Is a smoke-free policy legal for condominiums?

Yes. It is perfectly legal for a condo corporation to make its buildings smoke-free. Nothing in the Condominium Property Act prevents a condominium corporation from prohibiting smoking as part of its bylaws. A condominium corporation can amend its bylaws subsequent to its founding with the consent of owners representing at least 75% of the total Unit Factors for all the units.

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If smoking is legal, how can condo corporations ban smoking in private residences?

A condo corporation has the ability to develop bylaws that protect the health and safety of residents, and protect their property, as long as the policy does not conflict with federal or provincial laws. Adopting a smoke-free policy is similar to adopting other policies, such as a no-pets or no-barbecues policy.

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Are there any existing smoke-free laws in Alberta that would already apply to condominiums?

Yes. The Alberta Tobacco and Smoking Reduction Act prohibits smoking in any structure or other enclosed common area of a multi-unit residential facility to which members of the public have access. This includes common patios, pools, other recreation areas, and enclosed parking garages.

The Act also prohibits smoking within five metres of a doorway, air intake or window that can be opened. Some municipalities may have established larger smoke-free buffer zones around windows and doorways, and may also include buffer zones around public parks and trails.

It is the responsibility of the corporation/property managers to enforce laws affecting their property. When implementing a smoke-free policy, be sure that any designated smoking areas do not infringe upon spaces designated as smoke-free under provincial or municipal law.

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Is smoking a disability that condo corporations with a smoke-free policy would have to accommodate under the Canadian Charter of Rights and Freedoms or the Alberta Human Rights Act?

This issue has been considered numerous times throughout the years, and Canadian courts have consistently ruled – with one exception – that addiction to nicotine is not a disability. The one exception was a British Columbia labour-arbitration decision in an employment context. Cominco had banned smoking on the plant site, and while the labour-arbitration board found that heavily addicted smokers were disabled, it also recognized that the employer’s smokefree policy was reasonable and adopted to protect staff from a known hazard. The matter was referred back to the parties to resolve how to accommodate the heavily addicted smokers. Cominco’s smoking ban remains in effect today.

In a residential situation, even if people who smoke were found to be a protected group on the basis of their addiction, they would be under a duty to co-operate with alternative solutions for their addiction that do not expose neighbours and bystanders to harmful second-hand smoke. This could include smoking outside or obtaining nicotine through alternative means that do not emit second-hand smoke, such as nicotine gum, nicotine lozenges or nicotine inhalers.

There is no legal precedent to repeal a smoke-free policy to accommodate a resident with a nicotine addiction.

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Is the ceremonial use of tobacco a religious right for indigenous peoples that condo corporations with a smoke-free policy would have to accommodate under the Canadian Charter of Rights and Freedoms or the Alberta Human Rights Act?

Yes, the way the law reads it seems clear that accommodation is required, however, the issue has never been tried in an Alberta court.

Indigenous people have been using traditional or sacred tobacco for thousands of years. Traditional or sacred tobacco differs from commercial tobacco in that it is used in a variety of ways including ceremonial or sacred rituals for healing and purifying and in social customs where it is given or

exchanged as a sign of respect. Traditional or sacred tobacco is grown and dried without additives. For more information on traditional tobacco please visit tobaccowise.com.

The ceremonial use of tobacco is not exempt from smoke-free policies in multi-unit housing unless explicitly stated. However, under human rights legislation all Albertans are under a duty to accommodate the religious beliefs and practices of others. The duty to accommodate goes both ways, as such any resident(s) using tobacco for ceremonial purposes should ensure they are not causing other residents undo harm. Tips for supporting the ceremonial use of tobacco include:

  1. Engaging the resident(s) to understand their ceremonial use of tobacco.
  2. Learning the duration and frequency of intended ceremonial tobacco use.
  3. Finding ways to accommodate ceremonial tobacco use that does not expose other residents to secondhand smoke exposure. For example, if possible recommend outdoor use and remove any barriers that might inhibit the ceremony from taking place outdoors.
  4. If the ceremonial use of tobacco is to be used indoors, establish a communication system to inform other residents about the ceremonial use of tobacco in order to avoid complaints and bridge any religious or cultural misunderstandings.

