17/03/2023 – Jurisdiction Ontario
Part 82 published on 01/06/2023
Condominium corporation took reasonable steps to stop smoke transfer
The Applicants complained about smoke transfer from a neighboring unit. They alleged that the condominium corporation had failed to take reasonable steps to stop the smoke transfer.
The Tribunal held that the condominium corporation had taken reasonable steps to stop the smoke transfer, also taking into consideration the fact that smoking was not prohibited in the units. The Tribunal dismissed the claim (both as against the condominium corporation and the smoker).
The Tribunal said:
The evidence before me, as set out above, does support a finding that the Applicants did experience smoke migration into their unit. It was unpleasant for them and clearly not a situation that they anticipated at the time of their purchase of the unit. And there is no question that the Rushlow residents are heavy smokers. However, significant measures have been taken by both the Applicants (early in the history of this dispute) and Mr. Rushlow (smoking outside, purchasing air filters, consuming marijuana edibles to reduce his smoking) to mitigate the issue, some of which has been done at considerable expense to both of them. The smoke and odour migration has substantially abated. TSCC 2680 has acted reasonably to balance both the Applicants’ issues and the fact that smoking is not prohibited, and has been responsive to the Applicants’ concerns from the outset. They urged Mr. Rushlow to smoke outside until remedial measures to abate any smoke and odour migration could be taken. They have fulfilled their obligations under the Act and declaration, including retaining engineers on two occasions, and they also undertook some remedial work in the units in May 2021. The responses may not have been as timely as the Applicants thought appropriate, which led to their frustration, but that does not diminish the fact that TSCC 2680 did properly investigate and consistently communicate with the Applicants.
Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 et al., 2023 ONCAT 42