Nuisance is NOT Subjective

D'Souza v. Toronto Standard Condominium Corporation No. 2565 et al., 2024 ONCAT 23

Smoking is a hot topic in condominium buildings, and remains to be a controversial one.  Many buildings have either always been smoke-free, or have made a transition to become smoke-free.

In buildings that are aiming to become smoke-free, there are often provisions in the corporation’s Rules that allow for ‘legacy’ smokers, or in other words, the corporation will allow those who smoked prior to new Rules being implemented, to continue smoking.

Often these legacy provisions will allow unit owners to continue smoking in their units unless the smoking is a nuisance.   The problem is – what is a nuisance to one owner, may not be to another – and the Board has to determine when to intervene and potentially tell a lifelong smoker, that they can no longer smoke in their unit.

In D’Souza v. TSCC 2565, the corporation asked for $31,128.50 for its costs incurred during the CAT process – the CAT refused to give any amount, despite the condo being completely successful and being forced to engage in the CAT process by a unit owner who complained of the smell of smoke, despite living in a building where owners were permitted under legacy provisions, to smoke in their units.

The rules stated that if one or more complaints are received by TSCC 2565 that smoke or smoking odours are entering another unit or the common elements as a result of smoking in the unit, and the owner does not resolve those complaints following receipt of written notice from the board or condominium manager, the board may prohibit smoking in that unit.

The applicant claimed that “TSCC 2565 is permitting an activity to continue (i.e. smoking) that is creating a nuisance in the form of smoke and odour in her unit, effectively interfering with the enjoyment of her home. She reports that the smoke is worsening her asthma symptoms and elevating her blood pressure, and notes that the smoke has impacted her socially, as her friends and family have refused to visit. She also notes that it has cost her money, as she has had to buy HEPA air filters that run constantly, increasing her hydro costs.”

The problem – was the unit that the applicant had identified as the source of the smoke – denied smoking in the unit!

The CAT started by looking at the legal meaning of nuisance:

“While the term nuisance may be a common term that is used regularly within our daily lives, it has specific meaning in the context of making a claim of nuisance. 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 the 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.”

            It is important to note that the CAT recognizes that just because there is something undesirable going on – it will not necessary amount to nuisance.

The CAT further noted 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.”

            The Applicant took issue with the way in which the corporation investigated her complaints – alleging that by sending someone to the unit to try and smell the smoke she alleged was, at times, causing her to choke, was insufficient.  The CAT disagreed, apparently approving, at least on some occasions, a “smell test.” 

The CAT held that:

“Ms. 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.”

The “smell test” may not be the most appropriate test in all cases, it seems that the CAT approved of the smell test in this case based on the complaints of the smoke smell being so bad, that she was choking and alleged that she was living in an ashtray.  It also appears that the CAT found the Applicant to be exaggerating the smell and this may have ultimately worked against her.

So what does this CAT case mean for Boards and Management?

1. Where smoking is permitted in a building – unit owners cannot expect to be free of the smell of smoke – some degree of interference may be acceptable;
2. A smell test may be sufficient – however, from our experience, expert testing will be required for a corporation to show that it has properly investigated complaints; and
3. The CAT remains reluctant to award costs, even if a corporation is wholly successful! 

It is hard to say what could have been done, if anything, to prevent this case, however, in many circumstances, early intervention and open communication is critical!