Court cases—second hand smoke

Sharon MacKay v. MTCC No. 985—April 2014
Court rules against condo with smoking cigar
MacKay v. MTCC No. 985—Feb 2015
MTCC No. 985 v Cheney—Dec 2015

A
Sharon MacKay v. MTCC No. 985
Ontario Superior Court of Justice
Court File #: CV-13-949386-0000
Before:  Justice Mew
Heard: 28 & 30 April 2014
Released: 12 May 2014

For the applicants:    Natalie Schernitzki
For the respondents: Jason P. Mangano



Built in 1991, The New Hazelton Lanes (MTCC #985) is a six-story condo at 77 Avenue Road. It has 71 units. A one-bedroom unit sells for about $475,000 and the two bedrooms go for up to $2.4 million.

Second hand smoke
This case involves second hand smoke entering a residential unit and the duty of a condo corporation to promptly investigate and resolve the problem.

The list of engineering companies and contractors involved in order of appearance:
Company
Hired by
Envirocare Systems Inc the owner’s insurer
Hidi Rae Consulting Engineers the owners
Fire Consulting Services Ltd. (FCS) MTCC #985
Climanetics Inc. MTCC #985
Dass Enterprises Hidi Rae (the owners)
Namcan Engineering and Construction Mgmt MTCC #985
Terra Energy Management Services Inc. MTCC #985
Carmichael Engineering Ltd. MTCC #985
Pinchin Environmental Ltd. MTCC #985

Here is how the events unfolded:

24 June 2013
That evening, Sharon MacKay and Tom Cheney (the “owners”) became aware of a strong smell of cigar smoke in their unit. The smell was quite overwhelming. They promptly made a report to the evening concierge on duty in the building.

The owners suspected that the source of the cigar smoke was a neighbour whose unit was one floor immediately above their own. Mr. Cheney knocked on the door of this unit, but to no avail.

26 June 2013
The building’s property manager, Nataliya Lysenko, (Brookfield Condominium Services), formally acknowledged the owners’ initial complaint. She said she would investigate.

28 June 2013
Ms. Lysenko met with the occupant of the unit immediately above the owners’ unit to discuss the issue of smoke possibly migrating from his unit to the owners’ unit. This individual acknowledged that he was a cigar smoker. He agreed to stop smoking for the time being and advised that he would be leaving Toronto on 30 June 2013 and not returning until September 2013. Ms. Lysenko left a voice mail for the owners advising them of her discussion with their neighbour.

29 June –17 July
Ms. Lysenko was away on a scheduled vacation. In the meantime, the owners continued to experience the strong odour of cigar smoke in their unit.

01 July 2013
Mr. Cheney spoke to the evening concierge and asked him to come to the unit to smell cigar smoke. The evening concierge did so and recorded the visit in the logbook. Then, on 03 July 2013, Mr. Cheney spoke to the full-time concierge, and requested that the condominium corporation take steps to investigate and correct the problem.

06 July 2013
The owners concluded that continuing to live in the unit was no longer an option because neither of them could tolerate the intense smoke odour any longer. They booked themselves into a hotel for three nights. They also contacted their insurance company.

09 July 2013
An insurance adjuster and a contractor attended the owners’ unit to assess the situation. The adjuster concluded that the unit was uninhabitable due to the intense odour, that the premises and contents were smoke damaged and that the insurer would reimburse the owners the costs of alternate accommodations. The adjuster speculated that the smoke was coming through the HVAC system and the exhaust fans in the bathrooms. The adjuster recommended that a HVAC consultant should be retained to assess the HVAC/pressure problem. In the meantime, scrubber units were placed in the owners unit to help clean the air by mechanical filtration.

13 July 2013
Envirocare Systems Inc., a contractor retained by the insurer, attended at the unit and conducted an inspection of the mechanical systems and recommended that a mechanical engineer should perform an audit on the make-up air system.

It was not until Natalia Lysenko returned from vacation that Mr. Cheney spoke with someone in authority (Ms. Lysenko) who advised him that she had “heard nothing” and could provide no update.

12 July 2013
In the meantime, Marilyn Snead, the President of the Board of the condominium corporation, had herself returned from a vacation. She immediately contacted the corporation’s solicitors for guidance.

