Condominium Authority Tribunal Decision: Kovalenko v. Romanino et al. – A Case of Smoking and Nuisance Claims
In the recent decision of Kovalenko v. Romanino et al., the Condominium Authority Tribunal (CAT) addressed the issue of smoke and odour migration within a condominium building that allows smoking. The Applicant, an owner who resides in the building, alleged that smoke and odour from the Respondent’s smoking activities on her porch were unreasonably interfering with his ability to peacefully enjoy his unit, thus causing a nuisance. The Tribunal’s decision offers important insights into how nuisance claims related to smoking are assessed under condominium law.
The Allegation: Smoke Migration Into the Applicant’s Unit
In this case, the Applicant claimed that when the Respondent smoked on her porch, the smoke would migrate into the Applicant’s unit through open windows and the balcony door. As a result, the Applicant argued that he could not use his windows, balcony, or open his patio door when the Respondent was smoking outside, which significantly interfered with his quiet enjoyment of the condominium.
Tribunal’s Analysis: What Constitutes a Nuisance?
The Tribunal made it clear that for smoke and odour to be considered a nuisance, it must substantially and unreasonably interfere with the owner’s use and enjoyment of their unit. The key question was whether the interference went beyond what a reasonable person would accept as part of condominium living.
The Tribunal adopted an objective test in determining unreasonable interference, meaning that the interference would be judged from the perspective of a reasonable person, not based on the subjective feelings or preferences of a single individual. This means that not every instance of undesirable interference would lead to a successful nuisance claim; some inconveniences are simply part of living in a condominium and must be tolerated.
The Tribunal’s Decision
While the Tribunal acknowledged that the migration of smoke and odour into the Applicant’s unit was unpleasant, it determined that it did not substantially interfere with the Applicant’s enjoyment of the unit. Several factors influenced this decision:
- Frequency of Smoking: The Respondent smoked about 3 to 4 times per day. The Tribunal did not find this frequency unreasonable.
- Condominium Policy: The building permits smoking both indoors and outdoors, and the Tribunal emphasized that some degree of smoke migration through open windows and doors was to be expected in such an environment. Living in a condominium with smoking allowances means that residents must accept some degree of smoke and odour as part of their living experience.
- Preventative Measures: The Tribunal pointed out that the Applicant could have mitigated the issue by simply closing his windows or patio door when the Respondent was smoking.
- Expectation of Zero Smoke: The Tribunal also concluded that it was not reasonable for the Applicant to expect a complete absence of smoke and odour in a condominium that allows smoking, especially when the Applicant’s own actions (such as leaving windows and doors open) contributed to the issue.
Conclusion: A Reminder About Condo Living
Ultimately, the Tribunal dismissed the Applicant’s claim, concluding that the interference from the smoke and odour did not rise to the level of a nuisance. This case highlights an important principle in condominium law: living in a shared building with specific rules and policies means that certain inconveniences—like smoke migration—may be considered part of the normal living experience, and must be accepted as such.
For condominium owners and residents, this decision serves as a reminder that not all disturbances will constitute a nuisance claim. Those living in buildings where smoking is permitted, both indoors and outdoors, must be prepared to tolerate some level of smoke exposure, especially if they can take simple steps, such as closing windows, to mitigate the impact.
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