Condominium Authority Tribunal
DATE: July 20, 2023 CASE: 2022-00425N
Order under section 1.44 of the Condominium Act, 1998.
Member: Mary Ann Spencer, Member
The Applicant, Elena Rusu Represented by Elaine Jair, Counsel, November 30, 2022 to January 27, 2023; Shawn Pulver, Counsel, January 30, 2023 to July 11, 2023
The Respondent, Metropolitan Toronto Condominium Corporation No. 1002 Represented by Julia Sullivan, Agent, November 30, 2022 to May 26, 2023; Irene Ho, Agent, May 30, 2023 to July 11, 2023
Hearing: Written Online Hearing – November 30, 2022 to July 11, 2023
REASONS FOR DECISION
A. INTRODUCTION
1The Applicant, Elena Rusu, is the owner of a unit of the Respondent, Metropolitan Toronto Condominium Corporation No. 1002 (“MTCC 1002”). Ms. Rusu alleges she is experiencing unreasonable odours in her unit because the occupant of an adjacent unit is violating the Respondent’s non-smoking rules. Ms. Rusu further alleges that MTCC 1002 has failed both to adequately investigate her complaints and to enforce its non-smoking rules. She asks the Tribunal to order MTCC 1002 to enforce its non-smoking rules. She also requests her costs in this matter.
2MTCC 1002’s position is that there is no evidence to support that the occupant of the unit adjacent to Ms. Rusu’s is smoking or vaping in her unit. It disputes the validity of Ms. Rusu’s evidence of odours in her unit and submits that it has taken and will continue to take reasonable and appropriate action to enforce its non-smoking rules. It asks the Tribunal to dismiss Ms. Rusu’s application. MTCC 1002 also requests its costs.
3I find that the evidence does not support a finding that Ms. Rusu is experiencing unreasonable odours in her unit or that the occupant of the adjacent unit is smoking and/or vaping in breach of MTCC 1002’s non-smoking rules. Therefore, I dismiss Ms. Rusu’s application without costs.
B. BACKGROUND
4This has been a lengthy proceeding. Ms. Rusu submitted her application to the Tribunal on July 27, 2022. The application indicated she was experiencing odours in her unit from marijuana smoking and vaping by the tenant living in an adjacent unit and she alleged that MTCC 1002 had failed to take action to enforce its non-smoking rules.
5The Stage 2 – Mediation in this matter concluded on November 14, 2022, and the Stage 3 – Decision proceeding began on November 30, 2022. In the Stage 2 Summary and Order, the mediator identified the issue to be addressed in this proceeding as “if the Respondent has reasonably addressed the Applicant’s concern about smoke transmission?”
6The Stage 2 mediator noted that Ms. Rusu’s case was related to case 2022-00424N, Metropolitan Toronto Condominium Corporation No. 1002 v. Ruiz, 2022, ONCAT 131. In its decision released on November 23, 2022, the Tribunal found that Nicole Ruiz, the occupant of the unit adjacent to Ms. Rusu’s, was smoking cannabis in violation of MTCC 2001’s non-smoking rules. It ordered Ms. Ruiz to comply with the corporation’s “Rules Regarding Tobacco and Cannabis”, to immediately cease smoking cannabis in the unit, and to provide a copy of its decision to the unit owner who had not been named as a respondent in the matter.
7At the outset of this matter, I asked Elaine Jair, then Ms. Rusu’s counsel, if the Ruiz decision had altered the issues to be addressed. Ms. Jair’s response was that while cannabis odours had diminished, Ms. Rusu continued to experience odours from tobacco smoking and vaping, that the corporation had failed to adequately enforce its non-smoking rules with the owner of the adjacent unit, and that it was not enforcing the Tribunal’s order in Ruiz. She further advised that Ms. Rusu was seeking damages.
8Witness testimony was submitted in mid-January 2023 and the parties were asked to post written cross-examination questions. On Friday January 27, 2023, Ms. Jair advised that she had posted her questions and that another counsel would be taking over