VALUABLE LESSONS TO BE LEARNED

In such cases, there is generally a conflict where one unit accuses the other of some nuisance-like behavior, with the condominium corporation and its board, getting caught in the middle. Sometimes, the complaining owner will claim “foul” (no pun intended) in how the condominium approaches the alleged odor problem.
This dynamic frequently arises because of certain provisions in the Act that govern such situations, as well as relevant clauses in a condominium’s documents, such as its declaration and or its rules. As a starting point, the Act requires owners and occupants of the units, as well as condominium corporations to comply with the Act, their declaration, by laws and rules. Section 117 of the Act prohibits any person from engaging in conduct in the units and the common elements that amounts to a prescribed nuisance, annoyance or disruption (“ie. nuisances”). These nuisances include noise, smoke, odors, vibrations, light and other examples. Furthermore, section 17 of the Act requires a condominium corporation to take reasonable steps to ensure that the owners and the occupants comply with the Act, as well as the condominium’s declaration, by laws and rules.

The Condominium Authority Tribunal (“the CAT”) has over the last several years, produced a significant number of decisions that consider when an owner or occupant’s conduct crosses the line into nuisance territory and the expected conduct of the condominium corporation in such circumstances in order to meet its legal duty under section 17 of the Act. The CAT has very recently added to the line of cases in this area with its decision this past August in Tosoni v. Brandi[1], 2025 ONCAT 148.
The Applicants, the Tosonis, complained that their next-door neighbor, the Respondent Brandi, was creating a nuisance in their unit and the common element hallway due to foul cat litter odors and excessive cigarette smoke generated out of the Respondent’s unit. The Applicants further claimed that their condominium corporation had failed to address these problems in a diligent and appropriate manner under the Act.

According to the Tosonis, in June of 2024, a mere three days after Brandi moved into his unit, there was a stench of smoke that spread through the Applicants’ unit. However, like many condominium corporations, theirs did not ban smoking at the time Brandi moved in, though it did adopt a no smoking rule with a legacy clause allowing Brandi to continue smoking in his unit after the rule went into effect on April 15, 2025.

The Tosonis relied upon S. 117(2) of the Condominium Act, 1998, and alleged that the smoke and odor, were in fact nuisances that interfered with their quiet enjoyment of their unit and the common elements. The Tosonis submitted a log of over one hundred incidents between June 2024 and June 2025 wherein they detailed the times they noticed smoke odour along with multiple witness statements from owners on their floor confirming the highly noticeable smoke odour. Brandi did attempt to mitigate the spread by using exhaust fans and an air purifier, but this did not prevent the smells migrating through the units. There was also evidence submitted showing that the condominium corporation had received the Tosonis’ complaint, had investigated and told Brandi to mitigate the spread of smoke, and had taken steps to fix or improve the building’s HVAC system to address the issue. However, the offensive odors persisted and the Tosonis filed their application with the CAT.

The CAT found that, with no dispute as to where the odours were originating from, there was a nuisance present because the odours substantially and unreasonably interfered with the Tosonis’ and other’s use and enjoyment of their units. The evidence offered showed that the smells exceeded what a reasonable person might be expected to tolerate and that they were consistent for the course of an entire year. These were not, according to the CAT’s consideration of the evidence, trivial concerns.

However, despite this finding, the CAT also found that the condominium corporation had met its obligations under the Act. While the Tosonis complained that the corporation had failed to act promptly, the CAT found that the evidence demonstrated that the corporation had acted diligently and appropriately. Indeed, it investigated the complaints and made demands to Brandi to take steps to stop the spread of odours. The corporation also took multiple steps to address the issue, including demanding Brandi use an air purifier and exhaust fans and that he smoke on the balcony with his door closed instead of inside the building. The corporation even went so far as installing an air purifier in the hallway in an attempt to reduce the smell of smoke. The corporation also reviewed and repaired the building’s HVAC system to ensure that it was not at fault for any of the odour migration. As such, the CAT found that the corporation had met its obligations under the Act and its governing documents.

Importantly, the CAT drew a distinction between what the corporation was legally obligated to do and what unit owners might expect it to do. In such cases, the condominium is expected to act reasonably and diligently in discharging its legal duty under section 117. As such, it is important for every condominium corporation to take complaints from occupants fairly seriously, conduct reasonably thorough investigations early, communicate in writing with everyone involved in a complaint, issue written demands or instructions for occupants that are causing problems for others and for corporations to maintain and correct the common elements systems in a building contributing to the problem.

A pro-active strategy of dealing with problematic occupants and common elements systems with thorough documentation is many times a corporation’s best defence against allegations of failing to meet obligations, especially when a nuisance may be present.

At Hummingbird Lawyers LLP, we proudly have well over two decades of experience in advising condominium corporations and owners about their rights and obligations in nuisance matters. We are also very experienced in representing clients that are party to nuisance disputes that reach the CAT. For any questions or to arrange a private and confidential consultation, please contact partner Erik Savas and Lead for the Firm’s Litigation and Condominium Legal Services Department at 905-731-1911 ext. 201,  erik@hummingbirdlaw.com or complete the form below.