15 July 2013
The owners consulted solicitors. The same day, a lawyer’s letter was sent to the Board of Directors and Ms. Lysenko advising, inter alia, that the applicants had been forced to find alternative accommodation because of the pollution of their unit and demanding both action and compensation.

25 July 2013
Letters were then sent from the condo corporation’s lawyers to both the owners and the occupant of the unit above theirs. The owners were advised that the corporation was in the process of arranging an inspection of their unit’s fan coil units as well as “smoke bomb” test to determine possible migratory roots of cigar smoke into the owners unit. The occupant of the unit above was asked for his continued cooperation as investigations proceeded and to refrain completely from smoking cigars in his unit in the meantime.

31 July 2013
There was a meeting of the Board at which the problems involving the owners unit were first raised. It would appear, however, that the view was taken by the Board at that time (if not before) that the owners’ complaint should be resolved between the lawyers engaged by the parties. From that point forward, no steps were taken by the Board without lawyers being consulted.

31 July 2013
The owners retained an engineer, Balazs Farkas from Hidi Rae Consulting Engineers. He attended at their unit to assess the HVAC system and air circulation within the unit in relation to smoking incursion from the unit above.

09 August 2013
Mr. Farkas of Hidi Rae recommended:
1.
Sealing openings between the owners unit and the unit above to prevent air transfer between the suites;
2.
Establishing higher positive air pressure in the owners unit compared to adjacent units;
3.
Installing a make-up air system dedicated to the owners unit to ensure that their unit is positively pressurized; and
4.
Removal of the odour from the finishes in the owners unit.

Fire safety risk
14 August 2013
At the request of the condo corporation, Fire Consulting Services Ltd. (FSC) conducted smoke migration diagnostic testing to evaluate the fire separations between the owners’ suite and the unit above it. In a report prepared the following day, FCS advised the condo corporation that there was, indeed, smoke migration between the two units indicating that smoke from the den in the upper unit was migrating to the owners unit and that there was movement around the HVAC units. The report went on:

“This migration poses a fire safety risk…The origin of the deficiency is unknown; however the lack of integrity between suites has been confirmed and is a violation of the Ontario Fire Code. This must be addressed as soon as possible.

At this time we propose conducting preliminary remedial repairs of the HVAC mechanical systems between [the] suites…as soon as possible.”

On the same day, at the corporation’s request, a company called Climanetics Inc. assessed the vertical fan coil units in the owners’ suite. Climanetics recommended replacing the access doors/baffle insulation lining, cleaning and vacuuming the unit and spraying it with anti-bacterial solution.

28 August
The board discussed the FCS report. The minutes reflect that “Further follow up work would be required.” Notwithstanding this, nothing further seems to have been done by or at the behest of the Board until over a month later. However, this did not prevent the solicitors for the condominium corporation writing a letter to the owners’ solicitors stating that it was not clear to them why the owners could not return to their unit.

20 September
A specialist make-up air technician from Dass Enterprises, contracted by Hidi Rae, attended at the owners’ unit to perform an airflow measurement test on the corridor make-up air supply system. Dass concluded that the airflow in the corridors of the condominium building was about one-third of the designed capacity and was also well below applicable Building Code requirements.

Hidi Rae prepared a report dated 07 October 2013 stating that “the shortage of supply air in the corridor can be a contributing factor to the unwanted air circulation between the suites”.

From 09 to 11 October
Climanetics performed regular maintenance on the fan coil units in each of the suites in the building. At around the same time – 11 October 2013 to be precise, FCS attended to conduct further smoke bomb testing and reported that it was able to:
a.
Isolate the immediate areas of smoke migration from the floor above into the owners’ unit;
b.
Verify that the fan coil units were defective (also permitting smoke to enter the owners’ unit); and
c.
Confirm that the pressurization of the building was significantly out of balance.

According to Mr. Cheney, FCS told him, at the time of their attendance on 11 October, that they were prepared to immediately commence remedial work, but that they were waiting for authorization from the corporation.

The perspective of the condominium corporation at this time is captured by the respondents’ factum which recites that “FCS then performed further smoke diagnostic testing which revealed the earlier repairs were not sufficient to eliminate the smoke migration” and “The Board was not happy with FCS’s work”.

22 October
Also reflecting the attitude of the corporation, the corporation’s solicitors sent an email to the owners saying that, since the occupant of the upstairs unit was under an order not to smoke, “there is no good reason” why the owners could not return to and live in their unit.

