

There are more than 11,000 condo corporations in Ontario, and the legalization of cannabis in 2018 kicked off a rash of new rules at condominiums that sought to ban smoking indoors. Most of the cases that have tested these rules in court relate to tobacco consumption, not cannabis.

“I’ve had a number of complaints from tenants and unit owners who feel harassed by the condo board or property manager,” said Caryma Sa’d, a lawyer with a focus on cannabis law. “But in almost all circumstances we were able to resolve the situation without court proceedings.”

The case has caused much clamour in the condo legal community.

“This case in front of us had the perfect set of facts," Rodrigue Escayola, partner with Gowling WLG, said on his blog. "Not only was an owner breaching the rule, but causing a disturbance and nuisance.” The YCC application relied on section 117 of the Condo Act, which states in part, “No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit … if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual.”

“My view you don’t need to show to somebody is medically impacted, if it disturbs their enjoyment of their unit," Warren Kleiner, a partner at Shibley Righton LLP who crafted the no-smoking rules for YCC 266, said in an interview. "There were some corporations that felt like smoking was allowed and little that could be done without a specific prohibition.”

Denise Lash, of Lash Condo Law, said condo corporations have been unwilling to issue outright smoking bans. “Some didn’t pass rules that tried to restrict smoking in units," she said. "When you start saying you can’t smoke in your unit, they didn’t agree with that. People don’t want to be told what they can and can’t do.

“We’ve gone for section 117 before,” she said. "Usually, [the circumstances] have to be pretty severe,” she said, recalling an instance where a resident encouraged her dog to attack neighbours and sprayed poison on plants in a townhome project.

Ms. Linhart, who moved in to the apartment in December, 2017, said complaints of her smoking began almost immediately. She says she was told by building management early on that the upstairs neighbour could smell the smoke. “You are in big trouble, the lady above you is complaining, she’s so upset,” Ms. Linhart said she was told.

The situation escalated in October, 2018, after residents voted to ban smoking everywhere on the premises – on balconies and common elements and also in apartments – although exempting about one-third of the units with a grandparenting clause that allowed existing smokers to carry on.

Attempts were made by Ms. Linhart to abate the smoking smells, including agreeing to purchase a $1,500 air purifier, but in 2019 two more complaints about the smoke were registered by the 67-year-old upstairs neighbour. Ms. Linhart winters in Florida, and she was away in January, 2020, when the condo corporation’s legal firm, Shibley Righton, sent a letter informing her it was voiding the grandparenting clause for her unit. She continued smoking, and YCC 266 sought a court order to get her to stop.

“This is not the type of case that’s appropriate for mediation, the smoking could not continue,” said Megan Markey, the Shibley Righton barrister who argued the application.

The ruling from Justice Steele relied on affidavits from the upstairs neighbour and the building’s condo manager, Linda Celar of Crossbridge Condominium Services Ltd., including vivid descriptions of a “white haze” of smoke visible in Ms. Linhart’s apartment. There were equally potent claims from the upstairs neighbour, who is not named in the ruling: "I do not often want to shower because I do not want to go into my bathroom where the smoke is so much worse. I run into my bathroom, have a quick shower, and run out again. I cannot even do laundry in my home without being tormented by the smoke.”

Ms. Linhart is the first condo owner at YCC 266 to have her grandparenting exemption revoked, but she may not be the last.

“Unfortunately the Condominium is currently dealing with several other incidents of smoke transmission and I anticipate other owners will soon have their grandparent status revoked as well,” Ms. Celar’s affidavit said.

Ms. Linhart says she is trying to stop smoking. “I’m on patches and all this stuff," she said. “And I’m also gaining so much weight, and you get uptight and miserable.” She is considering whether to sell her unit, but isn’t sure where she could go. “My husband passed away, and I stayed in the house alone.

"I thought it would be much easier to be in an apartment. I think it’s so unfair, I really do … your home is your home.”

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