In a recent case before the Ontario Superior Court of Justice, WCC No. 31 v. Silberberg et al, a condominium corporation obtained an order prohibiting the unit owners, Mr. and Mrs. Silberberg, from smoking on their balcony in contravention of the condominium rules.
When they had first moved into the building there was no prohibition on smoking on the balconies. However, after numerous complaints from other unit owners, the corporation enacted a rule that prohibited smoking on balconies. The Silberbergs continued to smoke on their balcony despite the rule.
They claimed that:
- A portion of the balcony was owned by them and did not form part of the condominium common elements and therefore, the condominium corporation had no authority to prohibit smoking in an area that formed part of the owner’s unit;
- The rule had not been validly passed;
- The rule was unreasonable as there was no direct evidence before the Court of the harmful effects of second-hand smoke; and
- If the rule was valid, they should have been grandfathered so that they could continue to smoke on their balcony for as long as they owned their unit.
The Court rejected all of the Silberbergs’ arguments.
The Silberbergs claimed that the plans showed part of the balcony delineated by dotted lines and part of the balcony delineated by solid lines and took the position that the portion that was delineated by solid lines formed part of their unit. This assertion was easily rejected by the Court as the condominium declaration clearly indicated that the balconies were exclusive use common elements.
After notice of the proposed rules was given to owners, the corporation received a requisition for a meeting of owners to discuss and vote on the proposed rules. While the Silberbergs did not personally attend that meeting, they sent a proxy to vote against the rules. At the meeting their proxy did not challenge the validity of the meeting notice and the no smoking rule passed without any changes. The Court concluded that the rule was validly passed.
The Court noted that a court will not substitute its own opinion about the propriety of a rule and will give deference to a rule passed by a condominium board unless the rule is clearly unreasonable or contrary to legislation. The Court concluded that as there is legislation existing in the province that regulates or controls smoking it is not unreasonable for the condominium corporation to impose further restrictions on smoking on the condominium property.
After noting that there is no grandfathering requirement in the Condominium Act, 1998 the Court concluded that the prohibition on smoking on the balcony was not unreasonable as the Silberbergs had options: they could smoke in their own unit or could walk off the property a short distance to smoke. The Court noted that grandfathering would defeat the purpose of the rule which was to prevent smoke from reaching other residents.
Grandfathering maintains the status quo that existed prior to the enactment of a new rule for existing owners for as long as they own their unit. Depending on the situation, it is not uncommon for condominium corporations to grandfather existing owners when they adopt new rules that impose new restrictions, even though there is no requirement for grandfathering in the Condominium Act. Given this, it is surprising that in this case the Court summarily dismissed the owners’ request for grandfathering.