Condo fails to address smoke complaints

Smoking in condominiums has become a popular topic in recent years. A number of condominiums have amended their declarations to prohibit smoking on the common elements. Some condominiums have even amended their declarations to prohibit smoking anywhere on the property. Notwithstanding all of the amendments, there have been very few reported cases on smoking in condominiums.

In one recent case (MacKay v. Metropolitan Toronto Condominium Corporation No. 985) the owners claimed the condominium was in breach of its duty to maintain and repair the common elements and their unit. The owners complained of cigar smoke entering their unit from an adjacent unit. The owners’ insurance adjuster determined¬†that the unit was uninhabitable. The insurer paid for the owners to stay in a hotel for 10 months. The owners reported their complaints to the condominium. The condominium did very little to address their complaints so the owners commenced an application.

The court found that the condominium failed to take any significant steps for a period of two months despite knowledge of Fire Code violations. The court stated that the condominium was likely in breach of its statutory obligations during the two month period, but chose not to rule on the matter as the condominium had satisfied its obligations by the time the matter was heard. The court awarded costs to the owners even though there was no current breach of the condominium’s obligations.

The case is an interesting read because of some of the comments made by the court. For instance, in discussing the waiver of subrogation (which prohibits the owners’ insurer from claiming against the condominium for the expenses incurred in repairing the unit and putting the owners up in a hotel for 10 months), the court said “This [the waiver], of course, takes some of the pressure off a condominium corporation to respond in a timely and effective way to a maintenance or repair issue.” While the waiver may prevent the insurer from pursuing the condominium, the owner could still take other steps, such as an application for compliance (like in the present case) or oppressive conduct where the condominium failed to satisfy its obligations.

The court also commented on the suggestion that the board relied upon the advice of its professionals. The court found that relying upon professionals “may be sufficient to discharge the obligations of the directors of the corporation under s.37…which deals with the standard of care owed by officers and directors…but the fact that the Board obtained and acted on advice is not, in my view, as effective an answer to alleged breaches of s.89 (repair after damage) and s.90 (maintenance).” This comment is intriguing. Perhaps the court meant that relying upon professionals would protect the directors under section 37, but would not protect the condominium itself if the directors fail to ensure the condominium’s repair and maintenance obligations were satisfied.

In any event, this case should be a reminder that all directors and property managers should investigate complaints made in good faith.