Limits of Legacy Exceptions for Smoking
By: Mohiminol Khandaker
Legacy exceptions, also known as "grandfathering", are commonly found in condominiums' rules. Put simply, a legacy exception allows a corporation to exempt certain owners or residents from the application of a provision of the corporation’s governing documents.
Legacy exceptions are often used in the context of ‘no smoking’ rules to exempt existing smokers in the building from the rule's application by allowing them to continue smoking (either indefinitely or for a fixed period). But what happens when a resident benefitting from a legacy exception causes problems for others?
Case law in Ontario suggests legacy exceptions can be revoked if they are used in an unreasonable manner. The case of York Condominium Corporation No. 266 v. Jaromira Linhart concerns an owner who was a long-term smoker and who was granted a legacy exception to continue smoking cigarettes in her unit (despite the condominium passing a no-smoking rule). The resident above Ms. Linhart’s unit had a severe allergy to smoke, and the second-hand smoke and odors migrating from Ms. Linhart’s unit were having an adverse effect on her health. The condominium corporation wrote to the Ms. Linhart requesting she take steps to resolve this issue, but she failed to do so. Management also attended the unit to seal and insulate the vents, but it did not resolve the issue. The corporation then advised Ms. Linhart that her legacy exception would be revoked if the corporation continued to receive complaints about smoke migration from her smoking.
The Ontario Superior Court upheld the corporation's decision and found that rights protected by a legacy provision must be exercised reasonably. The Court noted that, while the revocation of the exemption affects the owner's right to smoke cigarettes in her personal residence, "when a person decides to live in a multi-unit dwelling, such as a condominium, they are obligated to comply with the Rules and the governing statute". Therefore, the owner's failure to exercise the legacy exception in a manner that respects the rights of others resulted in it being revoked altogether.
Corporations can ensure that the owners and residents understand that there are limitations on an exemption by including the circumstances where a legacy exemption may be revoked in the relevant rule. For example, a legacy exception in a ‘no smoking’ rule can state that the exception will be revoked where the smoking causes a nuisance to any other resident. Including these limitations in the rule would provide notice to all owners and residents so that the corporation would not need to rely on the provisions in the Condominium Act.
Furthermore, courts have also confirmed that legacy exception can have a limited duration. For example, a corporation may provide that a legacy exemption for smoking only applies for a period of one year, after which no smoking will be permitted. In Thunder Bay Condominium Corporation No. 15 v. Ewen, the corporation initially passed a by-law prohibiting smoking in the units but protecting existing smokers' rights by way of a legacy provision. The corporation subsequently passed a Rule placing a time limit on the legacy provision. The Rule was challenged on the basis that it was unreasonable. However, the Court held that the Rule was valid and enforceable, including the imposition of a time limit on the legacy provision. In the Court's view, the intended purpose of the Rule was consistent with the by-law – namely, to make the entire condominium complex smoke free to promote the safety and welfare of owners and prevent unreasonable interference with the use of the units and common elements.
Legacy provisions are a useful tool for corporations who wish to phase out certain activities over time. Careful drafting can help to achieve these objectives. And in all circumstances, owners benefiting from a legacy provision must be careful to use their privileges in a reasonable manner.