CONDOMINIUM AUTHORITY TRIBUNAL
Order under section 1.44 of the Condominium Act, 1998.
Member: Roger Bilodeau, Member
The Applicants: Mary Tosoni and Paul Tosoni, Self-Represented
The Respondent: Frank Brandi, Self-Represented
The Intervenor: Victoria Standard Condominium Corporation No. 34, Represented by Darlene Mezzabotta, Paralegal
Hearing: Written Online Hearing – April 7, 2025 to August 22, 2025
REASONS FOR DECISION
A. INTRODUCTION
1The Applicants, Mary Tosoni and Paul Tosoni, own a unit in Victoria Standard Condominium Corporation No. 34 (“VSCC 34”). The Respondent, Frank Brandi, also owns a unit in VSCC 34. The Applicants allege that cigarette smoke and cat litter odours from the Respondent’s unit are causing a nuisance and are substantially interfering with the quiet enjoyment of their unit and the common elements. They further allege that VSCC 34 has failed to fulfil its obligations under the Condominium Act, 1998 (the “Act”) in its response to their concerns about smoke and other odours which emanate from the Respondent’s unit. The Applicants have asked the Tribunal to order the Respondent to take measures to prevent smoke and other odours from seeping into the common areas and other units and for VSCC 34 to enforce the relevant provisions found in the Act and in the condo corporation’s governing documents. If the above measures fail, the Applicants ask this Tribunal to order the Respondent to cease smoking in his unit and to clean up after his cat on a regular basis. Finally, the Applicants seek an order for the reimbursement of their fees to file this application, as well as for the reimbursement of their expenses to print various documents for the benefit of the Respondent, who does not have access to a computer and printer.
2There is no dispute that the Respondent smokes in his unit and that he owns a cat. At the time of his moving into the building in June 2024 and at the time this application was made, VSCC 34 did not prohibit smoking in individual units or in the common elements. The Respondent takes the position that he purchased his unit because smoking was allowed and that he has a corresponding right to the quiet enjoyment of his unit. He further states that he has taken steps to reduce the migration of any odours into the hallway and other units. He therefore asks that the application be dismissed.
3VSCC 34 takes the position that it has taken all reasonable steps to address the Applicants’ complaints and to enforce its governing documents and the Act. It asks that this application be dismissed with costs in its favour.
4The only issues to be addressed in this hearing are those that were set out with the agreement of the parties at the outset of this hearing, specifically:
Is the Respondent carrying on an activity, which results in the creation or continuation of any nuisance, annoyance or disruption, contrary to VSCC 34’s governing documents, in particular Article III - Item 3.1 (a) of the Declaration, as well as subsection 117(2) of the Act?
Has VSCC 34 fulfilled its obligations under the Act to enforce its governing documents and the Act in regard to the nuisance complained of by the Applicants?
If the smoke and other odours are found to be a nuisance, what is the appropriate remedy?
Is any party entitled to costs? If so, in what amount?
5In reaching my decision, I have reviewed all the submissions and evidence provided to me, but only refer to those that are necessary to reach my decision.
6For the reasons set out below, I find that the Respondent’s unit is the source of smoke and other odours experienced by the Applicants and that these are a nuisance which interfere with the Applicants’ right to the quiet enjoyment of their unit and the common elements. I also find that in the circumstances of this case, VSCC 34 has fulfilled its obligations under the Act and the governing documents in response to the Applicants’ complaints about smoke and other odours.
7Accordingly, I order the Respondent to continue (i) keeping all the doors and windows of his unit closed; (ii) operating an air purifier; (iii) operating the exhaust fans(s), and finally, (iv) cleaning his cat litter box on a daily basis, along with the use of deodorizer. Although the Applicants were partly successful in this case, I make no order in regard to their Tribunal fees. No other costs are awarded.
B. ISSUES & ANALYSIS
Issue 1: Is the Respondent carrying on an activity which results in the creation or continuation of a nuisance, annoyance or disruption, contrary to VSCC 34’s governing documents, in particular Article III - Item 3.1 (a) of the Declaration, as well as subsection 117(2) of the Act?
