Navigating Smoking Complaints in Condominiums: Enforcement Strategies in Smoking vs. Non-Smoking Corporations

Smoking in condominiums remains one of the more divisive and persistent challenges faced by boards and property managers across Ontario. Whether a condominium corporation has adopted a no-smoking rule or permits smoking within units and exclusive-use areas, complaints about smoke migration and its impact on neighbouring residents are frequent—and often emotionally charged.

The legal tools available to boards to address these complaints vary significantly depending on whether smoking is prohibited or permitted within the building. Understanding these distinctions is essential—not only for boards seeking to enforce rules fairly and effectively, but also for residents navigating their rights and expectations within their communities.

Smoke-Free Condominiums: A Clearer Path to Enforcement 

Condominium corporations that have enacted a no-smoking rule benefit from a more straightforward enforcement framework. In these communities, smoking is prohibited throughout the property, including inside units and exclusive-use common element areas. When a resident violates this rule, the corporation has the authority to demand that the smoking cease immediately.

That said, even in smoke-free buildings, enforcement should follow a measured and progressive approach. Typically, this begins with internal enforcement by management, which involves issuing a series of warning letters to the offending resident. These letters should:

• Reference the corporation’s no-smoking rule and append a copy of the rule to the letter.
• Outline the nature of the complaints received, including dates and times, without identifying the complainants.
• Escalate in tone with each letter, beginning with a courteous reminder (first letter) and cumulating in a final warning that the matter will be referred to legal counsel if the smoking continues (third letter).

If the resident fails to comply after three warnings, the corporation should escalate the matter to legal counsel. Legal letters follow a similar pattern but often carry greater weight, particularly if the Corporation’s declaration includes indemnity provisions that allow legal costs to be charged back to the offending unit. Should the smoking persist after the issuance of three legal compliance letters, the Corporation can proceed with initiating legal proceedings against the offending resident before the Condominium Authority Tribunal (CAT).

Importantly, most no-smoking rules include two key exemptions:

1. Grandfathering Existing Smokers – Residents who were already smoking in their units prior to the rule’s enactment may be permitted to continue, typically until they sell or transfer their unit.
2. Medical Use of Cannabis – Residents with a valid medical note may be exempted to consume cannabis for therapeutic purposes.

However, these exemptions do not grant carte blanche in respect to smoking. Even grandfathered smokers and those with medical cannabis exemptions must ensure that their smoking does not create a nuisance. This may require, among other measures, using non-smoking methods of consuming cannabis, installing air purifiers, or sealing air leaks within the smoking resident’s unit to prevent smoke migration into neighboring units or the Corporation’s common elements.

Smoking – Permitted Condominiums: A More Nuanced Approach 

In buildings where smoking is still allowed, enforcement becomes more complex. Without a smoking-prohibition rule in place, the board cannot simply demand that a resident stop smoking. Instead, the corporation must rely on the nuisance provisions in its governing documents to address complaints about smoke migration.

In these cases, the Board’s focus shifts from banning smoking outright to mitigating its impact. Boards must work collaboratively with residents who smoke to reduce the migration of smoke into neighboring units, balancing the smoker’s right to engage in a permitted activity with the neighboring resident’s rights to quiet enjoyment of their unit. Mitigation strategies may vary depending on the nature of the complaints, but commonly include:

• Restricting smoking to a specific room within the smoking resident’s unit.
• Requiring the smoking resident to use air purifiers and carbon filters in their unit.
• Requiring the smoking resident to seal gaps around vents, windows, doors, and electrical outlets within their unit.
• Requiring the smoking resident to install door sweeps or draft guards to contain the smokie within the boundaries of their unit.

The legal threshold in these cases is whether the smoke migration constitutes a substantial and unreasonable interference - in other words, a nuisance. This is not a fixed standard, but a fact-specific and subject determination made by the CAT, based on the specific facts of each case. 

It is equally important for residents to understand the expectations that come with living in a smoking-permitted building. Unlike smoke-free condominiums, where residents can reasonably expect zero exposure to smoke, those in smoking-permitted buildings must tolerate a certain level of smoke migration. The key question is not whether smoke is present, but whether its presence is so intrusive as to constitute nuisance, under the law.

CAT Decisions: Clarifying the Nuisance Standard

Two relatively recent decisions from the CAT offer valuable insight into how smoking-related nuisance claims are assessed by the tribunal. 

Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 et al, 2023 ONCAT 42

This case involved two townhome units sharing a wall. The applicants alleged that smoke from three adults smoking inside the neighbouring unit was migrating into their home, aggravating the female applicant’s asthma and allergies. Both parties had taken steps to mitigate the issue, including installing insulation and air purifiers in their respective units.

While the adjudicator acknowledged that smoke migration had occurred, she found that it had substantially abated by the time of the hearing. She concluded that the interference, caused by the smoke migration, did not rise to the level of a nuisance, stating:

“It is not reasonable for them [the applicants] to expect a complete absence of smoke living in this condominium… The evidence, viewed as a whole, does not support a finding that smoke migration continues on a substantial and unreasonable basis.”

This decision highlights the importance of demonstrating ongoing and significant interference to succeed in a nuisance claim. This case also demonstrates that even in a circumstance where the complainant suffers from respiratory conditions that are aggravated by exposure to second hand smoke, the threshold for test of nuisance, is not lowered.

Kovalenko v. Romanino et al. 2024 ONCAT 151

In this case, the applicant complained that smoke from a neighbour’s porch was entering his unit. The CAT found that smoke only entered when the applicant’s windows or doors were open and held that this did not amount to an unreasonable nuisance.

The Tribunal emphasized:

“Mr. Kovalenko has chosen to live in a building where smoking is permitted… This means that some smoke and odour migrating through open windows and doors is to be expected and will need to be tolerated.”

This ruling reinforces the principle that residents in smoking-permitted buildings must accept a degree of inconvenience, provided the smoke does not rise to the level of substantial and unreasonable interference.

Final Thoughts: What Board and Residents Should Consider

The distinction between smoking-permitted and smoke-free condominiums carries meaningful legal and practical implications. For boards, understanding the enforcement mechanisms available under each regime is essential to ensuring compliance with governing documents and maintaining a harmonious living environment. While a smoking-prohibition rule offers a clearer and more enforceable framework, it also requires careful consideration of grandfathering provisions, medical exemptions, and the need for consistent, gradual enforcement.

For residents—particularly prospective purchasers—awareness of a building’s smoking policy is equally important. Individuals with respiratory sensitivities or health concerns should be advised that living in a smoking-permitted building may involve exposure to smoke migration that does not necessarily rise to the level of a legal nuisance. Conversely, those seeking a smoke-free environment should confirm that a formal prohibition is in place and understand the scope of any exemptions.

Ultimately, boards contemplating a no-smoking rule must weigh the benefits of enforcement clarity against the realities of resident behaviour, legal exceptions, and evolving CAT jurisprudence. A well-drafted rule, supported by a consistent enforcement protocol and clear communication, remains the most effective tool for managing smoking-related complaints in the condominium context.