Legal

January 15, 2024 Published by South Alberta Chapter - By Dana Hagg

Licence To Grill: Applicant Roasted in Condominium Balcony Barbeque Dispute

From the Winter 2024 issue of the CCI South Alberta CCI Review

Some condominium unit owners just can’t take the heat...

In Spicer v Condominium Corp 041156, 2023 ABKB 611, owners of a top-floor Canmore condominium unit asked the Court to prohibit their downstairs neighbour from using her barbeque grill on her balcony. They complained that the wafting smoke and smells were a nuisance and a health hazard. They applied under section 67 of the Condominium Property Act, RSA 2000, c C-22, arguing that the condominium board had engaged in three forms of “improper conduct”:

1. Refusing to enforce the condo bylaws;
2. Discrimination on the basis of disability contrary to the Alberta Human Rights Act, namely, Chronic Obstructive Pulmonary Disease (COPD); and
3. Failing to properly investigate the complaints of smoke.

However, the bylaws permitted barbeques on balconies. The only limitation on barbeque usage was a general prohibition against owners using their unit “in a manner or for a purpose that is unlawful or may cause a nuisance or hazard.” The bylaws did not define “nuisance,” so the Court interpreted this prohibition according to the common law doctrine of nuisance. At common law, a nuisance includes any interference with use or enjoyment of lands that is both “substantial and unreasonable.”

The top-floor unit owners admitted that they have their own balcony barbeque, which they apparently use without suffering health issues. They admittedly left their windows open on days when Canmore had poor air quality due to forest fires. They also admittedly light incense and scented candles when the downstairs neighbour barbeques. Clearly, this evidence calls into question whether the barbeque is the primary cause of the unit owner’s COPD symptoms, or whether he is even sensitive to smoke at all.

They attempted to prove the substantial and unreasonable nature of the alleged nuisance using readings from a consumer-grade air quality monitor. However, they did not provide any baseline readings, and there was no way of ruling out other sources of air pollution such as forest fire smoke or incense smoke.

They also tried to rely on an email sent by a condominium board member, who observed that the top-floor unit was “really really smoky.” However, the email was not properly submitted as evidence to the court, and the email did not even attribute the smoke to the downstairs barbeque.

But most incredibly, one of the top-floor unit owners swore in his affidavit that, when they closed their windows, it had little to no effect on the smoke and odours entering the unit. The judge found that this “defies common sense,” and the judge was “left with the impression” that the unit owner was “exaggerating the effect of [the] barbeque use for the purposes of this application.”

The evidence showed that the downstairs neighbour used her barbeque 23 times over a one-year period, mostly during the summer months, at most three times in one week. The Court described this as “occasional” use, which was not a nuisance:

While the presence of cooking odors or some occasional barbeque smoke may be annoying or unpleasant, both are a normal part of living in high density housing such as a condominium that permits barbeque use on the balconies. I am unable to find on the evidence before me that the occasional use of a barbeque for meal preparation substantially or unreasonably obstructs or interferes with the right of [the Applicants] to the comfort and enjoyment of their own unit and its associated common areas.

The top-floor unit owners might have sincerely believed that the barbeque smoke and odours were intolerable, but that is not the relevant test. Interference is only considered “substantial” when it would be “intolerable to an ordinary person.” The Court held that an ordinary condominium unit owner can tolerate occasional barbeque smoke and smells from their neighbouring unit owners:

The test for substantial interference is an objective one: would the conduct complained of be intolerable to an ordinary person? The barbeque is used only occasionally, and it is not used for any purpose other than normal meal preparation. Food odors and smoke from the occasional use of a barbeque is a normal and expected event when living in a condominium or other high density setting where barbeque use is permitted. Occasional use of a barbeque for meal preparation does not rise to the level of conduct that would be intolerable to the ordinary person.

On the second issue, it is true that condominium boards are subject to the Alberta Human Rights Act, RSA 2000, c A-25.5. However, perhaps unsurprisingly, the Court concluded that the condominium board had not discriminated against the top-floor unit owner with COPD when it failed to prohibit the downstairs neighbour’s barbeque usage. The medical evidence confirmed that he had COPD, but there was no evidence his COPD was caused or aggravated by the barbeque smoke. Given his admitted use of incense, candles, and his own balcony barbeque, the judge found that he had suffered no discriminatory adverse impacts related to the downstairs neighbour’s continued use of her barbeque.

The third issue relates to the condominium board’s investigation of the complaints and allegedly “improper” conduct.

The top-floor unit owners argued that the board acted improperly when it permitted the downstairs neighbour to relocate her natural gas hookup. The owners tried to argue that the natural gas hookups limit where barbeques may be placed. However, the bylaws made no such distinction, and even permitted propane and charcoal grills, so this expectation was objectively unreasonable.

The Plaintiff also cited the decision of Hnatiuk v Condominium Corp No 0322411, 2014 ABQB 22, in which the condominium board’s failure to properly investigate a smoke complaint constituted “improper conduct” under the Condominium Property Act, warranting court intervention. In that case, the complaint related to a faulty bulkhead, which caused cigarette smoke to migrate between units. The cigarette smoke posed a health hazard, and a faulty bulkhead could also constitute a fire risk. The condominium corporation refused to open up the bulkhead unless the unit owner agreed to pay, in the event that the bulkhead was actually up to code. Master Schlosser (now Applications Judge Schlosser) held that the condominium board failed to properly investigate, particularly given the potential danger. The investigation may prove to be unnecessary. “But where there is smoke, there may be fire,” and in Master Schlosser’s view, “the [condominium] corporation has a duty to find out.”

By contrast, the downstairs neighbour’s barbeque in Spicer did not pose a health or safety risk. The condominium board took appropriate steps to address the complaints regarding the barbeque. However, the evidence “fell short of establishing that there are any health risks associated with the occasional, outdoor use of a barbeque for the purpose of meal preparation.”

Read the full decision for free on CanLII: https://canlii.ca/t/k0wbf

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Dana Hagg
HMC Lawyers LLP