8The Applicants took possession of their unit on or about January 31, 2024. Their unit is on the fourth floor of VSCC 34’s Cameron building and there are nine units on their floor. The Respondent took possession of his unit on or about June 21, 2024, on the same floor as the Applicants. The Applicants immediately noticed smoking odours emanating from his unit and promptly advised the VSCC 34’s condominium manager. There is a lengthy string of email communications between the Applicants and the condominium manager in regard to the Applicants’ complaints starting on June 23, 2024. This application was approved by the CAT on November 19, 2024.
9At the time of this application, VSCC 34 did not have a rule which prohibited smoking in individual units or elsewhere. That situation changed in early 2025, with VSCC 34’s adoption of a no smoking rule, effective on April 15, 2025. The rule also contains a legacy clause and the Respondent availed himself of that clause within the timeframe allowed by VSCC 34 to do so.
10The Applicants rely on the following provisions of VSCC 34’s governing documents in support of their claim:
The Declaration:
Use of Common Elements
3.1 (a) Subject to the provisions of the Act, this Declaration, the By-Laws and the Rules, each Owner has the reasonable use, occupancy and enjoyment of the whole or any part of the Common Elements, except as herein otherwise provided. However, no condition or activity shall be permitted to exist on the Common Elements that is likely to damage the Property or that will unreasonably interfere with the use or enjoyment by other Owners of the Common Elements or their Units;
The Rules:
- QUIET ENJOYMENT
a. Owners and Invitees shall not create or permit the creation or continuation of any noise or nuisance which, in the opinion of the board or the Manager, may or does disturb the comfort or quiet enjoyment of the Units or Common Elements by other Owners or their respective Invitees.
- COMMON ELEMENTS
e. No Owner or Invitee shall do or permit anything to be done on a balcony or exclusive use area which does or may unreasonably disturb, annoy or interfere with the comfort and/or quiet enjoyment of the Units and/or Common Elements by other Owners or Invitees.
11The Applicants also maintain that the odours emanating from the Respondent’s unit are causing a nuisance in the form of unreasonable smoke and other odours which are prohibited under s. 117(2) (b) of the Act:
(2) 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,
(a) any unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation; or
(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.
12The other prescribed nuisances, annoyances and disruptions referred to above are set out in Ontario Regulation 48/01 s. 26 (“O. Reg 48/01”); they include smoke and odour.
13There is no dispute that the smoking odours complained of by the Applicants have continued to emanate from the Respondent’s unit both before and after the coming into force of VSCC 34’s no smoking rule.
14As part of their evidence, the Applicants filed a detailed log of over 100 incidents during the period of June 23, 2024 to June 10, 2025 when they noticed smoke and/or cat litter odours in their unit or in the hallway, or in both. In addition, they submitted the statements of four witnesses in support of their claim, all of whom own a unit on the same floor as that of the Applicants and the Respondent. All witnesses confirm the very noticeable odours emanating from the Respondent’s unit, either in their respective units or in the hallway, or both. Another witness statement was provided by a visitor in the Applicants’ unit who reiterated the same views as that of the other witnesses. In addition, one witness who lives on the floor below also experiences intermittent odours in the hallway of that floor and believes that these odours emanate from the floor above.
15For his part, the Respondent states that he is not in breach of any rule or doing anything which is contrary to the Act or VSCC 34’s governing documents. He further states that he has taken extensive measures to prevent odours migrating from his unit, including operating exhaust fans and an air purifier, to be helpful. He adds that he normally cleans his cat litter box daily but that there was a period of time when he was unwell during which he was unable to clean the cat litter box for a few days. He advises that this will not happen again. As a final point, he states that he has been the target of numerous complaints by the Applicants and other unit owners, to the point of harassment.
16VSCC 34’s condominium manager communicated with the Respondent on several occasions in regard to this matter, starting in early July 2024, with various requests to help mitigate the migration of odours from his unit.
