Can a by-law prohibiting smoking in the private portions of a condominium be adopted if approved by 50% of the co-owners? Does the adoption of such a by-law change the destination of a residential building? Does it infringe on the privacy and inviolability of the home of smokers who wish to smoke in the comfort of their home?
While these questions have been the subject of many diverse and opposing opinions over the years, the Superior Court recently ended the debate by ruling, for the first time, in favour of the validity of a by-law approved by 50% of residents, prohibiting smoking in the private portions of a condominium.
To listen to Karine Fournier's interview on 98.5 FM on this subject, click here (only available in French).
In the El-Helou v. Syndicat de la Copropriété du 7500, 7502 et 7504, rue Saint-Gérard, Montréal case (only available in French), a syndicate of co-owners (condominium corporation) adopted, through a majority vote of its co-owners, a by-law prohibiting the use of any smokable substances in the private portions of the condominium. The syndicate justified adopting this by-law due to the infiltration of second-hand smoke and the odour of the smoke into the units of other, non-smoking co-owners. This infiltration caused health concerns among the co-owners. Various attempts to seal the units proved unsuccessful.
The applicant, a co-owner of the building, challenged the validity of this by-law, and maintained that such a by-law would have to be adopted by a 90% vote, due to the change in the destination of the building caused by the prohibition of smoking in private portions.
The applicant also claimed that the by-law modified his right to use his unit as he wished, contrary to article 1102 of the Civil Code of Québec ("CCQ"). Moreover, such a by-law would infringe on his right to privacy and the inviolability of his home, as the syndicate of co-owners prevented him from smoking in his own home.
While the destination of the building in this case is described as being "intended exclusively for residential housing," the Superior Court was of the opinion that a non-smoking by-law did not modify the destination of the building; rather, it was an extension of the residential destination, given that the residential units were not airtight. Indeed, in the case of a permeable building, there is a rational link between a prohibition of smoking and the residential destination of the building, as the smoke can easily seep from one unit to another and inconvenience the residents. As such, approval by a majority vote is sufficient.
The Court also rejected the argument claiming that such a by-law changes the use of the private portion by the co-owner, as residential use must preserve the other residents' right to privacy and to safety and security. The prohibition on smoking does not at all change the use of the unit in terms of food, housing, protection, etc.
Even in the absence of a by-law specifically prohibiting smoking, under both the provisions prohibiting harm in the CCQ and the general regulations in the declaration of co-ownership, co-owners are prohibited from harming other occupants of a building.
Based on many similar decisions rendered by different courts, the Superior Court recognized the undeniable correlation between the effects of second-hand tobacco smoke and the health of persons exposed to it.
Concerning the applicant's argument regarding his inalienable right to smoke in his home, the Court emphasized that under Québec law no such right has been granted. The right to life, safety and security, and integrity of the person, which are provided for in the Charter of Human Rights and Freedoms ("Charter") tend to favour an obligation to abstain from smoking where second-hand tobacco smoke could harm the health of other people. Moreover, the preamble of the Charter provides that the rights and freedoms are inseparable from the rights and freedoms of others and from the common well-being.
The Superior Court held that the adoption of a by-law prohibiting smoking tobacco or cannabis in a condominium only requires approval of 50% of the co-owners when there is proof of the infiltration of second-hand tobacco or cannabis smoke. Such a by-law would not change the destination of the building, nor violate the Charter.
Remedies in the Absence of a By-Law?
If no by-law is adopted by the syndicate of co-owners, are the co-owners who are inconvenienced by second-hand smoke from co-owners that smoke left without any remedy? This question must be answered in the negative. It is possible to file an injunction asking the court to order a person to cease smoking and infringing their rights. It is also possible to find a co-owner who smokes liable for damages, as no one may suffer abnormal annoyances that are beyond the limit of tolerance they owe each other, including the effects related to second-hand tobacco or cannabis smoke.
While smoking tobacco or cannabis is certainly legal, these lifestyle choices may be prohibited in certain circumstances where they are harmful to others.
Does the Same Apply to Renters?
Inconvenienced renters may seek recourse before the Régie du logement, which has been intervening more often to prevent exposure to second-hand tobacco smoke.