The owners, in the factum filed on their behalf, note that this letter was written “despite the fact that the remedial work had not been completed and every surface and furnishing in the Unit is the source of dangerous emissions associated with second-hand and third-hand smoke and has to be cleaned of smoke residue. MTCC is well aware that the smoke damage in the Unit is so extensive that the insurer has agreed that some of the drywall has to be taken down and replaced due to smoke damage.”

30 October
At its meeting, the condominium corporation’s Board discussed getting another company in.

11 or 12 November
The lawyers for the condo corporation retained Namcan Engineering and Construction Management Inc. (“Namcan”) to apply smoke and fire stopping sealant material at all four pipe floor penetrations of the four fan coil units in the suite immediately above the owners’ unit. Namcan subsequently advised that it had successfully sealed “all penetrations” between the units.

26 November
The owners received an email from the corporation’s lawyers advising that it was the lawyers “preliminary understanding” that the necessary work had been done to stop migration of smoke into their unit.

29 November
Terra Energy Management Services Inc. (“Terra”) was retained to review the building’s air pressurization. Terra advised that the air volume in the building was “very good” and there were no issues.

Fresh cigar smoke
01 December
The attitude of the corporation at the time, or at least one of its board members, appears to be summed up by an exchange which took place between Mr. Cheney and a board member. The board member asked Mr. Cheney how he was doing. Mr. Cheney said that he would be doing much better if he had not been out of the unit for the past five months. The board member responded by saying “this was your choice” before adding “no one else in the building is having the problem and it was your choice to stay out”.

Sometime in November, after the workmen had been in to seal the pipe floor penetrations, the occupant of the unit above of the owners’ unit smoked some cigars (despite having said he would not do so). As a result, on 01 December 2013, when visiting their unit, the owners both smelled fresh cigar smoke.

03 December
The owners’ solicitor received an email from the condominium corporation’s solicitor stating that he had reviewed reports, which were in the “process” of being finalized, and which confirmed that “the problem is taken care of”.

Lawsuit
06 December 2013
The owners commenced an application seeking declarations that the condominium corporation had breached its duty to repair common elements of the building after damage and breach of its duty to maintain the common elements. The application also sought a declaration that the failure to address the problems in the owners’ unit constitutes discrimination against the owners on the basis of disability, contrary to ss. 2(1) and 11(1)(a) of the Ontario Human Rights Code as well as a declaration that the individual defendants, all of whom are directors of the condominium corporation, breached their duty to act honestly and in good faith and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

Other relief claimed includes claims for injunctive or mandatory orders remedying the problems giving rise to the incursion of cigar smoke and its odour as well as damages.

09 December 2013
A report from Namcan stated that the potential areas of smoke migration between the two units had been sealed.

17 December 2013
Hidi Rae provided the owners with its comments on the 9 December 2013 Namcan report and advised that until further testing to ensure proper sealing of the penetrations had taken place, smoke migration could continue to occur and the work could not be considered complete. Verification of the remedial work was therefore recommended. Hidi Rae also reviewed the Terra report and challenged Terra’s conclusion that the ventilation/supply air rates for the building were very good.

18 December
Counsel for the parties attended before Madam Justice Low seeking an application date on an urgent basis. Justice Low ordered that there should be a one-day trial of the following issues:
(a)
Has the respondent MTCC No. 895 breached its duty to repair the units and common elements after damage in accordance with s. 89 of The Condominium Act?
(b)
Has MTCC No. 895 breached its duty to maintain the common elements in accordance with s. 90 of The Condominium Act?
(c)
If (a) or (b), what must MTCC No. 895 do in order to comply with
the Act?
(d)
Are the applicants entitled to costs of this trial of the issues?

Namcan then reviewed Hidi Rae’s 17 December 2013 letter and advised that:
“the ceiling in [the owners’ unit] is a drop ceiling. Accordingly, if smoke had been migrating from fan coil units floor penetrations of [the unit above], it could possibly, enter [the owners’ unit] at various points after travelling through the drop ceiling area. All of the possible fan coil unit floor penetration points in [the upstairs unit] from which cigar smoke could escape [the upstairs unit] were sealed. Cigar smoke cannot migrate from [the upstairs unit] and, accordingly, in my view, any problem has been solved and there is no need for further testing.”

