Condominium Authority Tribunal
Date: August 15, 2025 Case: 2025-00157N Citation: Wentworth Standard Condominium Corporation No. 401 v. Couch, Couch, Couch, 2025 ONCAT 139
Order under section 1.44 of the Condominium Act, 1998.
Member: Nicole Aylwin, Vice-Chair
The Applicant: Wentworth Standard Condominium Corporation No. 401 Represented by Madeleine Stirland, Paralegal
The Respondents: Bradley Couch, Not-participating Thomas Couch, Self-represented Rose Couch, Represented by Thomas Couch, Agent
Hearing: Written Online Hearing – May 8, 2025 to August 1, 2025
REASONS FOR DECISION
A. INTRODUCTION
1The Applicant, Wentworth Standard Condominium Corporation No. 401, filed an application with the Tribunal seeking an order requiring the Respondents, Bradley Couch, Thomas Couch and Rose Couch, to comply with the provisions of its governing documents relating to smoking and s. 117 (2) (b) of the Condominium Act, 1998 (the "Act") which prohibits the creation or continuation of an activity that causes unreasonable smoke and/or odour that is a nuisance. All three Respondents own the unit. Bradley Couch resides in the unit.
2The Applicant is also requesting an order that the Respondents reimburse it for the costs incurred for enforcement attempts ($3,876.87), and legal costs to pursue this Tribunal application ($1,395.03), on a full indemnity basis.
3Bradley Couch joined this case but did not participate. Thomas Couch also joined the case and indicated that he would be participating on behalf of himself and his wife, Rose Couch. However, despite several messages from me encouraging Thomas Couch to participate at various points in the proceeding, he provided no evidence or submissions. I am satisfied that the Respondents received notice of the case and were aware of this hearing and chose not to participate. This matter proceeded as a default hearing.
4For the reasons that follow, I order Bradley Couch to immediately cease smoking (cannabis and/or cigarettes) in his unit and on the common elements of the Applicant. I further order the Respondents to comply with the provisions of the Applicant's governing documents pertaining to smoking and s. 117 (2) (b) of the Act. I also order the Respondents to pay compensation for damages in the amount of $3,876.87 and legal costs in the amount of $1,395.03.
B. ISSUES & ANALYSIS
Issue No. 1: Have the Respondents failed to comply with s. 117 (2) (b) of the Act and the Applicant's rules regarding smoking?
5The Applicant submits that Bradley Couch and/or his guests have been smoking cannabis inside the unit and on the common elements, contrary to its Non-Smoking Rule which states:
Smoking shall not be allowed anywhere on the common elements, exclusive use common elements, or inside a unit and shall include the inhaling, exhaling, burning or carrying of lighted tobacco, marijuana, incense, sage, e-cigarettes or any other substance that may create smoke. This Rule will apply to all persons, including but not limited to owners, tenants, invitees, business invitees, tradespersons, or other person hired by the occupant. The growing of marijuana shall not be allowed anywhere on the common elements, exclusive use common elements, or inside a unit; with the exception of growing in one's unit for medicinal purposes subject to all regulations of Federal, Provincial and Municipal laws.
6The applicant also relies on article 3.01 (c) of its declaration which prohibits any condition to exist or activity to be carried on in the units or common elements that "will unreasonably interfere with the use and enjoyment of the other owners of the common elements and/or their respective units; ..."
7It further submits that the Respondents have breached s. 117 (2) (b) of the Act which states:
No person shall carry on an activity or permit an activity to be carried on in a unit, the common elements or the assets, if any, of the corporation if the activity results in the creation of or continuation of,
(b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.
8The other prescribed nuisances, annoyances, and disruptions are set out in s. 26 of Ontario Regulation 48/01 ("O. Reg. 48/01") and include smoke and odour.
9The Applicant submits that in August 2024, it began receiving complaints that cannabis smoke and odour were emanating from the Respondents' unit.
10In response to these complaints, on August 16, 2024, the Applicant's condominium manager sent an email to the Respondent Bradley Couch to advise that the corporation was smoke free and that smoking of any kind was prohibited in individual units and the common elements. Bradley Couch replied to the email; he apologized, advising that his girlfriend, who was in the unit while he was not home, uses medical marijuana and that she was not aware that smoking was prohibited. He indicated she would not smoke in the unit again. The Applicant submitted it has never received any formal or even informal request for accommodation from Bradley Couch regarding the use of medical cannabis for any occupier and/or guest of the unit.
