Condo Ordered to Pay Damages to Residents Affected by Second-Hand Smoke

Time May 16, 2012 User Bradley Chaplick Email Print Comment 0 Comments Share Link
In the Ontario condo law community, the debate rages about smoking and what to do about it. Meanwhile, in British Columbia, the B.C. Human Rights Tribunal has handed down an $8,018.88 judgment against a condominium corporation for failing to accommodate two residents who had disability-related needs, and who complained about adverse health effects from second-hand smoke.

 

What should a condominium corporation do when facing a smoking complaint?

  1. A board of directors should consult with the condominium corporation’s lawyer for advice. Each condominium corporation is unique in terms of its declaration, by-laws and rules. An Ontario condo lawyer should be able to tell you about any by-laws or rules that may be unique to your condominium, and that you may need to consider in responding to the complaint.
     
  2. If applicable, ask the complainant to verify, by way of supporting medical evidence, that he or she suffers from a disability-related need.
     
  3. Open a dialogue with the complainant to discuss potential solutions. This is part of the condominium corporation’s procedural duty to accommodate under the Ontario Human Rights Code.
     
  4. Ensure that the smoke infiltration is not being caused by a common element deficiency. This will likely require consulting with the condo’s engineers. Correcting common element deficiencies may be required as part of the condominium corporation’s substantive duty to accommodate, and more generally, as part of the condominium corporation’s maintenance and repair obligations.
     
  5. In certain circumstances, if the problem is not caused by a common element deficiency, then the condominium corporation may have to enforce its governing documents, particularly provisions relating to nuisance and the escape of noxious or offensive odours. A condominium corporation is required to take reasonable steps to enforce the Condominium Act as well as its declaration, by-laws and rules.
It should be noted that most of these tips apply regardless of whether or not the smoke complaint has a disability or human rights component to it.
 
What happened in the McDaniel case?
 
The facts in McDaniel v. Strata Plan LMS 1657, 2012 BCHRT 167, can be summarized as follows:
  • The Disability: The McDaniels both suffered from health conditions that made them sensitive to cigarette smoke. Mrs. McDaniel in particular suffered from difficulty breathing and hives, among other negative effects.
     
  • The Smoke Infiltration: The smoke was entering the McDaniels’ unit primarily during the summer months through open windows. There was no allegation of smoke infiltration because of a common element deficiency.
     
  • The Failure to Accommodate: The condominium corporation conceded that it had failed to accommodate the McDaniels. In particular, the corporation had failed to enforce an existing by-law that prohibited residents from causing “a nuisance or hazard to another person”.
Why did the Tribunal order the condominium corporation to pay compensation to the McDaniels?
 
The real issue in this case was what remedy, if any, would be granted to the McDaniels. At the end of the day, the McDaniels were awarded a measured sum that was intended to fairly compensate them for their actual harm. They received compensation for out of pocket expenses, and a few thousand dollars each for their suffering.
 
The Tribunal declined to order that the condominium corporation enact a “no smoking by-law”. This was likely because the McDaniels no longer resided in the building and because the existing by-law already prohibited the conduct in question.
 
Conclusion
 
While much of the case law relating to smoking has arisen in the human rights context, the fact that there may be a human rights aspect does very little to change the condominium corporation’s obligations.
 
In the opinion of this Toronto condominium lawyer, condominium corporations should diligently ensure that common element deficiencies are corrected, and that reasonable steps are taken to enforce provisions in declarations, by-laws and rules prohibiting residents from creating a nuisance.
Categories: Condo Litigation

 

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Roger , Comment at: July 14, 2014

It has taken 2 years to get a copy of a engineers report for a boiler assessment with a cost of almost $6000.00. when I finally got it after a new president was voted in, it was to my surprize that this report did not contain any business details like: name of business, phone number, location, business license etc. In effect I thought that this was not a report done by an engineer and I believe it was a fake. After a conversation with the president to get to the bottom of this he said and I quote " you must trust us and there is nothing more that I can do". Having done extensive research about this matter I have found that no one wanted to be involved especially since you are not on the council. It seems to me that the SPA can be so easily manipulated that an individual owner is left to defend himself by hiring lawyers at a cost to the owner. It is also very easy to be elected council member fraudulently if the right situation exist. If the same number of key people get elected year after year, which is what is happening here, and if you complain and ask for documents the council has the power to mistreat you and belittle you. In about 50% of the lawyers that I contacted they would not even discuss the problem because of conflict of interest. What is a owner to do? proving something is very hard if they don't share the information that you are entitled to. Then you are left with a decision to carry the burden of litigation or move out. Having gone trough the SPA the act is straight forward to the lay man, but put it to the courts and it can last for years whether the decision favors you or not. I won't give up yet to expose this problem, any suggestions would be greatly appreciated


Bob Driscoll , Comment at: May 18, 2014

Good list to which could be added - give yourself an honest upfront ethics check. - give yourself an honest upfront skillsets check. Both will be tested from time to time. You may need to upgrade both, or at least fight hard to maintain the first, as well as a balance of your private and professional lives.


Melania Pereira , Comment at: December 16, 2013

Good article. In our Condo, the hoarder is a very good friend of the BOARD. This person has accumulated huge amount of newspaper and other old items in his Condo and this can pose a huge fire hazard. What can be done in this case? Thanks! Mel


bob gardiner , Comment at: October 18, 2013

Great! Well done Ben.


Michael D. Pascu , Comment at: February 27, 2013

A fair reading of Section 98 of the Act seems to indicate that, before an owner can proceed with the proposed alteration, the board must approve the proposed alteration and enter into an alteration agreement with respect to it. The point of the article is that it is not at all clear that Section 98 of the Condominium Act, 1998 (the "Act") permits alteration agreements wherein the board does not actually approve a specific improvement, but rather only commits to consider owner requests for approval of undetermined improvements in the future. Until the courts have had an opportunity to review and comment on the legality of blanket alteration agreements, there remains an element of risk to these types of agreements that condominium corporations should consider when determining whether or not to proceed with them. This is why at the minimum, in order to diminish the risk of a successful challenge of the blanket alteration agreement, there should be an effort to specify, in as much detail as possible, the alterations that would be permitted to be made by the owners who have signed the agreement.


Michael Clifton , Comment at: November 09, 2012

Michael, as a practitioner who uses these agreements frequently, I find this article very problematic. None of the disadvantages you mention need arise in practice, and certainly do not arise if the lawyer has put any thought into the project first. First, a blanket section 98 agreement, in practice, does not approve the improvements (or does not have to, in any event, and no one I've worked with ever drafts them to do so). Therefore it neither fails to comply with the Act nor commits the corporation to sacrifice its discretion to disallow specific improvements in the future. Second, the most practical form of section 98 agreement (which we have been using since early 2007) does not detail the improvements, but even those that do suffer no greater problem than a one-off section 98 agreement which also has the challenge of adequately describing the improvement (if that is how the lawyers decide it should be written). The risk of being challenged by an owner, and bearing the costs of the same, exists no matter what a board does, or how right it is. Being right is not a bullet-proof vest, as they say. So the mere fact that one might be challenged is not a specific disadvantage - it is an ever-present reality of any decision-maker. However, if the lawyers handling these agreements take care to do them right (i.e., not to do them in the ways you have described which, frankly, I have never seen in practice) the board and condominium will be as protected as they can be.

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