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Smoking in condos does not always amount to nuisance

While lots of condos have become smoke free, many either don’t regulate smoking or have granted legacy rights to existing smokers. The result is that, when owners complain about smoke in their units, both sides rely on their nose to argue that the other side is wrong about the degree of nuisance. In a recent case, the CAT ruled on whether a “sniff test” constituted an adequate investigation into a smoke complaint.

Facts of this case

In this case, Ms. D’Souza was experiencing an intense smell of smoke in her unit, which worsened her asthma and affected her blood pressure. The smell was so intense that she often found herself “choking” or suffering from “smoke headaches”. The smoke was “non-stop” and was so severe that she felt she was “living in an ashtray”. The smell was corroborated by her guests.

Ms. D’Souza had an air test performed in her unit, which confirmed the presence of volatile organic compounds (“VOCs“) which can be associated with cigarette use.

Ms. D’Souza frequently reported this smell to the corporation. In turn, the corporation’s security guards would attend the unit or hallway to perform a “sniff test”. Despite Ms. D’Souza’s insistence that there was a clear smell of smoke, the guards regularly indicated that they could not smell anything.

Ms. D’Souza took the case to the CAT, arguing that smoke nuisance was taking place and that the corporation had failed to adequately investigate or deal with the issue.

The CAT did not agree.

Analysis

The CAT’s decision turned, not on whether there was smoke (it accepted that there was some), but more on whether this smoke amounted to nuisance as defined by law.

[8]  […]  In determining whether something is a nuisance, it must be determined: (a) that it has substantially interfered with the enjoyment of a person’s property (i.e. it must be more than a trivial interference); and (b) that the interference is unreasonable. In determining what is unreasonable, criteria such as frequency of the interference, the duration of the interference, and the distinct aspects of the condominium community and building are all things to be considered. It is recognized that some interferences may be acceptable and must be accepted as a part of life in a multi‑unit residential complex. Not every undesirable interference will result in a successful claim of nuisance.

So how was this applied in Ms. D’Souza’s case?

Decision

Ultimately the Tribunal accepted that Ms. D’Souza was experiencing smoke smell and that she was sensitive to it. However, in light of the Corporation’s “investigation”, the CAT concluded that this smell was not sufficient to constitute “nuisance”.

[26]  I appreciate that Ms. D’Souza may be sensitive to smoke and smoke odour, and she may want “to live in a smoke-free environment”; however, she has chosen to live in a building where there is some smoking permitted, this means that some smoke and odour (as well as compounds associated with smoke) may be expected and will need to be tolerated.  As noted, to rise to the level of a nuisance, the interference must be substantial and unreasonable and there is no objective evidence to suggest that Ms. D’Souza is experiencing smoke and odour at this level. Therefore, based on the evidence before me, I do not find that the smoke and odour Ms. D’Souza is experiencing amounts to a nuisance as per the Act.

The Tribunal also addressed Ms. D’Souza’s expert finding of VOCs, noting that while VOCs may be associated with cigarette smoke, they can also be associated with other compounds like personal care products, air fresheners, etc.

Is the “sniff test” sufficient?

The CAT appears to have accepted the old “sniff test” as being an adequate response to a complaint of smoke nuisance.

Respectfully, we are far from certain that this is always the case. It is risky, at best, to rely on the olfactory sensitivity of your security guard.  What do we know about this security guard? Does he smoke? How sensitive is his nose? How independent is he?  We would have expected adequate air testing or, at least, more cogent, independent and reliable evidence. At the very least, we would have expected evidence from more than one person.

Still, in this case, the outcome turned on a question of credibility between two subjective observations: Those of the owner and those of the security guard.

[22]  D’Souza takes issue with the way TSCC 2565 investigated these complaints, arguing that a “smell-test” is not sufficient for determining smoke that is a nuisance. However, as already noted, in her complaints and submissions, Ms. D’Souza insists that the smoke is often so bad that it “chokes” her, and that she is “living in an ashtray”. Given Ms. D’Souza’s description of the severity of the smoke, it is reasonable to assume that a person without any olfactory disability would be able to smell the smoke odour both in a unit and/or in the common elements when investigating. The fact that it was not detectible by any staff member during the various investigations, which by credible account were undertaken with diligence, makes it difficult to conclude that the smoke and odour were present at the level of severity described by Ms. D’Souza.

Cost

In this case, the Corporation sought costs in an amount exceeding $31,000. In support of this claim, they relied on the Corporation’s indemnification provision. The Corporation argued that Ms. D’Souza did not work cooperatively with them and rushed to the CAT.

The CAT did not agree. While it was true that Ms. D’Souza was unsuccessful, her position was not unreasonable. The Corporation ended up having to absorb its costs.

Takeaways

As always, here are some of the lessons learned:

  •  It seems that the CAT agrees that some degree of nuisance is to be expected and accepted when one lives in a condo with legacy provisions authorizing existing smokers to smoke.
  • The CAT will apply the legal test of nuisance and not a strict liability one. The CAT may apply the nuisance legal test before revoking someone’s legacy right to smoke.  This case was not about that, but this case may support such an argument.
  • If you are experiencing the smell of smoke, make sure to be as precise as possible in your tracking of it. If you are going to have witnesses corroborate the presence of the smoke, ensure they provide sufficient detail on their observations;
  • If you are a board member or manager, and are tasked with investigating a smoking complaint, ensure that the complaint is taken seriously, and that adequate steps are taken to address it;
  • In most cases, the old “sniff test” may not be sufficient and it is best (for both sides) to regularly report and to properly document your observations. Best to have multiple noses rather than just yours as part of the evidence;
  • Always keep in mind that at the CAT, even if you are the successful party, you may be stuck with your own costs. Accordingly, it is almost always better for both sides to work cooperatively and find a mutually acceptable outcome, rather than expending legal fees and time at the CAT, with no guarantee of reimbursement.

You can read the decision here.

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