Grandparenting Not Required for Rule to Be Reasonable

A recent application (Wellington Condominium Corporation No. 31 v. Silberberg) before the Superior Court considered whether a condominium corporation’s newly enacted rule prohibiting smoking within the common elements of the condominium plan was unreasonable. The Facts The facts of the dispute are not complicated:

• The owner of a unit (the “Owner”) had been smoking on the balcony adjacent to the Owner’s unit (the “Balcony”) since first occupying the unit in 2009;
• There was no rule prohibiting such activity until, in response to complaints of smoke migration, the condominium corporation proposed a new rule that prohibited smoking within the common elements (including the exclusive use balconies) of the condominium plan;
• The proposed rule did not prohibit smoking in the units of the condominium plan;
• The condominium corporation held a meeting of owners after receiving an invalid request for same;
• Some owners requested the Rule be amended so it would not be enforced against those occupants that smoked in the common elements prior to the rule coming into effect;
• A majority of eligible owners voted not to amend the rule as proposed by the condominium corporation;
• The rule came into effect June 21^st, 2018 and read as follows:

Smoking of any kind, including without limitation by using vaporizers or e-cigarettes is not permitted in any part of the common elements or exclusive use balconies at any time. (the “Rule”);

• The Owner admittedly continued to smoke on the Balcony after June 21^st, 2018 and believed the condominium corporation could not stop him from doing so;
• The condominium corporation contacted the Owner demanding compliance with the Rule;
• Counsel for the condominium corporation sent multiple letters to the Owner/Owner’s counsel demanding compliance with the Rule; and
• The Owner continued to smoke on the Balcony.

  The Application The Court was asked to consider 3 issues:

1. Is the Balcony unit or exclusive use common elements?
2. Was the Rule properly passed?
3. Is the Rule reasonable?

Is the Balcony unit or exclusive use common elements? The Court was satisfied that the Balcony was an exclusive use common elements area of the condominium plan. The Owner alleged the Balcony or a portion of the Balcony was owned exclusively by the Owner.  Other than the viva voce evidence of the Owner during cross examination, photos of the Balcony, and the Owner’s sketch of the Balcony depicting its dimensions, the Owner offered no evidence to support this assertion. The Court preferred the wording found in the condominium corporation’s declaration that provides:

…the Owner of each Unit shall have the exclusive use of that portion or portions of the Exclusive Use Common Elements as set out in Schedule “F” attached hereto.

Schedule F to the condominium corporation’s declaration provides:

The Owner of each Unit shall have the exclusive use of any balcony to which the Unit shall provide direct and sole access as shown on Parts 1, Sheets 2 and 3.

The Court found that “[a]bsent some modifying words in the [declaration] itself, balcony should be taken to mean the whole balcony”.  The Court went on to find that this interpretation was supported by the design of the Balcony and found no evidence to otherwise support the assertion that the Owner has exclusive ownership of part of the Balcony. Was the Rule properly passed? The Court found the Rule was properly passed. As the Owners attended the meeting of owners by proxy, the Court was satisfied subsection 47(9) of the Condominium Act, 1998 prevented the Owner from objecting to a failure of the condominium corporation to give the required notice.  With respect to the meeting itself, the Court was satisfied that the uncontradicted minutes of the meeting of owners included in the condominium corporation’s application materials disclosed that a quorum of owners was present at the meeting of owners and that the Rule passed without amendment. Is the Rule reasonable? After recognizing the Court should only interfere with a rule properly enacted by a condominium corporation where such rule is clearly unreasonable, the Court was satisfied the condominium corporation had a reasonable basis for enacting the Rule.  The Court found that:

1. given the current legislative environment, it was not unreasonable for the condominium corporation to impose further restrictions on smoking within the condominium plan;
2. it was not unreasonable for the condominium corporation to regulate smoking in areas where fumes could affect other units;
3. given the broader public context, the Rule was reasonable in and of itself;
4. owners had an opportunity to discuss the proposed rule at a meeting of owners; and
5. there had been complaints about smoke migration.

The Court then went on to consider whether the Rule was unreasonable for want of “grandparenting” occupants that smoked within the common elements prior to the Rule coming into effect.  The Court concluded that a period of grandparenting for the Rule was not necessary as such was not required by the Condominium Act, 1998. The Court went on to note that the Owner was permitted to smoke within the Owner’s unit and that the Rule did not prohibit the Owner from smoking within the entire condominium plan.  Further, the Court as in Thunder Bay Condominium Corporation No. 15 v Ewen, found the Owner could walk off the condominium plan and smoke there.  The Court went on to state that including a grandparenting provision in the Rule would defeat the purpose of the Rule – to prevent smoke migration – and that the Rule does not contain any grandparenting provisions is neither unexpected nor unreasonable. The Court concluded that the Rule was entirely reasonable and did not leave the Owners without options. Takeaway This decision illustrates that reasonableness is highly context dependent.  The decision clearly demonstrates that the Court will consider the broader legislative and public context in making a determination as to whether a rule is reasonable. Although the Court concluded that a grandparenting provision was not required in this instance, it is essential to note that the circumstances surrounding the Rule appear to have had significant value to the Court in reaching its decision.  Further, the Court concluded that grandparenting in this context would defeat the purpose of the Rule. It remains possible that a grandparenting provision could be required where:

1. such a provision would not defeat the purpose of the rule; or
2. the rule prohibits an activity in its entirety.

Further still, condominium corporations may wish to consider including a grandparenting provision for political purposes – to ensure a majority of eligible owners will vote in support of the proposed rule should the condominium corporation receive a requisition for a meeting of owners to vote on the rule.