Legal

February 6, 2024 Published by Toronto and Area Chapter - By Julia Lurye, Esther Ruan, Angad Singh

Decisions From The Courts

From the Winter 2023 issue of CCI Toronto Condovoice Magazine.

Smoker Refuses to Participate at CAT • Enactment, Reasonableness, and Enforcement of the Non-Smoking Rule • Does Odour Transfer Constitute a Nuisance?

Simcoe Standard Condominium Corporation No. 356 v. Caleta et al, 2023 ONCAT 62

In this matter, CAT was tasked with determining whether, on a balance of probabilities, the owner violated the nonsmoking rule based solely on the evidence submitted by the condominium corporation, and without the active participation of the owner.

On September 24, 2018, Simcoe Standard Condominium Corporation No. 356 (“SSCC 356”) passed rules prohibiting smoking in the units and on the common elements (the “Non-Smoking Rule”). However, owners who smoked at the time the Non-Smoking Rule was passed were permitted to continue to smoke under the legacy provisions of the Non-Smoking Rule, provided that smoke does not migrate
elsewhere on the property.

The Non-Smoking Rule supplemented existing rules prohibiting the creation of, or permitting of, an odour which may disturb the comfort or quiet enjoyment of other units (the “Quiet Enjoyment Rule”).

In April 2021, the owner, Julia Caleta moved into her unit with her occupant. Thereafter, SSCC 356 began to receive complaints that both Ms. Caleta and her occupant were smoking in the common element areas, and that the hallway near Ms. Caleta’s unit smelled like cigarettes and marijuana smoke. In addition, SSCC 356 received complaints that the occupant was spraying deodorizer to cover up the smell of smoke in the hallway, causing a resident to have trouble breathing.

Over the next year and a half, management personnel wrote numerous warning letters to Ms. Caleta, requesting her voluntary compliance to stop smoking in the unit and in the common elements. Ms. Caleta disregarded the warning letters and continued to smoke in the unit and on the common elements together with her occupant and visitors. SSCC 356 was forced to escalate the matter to legal counsel. SSCC 356’s lawyer wrote several compliance letters to Ms. Caleta, requesting her compliance with the Non-Smoking Rule and warning that legal proceedings would be commenced and costs would be added to her common expenses. Ms. Caleta did not respond to the letters.

SSCC 356 commenced a CAT application against Ms. Caleta and her occupant.

Ms. Caleta joined the case but did not provide any submissions. The occupant failed to participate altogether.

The CAT found that Ms. Caleta was given many opportunities to bring herself in compliance with the Non-Smoking Rule, but she failed to do so. The CAT concluded that, on a balance of probabilities, the evidence submitted by SSCC 256 established that Ms. Caleta was smoking in violation of the Non-Smoking Rule, and that Ms. Caleta breached the Quiet Enjoyment Rule by creating an odour that is a nuisance. The CAT ordered Ms. Caleta to cease smoking tobacco and marijuana in her unit and on the common elements, and, in accordance with section 119(2) of the Condominium Act, 1998, to ensure that any person occupying her unit also comply with the Non-Smoking Rule.

However, the CAT refused to make an order against Ms. Caleta and her occupant with respect to the nuisance of odour created using deodorizing sprays in the hallway because SSCC 356 did not provide prior written notice to Ms. Caleta regarding this issue.

With respect to costs, although SSCC 356’s legal fees in the application amounted to $16,088.99, CAT ordered Ms. Caleta to pay costs of $3,500 for SSCC 356’s legal fees, together with $150 for tribunal fees and $864.13 for SSCC 356’s costs incurred to seek compliance.

Takeaway
This case shows the importance of condominium corporations providing owners with proper written notice of rule violations and opportunities to bring themselves into compliance. Failure to do so may result in CAT refusing to make compliance orders against owners. In addition, this case highlights the downside of default proceedings when owners fail to actively participate in CAT applications. Not only does the CAT not have the benefit of considering the other side’s evidence, but lack of owner participation may also result in the CAT determining that a condominium corporation’s requested legal fees are not reasonable because the proceeding was shortened by
the non-participation of the owner.

Carleton Condominium Corporation No. 95 v. Frederick, 2023 ONCAT 74

In this matter, CAT was tasked with determining the enforceability and reasonableness of a condominium corporation's non-smoking rule.

Carleton Condominium Corporation No. 95 (“CCC 95”) filed an application against unit owner, Diane Frederick, seeking her compliance with its non-smoking rule. The nonsmoking rule came into effect on March 1, 2018, with a legacy provision exempting owners who smoked at the time the rule was passed until February 29, 2020, after which time the non-smoking rule would apply to all owners. Ms. Frederick, a unit owner for over 25 years, obtained an exemption but continued to smoke after the deadline.

The following issues came up in the CAT application:

Issue #1 - Enactment of Non-Smoking Rule: Ms. Frederick did not deny smoking in her unit but contested the procedure that CCC 95 followed to enact the non-smoking rule, arguing lack of consultation and lack of voting invitation by CCC 95. Evidence showed that on January 15, 2018, CCC 95 sent a letter to owners citing relevant statutory provisions of the Condominium Act, 1998 (the “Act”), and that on February 12, 2018, Ms. Frederick requested a meeting to amend the proposed non-smoking rule to allow existing owners to smoke in the unit until they sell or move out. Although Ms. Frederick’s request went unanswered, CAT found no evidentiary basis to conclude that the non-smoking rule was not properly enacted. CAT found that the board did not receive the required requisition for a meeting from 15% of the owners within the stipulated timeframe.