This invited a further response from Hidi Rae which noted that the smoke tests conducted on 14 August and 11 October 2013 had detected smoke entering the owners’ suite at penetrations other than the fan coil unit floor penetration points. Noting that the Namcan correspondence was silent on the existence of other potential openings and unsealed penetrations at plumbing rises, at plumbing fixtures, at the window system or electrical conduits penetrating the demising floor slab, Hidi Rae challenged the statement that cigar smoke could no longer migrate from the upstairs unit and that all problems had been solved and that further testing was not required. Hidi Rae continued:
“…until proof of complete air tightness of the demising floor slab between the two suites has…been obtained, either by visual inspection or by a further smoke testing…it should be assumed that the potential of air and smoke transfer between the two suites still exists.”

Another company hired
07 March 2014
The condominium corporation retained Pinchin Environmental Ltd. to perform further smoke migration diagnostic testing.

10 March 2014
Carmichael Engineering Ltd. attended at the building and increased the air pressure in the hallways to bring it back to the building’s original design criteria.

27 March 2014
Pinchin’s testing was done and resulted in a report dated 02 April 2014 in which Pinchin confirmed that cuts to the drywall in the master bathroom and guest bathroom of the owners’ unit disclosed further possible migration.

Having concluded the problem did not emanate from any of the four fan coil pipe penetrations that had previously been sealed by Namcan, air gaps were detected by Pinchin around the master and guest bathtub drainpipes of the upstairs unit. Further testing conducted in the vicinity of the master bathroom drainpipe disclosed no further leakage after the sealing was applied. There was insufficient time to conduct similar testing after the guest bathroom drainpipe was sealed, but Pinchin felt comfortable expressing the opinion that the problem had now, indeed, been solved.

Evidence at trial
Mr. Farkas of Hidi Rae, who gave evidence in court, agreed that the problem is now close to being resolved. He recommended further iterative testing to eliminate any possibility that there remain any other routes for smoke to infiltrate the owners’ unit from the unit above. He continues to also recommend the installation of a make-up air system dedicated to the owners unit to ensure that their unit is positively pressurized. He also supports retrofitting the fan coil units so that odour from the drains cannot migrate back through the stack.

Phillip Brearton, the engineer responsible for the Pinchin report, contacted the manufacturer of the condensate drain pipe to see whether the retrofitting recommended by Hidi Rae, namely the insulation of a “P-trap”, was feasible. He came to the conclusion that it was not. In Mr. Brearton’s view it is very unlikely now that there will be further problems. He acknowledged, however, that one could even have a higher confidence about this if further testing were undertaken. One of the difficulties, he explained, is that smoke bomb testing is in and of itself very invasive, particularly for the owner of the unit in which the “smoke bombs” are being let off.

Both Mr. Brearton and Mr. Skaffa of Namcan, who also testified, feel that the installation of a make-up air system is unnecessary. It may also be impractical.

Judgment
It can be seen from the foregoing that things have now got to a point where a solution does appear to be in sight. The parties still disagree about whether further iterative testing should be undertaken and whether any of the other modifications recommended by Hidi Rae are feasible.

The question of whether the condominium corporation is in breach of its maintenance and repair obligations engages a discussion of the adequacy of the corporation’s responses to the owners’ complaints.

Not surprisingly, context is everything. The nature of the problem at the owners’ unit was such that they felt unable to continue to live there. They were supported in this regard by their insurer.

Over 10 months later, the owners have still not moved back into their unit. As far as they are concerned, it continues to be uninhabitable due to the odour of cigar smoke.

Worth noting
It is probably worth noting that there is a waiver of subrogation arrangement (a not unusual feature of condominium corporation by-laws and regulations), the practical effect of which is that the owners’ insurer will not be able to subrogate against the condo corporation for the no doubt considerable expense of the owners being put up in a hotel for ten months (so far). For the same reason, it may not be possible for the insurer to recover from any third party source the cost of replacing drywall and other fabric within the owners’ unit.  This, of course, takes some of the pressure off a condominium corporation to respond in a timely and effective way to a maintenance or repair issue.

