03/06/2024 – Jurisdiction Ontario
Part 86 published on 01/06/2024
No evidence of smoke migration into the Applicant’s unit
The Applicant complained that smoke from a neighboring unit was migrating into the Applicant’s unit. The Tribunal held that there was no evidence to support this. The Tribunal also held that the condominium corporation had taken reasonable steps to investigate the complaint, even though the condominium corporation had not hired an engineer to investigate. The Tribunal’s decision included the following:
…YCC 141 does not have rules that prohibit smoking in the units. She may smoke in her unit, provided that it does not create a nuisance, annoyance or disruption within the meaning of section 117(2) of the Act.
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The Applicant has not proven that there is smoke and odour in his unit because the evidence of smoke and odour is limited to the statements and beliefs of Ms. Gurova that this is happening. Her statements are not confirmed by the investigations by YCC 141’s security guards, the air quality monitor readings, or testimony of other witnesses. Put simply, there is no evidence to confirm Ms. Gurova’s statements about the migration of smoke and odour into the unit, and I cannot find that there is smoke and odour based solely on her complaints and beliefs, particularly given the contemporaneous investigations by YCC 141’s security guards who failed to detect any smoke or odour.
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I accept that the air quality monitor reports show a change in the intensity of VOCs. However, the monitor does not provide any information about the nature of the VOCs, specifically whether the VOCs detected are associated with cigarette smoke, and, therefore, the reports do not prove that there is smoke and odour in Ms. Gurova’s unit. I do not accept Ms. Gurova’s statement that the air quality monitor is a reliable measure of second-hand smoke or that it identifies when Ms. Al-Hamdan lights up a cigarette in her unit. From a review of the documents about the air quality monitor, I find that it is not capable of identifying second-hand smoke or detecting the source or nature of the VOCs. Moreover, it is simply not plausible that the air quality monitor can detect when a cigarette is lit in another unit because it is designed to monitor air quality and not the causes of changes in air quality.
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From the evidence before me, it is clear that YCC 141 investigated Ms. Gurova’s complaints of smoke and odour and that it was unable to confirm the presence of smoke and odour. YCC 141’s security guards entered Ms. Gurova’s unit as well as Ms. Al-Hamdan’s unit to determine whether there was cigarette smoke and related odours. In each instance, the security guard found nothing to confirm Mr. Gurova’s complaints. I accept that YCC 141 engaged in reasonable steps to respond to Ms. Gurova’s complaints. Further steps such as retaining an engineering firm were not required because YCC 141 was not able to detect any smoke or odour in the Applicant’s unit.
Stoyanov v. York Condominium Corporation No. 141 et al., 2024 ONCAT 32