Part 47 published on 01/09/14
After initial delay, condominium corporation took reasonable steps to prevent transfer of cigar smoke
The owners of one of the units complained about cigar smoke entering their unit. The cigar smoke rendered their unit uninhabitable, and they were forced to move out. After some initial delay, the condominium corporation made various efforts to address the problem, including:
- Obtaining assurances that the smoker (in a neighbouring unit) would refrain from smoking);
- Arranging for smoke migration testing, in order to evaluate the fire separation between the units;
- Investigation of the vertical fan coil units;
- Testing of the corridor air make-up system;
- Undertaking repairs recommended as a result of the aforesaid tests and evaluations.
However, the initial efforts to solve the smoke migration problem were not entirely successful (and it was also apparent that the neighbor did not refrain from smoking). The corporation then hired a new expert to undertake further investigations. That expert’s work (and resulting repairs) appeared to fully resolve the problem. The Court held that the condominium corporation had ultimately met its obligations under Sections 89 and 90 of the Condominium Act, 1998, to repair and maintain the common elements (in order to prevent the smoke transfer). However, the Court ordered the condominium corporation to pay costs, because of the corporation’s delay. The Court said:
While it was suggested by the corporation that by suing, the owners have acted precipitously, it is my view that they have not. I find that the condominium corporation, in all of the circumstances, did not act with sufficient dispatch and, indeed, adopted an unfortunate attitude toward the owners, who were quickly branded as complainers who had far too quickly ran off to their own lawyers.
The owners initially took reasonable steps to try and get the condominium corporation to pay attention to them. Even allowing for the fact that there were people on vacation at the time that the cigar smoke problem first arose, it was unacceptable that it took more than a month before (investigations were started). Having identified violations of the Fire Code and the need to act with dispatch, the response of the condominium corporation was, effectively, not do anything of significance for nearly two months
…
I do not find it unreasonable that the owners found it necessary to commence their application. Less formal efforts to obtain a satisfactory response from the condominium corporation had not worked. Accordingly, despite the fact that I have concluded that the condominium corporation is not presently in breach of its obligations, I would exercise my discretion under section 131(1) of the Courts of Justice Act, R.S.O. 1990, Chap C.43, to award costs in favour of the applicants.