Director’s liability
The condominium corporation and its directors seem to rely heavily on the fact that they followed legal advice throughout and that they hired appropriate contractors and advisers (even if the advice they received was not always correct). This may be sufficient to discharge the obligations of the directors of the corporation under s. 37 of The Condominium Act, 1998, which deals with the standard of care owed by officers and directors of condominium corporations (although I make no finding in that regard as it is not one of the questions that I am asked to answer). But the fact that the Board obtained and acted on advice is not, in my view, as effective an answer to alleged breaches of s. 89 (repair after damage) and s. 90 (maintenance).

I pause to note that, at times, duelling correspondence between the lawyers for the parties may distracted efforts to effectively deal with the smoke migration issue.

 Section 89(1) of the Condominium Act, 1998 provides:
“Subject to sections 91 and 123, the corporation shall repair the units and common elements after damage.”

The evidence of Pinchin is that the problem has been solved.  This conclusion seems more plausible than the earlier, (as it turns out) erroneous, determination by Namcan that a solution had been effected.

Hidi Rae feels that more should be done to be certain that the problem has, in fact, been fully corrected. But as matters presently stand, neither the owners or Hidi Rae can definitively refute Pinchin’s position.

I am satisfied that there is now good reason to believe that the corporation is in compliance with its obligations under s. 89(1) so far as the common elements (which, the parties agree, would include the sleeves in the concrete floor slab that allow connection of the respective suites to common services such as water supply lines, drains and vents). Put differently, it has not been established that there is a continuing problem.

With respect to the repairs that are required in the owners’ unit, it appears to be recognized that the condominium corporation’s obligation to repair units is altered by s. 12 of MTCC’s declaration which provides that owners are responsible for maintaining and repairing their unit after damage.

In coming to this conclusion with respect to s. 89, I should not be taken to necessarily agree that nothing more needs to be done at this juncture. It is a matter for the professional judgment of the engineers advising the parties – principally Pinchin and Hidi Rae – whether further iterative testing would be prudent or whether any other remedial measures (such as a make-up air system in the owners’ unit) are reasonable in all of the circumstances and for the Board to decide how to react to such advice. Having spent the amount of time and effort that has already been invested, it would seem that, at the very least, there is an arguable case for conducting further iterative testing provided that this does not unduly prejudice or harm any other unit owners or their property.

Section 90 of the Condominium Act provides:
“(1)
Subject to section 91, the corporation shall maintain the common elements and each owner shall maintain the owner’s unit.
  (2)
The obligation to maintain includes the obligation to repair after normal wear and tear but does not include the obligation to repair after damage.”

At this time, the condominium corporation would, for similar reasons to those expressed in connection with section 89(1), seem to be maintaining the common elements in a satisfactory manner. Again, I offer the caveat that this does not necessarily mean that it would not be prudent for the corporation
to do more.

In light of my findings with respect to ss. 89 and 90, it is not necessary for me to give formal directions or otherwise make specific orders with respect to the conduct of the condominium corporation going forward.

Board’s unfortunate attitude
While it was suggested by the corporation that by suing, the owners have acted precipitously, it is my view that they have not. I find that the condominium corporation, in all of the circumstances, did not act with sufficient dispatch and, indeed, adopted an unfortunate attitude toward the owners, who were quickly branded as complainers who had far too quickly ran off to their own lawyers.

The owners initially took reasonable steps to try and get the condominium corporation to pay attention to them. Even allowing for the fact that there were people on vacation at the time that the cigar smoke problem first arose, it was unacceptable that it took more than a month before FCS first attended. Having identified violations of the Fire Code and the need to act with dispatch, the response of the condominium corporation was, effectively, not do anything of significance for nearly two months. Unfortunately, FCS and Namcan then incorrectly concluded that the problem had been solved when, in fact, it had not. That is not, of course, directly the fault of the condominium corporation. However, throughout this time, a negative attitude towards the owners continued and in my view coloured the condo corporation’s decision making.

The condo corporation is to be commended for eventually retaining Pinchin. Both Mr. Farkas of Hidi Rae and Mr. Brearton of Pinchin came across as sensible, thorough, and reasonable professionals. I expressed the view to counsel during the course of argument that had these gentlemen been given an opportunity to confer with each other at an earlier stage, the issues between the parties would almost certainly have been solved without the need for the expense of the hearing that ultimately took place.

It follows from my view that the condo corporation did not act with sufficient dispatch that, until the intervention of Pinchin, had I been asked to do so, I likely would have concluded that the condo corporation was not compliant with its obligations under ss. 89 and 90 of the Condominium Act.

