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Smoke complaints: Condos must investigate both sides

This is your typical case involving condo owners complaining of smoke/smell emanating from a neighbouring unit.  As is often the case, you have repeated complaints from the same few neighbours and a strong denial from the owner at the centre of the complaints. So, what is a corporation to do in these circumstances?  Here is a case of what not to do.

Facts

In July 2021, the corporation enacted a set of no-smoking rules which prohibited smoking of tobacco or cannabis in units or on common elements (including balconies).

A couple of months later, Mr. Denize moved into his unit. Some neighbours alleged that, following Mr. Denize’s arrival, smoke odours of both tobacco and cannabis increased markedly and also that there was no smoke smell when he was absent from the unit. They testified that the odour invaded their unit and that there was a distinct smell of smoke from the unit when Mr. Denize opened his door. One neighbour alleged that the smoke was so pervasive that it penetrated the soft furnishing in some rooms of her unit.

Mr. Denize conceded that some of his guests did smoke cannabis on one occasion shortly after he moved in as he was no aware of the rule. But his evidence is that, after having been notified of the rule, he has not allowed anyone to smoke in his unit. He confirms that he does not smoke tobacco either. Their evidence is that they were not even in town on some of the dates identified in the complaints. They provided receipts in support of this, showing that they were in Montreal on those dates.

Many warning notices were sent to M. Denize, accusing him of smoking in his unit. He repeatedly denied this and requested that the corporation investigate the source of the odour. He even invited representatives of the corporation to visit his unit and satisfy themselves that there was no smoking in the unit.  The corporation refused this invitation and did not inspect the unit.

Of interest, the corporation did not file evidence of anyone having seen Mr. Denize or his roommate smoking on their balcony.

Mr. Denize testified that he saw others smoke on their balconies.

Complaints

The evidence for the corporation came mainly from two neighbours, both cancer survivors who testified that they are particularly prone to the effects of exposure to second-hand smoke.

In addition to their evidence, the corporation filed some 24 sets of emails complaining of smoke smell coming out of the unit.  Twelve of these emails were from the same two neighbours.  The other 12 emails had the name and identifying details of the complainants redacted.   Of these 12 emails, nine contained identical wording to those from the two witnesses.  The remaining 3 emails had generic language.

This lead the Condo Tribunal to conclude that 21 of the 24 complaints came from the same 2 neighbours and at least 9 were duplicates.

Decision

The Condo Tribunal criticised the corporation for its failure to properly investigate the source of the smoke/smell.  Given Mr. Denize’s invitation to inspect his unit and given that neighbours indicated that the smoke was strong and pervasive (to the point of penetrating their soft furnishing in other’ units), a visit to Mr. Denize’s unit may have been sufficient to determine whether it was the source of the smell.

The CAT flagged the fact that there was no evidence before it of there being any investigation on the source of the smell. Despite Mr. Denize’s strong denials, the corporation preferred to rely on the complaints from two neighbours and persisted in its belief that Mr. Denize was the source.

While OCSCC 656 was justified in approaching Mr. Denize in November 2021, the repeated targeting of Mr. Denize despite his repeated and consistent denials become increasingly unjustifiable. Although OCSCC 656 continued to receive complaints from the two other unit owners, Mr. Denize’s denials should have prompted an investigation into where the smoke odour was originating. Instead, OCSCC 656 continued to accept the complaints of the two other unit holders as proof that Mr. Denize was causing the smoke odour. At some pint, OCSCC 656’s persistence in its accusations became unreasonable.

At the end of the day, the CAT concluded that the the corporation had not demonstrated that Mr. Denize or his unit/balcony were the source of the smoke/smell.

Costs

The corporation sought its costs of enforcing compliance with its governing documents, including the costs of written notices documenting the alleged infractions and the costs of the proceeding.

Having not demonstrated that Mr. Denize breached any of the rules, the CAT did not award them any costs. Instead, the CAT awarded $4,000 to M. Denize on the basis of the corporation’s unjustifiable failure to properly investigate the matter despite the repeated and consistent denial.

Lessons learned

The lessons from these case are evident:

  • Corporations should properly and reasonably investigate both sides of complaints and even more so when one sides denies the allegations made against them.
  • Corporations should also build a strong evidentiary record before bringing a matter to the CAT (or to the courts).

You can read the full decision here.

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