Condo Owners’ Duty to Prevent Nuisance Upheld by the Condominium Authority Tribunal
In Tosoni v. Brandi, 2025 ONCAT 148, the Condominium Authority Tribunal (hereinafter referred to as the “Tribunal”) ruled that persistent cigarette smoke and cat litter odours migrating from a unit created a substantial and unreasonable nuisance, even though the owner was permitted to smoke under a legacy provision. The case highlights the balance between an owner’s rights and their obligation to prevent interference with their neighbors’ quiet enjoyment.
The conflict involved unit owners at Victoria Standard Condominium Corporation No. 34 (hereinafter referred to as “VSCC 34”). The applicants provided extensive evidence, including a detailed log of 102 smoking incidents and 35 cat litter odour incidents over 11 months, which was corroborated by four other residents. The Tribunal found that these incidents constituted a nuisance under Section 117(2) of the Condominium Act, 1998 (hereinafter referred to as the “Act”).
The Tribunal determined that the odours were “persistent, frequent and more than a trivial interference,” thus meeting the legal definition of a nuisance under the Act.
A key aspect of the case was the respondent’s right to smoke under a grandfather clause. The Tribunal acknowledged this right but ruled that it was not absolute and did not permit the owner to infringe upon the quiet enjoyment of others. The decision balanced the competing rights, ultimately concluding that the odours were not being effectively contained.
Furthermore, a claim against the condominium corporation for inadequate enforcement was dismissed. The Tribunal found that VSCC 34 had fulfilled its obligation to take “all reasonable steps” to address the complaints, which included servicing the HVAC system, communicating with the owner, and installing an air purifier in the common hallway.
As a result, while the owner can continue smoking, the Tribunal issued a mandatory order requiring strict compliance with containment measures. These include keeping the unit’s doors and windows closed, operating air purifiers and exhaust fans, and performing daily cleaning of the cat litter box with deodorizer.
This decision highlights two important clarifications for condominium communities. First, it establishes that legacy provisions are subordinate to the fundamental duty of an owner to prevent their activities from causing a nuisance. Second, it confirms that a corporation’s enforcement obligation is fulfilled by taking reasonable, proactive measures, rather than by guaranteeing a perfect solution.
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