Court rules against condo with smoking cigar

One of the more challenging and time consuming issues in condominiums is smoke migration. Finding the source of the smoke is one issue.  The bigger challenge is finding how the smoke is making its way into a neighbouring unit.  In any given condominium suite there will be numerous floor or wall penetrations that provide a means to route pipes, wires or ductwork from one place to another.  These penetrations are supposed to be sealed to prevent or slow the movement of smoke and fire consistent with the 2-hour fire resistance rated original construction.  But how well they are sealed depends on many factors including:

• the Fire Code provisions in place at the time of construction;
• the quality of the builder and the sub-contractors;
• the quality of the inspection by municipal inspectors; and,
• whether subsequent repairs disturbed the seal.

These “inter-area” floor and wall penetrations exist, sight unseen.  Hidden in walls, there’s no easy way to know exactly how many penetrations exist and how well each is sealed. Finding and fixing a poorly sealed penetration often tends to be a process of trial and error with the most accessible penetrations getting repaired first.  The process requires consultants and smoke bomb tests. For the owner getting the unwanted and health-impacting second-hand smoke, the process can be excruciating and unnecessarily long.

The case of MacKay v. MTCC 985 the two parties incurred over $100,000 in legal fees plus consultants’ fees.  The insurer had to cover the residents’ 10-month hotel stay and a complete “scrub” of the unit.

Toronto Star’s property law columnist, Bob Aaron covered the case and noted that “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.”

In their blog, the condo law firm of Nelligan|O’Brien|Payne stated “The Court said that, at the end of the day, the condominium corporation was in compliance with its repair and maintenance obligations. However, the Court said that the corporation ‘did not act with sufficient dispatch’ and ‘adopted an unfortunate attitude toward the owners, who were quickly branded as complainers who had far too quickly run off to their own lawyers’.”

Brookfield’s peer-to-peer website/wiki, Brookipedia, includes numerous submissions by managers who have had to deal with smoke, noise and other nuisance law issues.  The Brookipedia content on second hand smoke includes extensive information including details from two sites that successfully resolved scenarios similar to those in MacKay v. MTCC 985 quickly and at reasonable cost.

The moral of the story is to act promptly on complaints and not to simply dismiss a complaint based on perceptions about the originator(s).