Proving the Source of Smoke

In the case of D’Souza v. TSCC 2565 et al., the Applicant owner claimed that cigarette smoke was entering her unit from a neighboring unit and that the condominium corporation had failed to properly investigate and resolve the problem. The Applicant claimed that the smoke contravened Section 117 (2) of the Condominium Act as well as the Rules of the condominium corporation.

The Tribunal ultimately determined that there was insufficient proof that any smoke was coming from the neighboring unit and dismissed the application. The Tribunal also determined that the condominium corporation had taken reasonable steps to investigate the complaints. The Tribunal said:

The evidence shows that the condominium staff investigated the complaints from Ms. D’Souza on January 14, 21, 23, February 4, 6, 7, and March 25 and 29, 2023. The investigations of these complaints involved the concierge and/or condominium management walking various floors above and/or below Ms. D’Souza’s unit to try to verify smoke and odour through smelling, visiting specific units above and below her unit to see if smoke could be smelled, speaking to the occupants of accused units, entering the units identified by Ms. D’Souza as the source of the smoke, and entering Ms. D’Souza’s own unit to investigate her complaints. No smoke or odour was verified in her unit or in other units.

Proving the source of smoke can sometimes be tricky. Even so, condominium corporations need to give careful consideration to these issues, because condominium corporations generally have a duty to reasonably investigate complaints received (including complaints about second-hand smoke). Options may include the following:

1.  Attending at the units (both the alleged source unit(s) and the receiving unit) by one or more independent witnesses (similar to the steps taken in this case). [This sort of “complaint investigation protocol” may require prior agreement (cooperation) of the residents involved – which should not be a concern assuming they have “nothing to hide”.]
2. Assembling evidence of all smokers in the vicinity of the complaint, and seeking feedback as to their smoking habits. [This of course will depend upon the reliability of the feedback received.]
3. Employing smoke detection devices. [These devices are becoming more and more sophisticated, with improved prevention against tampering. However: Depending on the manufacturer, these devices can sometimes result in “false positives” prompted by chemicals from other sources (other than smoking) and they may also have a limited “range”. Thus, we recommend clarifying with the device provider beforehand that these won’t be an issue.]
4. Arranging for smoke transfer investigations (typically carried out by an engineer or an air transfer expert). [These investigations can also be a good way to identify any defects – such as gaps or missing seals – that need to be fixed to reduce the risks of smoke transfer.]

A further complicating factor is that some smoking complaints may sometimes arise from “third hand smoke” (where smoke residue on a smoker’s clothing prompts a complaint even though the smoking occurred “outside the unit”).

The bottom line is that proving the source of smoke can sometimes be a challenge. The best strategy can often depend upon the precise circumstances. The condominium corporation’s obligation, in each case, is to consider the various circumstances and determine what steps should be taken to investigate the complaints received and hopefully determine the source of any second-hand smoke.

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