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 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 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.

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.

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