Court File and Parties

COURT FILE NO.: CV-22-1842 DATE: 2023-08-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HALTON CONDOMINIUM CORPORATION NO. 61, Applicant AND: Nikolay KOLAROVALIEV and Borislava BORISSOVA, Respondents

BEFORE: Kurz J.

COUNSEL: A. Casalinuovo, for the Applicant N. Simova, for the Respondents

HEARD: May 15, 2023

Endorsement

Introduction

[1] This is an application by the Applicant, Halton Condominium Corporation No. 61 (“HCC 61”) under s. 134 (“s. 134”) of the Condominium Act, 1998, S.O. 1998, c. 19 (“the Act”) to enforce its non-smoking rule “(the Non-Smoking Rule”) against the Respondents. Under s. 134 this court may order compliance with any provision of the Act, a condominium corporation’s declaration, by-laws, or rules, as well as certain agreements between two or more condominium corporations.

[2] HCC 61 says that it enacted the Non-Smoking Rule to make its premises smoke-free, for the benefit of its unit owners. But it “grandfathered” or exempted 13 of those unit owners from the Non-Smoking Rule. It did so upon strict conditions, to which the grandfathered unit holders must have agreed, as set out in the Grandfathering Agreement described below. HCC 61 says that the Respondents have continuously breached that Grandfathering Agreement.

[3] HCC 61 adds that it took a number of steps short of this legal proceeding in an attempt to resolve the smoking issue with the Respondents. Those steps included paying for a mediation session, entering into Minutes of Settlement with the Respondents at the mediation (the “Minutes”), paying for an inspection report called for in the Minutes, and being willing to pay for its share of any remediation called for in the inspection report. But it adds that those steps were to no avail as the Respondents were unwilling to change their conduct.

[4] HCC 61 now asks the court to 1) void the Grandfathering Agreement as between the parties and 2) enforce the Non-Smoking Rule to prohibit the Respondents from smoking within their unit (“Unit 801”) and the property of HCC 61. In the alternative, it asks that the Grandfathering Agreement be modified to prohibit the Respondents from smoking in Unit 801 or the Property of HCC 61 unless they are at least 9 meters from all doorways, operable windows and air intakes of the HCC 61 premises.

[5] The Respondents vehemently oppose this application. They assert that they have not violated the Grandfathering Agreement. Rather, they argue that the allegations against them are “ingenuine” and “even false”. They assert that this application represents retaliation for a conflict in which they were engaged with the president of HCC 61, who is their next-door neighbour. Further, they claim that their smoking never interfered with the enjoyment of any other HCC 61 unit owner(s).

[6] The Respondents add that HCC 61 never attempted to deal with them in “a neighbourly manner or through good faith negotiations”. Rather, it engaged its lawyers and then “it insisted to proceed to mediation”, leading to an agreement which they consider unfair. HCC 61 then used the Respondents’ subsequent concerns regarding the obligations which the Minutes imposed on them to unfairly claim that they breached those Minutes. The Respondents conclude that the credibility and reliability of the people claiming that they breached either the Grandfathering Agreement or the Minutes are suspect.

[7] The relief that HCC 61 originally sought included an order enforcing the Minutes under s. 134. However, during the course of argument of this application, HCC 61’s counsel conceded that the Minutes do not come within the scope of governing documents covered by s. 134. Thus, it cannot seek to rely on s. 134 to enforce the Minutes in this application. Rather, HCC 61 relies on an argument that its entry into the Minutes proves its good faith in trying to resolve the smoking issue with the Respondents short of this application. It adds that the Respondents’ refusal to carry out their obligations under the Minutes demonstrates their irresponsible attitude towards the terms of both the Grandfathering Agreement and the Minutes into which they freely entered.

[8] For their part, the Respondents had originally argued that the Minutes should be set aside based on the alleged impropriety of the mediation process. But as the issue is now moot, they did not pursue that argument any further.

Brief Summary of Decision

[9] For the reasons that follow, I grant the portion of this application which prohibits the Respondents and any other visitor to or resident of Unit 801 from smoking in Unit 801 or with in a nine (9) meter distance of all doorways, operable windows, and air intakes of the HCC 61 building.

Background

[10] HCC 61 is a non-profit condominium corporation, comprised of 205 residential units and their common elements. The Respondents have been the registered owners of Unit 801 since July 14, 2006.

