Health, Real Estate

E-cigs pose concerns for condo corporations

Loosely regulated electronic cigarettes pose concerns for both condominium board members and residents, write Toronto lawyers Armand Conant and Joel Berkovitz in Condo Voice magazine.

They note that e-cigarettes, also known as e-cigs or vaping, have gone from relative obscurity to a multi-billion dollar market worldwide.

“For anyone not yet familiar with electronic cigarettes, they are battery powered, handheld devices, about the size of a cigar. Some are even styled to look like traditional cigarettes or cigars,” write Conant and Berkovitz in Condo Voice, a magazine published by the Toronto and Area Chapter of the Canadian Condominium Institute.

Conant, partner and head of Shibley Righton LLP’s condominium law department, and Berkovitz, associate with the full-service law firm, write that while it may look like a big cloud of smoke is being exhaled from an e-cig, it’s actually water vapour.

E-cigarettes don’t currently fit under existing smoking bans as the devices don’t contain tobacco or any flammable material.

“Current anti-smoking legislation, such as the Smoke-Free Ontario Act or Toronto’s Municipal Code, prohibit the use of tobacco products or smoking a lighted cigar, cigarette, pipe, or other material,” they write.

Last year, the Ontario government announced Bill 45, the Making Healthier Choices Act, 2015. Conant and Berkovitz write that this act would ban the sale and consumption of e-cigarettes for anyone under 19 years old and restrict their use to the same places as regular cigarettes.

“Similar legislation has been proposed in British Columbia and Nova Scotia. Bill 45 would specifically prohibit using e-cigarettes in common areas, including elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas,” they write.

Bill 45 is only through second reading, but it is intended to become effective on Jan. 1, 2016.

For condominium boards and residents, e-cigarettes pose a concern due to second-hand vapour, they write.

“E-cigarette users are free to put what they like in their bodies, but it becomes a problem for the community due to the potentially harmful chemicals in the e-cigarette juice, which may be inhaled by residents exposed to second-hand vapour,” Conant and Berkovitz write. “Additionally, because the juice is usually flavoured, the vapour could be irritating to people who have a sensitivity to fragrances.”

How should a condominium address this issue? They note that if no one has seen anyone in the building using e-cigarettes or there have been no complaints, there may be no need to do anything until the new law takes effect next year.

“However, we encourage condominium communities to be proactive and communicate with unit owners. Even if the board chooses not to take action, this should be communicated to owners — i.e. that the board is aware of the issue, is constantly monitoring it, but at this time has decided not to take action because the law will likely be changing in 2016,” they write.

If complaints have been received or people have been seen using e-cigarettes on the property and the board wants to address it, Conant and Berkovitz write that the best way would be through a properly passed rule or rules.

“Section 58 of the Condominium Act, 1998 provides that rules are to be for the purpose of promoting (or safeguarding) the health and safety of the owners, or to prevent unreasonable interference with the use and enjoyment of the property,” they write. “Remember though that all rules must be reasonable, so you must be careful as to the extent of the restrictions.”

Even after the legislation comes into effect, they say it’s still worthwhile to have a rule on the books prohibiting residents from engaging in any activity contrary to law. This way, if a person decides to smoke an e-cigarette in a hallway or an elevator, and the condo corporation is fined, it can charge the fine and associated costs back to the unit owner responsible.

“While the government seems to have its mind made up on the policy direction that it is headed in, the public debate is still ongoing,” Conant and Berkovitz write. “For the condo industry, as with tobacco, each corporation/community will be different and the board will have to consider what is best for their residents while trying to balance the mores of their community, which like society, is constantly evolving.”

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