Smoke Migration

In a recent case, the Court dealt with the obligations of condominium corporations in relation to smoke migration. [See MacKay v. MTCC 985]

In the case, the owners of one of the units complained about migration of cigar smoke from a neighbouring unit. About two weeks later, they felt that they could no longer inhabit the unit, and they moved into a hotel pending anticipated resolution of the problem.

The condominium corporation initially obtained assurances from the smoker that he would stop smoking (at least for the time being); but it seems that the smoking did not entirely stop.

After some initial delay, the condominium corporation hired experts to investigate the problem and to recommend solutions. The complaining owners also hired their own experts, who made some different recommendations.

The corporation’s initial repair efforts (based upon advice from the corporation’s experts) did not fully resolve the problem. The corporation then hired new experts. Based upon the advice of those new experts, the problem was fully resolved – about nine or ten months after the complaint.

The Court said that, at the end of the day, the condominium corporation was in compliance with its repair and maintenance obligations. However, the Court said that the corporation ‘did not act with sufficient dispatch’ and ‘adopted an unfortunate attitude toward the owners, who were quickly branded as complainers who had far too quickly ran off to their own lawyers’.