Costs
I do not find it unreasonable that the owners found it necessary to commence their application. Less formal efforts to obtain a satisfactory response from the condominium corporation had not worked.  Accordingly, despite the fact that I have concluded that the condo corporation is not presently in breach of its obligations, I would exercise my discretion under section 131(1) of the Courts of Justice Act, to award costs in favour of the applicants. I would provisionally do so on a partial indemnity scale although if there are circumstances, such as settlement offers, which would warrant a different disposition on costs, the parties may make appropriate submissions.

The applicants should provide a bill of costs and a costs submission of not more than three pages in length within two weeks from the date of these reasons being released. The costs submissions of the respondents should be delivered within one week of receipt of the applicants’ costs submissions.

I will remain seized of this matter for the purpose of giving further directions with respect to the manner in which the remaining issues between the parties should be litigated, but not beyond that. The parties should contact my assistant to schedule a hearing for such directions to be given.

Endorsement on Costs
On 17 June 2014, Justice Graeme Mew gave his judgment on costs.

The owners submitted that they should be awarded costs on a substantial indemnity scale and invited the judge to fix such costs at $64,696.32.

The condo corporation submitted that the judge should not award any costs to the the owners, but that if it is deemed appropriate to award costs to the applicants, they should not get more than $15,000.

The judge exercised his discretion to award costs to the applicants on a partial indemnity scale. To the extent there are exceptional features of this case (and in particular the issues tried), they are already reflected in the fact that costs have been awarded to the unsuccessful party.

The total value of the time spent by the fee-earners engaged on this matter amounts to $62,568 (over 200 hours in total).  60% of that sum is claimed to represent an appropriate partial indemnity assessment.

Furthermore, the costs claimed appear to include the application as a whole, to date, rather than just those costs relating to the issues that were tried.

While not doubting that the fee-earners have accurately recorded their time, when determining matters governed by the Rules of Civil Procedure, the court should always have regard to the overarching principle of proportionality.  In regard to costs, the court should fix an amount that is fair and reasonable to the parties against whom costs are awarded rather than an amount fixed by reference the actual costs incurred by the successful litigant

The judge awarded the owners $32,500 inclusive of disbursements and applicable H.S.T.


My views on this case:
This is a very important case because it makes it clear that the condo corporation is responsible to take action to stop smoke penetration from entering a unit.

It is surprising to find that there were no fire stop applied in the holes for the piping between the two units. I wonder if the board checked the other units for this safety problem.

It is also clear that the owners were successful because they had the smarts and money to call in their insurance company, hire a qualified law firm and pay for their own engineering company.

The condo corporation dragged their feet in solving the smoke penetration problem and the owners had to prod them along.

The individual directors may have have been found personally liable in this case if the judge had been asked to rule on that issue.

Any lessons here?
It is critical to have money if you are going to  get into a dispute with your condo board as you may need to hire your own experts as well as hire a competent lawyer who is experienced in condominium law.

—†—

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Court rules against condo with smoking cigar

The recent court decision means condo boards must act quickly to deal with second-hand smoke complaints.

Toronto Star
By: Bob Aaron—Real Estate Columnist
Friday 30 May 2014

We have experienced an overwhelming smell of cigar smoke coming from the condominium unit above ours. What can we do?

Those were the living conditions of Sharon MacKay and Tom Cheney that prompted them to proceed with an ultimately expensive and prolonged court action against their condominium corporation and its directors.

What happened to MacKay and Cheney was probably the worst example of second-hand smoke migration ever to reach a Canadian courtroom.

In June of last year, the pair experienced the noxious smell of cigar smoke infiltrating their Yorkville-area home. The smoke was so bad that when their insurance company sent an adjuster, he concluded that the unit was uninhabitable and moved them into a hotel at the insurer’s expense. Almost a year later, they are still there.
Over a period of 10 months following numerous complaints to the condominium management and board, eight different consulting and engineering firms were hired to conduct studies to assess how the smoke was travelling from the unit above, and how the problem could be solved.

Each consulting firm made various suggestions as to stopping the travelling cigar smoke, and some work was undertaken. At one point a “smoke bomb” test was conducted, using harmless but visible smoke to monitor the migration between the units.