17In November 2024 and in April 2025, the management of VSCC 34, on behalf of its board of directors, sent a letter to the Respondent regarding the odour complaints, advising him of the Applicants’ right to the quiet enjoyment of their unit, without nuisance in the form of odours. In the April 2025 letter, VSCC 34 informed the Respondent that it had installed an air purifier in the hallway to help alleviate discomfort for his neighbours, i.e. the Applicants. VSCC 34 also encouraged the Respondent to smoke on his balcony with the door closed and to clean the cat litter box daily, along with the use of deodorizer.
Are the smoke and/or other odours which emanate from the Respondent’s unit unreasonable and do they constitute a nuisance?
18Given that the Respondent’s unit is the source of smoke and other odours complained of by the Applicants, I must now decide if they are unreasonable and if they constitute a nuisance under VSCC 34’s governing documents and s. 117(2) of the Act. The Tribunal has been consistent in its analysis of what constitutes a nuisance as per the Act. Namely, the alleged activity must substantially and unreasonably interfere with a unit owner’s use and enjoyment of their unit or the common elements. Factors such as the frequency of the interference, its duration, and distinct aspects of the condominium community may all be considered in determining whether an activity is a nuisance pursuant to s. 117(2) of the Act.
19While it may not be reasonable in a building that allows smoking (as was the case before VSCC 34 adopted its no smoking rule and as is now the case for a legacy unit owner such as the Respondent) for residents to expect no smoke or related odours, the evidence in this case shows that the smoke and other odours experienced by the Applicants exceed the level of tolerance that a reasonable person might be expected to have. There have been consistent complaints about the strong smoking odour and cat litter odours emanating from the Respondent’s unit, as evidenced by the log kept by the Applicants during the period of June 23, 2025 up to and including June 10, 2025, i.e. 102 incidents of smoking odours and 35 incidents of cat litter odours. In addition, the owners of several other units near the Applicants’ unit have also complained about the persistent odours from the Respondent’s unit.
20While this case is not about whether other residents who are not parties to this application are experiencing smoke migration or other odours in their units – a point on which I make no finding – the evidence from these witnesses supports the Applicants’ evidence. In my view, it corroborates the finding that odours from the Respondent’s unit have been persistent, frequent and more than a trivial interference.
21While I accept that the Respondent has taken the measures asked of him by VSCC 34 to reduce the effects of the smoke and other odours on his neighbours, including purchasing an air filter and running the exhaust fan, these measures have not effectively mitigated the smoking and cat litter odours which emanate from his unit. I am therefore persuaded that the evidence establishes that a reasonable person viewing the matter realistically and practically would conclude that the odours emanating from the Respondent’s unit are substantially interfering with the Applicants’ use and enjoyment of their unit and the common elements (i.e. the hallway).
22As a final point, the Applicants have stated that they both suffer from asthma, which is an additional reason for their concern about smoke and other odours emanating from the Respondent’s unit. Independently of their medical condition, the evidence supports my finding that their right to the comfort and quiet enjoyment of their unit and of the common elements has been interfered with by the smoke and other odours emanating from the Respondent’s unit, albeit in a building where smoking was allowed when they purchased their unit and where a legacy provision applies since the adoption of a no smoking rule, as in the case of the Respondent.
Issue 2: Has VSCC 34 fulfilled its obligations under the Act to enforce its governing documents and the Act in regard to the nuisance complained of by the Applicants?
23The relevant provisions of the Act are the following:
a) s. 17(3), whereby VSCC 34 has a duty to:
take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules; and
b) s. 117(2) (b) of the Act (see above at paragraph 11).
24The Applicants argue that VSCC 34 has failed to fulfill its obligations under the Act and that its response to their concerns has been woefully inadequate. In particular, the Applicants maintain that VSCC 34 has not thoroughly investigated their allegations, especially in regard to why odours continue to emanate from the Respondent’s unit into the hallway and other units, despite its claims that that this would not happen. According to the Applicants, VSCC 34 has been too lax in its approach to their complaints and has not pursued the matter sufficiently with the Respondent in order to address the migration of odours from his unit.