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If our condo corporation has a nuisance bylaw or a bylaw about fire prevention, could either of those be used to enforce a smoking ban in the absence of a specific smoke-free policy?

The current initial bylaws listed in the Condominium Property Act include clauses stating that an owner shall not:

  • use the owner’s unit in a manner or for a purpose that will cause a nuisance or hazard to any other owner or occupant – section 36(2)(b).
  • do anything in respect to the owner’s unit, the real or personal property of the corporation or the common property or bring or keep anything on it that will in any way increase the risk of fire or result in an increase of any insurance premiums payable by the corporation – section 36(2)(g).

It is probable that similar clauses exist in many condo bylaws.

Either of these clauses could reasonably be interpreted as a smoking prohibition. Second-hand smoke that escapes from a condominium unit into common areas or neighbouring units fits the classic legal definition of a nuisance, given that it is a toxic gas that emits an odour. Similarly, smoking indisputably increases the risk of fire. These clauses could therefore be characterized as indirect smoking prohibitions.

However, from an enforcement perspective, given the relative novelty of smoking prohibitions in condominiums in Alberta at this time, there is a risk that a judge would not consider an indirect smoking prohibition through one of the above clauses to provide sufficient notice to the owners to be enforceable. The policy purpose of registering condominium bylaws is to give prospective purchasers fair notice of the rules they will have to live under at the time they buy into the condominium. The safest course of action for a condominium corporation is to directly prohibit smoking with an explicitly worded bylaw.

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What would the penalties be for non-compliance with a smoke-free policy?

Under the Condominium Property Act, section 35, a condo corporation can impose sanctions, including monetary sanctions for non-compliance with any bylaw and have the authority to define those sanctions as they see fit with a few exceptions. These sanctions must be defined within the bylaws and must be reasonable given the circumstances. Section 35(6) of the Act outlines some restrictions on the scope of a sanction.

Many condo corporations have an overarching clause in their bylaws defining the scope of possible sanctions for any bylaw infraction. It should be noted that no such clause exists in the initial bylaws provided under the Act, so corporations developing a smoke-free policy should ensure that sanctions are defined in existing bylaws and include any necessary additional clauses to allow for enforcement of their new smoke-free policy.

If a person fails to comply with a sanction under the bylaws, a condo corporation may take them to court. In a case where the individual failing to comply with the bylaw is a tenant renting the condo unit, section 54 of the Condominium Property Act gives condo corporations the authority to remove the tenant and effectively terminate the tenancy agreement. Specific notification processes must be followed with the tenant and the tenant’s landlord.

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What is a condo corporation’s role/responsibility in protecting residents from second-hand smoke?

Under the Condominium Property Act, section 37(1), a condo corporation is responsible for the enforcement of its bylaws and the control, management and administration of its property.

This includes properly maintaining the real and personal property of the corporation and the common property in a state of good and serviceable repair. Thus, residents affected by second-hand smoke may have legal grounds to hold the corporation accountable for mitigating second-hand smoke migration between units as part of their duty to maintain the property.

Individual condo bylaws will have subtle differences based on when the condo corporation was incorporated and what members have chosen to repeal or replace from the initial bylaws set out under the Act. Regardless, most bylaws will contain a clause forbidding owners from using their unit in a manner that will cause a nuisance or hazard to any other owner or occupant. In certain circumstances, a resident could argue that second-hand smoke exposure constitutes a nuisance or hazard and expect the corporation to take action to enforce the bylaw even without the existence of a specific smoke-free policy.

The initial bylaws of a condo corporation incorporated on or after May 16, 1978, also include clause 36(1)(g) prohibiting owners from doing, bringing or keeping anything on the property that would in any way increase the risk of fire or result in an increase of any insurance premiums payable by the corporation. Smoking in a unit may be construed as a violation of this bylaw as well.

In either case, there is no Alberta-specific case law to indicate how such a situation may unfold if argued before the courts.

Legal information provided on this site is based on a professional legal opinion available here.

Where can I find more information about smoke-free housing?

This website is full of information about smoke-free policies, including the benefits of a smoke-free environment and how to go about creating a policy for your building. There are also many tools and resources to help you throughout the process. 

For more detailed information, download our comprehensive guidebook on smoke-free policies for condominiums or contact us to order a print copy.