Last December, not happy with the progress of the investigations, the owners sued the condominium corporation and its individual directors seeking a declaration that they had breached their duty to repair and maintain the building’s common elements, as well as an injunction requiring the problem to be remedied, and damages.

This past March, the condominium corporation retained its eighth consultant, Pinchin Environmental Ltd. Phillip Brearton, an engineer with Pinchin, concluded that the problem did not emanate from the four fan coil pipe penetrations sealed by a previous consultant.

He did, however, detect air gaps in the vicinity of the master and guest bathroom drain pipes of the upstairs unit.

Sealant was applied and the opinion of the Pinchin firm was that the problem had finally been solved.

The smoke, it seems, was travelling through openings in the concrete floor slabs that allow connections for common services such as water supply lines, drains and vents. Those openings also constituted serious provincial Fire Code violations.

The case came to a two-day hearing last April 28 and 30. In his decision released earlier this month, Justice Graeme Mew wrote, “The question of whether the condominium corporation is in breach of its maintenance and repair obligations engages a discussion of the adequacy of the corporation’s responses to the owners’ complaints.

“Not surprisingly, context is everything. The nature of the problem at the owners’ unit was such that they felt unable to continue to live there. They were supported in this regard by their insurer.”

The judge also wrote that, “at times, duelling correspondence between the lawyers for the parties may (have) distracted efforts to effectively deal with the smoke migration issue.”

With the problem virtually resolved by the end of April, the judge suggested that there was an “arguable case” for conducting further repeated testing to ensure that the problem would not recur. But he made no order to perform further remediation in light of the Pinchin findings.

I estimate the total legal expenses for both sides in this unfortunate case at close to $100,000 — plus all the consultants’ costs.

As well, the insurers are on the hook for 10 months in a hotel and a complete “scrub” of the unit.

Justice Mew ordered that the condominium corporation pay costs to the owners because it had not been “compliant with its obligations” under the Condominium Act.

Condominium boards faced with similar problems in future are now on notice that they must act without undue delay and not ignore smoke complaints. Boards cannot, as happened in this case, allow a “negative attitude towards the owners” to colour their decision making.

If boards do not act promptly and effectively to respond to tobacco smoke complaints, they run the risk of a court action and having to pay the costs of the affected unit owner.

Bob Aaron is a Toronto real estate lawyer. He can be reached at:
bob@aaron.ca
aaron.ca.


A
MacKay v. MTCC No. 985
Ontario Superior Court
Docket: CV-14-509996
Before: Mr. Justice Graeme Mew
Date: 02 February 2015

The condo corporation wanted to strike out parts of an affidavit that an owner sworn on 14 August 2014 in connection with two concurrent motions that were pending in two concurrent court applications.

The parties are engaged in a dispute over responsibility for the incursion of cigar smoke into the owners’ unit in the condominium building and various related issues that have arisen in connection with the applicants’ unit.

The condominium corporation's application (CV-14-507161) involves a request to enter the owner's unit to complete certain repairs, and to remove allegedly illegally installed humidifiers.

The owners have brought an application (CV-14-509996) for:
a.
an order that they have not breached the condominium corporation's declaration with respect to the humidifiers;
b.
an order requiring that the condominium corporation not mention various matters in any status certificate;
c.
an order that the condominium corporation has breached its duty to maintain and repair Ms. MacKay and Mr. Cheney's unit since a previous hearing before me in April 2014; and,
d.
a mandatory order that the condominium corporation deliver an engineer's report stating that all work has been done and that smoke will not migrate into their unit.

The condo corporation wanted parts of the owner's affidavit struck. They included:

Owner's affidavit
"I am advised by other residents, including a former President of MTCC 985, and do verily believe that MTCC 985 issued and/or threatened to issue Status Certificates with negative comments to prospective purchasers after comments to prospective purchasers after taking photographs of units without resident consent, with the effect of making it very difficult for affected unit owners to sell their units at fair value. Although I do not have personal knowledge of such instances, I know that there is a climate within the building and an unspoken awareness that an owner who makes issues for MTCC 985 does so at his economic risk".

MTCC: 985
Total hearsay. Although identity of “former President” has now been provided, he is deceased. Evidence is prejudicial. To the extent that the evidence is speculation, it should still not be admissible because its prejudicial effect (especially as a source of the information is deceased) outweighs its probative value.