25As a starting point, the Applicants assert that their decision to escalate this matter to the Tribunal was the result of the VSCC 34 board’s failure to address and rectify this matter despite numerous complaints from them and other residents regarding smoke and other odours emanating from the Respondent’s unit.
26The Applicants further take the position that soon after their first complaints to the condominium manager, she wrote to them by email on June 24, 2024, stating that “buildings are pressurized in a manner that forces the air in the corridors into the suites, this is part of the fire safety systems.”
27They add that they received another email on July 4, 2024 from Eric Dodd (president of the VSCC 34 board) stating that “once the air handler is repaired, the positive air flow in the hallways should prevent any smoke or smells from leaving the individual units”. VSCC 34 confirms that the air handler was repaired on July 25, 2024.
28Since that date, the Applicants maintain that smoke and other odours continue to migrate from the Respondent’s unit into the hallway and their unit. The Applicants add that on September 3, 2024, they received a further email from Eric Dodd and Doug Gray (president of the condominium developer which constructed the condominium) in response to an email from them, stating that:
I want to assure you that the HVAC system has been checked and is operating normally. If you have concerns about specific behaviours of other residents, such as odors you mentioned, I encourage you to raise these issues directly with the property manager.
29The Applicants are also of the view that VSCC 34 has been dilatory and has not responded to their complaints in a timely manner. In that regard, the Applicants provide the following timeline:
i. On June 25, 2024, the condominium manager advised the Applicants that she would send a letter to the Respondent regarding their odour complaint and ask him to get an air purifier. According to the Applicants, she finally reached out to him on July 3, 2024, requesting that he turn on his exhaust fan and advising him that once the air handling unit is fixed it would keep the smells inside the unit. On July 4, 2024, they received an email from Eric Dodd with similar information;
ii. VSCC 34’s next communication with the Respondent was a series of text messages on July 29, 2024, at which time the condominium manager asked him to buy an air cleaner or two for his unit, with no follow up until a text message on October 15, 2024, asking him if he had purchased an air cleaner, due to further complaints;
iii. On November 11, 2024, four and a half months after the initial complaints, the condominium manager sent a first letter to the Respondent, advising him that all owners have a right to quiet enjoyment of their respective units;
iv. The Respondent purchased an air cleaner on December 30, 2024;
v. VSCC 34’s next communication with the Respondent was on February 13, 2025, advising him that the smell of kitty litter from his unit was seeping into the hallway;
vi. On March 6, 2025, the Applicants submitted another complaint about smoke and cat litter odours. VSCC 34 responded on April 25, 2025 when they advised the Applicants that the board had approved the purchase of an air purifier for the hallway;
vii. Due to further odour complaints, VSCC 34 communicated with the Respondent on March 10, 2025, asking him to smoke on his balcony, given the warmer weather, to which he agreed. According to the Applicants, the odour problem still persisted after that date; and
viii. VSCC 24 sent a follow-up letter to the Respondent on April 29, 2025, to advise him that it was still receiving smoke and other odour complaints, suggesting steps to address odours from his kitty litter and as previously requested, encouraging him to smoke outside on his balcony with the door closed.
30The Applicants acknowledge that VSCC 34 installed an air purifier in the hallway in late April 2025 but in their view, this has not solved the problem as there have been multiple occasions where they have experienced smoke and other odours emanating from the Respondent’s unit since the installation of the air purifier.
31The Applicants submit that they have only asked for the relevant provisions of the Act and of the governing documents to be enforced, as well as for an investigation into why the smoke and other odours from the Respondent’s unit continue to spill into the hallway and other units. As such, they have recommended to the board of VSCC 34 that it should retain the services of a third-party HVAC engineer to conduct an assessment of why smoke and other odours from the Respondent’s unit continue to spill into the hallway and units. They maintain that their recommendation has been ignored and submit that VSCC 34 has shown no interest in investigating their complaints.
