Knock, Knock. Who’s there? Not the Condominium Corporation!

In the case of Ottawa-Carleton Standard Condominium Corporation No. 656 v. Denize, 2022 ONCAT 124, there was an order made under section 1.44 of the Condominium Act, 1998. Section 1.44 states “In carrying out its powers and duties under this Act or the regulations, the condominium authority shall comply with the administrative agreement, this Act, the regulations and other applicable law. 2015, c. 28, Sched. 1, s. 2.”

Here, the Respondent, Mr. Sebastien Denize, a unit owner was deemed to be in violation of the Condominium’s governing documents which prohibit the creation of smoke and odours that disturb other owners. The Condominium and Applicant – Ottawa-Carleton Standard Condominium Corporation No. 656 (“OCSCC 656”) had evidence from two other unit owners claiming that there were second-hand smoke odours penetrating their units. Both unit owners are cancer survivors and are vulnerable to the effects of second-hand smoke.

Throughout the court proceedings, OCSCC 656 submitted testimony from the two unit owners, along with 24 emails, 12 which were from the two unit owners and an additional 12 without names and no identifying details. It was also noted that nine emails out of the 12, were identical in wording to those identified as sent by one or the other of the two witnesses. Thus, the CAT member concluded that at least 21 of the 24 complaints disclosed by OCSCC 656 were made by one or the other of the two witnesses and at least nine of the complaints were duplicates. The two unit owners also made complaints related to specific dates where one or both of them had smelled smoke. It was suggested most of these dates were days which Mr. Denize and his roommate or both were at home. However, it was later proven once Mr. Denize testified that he was out of town for certain dates for which one of the unit owners, smelled smoke. This severely undermined the evidence of that unit owner.

Further, during his testimony, Mr. Denize submitted that OCSCC 656 conducted no independent investigation of the odours. Instead, OCSCC 656 merely relied on the complaints received and the two unit owners who testified. It was further mentioned that both of the unit owners testified that the smoking odour increased after Mr. Denize moved in. However, the CAT member stated that correlation is not causation and that it is possible what the witnesses experienced was driven by a change in the seasons. Also, it must be noted, that no one saw Mr. Denize or his roommate smoking in their unit, on the balcony or anywhere near the condominium. Mr. Denize also introduced a document written by Lash Condo Law where it was mentioned that the first step a corporation must take is to determine where the smoke is coming from and the reason the smoke is migrating. Here, Mr. Denize, invited OCSCC 656 to come view his unit. It was mentioned by the two unit owners that the odour was strong and pervasive, which would have been easy to detect in the unit, had OCSCC 656 gone to Mr. Denize’s condo. OCSCC 656 also did not investigate Mr. Denize’s statements where he had mentioned others, he had seen smoking on their balconies.

It was concluded that as OCSCC 656 did not properly investigate Mr. Denize’s statements, or even attend at his unit after his numerous invitations and they did not demonstrate presence of smoking in Mr. Denize’s unit and/or balcony either by himself or any other person, all costs that OCSCC 656 were claiming were denied. OCSCC 656 was not able to establish that Mr. Denize was in non-compliance of the no-smoking rules, therefore, Mr. Denize was awarded costs and a credit towards his common expenses.

This case stresses the importance of a condo investigating all complaints and not solely relying on the complaints of other unit owners. Condominiums need to comply with all regulations and applicable law. Thus, complaints from owners should be used as a first step to investigating the complaint further so the condominium can gather evidence of their own and proceed accordingly.