Owners:
Evidence is more of a feeling or a statement of a layperson’s opinion than a statement of fact.  Such speculation is “likely to be harmless” and its relevance, if any, can best be considered by the judge hearing the application.

Disposition:
As stated by Harvison Young J. in Lockridge, at para 122, “[t]his is the sort of objection that can be best assessed by the [application judge], in light of the determinations made on relevance to particular issues at that point”.  Words not struck out.

Owner's affidavit
"On or about June 10, 2014 I am advised by our lawyer and do verily believe that, while waiting for Justice Mew to join a case conference call, the condo's lawyer volunteered in a sarcastic tone that reference by MTCC 985 to our claims against MTCC 985 in a Status Certificate was a "good way" to subvert the sale of the Unit by the owners at market value.

I am advised and do verily believe that our laywer understood the condo's lawyer's statement to be a veiled but clear threat that MTCC 985 was willing to subvert the sale of the unit by us by inserting particulars about the dispute with us in a Status Certificate in a way which would cause purchasers to rescind and/or require a price discount from us.

In my view, said statement by their lawyer validates my understanding that MTCC 985 will inflict punishment on owners who are perceived to be difficult or out-of-line".

MTCC 985:
The paragraph should be excluded as it contains the evidence of the owner's lawyer. The conversation occurred during the course of discussions that took place immediately prior to a case conference which should be regarded as without prejudice.

Owners:
Clients have instructed that this evidence is presented. The conversation was not without prejudice.

Disposition:
The deponent of an affidavit should not act as counsel and rely upon the affidavit. That principle should be extended where counsel is not the deponent but is the source of the information relied upon by the deponent in relation to a key factual matter. The paragraph is struck out.


A
MTCC No. 985 v Cheney
Ontario Superior Court
Court File No: CV-14-507161 and CV-14-509996
Before:  Mr. Justice Graeme Mew
Date:     01 December 2015

This dispute has changed in as the owners no longer live in the unit.  They want the problems arising from, and associated with, the infiltration of smoke addressed once and for all so that they can sell their unit free of any concerns arising from their disputes with MTCC 985.

What is interesting is the reports from each side's experts.
The corporation's engineer stated:
(a)
The state of the air transfer between the units (once the drywalling is completed) will be typical, reasonable and acceptable given:
 i. the age and design of the building; and
ii. the applicable provisions of the Building Code and the Fire Code at the time the building was built in or about the late 1980s.
(b)
The building is performing as it should, according to its age and design and that certain amount of their migration must be expected and tolerated.
(c)
Smoke stops, now found in more modern buildings, which prevent fire smoke from moving from one unit to another, are also effective in preventing and migration as well. However, smoke stops were not a Code requirement when the building was built. Rather, small breaches and cracks with respect to a building of this type are consistent with the applicable Code requirements at the time the building was built.
(d)
To complete the “perfect repair” it would be necessary to tear out the expensive finishes in both the Owners’ suite and the suite above (not to mention the other sweets in the building on the assumption that the fixes required throughout the building) in order to expose the slab and eliminate any remaining breaches and cracks. This would not be reasonable having regard to the age of the building and the other unit owners.

On the other hand, the owner's expert stated:
What is required is to seal all openings between units. This is not only necessary to resolve the problems experienced by the owners but, according to W. Carson Woods, an architect consulted by the owners, openings in the concrete floor slab between the units would not, in fact, have satisfied the requirements of the Building Code in effect in 1986.

The judge sided with the corporation's expert.

Costs
The judge ruled:
"It would be an understatement to say that the parties have simply not been able to resolve the differences through ordinary dialogue. It is highly regrettable that the time and expense associated with court proceedings of this nature has been incurred. That said, while there has been a measure of intransigence on both sides, matters have been complicated by the involvement of insurers and the legitimate concerns on the part of the owners about their obligations and, hence, potential liability, to prospective purchasers of their unit.

The bills of costs submitted by the parties indicate that each side has incurred costs in the vicinity of $100,000 on a partial indemnity scale. Although, on a strict headcount of the requests for relief made by the Owners and MTCC respectively, MTCC has enjoyed the larger measure of success on these applications, it is my view, in the exercise of my discretion under section 131(1) of the Courts of Justice Act, that the interests of justice are best served by making no awards as to costs of these applications to either side.

Accordingly the parties shall each bear their own costs.


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