32For its part, VSCC 34 submits that the issues in this application are more properly between the Applicants and the Respondent. It has accordingly limited its submissions to the issue of whether it has upheld its obligations under the Act and the governing documents and argues that the Applicants have not produced any evidence that VSCC 34 has failed to meet its obligation to enforce its governing documents and the Act.
33To the contrary, VSCC 34 submits that the evidentiary record shows that it has acted on the Applicants’ complaints and has taken active and progressive steps to address the complaints of smoke and other odours emanating from the Respondent’s unit, as well as reasonable and measured steps to ascertain any further actions to be taken. Their actions include:
a. repairs to the air handler unit (which is part of the HVAC system), completed on July 25, 2024;
b. communicating with the Respondent to remind him of his obligations under the Act and the governing documents, as well as seeking his voluntary compliance with the provisions of those documents;
c. having the HVAC system inspected and/or serviced on several occasions between April 2024 and March 2025; and
d. the installation of an air purifier in the hallway.
34VSCC 34 adds that there have been fewer complaints since the installation of the air purifier in the hallway.
35VSCC 34 further takes the position that at the time when the Applicants filed their application (in the fall of 2024), VSCC 34 was actively responding to new complaints being made and was still engaged in the process of examining the nature of those complaints, as well as determining the appropriate course of action in their regard.
36It goes on to add that while the steps taken may not have aligned with what the Applicants expected or thought was appropriate, they do not diminish the fact that VSCC 34 has acted reasonably and appropriately in receiving and addressing specific complaints brought to its attention.
37The Tribunal acknowledges that the Applicants and the Respondent both have a right to the quiet enjoyment of their respective units. In the Respondent’s case, that includes the right to smoke in his unit. In both cases however, the right to quiet enjoyment also precludes both parties from causing a nuisance which unduly interferes with the other owner’s rights, both in their unit and in the common elements (i.e. the hallway). It nevertheless clearly appears that odours which are produced inside the Respondent’s unit are not being contained within his unit and are in fact spreading or migrating to other units and the hallway. I must therefore consider if the Applicants, or any other party, can hold a realistic expectation that all smoke and related odours in a building where smoking is allowed (both before and after the adoption of a legacy provision) will in fact be contained at all times. My determinations in this case will accordingly be guided by an assessment of the steps taken by VSCC 34 to fufill its obligations under the Act and the governing documents and in particular, whether those steps were reasonable.
38Based on the evidence before me, I conclude that VSCC 34 has taken reasonable steps to address the Applicants’ complaints in this matter, even after the application was filed. More specifically, I am satisfied that although it could have acted more quickly on some occasions, it did communicate with the Respondent on several occasions to advise him of his obligations under the Act and the governing documents, namely that smoking and other odours must be contained within his unit so as to not affect the rights of other owners to the quiet enjoyment of their respective units. VSCC 34 also made the Respondent aware of steps that he should take to alleviate the impact of smoke and other odours emanating from his unit.
39In addition, I am satisfied that VSCC 34 has met its obligations under s. 117(2) (b) of the Act and the governing documents, more precisely s. 3.1 (a) of its Declaration. From July 2024 to April 2025, there are various instances of the HVAC not working or working improperly and of VSCC 34 advising the Applicants that they are looking into the matter. In fact, I note that the last service order for the HVAC system took place on March 14, 2025 and that when the Applicants advised VSCC 34 on March 17, 2025 of smoking odours in their unit and the hallway, the condominium manager responded on the same day as follows: “Thank you for this notice, I am talking with the HVAC company to find a solution to this issue”.
40At some point in the following weeks, the HVAC system was working again. However, the Applicants still continued to experience smoking odours in the days following and again advised VSCC 34 of their complaint in that regard on April 5, 2025, to which VSCC 34 responded as follows on the same date: “Thank you for the notice. I will have to get the HVAC company back out again”.
41On April 7, 2025, the Applicants advised VSCC 34 as follows: “As we discussed today the smoke and odours continue to come into the halls and our units. It is more evident when the wind is coming from the west”.