The Non-Smoking Rule and the HCC 61 Nuisance Rules

[11] HCC 61 has a number of rules which govern the use and operations of its units and common areas. HCC 61 originally permitted smoking in those units and common areas. But in 2018 it passed the Non-Smoking Rule. According to the Non-Smoking Rule (which also deals with cannabis use on HCC 61’s premises):

2.12 SMOKING AND CANNABIS Smoking is strictly prohibited in, on or upon the units, common elements and exclusive use common elements of the Corporation, including the balconies, terraces and /or patios, as well as within 9 meters or 30 feet of doorways, operable windows and air intakes. For the purposes of these Rules, “smoke” or “smoking” means to inhale, exhale, hold or otherwise have control over ignited tobacco, cannabis, or any other substance, or to vape using a vaping product (including but not limited to an electronic cigarette, an electronic cigar and an electronic pipe) or any other device which use generates or creates smoke and/or emits an aerosol or vapor.

[12] The Non-Smoking Rule contains a clause which contemplates existing unit holders who continue to smoke entering into a Grandfathering Agreement with HCC 61. That clause reads as follows:

Any existing Owner and/or Resident shall be permitted to smoke in or on any of the units (the “ Grandfathered Owner/Resident ”) if the Owner or Resident of the unit provides notification, in writing (in the form reproduced at Appendix “E” – Grandfathering Agreement for Smoking), to the Corporation prior to October 1, 2018, of their intention to smoke in or on any unit, save and except for the smoking of any cannabis, which is prohibited. … The Grandfathered Owner/Resident shall be subject to and must comply with all applicable legislation and the Declaration, By-laws and Rules of the Corporation, including but not limited to, those with respect to causing a nuisance or hazard to another person and unreasonably interfering with the rights of another person to use and enjoy the units, common elements or exclusive use common elements.

[13] The nuisance provisions of HCC 61’s Rules, which are cited in the clause cited above reads as follows:

4.14 NUISANCES – NOISE, ODOR & VIBRATION No one shall create or permit the creation of any odor, vibration, disturbance noise or nuisance which, in the opinion of the Property Manager or the Board may or does disturb the comfort or quiet enjoyment of other Owners or Residents.

In the event that the [HCC 61] Board determines, in its sole discretion, acting reasonably, that any noise, vibration, odor or offensive action (a “ Nuisance ”) is being transmitted to another unit or the common elements and that such Nuisance is an annoyance, nuisance, disruptive, and/or may or does disturb the comfort or quit [sic] enjoyment of other Owners or Residents (regardless of whether the unit that the Nuisance is originating from is adjacent to or wherever situated in relation to the said Owner or Resident), then the Owner of the unit that Nuisance is originating from (the “ Nuisance Unit ”) shall at their own expense take such steps as shall be necessary to abate such Nuisance to the satisfaction of the Board.

In the event the Owner of the Nuisance Unit fails to abate the Nuisance within a reasonable time as determined by the Board, the Board shall take such steps as shall be necessary to abate the Nuisance and the Owner of the Nuisance Unit shall be liable to the Corporation for all expenses incurred by the Corporation in abating the Nuisance, which expenses are to include the Corporation’s legal costs on a full indemnity basis.

The Grandfathering Agreement

[14] On August 27, 2018 the Respondents entered into the Grandfathering Agreement with HCC 61. It allowed them to smoke in Unit 801 (described in the agreement as a “Grandfathered Unit”). Paragraph 1 of the Grandfathering Agreement set out the following conditions for smoking in a Grandfathered Unit:

1. Owners or Residents of a Grandfathered Unit shall ensure, in exchange for the Corporation granting an exemption from the Non-Smoking Rule to the Grandfathered Unit [i.e. Unit 801], that: a. All windows and balcony doors are closed when Smoking, as that term is defined in the Non-Smoking Rule; b. Smoking takes place only inside the Grandfathered Unit and not inside any other Units or on any portion of the common elements; c. The Grandfathered Units exhaust fans are turned on and functioning properly when Smoking takes place inside the Grandfathered Unit; and d. Said Smoking is not likely to damage the property and will not unreasonably interfere with the use or enjoyment by other Owners or Residents of the common elements and the other units.

2. The Owner(s) or Resident(s) of the Grandfathered Unit acknowledge and agree that the Grandfathered Unit exemption shall be revoked by the Corporation without further notice upon the earliest of: f. Any breach of the terms stipulated in paragraph 1 of this Agreement above, as determined by the Corporation in its sole discretion.

[15] A total of 13 of the 205 unit owners of HCC 61 entered into similar agreements with HCC 61. But at all material times, Unit 801 was the only one of those units situated on HCC’s eighth floor. No evidence has been presented that any of the other grandfathered units are near to Unit 801.

