TOBACCO AND CONDO LAW (COOP)
Contact the author : s.fiset@fisetlegal.com
HISTORY AND APPLICATION
On May 31, 2006, by An Act to amend the Tobacco Act and other legislative provisions (2005, chapter 29), a majority of the measures regarding the use of tobacco and the sale of tobacco will come into force.
These new measures will have an important impact regarding buildings held in co-ownership. The prohibition to smoke in common areas of immovables shall henceforth be applicable to immovables comprising six (6) dwelling units or more. According to the Tobacco Act presently in force, there already exists a prohibition to smoke in common areas of immovables comprised of thirteen (13) dwelling units or more.
The Tobacco Act applies to harvested tobacco, whether it is processed or not and whatever its form or appearance as well as to any product containing tobacco. The word “tobacco” also comprises the following accessories:
– tubes
– rolling paper
– cigarette filters
– pipes
– cigarette holders
So far as common portions of a co-ownership are concerned, the law didn’t use the term “common portions” but “common areas”. We cannot therefore conclude that a common area is necessarily a common portion of a co-ownership. For instance, a balcony, which is normally considered in declarations of co-ownership as a common portion for restricted use, is not subject to the law as it does not constitute a common area in an enclosed space of the building. Yet, it would not automatically be the case for a tent put up in the garden in the back of a building. However, because it is an enclosed space within a common area, we are of the opinion that a community room in a building comprising six (6) dwelling units or more is inevitably targeted by the law.
As for private portions of a co-ownership, the law applies to public establishments such as a restaurant or a bar. However, we can question the applicability of the law to a private portion parking space unit located in a garage. Indeed, someone could claim that this parking space is located in a common area of the building and others that it is in a private area.
Below are few examples of portions of the building to which the law applies when they are qualified as common portions:
- entrances in the building;
- corridors;
- elevator shafts;
- stairwells;
- electrical or mechanical rooms;
- conference rooms;
- community rooms;
- indoor swimming pools;
- outside tents and event tents;
Below are some examples of portions of the building to which the law does not apply:
- private portions of dwelling units;
- outside balconies;
- outside gardens;
- outdoor swimming pools (non-public);
- spaces used for meetings, to which only members and their guests have access, if the those spaces are situated in a dwelling unit;
- any portion of a co-ownership comprising less than six (6) dwelling units and used strictly for this matter;
RESPONSIBILITY, INSPECTION AND SANCTIONS OF THE LAW
The responsibility of the syndicate for the enforcement of the Tobacco Act is not specified in the law. It is important to mention that the syndicate of a co-ownership is neither the owner nor the “operator” of the common and private portions of the immovable, although the law stresses specifically under the terms of article 1039 of the Civil code of Quebec that the syndicate must preserve it and take all measures of common interest. Therefore, at this stage prudence would point to the responsibility of a syndicate to enforce the Tobacco Act. As a measure of precaution, a board of directors should not tolerate that a person smokes in a place where it is prohibited. To avoid the gray zone and to ensure that a syndicate will not face unnecessarily fines, an appropriate modification to the by-laws of a building would likely reinforce this measure.
To make sure that the provisions of the law are respected, the appointment of inspectors is being considered. The role of these inspectors will be to verify the compliance of different sections of the Tobacco Act and the provisions of its regulations. The inspector may, if an offence has been determinate, issue a statement to physical or legal persons who contravene the provisions of the Tobacco Law or its regulations.
A smoking offence in a place where it is prohibited to do so will be sanctioned by a fine of at least $50.00 and of a maximum of $300.00. The operator of a place or a business referred to in the Tobacco Law who tolerates that a person smokes in a place where it is prohibited to do so can receive a fine varying between $400.00 to $4,000.00.
The omission to indicate by displaying a sign where it is prohibited to smoke will as such be sanctioned by a fine varying between $400.00 to $4,000.00. Removing or modifying such a sign will constitute an offence whereby the fine will vary from $100.00 to $1,000.00.
Other fines will also be provided for by the law in particular with respect to the obstruction of the exercise of an inspector’s functions, the omission to give reasonable help to an inspector, or in the case of refusal or negligence to conform to the demand to produce information or documents related to the application of the law or its regulations.
In the case of a repeat offence, fines will be at least the double of those hereinabove mentioned.
Directors, co-owners and managers of co-ownership: be advised!
For more info: http://www.msss.gouv.qc.ca/loi-tabac/
The information provided on this page is general in nature and cannot compensate for the need to obtain legal advice specific to a particular situation.
