Smoke and Odours: Not Always a Nuisance

Today, we review a recent decision of the Condominium Authority Tribunal that dealt with smoke and odour migration between two units. For those interested in reading the entire case, it can be found here: Zachepylenko v. Toronto Standard Condominium Corporation No. 2680.

Background Facts

The owners lived in a townhouse condominium. They said they were severely and negatively impacted by smoke and odour from the neighbouring unit. Smoking was not prohibited by the condominium’s documents. The owners sought an order prohibiting their neighbours from smoking inside the unit or on the exclusive use common elements. The owners also sought $42,089.89 in legal costs!

The dispute was about whether the condominium had investigated the issue and complied with its obligations. The CAT member noted it was not a dispute about construction deficiencies with the wall between units. It was not a case about an activity that was likely to cause damage to the property or injury or illness to a person, as the CAT had no jurisdiction under s.117(1) to hear those types of disputes (this is an interesting comment given previous Superior Court of Justice decisions finding it was, but perhaps the parties agreed it was not to keep it at the CAT). It was not a case of oppression under s.135 of the Act.

The CAT member found that the owners complaining of the smoke took a number of steps to try to mitigate the smoke into their unit, including installing spray foam insulation along the joists in the basement and their neighbour’s basement and around pipes to provide a seal between the units, purchasing air purifiers with carbon filters, installing carbon filters in their HVAC system, etc. They reported the smoking to the City, but the City had no jurisdiction on private property.

The condominium acknowledged their concerns from the start.  The condominium retained an engineer to investigate and completed repairs recommended to close the gaps in the basement between the units. A board member attended the unit at least five times but could only detect a smoke odour on the first occasion before the work was completed to seal the unit.

The condominium retained another engineer to investigate. They too reported that they could not detect the odour when they arrived. They did note penetration of smoke and odour at seven electrical outlets, central vacuum outlet, and an unsealed bathroom plumbing penetration. Their assessment was that air sealing deficiencies would need to be addressed to rectify the smoke migration and that this would require extensive repairs to the interior finishes of both units. The smoking owners finished their basement with the recommendations. It was unclear if the owners complaining did any of the work.

The Decision

As a result of the evidence of the parties, the CAT member felt the smoke was substantially abated by the steps taken by the parties. The condominium acted reasonably to balance the owners’ complaints and the fact that smoking was not prohibited at the condominium. As such, the condominium fulfilled its obligations under the Act and declaration. As the smoke and odour was not a nuisance, annoyance, or disruption per s.117(2) of the Act, no remedy was ordered.

The costs incurred by the parties in the dispute were substantial. The owners complaining of the smoke sought $42,000! The condominium sought $16,000. The smoking owners sought $10,000. The CAT member reviewed the CAT Rules on costs and, since the owners complaining of the smoke were not successful, found they were not entitled to costs. The CAT member did not award costs to the condominium to not burden the owners complaining further as they already had to pay their own lawyers a significant amount which was “disproportionate to the issues in dispute.” The smoking owner also sought costs. The CAT member found that he was provocative at times, which escalated the dispute, so he was not entitled to costs either.

The application was dismissed without costs to any of the parties.

Key Takeaways

First, it must be remembered that condominiums only have a duty to address smoke and odour migration between units if the smoke or odour is a nuisance, annoyance, or disruption to others, or if a condominium has a prohibition against the particular smoke or odour activity in its declaration, by-laws, or rules. In this case, there was no prohibition against smoking on the property and the smoke and odours did not rise to the level of being a nuisance, annoyance, or disruption.

Second, the CAT member refused to award either owner costs in this case in large part because neither of them seemed interested in resolving the dispute and they both acted in a manner that appeared designed to provoke the other, which only escalated the dispute. The condominium appears to have been the only one who tried to resolve the dispute and balance the competing interests.

Third, the CAT member noted a few times that the owners were unfamiliar with the rules about smoking on the property. The owners purchased the unit without reviewing the condominium’s rules and unfortunately assumed that smoking inside the units would be prohibited like with public places. They believed that the City’s smoking by-laws or other legislation prohibited their neighbours from smoking outside their unit within 9 meters of their home. None of this was true. This case is a good reminder that people should carefully review the status certificate before purchasing a unit to ensure the condominium is a good fit for their intended use.

The CAT has been busy so far this year, so stay tuned for some more summaries of some interesting cases from the CAT.