2nd hand cigar smoke dispute results in a court decision
On the evening of 24 June 2013, Sharon MacKay and Tom Cheney 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.
The cigar smoke was so strong that the two residents had to move to a
hotel room. Since the problem had not been resolved, on 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
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 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
After a long, bitter and expensive lawsuit, the owners won
their court application.
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.