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May 16, 2012 Bradley Chaplick
Posted in Condo Litigation

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

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.
Bradley Chaplick

Bradley Chaplick Associate

B.Comm., J.D.

bchaplick@finedeo.com
905.760.1800 x271
905.760.0050

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