Jurgen Behn Complaints Regarding Smoke Emanating from Unit 801

[16] HCC 61 asserts without contradictory evidence that Unit 801 is the only HCC 61 unit for which it has received complaints about cigarette odour emanating from the unit.

[17] Jurgen Behn co-owns (with his wife) Unit 810, the unit immediately adjacent to Unit 801. In his first affidavit in support of this application, Mr. Behn deposed that he had experienced intermittent smoke in the corridor outside his home, but not in his unit, for the first few years after he and his wife moved into it. But then the Respondents carried out some kitchen renovations to Unit 801. That led to smoke entering the kitchen stove hood of Mr. Behn’s unit, which was on the other side of the wall of Unit 801. Mr. Behn adds that smoke from Unit 801 also entered his unit’s laundry room. He says that he approached the Respondents to discuss the issue but the Respondent, Maria Borissova, slammed the door on him. She denies the allegation.

[18] The Respondents also deny that they conducted any renovations to Unit 801 other than when they first moved into it. But they admit to having changed appliances. They offer no details or evidence as to what appliances were changed and whether the changes included, for example, their stove vent. They were aware of Mr. Behn’s claims that smoke entered his unit through his kitchen vent, which was adjacent to their kitchen. It was open to them to provide evidence that the appliances which they installed were unrelated to that kitchen vent.

[19] Of note, the Respondents listed their unit for sale in 2022 and referred to renovations and/or upgrades to their kitchen. They claim that this refers only to renovations made in 2006, some twelve years earlier. Why a twelve-year-old renovation was relevant to their listing, they do not say.

[20] Mr. Behn continues, stating that he and his wife then tried to put up with the smoke, using the three filters in their home. On November 20, 2020, HCC 61 property management arranged for a contractor to open the Behn kitchen bulkhead and seal up all gaps to the Unit 801 kitchen. This successfully resolved the issue of direct transmission of smoke to the Behn unit. But it did not, in Mr. Behn’s telling, resolve the problem of smoke on his balcony and the common areas. He experienced the smell of smoke in those areas. He pointed to Unit 801 as the source of that smoke.

[21] Mr. Behn asserts that the smoking continued, unabated. He deposed that by April 2021 he,

…could no longer tolerate the Respondents smoking. At that time, with the weather warming, whenever I opened my balcony door for fresh air, I would note a strong cigarette odour coming from the Respondents’ Unit [sic]. As a result, I was unable to keep the patio door open and enjoy the weather from my common element balcony. After months, if not years of oral complaints, I formally reported this incident to Property Management on April 7, 2021 and demanded that the Board consider doing something because the status quo could not continue.

[22] Following Mr. Behn’s demand, he was recused from participating in any HCC 61 board meetings in which the issue was discussed. That is because he was the president of the HCC board, a position that he continues to occupy. HCC 61 insists, without contradiction, that Mr. Behn continues to be recused from any decision-making regarding the Respondents and this application.

[23] In any event, Mr. Behn deposes that since 2013, he and his wife have been regularly running three air purifiers in his unit and that they continue to do so. Nonetheless he has continued to experience smoke coming from Unit 801.

Further Complaints About Smoke Migration from Unit 801

[24] HCC 61 asserts that it received several verbal complaints from unit owners about the presence of smoke odour and its deleterious effect on the enjoyment of their units and common areas. Ultimately those complaints began to be made in writing. In their April 7, 2021 complaint addressed to Mary Ann Arce, HCC 61’s secretary property manager, Mr. Behn and his wife wrote:

With the nice weather today, we opened our balcony door for fresh air.

Stepping out we noted heavy cigarette odour on our balcony and had to close the door. This continuing situation is unacceptable, as the source is likely adjacent Unit 801, which is Grandfathered for smoking.

As warm weather is now approaching, we cannot put up with this problem again, as the same happened last year.

Clearly Unit 810 is not abiding by the ‘Grandfather ‘ rules, with not [sic] smoke odour allowed outside of the unit, including the balcony.

Similarly, several times a wee [sic], there is a strong cigarette odour in the south end of the 8th floor corridor, and 801 is the only Grandfathered unit on this floor.

We request that MRCM follow up on this ongoing problem.