42As reported by VSCC 34, the HVAC system was back in operation on April 15, 2025 but the Applicants continued to experience smoke and other odours, leading to additional odour complaints submitted on April 17, 2025 and beyond. On April 25, 2025, VSCC 34 advised the Applicants by email that the board had approved the purchase and installation of an air purifier for their hallway. That email concluded as follows: “We are hopeful that this will help to rectify this issue”.
43Both parties have referred me to other cases decided by the Tribunal in regard to a condominium corporation’s responsibilities in a situation such as: Edwards v. Halton Condominium Corporation No. 192, Talsky, 2024 ONCAT 176 and Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 et al., 2023 ONCAT 42. Although I have considered those cases, the fact situations in those cases are different and arguably more compelling than in this case.
44In cases such as this one, a clear distinction needs to be drawn between the obligations of VSCC 34 under the Act and the governing documents, on one hand, and the expectations of the Applicants on how VSCC 34 ought to be resolving or addressing the issues, on the other. Based on all the above and the evidence before me, I am persuaded that VSCC 34 has met its obligations under the Act and its governing documents to take all reasonable steps to enforce the Act and governing documents, as well as to prevent smoke and other odours from migrating into the Applicants’ unit and the hallway.
Issue 3: If the smoke and other odours are found to be a nuisance, what is the appropriate remedy?
45Having found that the smoke and other odours emanating from the Respondent’s unit are a nuisance, I turn now to the appropriate remedy. As a starting point, the Respondent has availed himself of the legacy clause which was provided for in VSCC 34’s governing documents on the topic of smoking. I therefore cannot order him to stop smoking, as requested by the Applicants.
46In the circumstances of this particular case, I find that the Respondent has already acquiesced to the following measures at the request of VSCC 34, namely: (a) keeping all the doors and windows of his unit closed; (b) maintaining an air purifier at all times and (c) running the exhaust fans(s). I therefore order him to pursue these measures. In addition, I order him to continue cleaning his cat litter box on a daily basis, along with the use of deodorizer. Of course, the above does not preclude VSCC 34 from asking the Respondent to take any other steps which could further alleviate or eliminate the migration of any odours from his unit.
47Athough I make no order vis-à-vis VSCC 34, I recommend that it should continue to monitor its HVAC system to ensure that smoke and odour migration is either eliminated or kept to a minimum, especially in light of the breakdowns of that system which have occurred from time to time since June 2024. In addition, there is nothing to prevent VSCC 34 from seeking an independent assessment of its HVAC system by a third party, as requested by the Applicants. However, that is a decision which belongs to the board of VSCC 34, in consultation with unit owners and other parties, as required.
48In closing, the fact remains that the Applicants bought a unit in a building which allowed smoking and notwithstanding the adoption of a recent no smoking rule, continues to do so by way of a legacy provision which applies to the Respondent. While every effort must be made by all concerned to reduce or eliminate smoke odour migration, it may well be that there is no sure-fire way to completely eliminate the migration of all smoke odours from the Respondent’s unit.
Issue 4: Is any party entitled to costs? If so, in what amount?
49The cost-related rules of the Tribunal’s Rules of Practice (“Rules”) 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.
50The 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.
51The Applicants were partly successful as against the Respondent but in the circumstances of this case and since the Respondent has already taken the steps requested by VSCC 34 to reduce the migration of smoke and other odours from his unit, I make no order in regard to the Tribunal filing fees of $200. In regard to the sum of $13.75 claimed by the Applicants to print procedural and substantive documents related to this application, for the benefit of the Respondent, I note that they offered to print these documents and I therefore make no order in that regard. Finally, and in the exercise of my discretion under the Rules, I make no other order as to costs.
C. ORDER
The Tribunal orders that, under s. 1.44 (1) 2 of the Act, the Respondent must continue:
a. to (i) keep all the doors and windows of his unit closed; (ii) operate an air purifier; and (iii) operate the exhaust fans(s); and
b. to clean his cat litter box on a daily basis, along with the use of deodorizer.
Roger Bilodeau
Member, Condominium Authority Tribunal
Released on: August 29, 2025