Issue #2 - Reasonableness of Non-Smoking Rule: The nonsmoking rule only permitted smoking in a designated outdoor area, at least nine meters away from any entrance of the building. Ms. Frederick, citing old age, health issues (particularly her back problem) and inconvenience, argued that the non-smoking rule was unreasonable. CAT assessed the rule under section 58 of the Act, and determined that the non-smoking rule aimed to promote safety, security, and welfare or prevent unreasonable interference. Despite Ms. Frederick's belief that the rule was unreasonable for her, CAT deemed it reasonable and within statutory parameters, considering the potential health impacts of second-hand smoke. Additionally, CAT noted the board's efforts to provide a two-year grace period to the owners for transition.

Issue #3 - Enforcement of Non-Smoking Rule: Ms. Frederick contested the enforcement of the non-smoking rule by CCC 95, claiming that there was no evidence that smoke was emanating from her unit and that other residents were also smoking in their units. CAT emphasized Ms. Frederick's admission to smoking in her unit in violation of the rule and stressed CCC 95's duty to enforce compliance with the nonsmoking rule. CAT dismissed Ms. Frederick’s claims that other residents were in violation of the non-smoking rule, as it was not an issue under consideration. CAT found the enforcement action appropriate, given the history of complaints against Ms. Frederick after the legacy provision ended.

CAT found that the nonsmoking rule was reasonable, and that Ms. Frederick was in violation of same by smoking in her unit. Consequently, CAT ordered Ms. Frederick to comply immediately with CCC 95's non-smoking rule and refrain from smoking in her unit and/or on the common elements, except in designated outdoor areas.

CCC 95 did not seek costs, and CAT, despite ruling in its favor, exercised its discretion to not award costs having found that Ms. Frederick's evidence and submissions were well thought out and revealed a genuine concern about the operation of the non-smoking rule.

Takeaway
This case shows that an owner can at times avoid having costs awarded against them if they actively participate in a CAT proceeding and make thoughtful submissions.

Stoicevski v. Peel Standard Condominium Corporation No. 668, 2023 ONCAT 86

In this case, the CAT was asked to determine whether an odour transfer was reasonable and whether it constituted a nuisance.

The owner, Ms. Stoicevski resided in Peel Standard Condominium Corporation No. 668 (“PCC 668”) with her family for over twenty years. In 2021, Ms. Stoicevski and her family started smelling nuisance odours in the unit, which they likened to laundry exhaust/odours, cooking odours, and musky/sewer-like odours.

The odours were purportedly intermittent, varying in occurrence on a daily or weekly basis. They affected various parts of the unit, with the kitchen, bathrooms, and laundry room being the most affected. Ms. Stoicevski and her family suspected that the odours originated either from another unit, and/or from the common elements.

Ms. Stoicevski and her family claimed the odour transfer was unreasonable, causing discomfort and health issues, such as headaches and cold like reactions. They expressed concerns about their well-being due to these odours, even calling 911 on one occasion. PCC 668 was of the view that it had taken sufficient and reasonable measures to address the odour complaints, including making adjustments to the make-up air unit to assist with additional air flow to dissipate any alleged odours, and issuing notices to residents. PCC 668 also commissioned an air quality report and mechanical contractors to investigate the issue of the alleged odour transfer. An investigation by National Mechanical Air detected strong laundry odours in another unit, but not in Ms. Stoicevski's unit. An inspection by OSB Consulting revealed that the carbon dioxide levels were within safe limits, but identified volatile organic compounds in Ms. Stoicevski's unit. These organic compounds originated from diesel exhaust, beauty products, and laundry additives. An inspection by GTS Services also suggested a possible odour transfer route through an old furnace exhaust duct in Ms. Stoicevski's unit.

In addition, PCC 668's superintendent reported that he did not detect any unreasonable odours during his visits to Ms. Stoicevski's unit.

Ms. Stoicevski was not satisfied with PCC 668’s investigation and prevention of the odour transfer, and commenced a CAT application seeking an order that PCC 668 violated sections 117 and 119 of the Condominium Act, 1998 (the “Act”). Ms. Stoicevski argued that PCC 668 did not act on the findings and recommendations in the air quality report or attempt to resolve the issue and requested that CAT order PCC 668 to hire professionals to inspect the odour transfer, comply with their recommendations, and pay her $3,294.72 in damages and the costs of the application. PCC 668 requested the dismissal of the application and the opportunity to make additional submissions regarding costs.

The CAT did not find sufficient evidence to conclude that the odours constituted an unreasonable nuisance, annoyance, or disruption under the Act. The CAT noted that the odours were inconsistent, and the source remained unconfirmed. It seems that Ms. Stoicevski and her family were uniquely sensitive to the laundry odours used by another unit. In addition, the odours could be related to maintenance and repair issues, which were outside the CAT’s jurisdiction.

The CAT found that PCC 668 met its obligations under the Act and its governing documents with respect to investigating the odour transfer and its enforcement duties. PCC 668 could not prohibit occupants from using scented laundry products, as this is beyond its control. Therefore, the CAT ruled in favour of PCC 668 and dismissed the application.

The CAT did not award costs to either party, despite claims of delay tactics by both parties.

Takeaway
This case shows the importance of owners and condominium corporations working together to resolve concerns, managing each other’s expectations and acting reasonably under the circumstances. Costs would likely have been awarded against the condominium corporation had it not taken reasonable steps to investigate the odour transfer.

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Julia Lurye Horlick
Condominium Law PC

Esther Ruan Horlick
Condominium Law PC

Angad Singh Horlick
Condominium Law PC