The CAT orders a tenant to stop smoking cannabis
In the case of MTCC 1177 v Brunet et al, the CAT ordered a tenant to stop smoking cannabis in his unit, because this was causing a nuisance to other residents. The CAT held that this contravened a provision in the Declaration as well as Section 117 (2) of the Condominium Act and Section 26 of Regulation 48 / 01 (which lists smoke and odour as prescribed / prohibited nuisances under Section 117 (2)).
The tenant did not attend the CAT hearing. Note as well that there was no suggestion of any human rights need for the cannabis smoking. That said, I don’t believe that this would make any difference. Even in cases where cannabis smoking (in a unit) must be accommodated, I think that the tenant would still generally need to avoid causing any nuisance to other residents.
The landlord, Mr. Brunet, supported the condominium corporation’s application, and even asked that the Tribunal order the eviction of the tenant. However, the Tribunal declined to order the tenant’s eviction. The CAT said: However, the Tribunal does not have the authority to make the requested order; section 1.44 (4) of the Act states “The Tribunal shall not make an order requiring a person to vacate a property permanently.”
In terms of costs: The CAT order the tenant (but not the owner) to pay costs and compensation to the condominium corporation totaling $600, comprised of $150 in Tribunal filing fees and $450 in administrative costs. The administrative costs were for expenses incurred to have cleaning staff go to the property outside of their normal working hours to investigate the odour complaints from other residents. The CAT said:
“It is not reasonable that the owners whose quiet enjoyment of their units was disturbed by Mr. Abula’s cannabis smoking should pay even the relatively modest expense the corporation incurred. Therefore, I will order a compensation award of $450”.
The Tribunal declined to order the owner to pay the above-noted amounts because the owner had made all reasonable efforts to obtain the tenant’s compliance. [I don’t necessarily agree with this. In my view, if the condominium’s governing documents include an appropriate indemnification provision, requiring a landlord to bear responsibility for costs caused by the landlord’s tenant, the landlord should in my view be jointly liable to the condominium corporation for those costs (even where the landlord has been entirely cooperative). The landlord should in turn be entitled to recover those costs from the tenant (if able to do so). That said: There was no mention of any indemnification provision in this case.]
Here are my takeaways from this decision:
- Nuisance from smoke is clearly prohibited.
- I hasten to add the following: If the smoke transfer occurs because of a common element defect, then I think that the condominium corporation may bear some initial responsibility (to correct the common element defect). In other words, I think that the existence of a nuisance will normally be based upon the initial assumption that there is no common element defect. For this reason: An initial investigation by an expert (such as an engineer) may often be a wise “first step”.
- If the landlord makes all reasonable efforts to have a tenant comply, the landlord may be able to avoid costs. [But as mentioned above, I think that the landlord should still be responsible for costs if there is an applicable indemnification provision in the condominium’s governing documents.]
- The CAT cannot order the eviction of a tenant. If you are dealing with a situation that is so serious that eviction may be necessary, this will likely require a Court Application (pursuant to Section 134 of the Condominium Act).
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