04/01/2024 – Jurisdiction Ontario
Part 85 published on 01/03/2024
Smoking complaint not proven. Condominium corporation’s investigations were adequate.
The Applicant owner claimed that cigarette smoke was entering her unit from a neighboring unit and that the condominium corporation had failed to properly investigate and resolve the problem.
The Tribunal found that the Applicant’s claims were unproven and dismissed the Application. The Tribunal said:
…I find that there is no evidence that Ms. D’Souza is experiencing smoke and odour, particularly at a degree that rises to the level of a nuisance. I further conclude that TSCC 2565 has complied with its obligations to enforce its governing documents and the Act.
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Despite Ms. D’Souza’s repeated claims that (the tenant in the unit below) Ms. Gonzalez is the source of the smoke migrating into her unit, she has offered no evidence to support this claim other than her assertation that it must be Ms. Gonzalez, because “smoke rises” – which is a very thin basis for such an allegation. Therefore, I cannot conclude that Ms. Gonzalez has failed to comply with the no-smoking rule causing nuisance in the form of smoke.
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The evidence shows that the condominium staff investigated the complaints from
Ms. D’Souza on January 14, 21, 23, February 4, 6, 7, and March 25 and 29, 2023. The investigations of these complaints involved the concierge and/or condominium management walking various floors above and/or below Ms. D’Souza’s unit to try to verify smoke and odour through smelling, visiting specific units above and below her unit to see if smoke could be smelled, speaking to the occupants of accused units, entering the units identified by Ms. D’Souza as the source of the smoke, and entering Ms. D’Souza’s own unit to investigate her complaints. No smoke or odour was verified in her unit or in other units.
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As evidence of smoke in her unit, Ms. D’Souza also submitted an air quality report conducted by an air quality solutions company, as well as reports from her
personal home air quality monitor. She asserts that the levels of volatile organic
compounds (VOCs) found in the air in her home demonstrate unreasonable levels
of smoke and odour. It is important to note that while VOCs do include compounds associated with cigarette smoke, they also include compounds associated with disinfectants/air fresheners, personal care products, among other things – all of which the air quality report noted as making up the total level of VOCs in Ms. D’Souza’s unit. The air quality report did not pinpoint cigarette smoke as the primary or sole cause of the VOCs in Ms. D’Souza’s unit, and it provides no evidence of the frequency of the smoke, the severity of the odour, or evidence that that the compounds found in Ms. D’Souza’s unit are a direct result of smoke that is migrating from elsewhere in the building. Similarly, while Ms. D’Souza’s home monitor reports show that there are VOCs present in her unit, the reports are of little probative value for the same reasons. So, while I accept that the reports provided identified VOCs in Ms. D’Souza’s unit – some of which may be associated with cigarette smoke – they do not prove, on a balance of probabilities, that the smoke Ms. D’Souza says she has been experiencing amounts to a substantial and unreasonable interference that is a nuisance.
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In addition to investigating Ms. D’Souza’s complaints (as detailed above), TSCC 2565 sent four notices between January and March 2023 to its residents reminding them of the smoking rules. On one occasion, when TSCC 2565 did identify a unit that was not in compliance with its no-smoking rule (in that case it was cannabis smoking and was not discovered in response to a complaint from Ms. D’Souza or any other resident, but when the staff entered the unit for maintenance), it took immediate action sending a Notice of Violation that indicated TSCC 2565 would enforce its rule through daily inspection of the unit, which TSCC 2565 submits resulted in the unit coming into compliance. Moreover, despite not being able to validate Ms. D’Souza complaints, and despite the deteriorating levels of civility in Ms. D’Souza’s communication with condominium management and staff, TSCC 2565 took her complaints seriously and sealed the electrical outlets in her unit in an attempt to reduce any smoke that may have been migrating between units. While more extensive egress sealing did not appear to go forward, this appears to have been by mutual consent of the parties.