11Nonetheless the complaints continued. After failing to reach Bradley Couch by phone on September 3, 2024 to discuss the continuing complaints, on September 6, 2024, condominium management sent Bradley Couch a second email indicating that they had received complaints about cannabis smoke and odour emanating from the unit on August 15, 26, 28, 30 and 31, 2024. The letter provided specifics about the complaints and reminded him again that smoking, of any kind, is not permitted in the unit.
12On September 9, 2024 the Applicant also sent an email to all residents on the first floor, where the Respondents' unit is located, reminding residents that smoking of any kind was prohibited in the building. However, the Applicant received a further complaint regarding cannabis smoke and odour from the Respondents' unit in the latter half of September 2024.
13On October 4, 2024, the Applicant's counsel sent a legal compliance letter to the Respondents (including Thomas Couch and Rose Couch). The compliance letter set out the details of the complaints, reinforced the Non-Smoking Rule, and alerted the Respondents to s. 117 (2) of the Act and their responsibility to ensure that all owners, occupiers and guests comply with the corporation's governing documents and the Act. It also advised the Respondents that if they did not comply with the governing documents and the Act, legal action would be commenced and that they may be liable for the costs related to a Tribunal application as per its Rule 26, which states:
Any loss, cost or damage incurred by the Corporation by reason of a breach of any Rules from time to time by any owner, his guests, servants or agents or any occupants of his unit shall be borne by such owner and may be recovered by the Corporation against such owner in the same manner as common expenses.
14In response to this letter, Bradley Couch sent an email to management denying that anyone was smoking cannabis in the unit (aside from the one instance with his girlfriend).
15Despite this denial, the Applicant continued to received complaints throughout October 2024 and continuing to present. The smoke and odour incidents logged are frequent. There were seven in October 2024, one in November 2024, seven in December 2024, nine in January 2025, and five in the first half of February 2025, with several others logged in March 2025.
16Given Bradley Couch's denial, the condominium management took steps to confirm his unit as the offending one. It contacted the unit next to the Respondents' unit to speak with them about the smoke and odour. This was the only other unit that the smoke was likely to be emanating from, because two doors close off the Respondents' unit and the unit next to it from the rest of the building. The Applicant ruled out the neighbouring unit as the source of the smoke after speaking with the residents. The residents advised that they were not home on many of the dates of the complaints. Given that there are no other units within this sequestered part of the building, that left the Respondents' unit as the likely source of the smoke and odour.
17Lindsay Russell, a member of the board of directors, also provided a sworn statement that in investigating many of the complaints received by the Applicant, she attended the area where smoke and odour were complained about and verified that the smoke and odour were coming from the Respondents' unit. Ms. Russell further stated that on one occasion after detecting smoke and odour in the stairwell next to the Respondents' unit, she retrieved the corporation's security camera footage and confirmed that Bradley Couch was smoking in the basement hallway. A copy of this video was submitted into evidence. Additional security videos showing Mr. Couch smoking in the corporation's basement hallway were also submitted into evidence and sworn to be true copies by Ms. Russell. Finally, Ms. Russell stated that on December 16, 2024, she received a text message from Mr. Couch stating, "I just want to let you know that my tenant [is] smoking weed in here and I told her to stop but she won't stop", further confirming the Applicant's belief that the smoke and odour were emanating from the Respondents' unit.
18In two final attempts to get Mr. Couch to comply with the rules, legal counsel sent compliance letters to all the Respondents on November 14, 2024 and February 13, 2025. The Applicant asserts that the gap between the November letter and the February letter is because Bradley Couch indicated to the corporation that the tenant of the unit (his girlfriend, who was at the time living with Mr. Couch) was responsible for the smoke and odour non-compliance and she would be vacating the unit on January 1, 2025. Thus, the Applicant waited to send the final compliance letter to see if the situation improved. It did not. The Applicant continued to receive complaints of smoke and odour through January and February 2025.
19Based on the evidence above, I find that Bradley Couch has failed to comply with the Applicant's Non-Smoking Rule and has created or allowed the creation of unreasonable smoke and odour that is a nuisance contrary to s. 117 (2) (b) of the Act. I order that he immediately cease any smoking in the unit and comply with the Applicant's Non-Smoking Rule. He shall also ensure that any guests or tenants of the unit comply with the Non-Smoking Rule. I also find that Thomas Couch and Rose Couch failed to comply with s. 117 (2) (b) of the Act, as they were made aware of the smoking complaints and Bradley Couch's non-compliance, however they continued to allow an activity in the unit that was in breach of the Non-Smoking Rule and contrary to the s. 117 (2) (b) of the Act. I order that they comply with the Non-Smoking Rule and s. 117 (2) (b) of the Act, which requires them to ensure that no activity is taking place in the unit that causes a smoke or odour nuisance.
