Smoke and Odour Migration in a Condominium that Permits Smoking

The Condominium Authority Tribunal decision of Kovalenko v. Romanino et al. dealt with the allegation of an owner – who resides within a condominium that permits smoking – that certain smoke and odour migrating into the owner’s unit is unreasonably interfering with the quiet use and enjoyment of his unit and is therefore causing a nuisance. 

In this case, the Applicant owner alleged that when the Respondent owner smokes on her porch the smoke migrates into the Applicant’s unit coming in through his open windows and balcony door. The Applicant’s position was that the Respondent’s smoking interferes with the quiet use and enjoyment of his unit because the Applicant can never open his windows or balcony door, or use his balcony, while the Respondent is smoking on her porch.

The Tribunal confirmed that smoke and odour will only constitute a nuisance if the smoke and odour substantially and unreasonably interfere with the owner’s use and enjoyment of the condominium property. The test for what constitutes unreasonable interference is objective measured by a reasonable person – and not the subjective expectations of a single person. The Tribunal also recognized that not every undesirable interference will result in a successful claim of nuisance and that some interferences may be acceptable and must be accepted as part of condominium living.

Although undoubtedly an undesirable interference, the Tribunal determined that the smoke and odour migration into the Applicant’s unit did not substantially and unreasonably interfere with the Applicant’s use and enjoyment of their unit and therefore was not a nuisance. As a starting point, the Tribunal concluded that the frequency with which the Respondent smoked, which was roughly 3 to 4 times per day, was not unreasonable. Further, the Tribunal reasoned that the Applicant chose to reside in a condominium building that permits smoking both indoors and outdoors and therefore some smoke and odour migrating through open windows and doors is to be expected and must be tolerated. The Tribunal also pointed out that the Applicant could prevent the undesired migration of smoke and odour into the Applicant’s unit by closing his windows and patio door. In coming to its decision, the Tribunal confirmed that it is not reasonable for the Applicant to expect or demand a complete absence of smoke and odour from people smoking in a condominium that ultimately permits smoking. 

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