30/09/2024– Jurisdiction Ontario
Part 88 published on 01/12/2024
Outdoor smoke not causing unreasonable nuisance.
The Applicant alleged that when the Respondent smokes on her porch the smoke migrates into his unit causing smoke and odour that are a nuisance to the Applicant and his family.
The Tribunal held that the smoke in question was only entering the Applicant’s unit when his windows and/or door were open, and the smoke was not causing an unreasonable nuisance.
The Tribunal said:
Ms. Romanino does not deny that she often smokes outside on her porch, however, she notes that there is no rule that prevents her from doing so. The building does not prohibit smoking in units or on balconies or porches.
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Additionally, the evidence shows that smoke migrates into Mr. Kovalenko’s unit only when his doors and windows are open. I appreciate that Mr. Kovalenko wants to minimize his family’s exposure to smoke and that this has become even more important for him since the birth of his child earlier this year; however, the evidence shows that he can do so by closing his doors and windows when Ms. Romanino smokes. This may, indeed, inconvenience Mr. Kovalenko and interfere with his preference to keep his windows open; however, Mr. Kovalenko has chosen to live in a building where smoking is permitted (both indoors and outdoors). This means that some smoke and odour migrating through open windows and doors is to be expected and will need to be tolerated. It is not reasonable for Mr. Kovalenko to expect or demand a complete absence of smoke and odour from people smoking while living in this condominium.