Part 45 published on 01/02/14
Condominium corporation had a duty to investigate potential risks to heath and safety
The owner of a unit complained of second-hand smoke entering the unit from the unit below. The condominium corporation investigated, by opening up a bulkhead over the furnace room in the lower unit. This revealed that the fire separation between the units had not been installed in the vicinity of that bulkhead. The corporation arranged for installation of the necessary fire separation and attended to other remedial work in the bulkhead. This work substantially reduced the odour of smoke (in the unit above) but did not eliminate it. There was cause to suspect that the necessary fire separation had not been installed in a second bulkhead in the unit below.
The question for the Court was whether or not the condominium corporation was obligated to inspect the second bulkhead.
The Court said that the existence of a deficiency (in the second bulkhead) had not been proven. However, the Court said that there was a “prima facie case for investigation”. Therefore, the condominium corporation was obligated to carry out the investigation at its cost. And the condominium corporation could not hold the complaining owner responsible for the cost, even if no deficiency was revealed in the second bulkhead. The Court said:
It may well be that the investigation shows the second bulkhead to have adequate and proper fire separation and be within the permissible limits for air infiltration. But where there is smoke, there may be fire. In my view, the corporation has a duty to find out.
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Furthermore, if the fire separation is deficient in this area as well, the Board should consider whether more extensive investigations are required in other areas of the building.