man holding nose due to bad smell in property

For those not new to condo living, you inevitably have come across a time when the smells and odours from your neighbours have without warning, entered your unit, much to your shock and chagrin.

Smoking and odour issues are on the rise, and are likely the combination of our growing intolerance for smoking and buildings with a higher density, translating into more people in a smaller space.

Under the Smoke Free Ontario Act, smoking in common areas such as corridors, elevators, stairwells, laundry facilities, exercise rooms, party rooms, hallways and underground parking garages is illegal.

The problem, however, relates to smoking that takes place within a unit or on an exclusive-use common element (such as a balcony or patio). This behaviour may be legal, if your condominiums declarations or rules do not strictly prohibit this activity.

The majority of declarations contain a general nuisance or unreasonable inference clause, which aligns with the Condominium Act, however, board of directors must take all reasonable steps to ensure the owners are complying with the Act, declaration, by-laws and rules, including those nuisance provisions.

The duty of the board is to ensure they, through their property management company, investigate the complaint and address the issue thoroughly. This may involve the use of professionals to determine if there is a breach in the common element design, which is promoting the infiltration of odour.

In a recent case between MacKay v MTCC985, the court found that the corporation did not act quickly and thoroughly enough while investigating a complaint concerning cigar smoke infiltrating an owners unit. The owner was able to establish they had a disability and the cigar smoke was extremely irritating, but moreover, the directors should have sought the advice of the condominium’s professionals, such as the lawyer, engineer, or other qualified persons. The corporation was ordered to pay legal fees in excess of $32,000

Don’t let it get to court. In many instances, communicating the issue, and offering viable solutions to the offending party by your condominium property manager may be enough.

Ensure that you have ruled out any common element defects which may be contributing to the problem. Remember, the courts are looking to the corporations to act prudently, up to the point of undue hardship. If you are unsure that this means, or what the courts interpret this minimum to be, consult your property management company and/or your corporation’s lawyer.

While an owner may suggest that they have a right to smoke, they don’t. Nicotine addiction is not a disability that would require accommodation under the Human Rights Code.

An option that is being used as a property management system aimed at combating this problem is installing a rule which effectively takes your condominium “smoke-free”. Consultation with your corporation’s lawyer will be instrumental in ensuring this rule is created properly, and addresses the most current aspects of case law.

Boards should be fully aware of the Act, the corporation’s declarations, by-laws and rules when investigating and responding to smoke & odour complaints. Failing to do so in a prudent, professional and timely manner, could expose the condominium, and the directors to liability.