Issue No. 2: What costs, if any, should be awarded?
20The Applicant has requested that the Respondents reimburse it for the costs it incurred for attempting to gain compliance prior to filing this application. It has requested that the Respondents pay $3,876.87 for the three legal compliance letters it sent to the Respondents. It claims these costs under s. 1.44 (1) 3 of the Act, which allows the Tribunal to make "[a]n order directing a party to the proceeding to pay compensation for damages incurred by another party to the proceeding as a result of an act of non-compliance up to the greater of $25,000 or the amount, if any, that is prescribed."
21The Applicant investigated the complaints it received and made several attempts to gain compliance before incurring any costs (through conversations and emails from management). It only escalated the matter and incurred the cost of the legal letters when these attempts failed. Based on the evidence, I find that the Applicant incurred these costs reasonably and they are entitled under their Rule 26 (see paragraph 13) to be indemnified for these costs. I order that the Respondents pay the Applicant the amount of $3,876.87 for damages incurred as a result of an act of non-compliance.
22The Applicant has also requested that the Respondents pay it $1,395.03 for its legal costs of participating in this proceeding.
23Section 1.44 (1) 4 of the Act states that the Tribunal may make "[a]n order directing a party to the proceeding to pay the costs of another party to the proceeding."
24Section 1.44 (2) of the Act states that an order for costs "shall be determined in accordance with the rules of the Tribunal".
25The cost-related rules of the Tribunal's Rules of Practice relevant to this case are:
48.1 If a Case is not resolved by Settlement Agreement or Consent Order and a CAT Member makes a final Decision, the unsuccessful Party will be required to pay the successful Party's CAT fees unless the CAT member decides otherwise.
48.2 The CAT generally will not order one Party to reimburse another Party for legal fees or disbursements ("costs") incurred in the course of the proceeding. However, where appropriate, the CAT may order a Party to pay to another Party all or part of their costs, including costs that were directly related to a Party's behaviour that was unreasonable, undertaken for an improper purpose, or that caused a delay or additional expense.
26The Tribunal's "Practice Direction: Approach to Ordering Costs" provides guidance regarding the awarding of costs. Among the factors to be considered are whether a party or representative's conduct was unreasonable, for an improper purpose, or caused a delay or expense; whether the case was filed in bad faith or for an improper purpose; the conduct of all parties and representatives; the potential impact an order for costs would have on the parties; the indemnification provisions in a corporations governing documents and whether the parties attempted to resolve the issues in dispute before the CAT case was filed.
27Costs awards are discretionary. Typically, the Tribunal would not award full costs to a successful party. However, in this case, I find an award of full costs reasonable for several reasons: the Applicant was wholly successful in its case; there was a clear violation of the Non-Smoking Rule, Bradley Couch himself admitted that he had either tenants or guests in his unit that violated the rule on at least two occasions (and there is substantial evidence of other violations). Additionally, all of the Respondents (Bradley Couch, Thomas Couch and Rose Couch) were aware of the repeated and ongoing breach of the Non-Smoking Rule and were clearly notified that they could be responsible for legal costs if the matter proceeded to the Tribunal. Yet, no steps were taken to come into or secure compliance. I also find that, in this case, the Applicant has been reasonable in the legal costs claimed. $1,395.03 for a default proceeding with limited submissions is reasonable. Thus, I order that the Respondents pay the Applicant $1,395.03 for legal fees incurred in the course of these proceedings.
C. ORDER
28The Tribunal orders that:
Bradley Couch immediately cease smoking (cannabis and/or cigarettes) in the unit and/or on the common elements of the Applicant and comply with the Applicant's Non-Smoking Rule and s. 117 (2) (b) of the Act, which requires him to ensure that no activity is taking place in the unit or on the common elements that causes unreasonable smoke or odour that is a nuisance. He shall also ensure that any guests or tenants of the unit comply with the Applicant's Non-Smoking Rule.
Thomas Couch and Rose Couch comply with the Applicant's Non-Smoking Rule and s. 117 (2) (b) of the Act, which requires them to ensure that no activity is taking place in the unit or on the common elements that causes unreasonable smoke or odour that is a nuisance.
Pursuant to s. 1.44 (1) 3, within 30 days of the date of this decision, the Respondents shall pay the Applicant compensation for damages in the amount of $3,876.87.
Pursuant to s. 1.44 (1) 4, within 30 days of the date of this decision the Respondents shall pay the Applicant $1,395.03 for legal costs related to participation in this proceeding.
Nicole Aylwin
Vice-Chair, Condominium Authority Tribunal
Released on: August 15, 2025