[25] On June 14, 2021, HCC 61’s legal counsel wrote to the Respondents, indicating that it had received complaints about smoke emanating from their balcony. Counsel pointed out that this conduct violated the Grandfathering Agreement. The letter referred to the relevant HCC 61 by-law provisions and demanded immediate action to ensure that the Respondents cease and desist from the conduct complained of. Counsel warned the Respondents that if they continued to violate the Grandfathering Agreement, HCC 61 would revoke their smoking privileges and bring a court application. The letter also demanded costs of $904 to indemnify HCC 61 for the cost of having counsel write to the Respondents.

[26] After several exchanges with the Respondents, HCC 61 offered mediation to resolve the smoking issue. It indicated an openness to a number of mediators, whose costs would be equally borne by the parties. The Respondents insisted that they would not agree to attend mediation unless HCC 61 paid the full costs of the mediator. HCC 61 agreed, on the condition that the mediator be Marc Bhalla, a lawyer in the same firm as its legal counsel. HCC 61 chose Mr. Bhalla because of his “exponentially” lower mediation cost. The Respondents agreed, signing a document acknowledging Mr. Bhalla’s position with the law firm representing HCC 61 and waiving any conflict. The Respondent, Nikolay Kolarovaliev explicitly stated that he would withdraw from the mediation if he felt that he was being treated unfairly in the mediation process. As he wrote in a letter to HCC 61’s counsel:

While choosing a mediator affiliated with your office is also contrary to normal practice and presents the possibility of partiality and conflict of interest, I am still willing to work with the Corporation and Mr. Marc Bhalla to try resolving [sic] this matter. I believe you and your client chose Mr. Bhalla, because he is the list [sic] expensive you could find, and not because he is affiliated with your office. Since the Corporation is taking full financial responsibility to cover the retainer of the mediating party, I agree to have Mr. Bhalla as an acting mediator.

Having said that, if at any point, I feel being treated unfairly in any way or have the slightest reasonable doubt as to the integrity of the process, I will use my right to withdraw from the mediation [emphasis added].

[27] Neither of the Respondents withdrew from the mediation process.

The Minutes

[28] At the September 30, 2021, mediation session, the parties agreed to a resolution of the issue of smoke emanating from Unit 801. That agreement was memorialized in the Minutes. Under the Minutes, the Respondents agreed on behalf of themselves and their adult son, Erik Kolarovaliev (collectively described as the “Kolarovaliev Family” in the Minutes), to comply with HCC 61’s governing documents regarding smoking and the Grandfathering Agreement. The parties further agreed that the Respondents and their son were permitted to smoke in Unit 801 provided that certain conditions were met, including:

1. All windows and exterior doors to Unit 801 are in a closed position during and 30 minutes after any smoking.
2. The exhaust fans located in the bathroom(s) and kitchen within Unit 801 are turned on 5 minutes before any smoking in Unit 801 takes place and shall be left on for 30 minutes after the completion of all smoking.
3. Adequate air filters and/or air purifiers are to be installed and operated in Unit 801 to prevent second-hand smoke and odors from entering other units and/or the common elements.
4. The parties will cooperate to allow a contractor or engineer to inspect Unit 801 to determine whether any modifications to Unit 801 or the common areas are necessary to prevent the migration of any smoke from Unit 801 and write a report (the “Smoke Report”) setting out their findings and recommendations.
5. If the Smoke Report recommends a scope of work to either Unit 801 and/or the common elements, HCC 61 would be responsible for the costs associated with the scope of work related to the adjacent common elements and Mr. Kolarovaliev would be responsible for the costs associated with the scope of work related to Unit 801.

[29] The terms of the Minutes also required Mr. Kolarovaliev, on behalf of the Respondents, to advise HCC 61 whether he approves of the scope of the work set out in the Smoke Report within fourteen (14) days of receipt of that report. The Minutes set out the consequences of either his agreement or disagreement with the scope of work set out in the Smoke Report. In the wording of the Minutes, if he elected not to proceed with that scope of work, he (on behalf of the Respondents):

1. consents to HCC 61 not performing any remedial work set out in the Smoke Report,
2. accepts the condition of the adjacent common elements and Unit 801 as is, and
3. acknowledges the risk that smoke may migrate to other units and/or common elements, which could result in the revoking of the Kolarovaliev Family’s Grandfathering Agreement with HCC 61 as further set out [in the Minutes].

[30] Further, the Minutes set out that in any event of Mr. Kolarovaliev’s election and the steps taken in consequence of that choice, if HCC 61 receives any further complaints about smoke caused by any member of the Kolarovaliev Family emanating from Unit 801, it will investigate. If the complaint is verified by two of either HCC 61’s property manager, security guard or superintendent, a report will be prepared for HCC 61’s Board. In that event, the Respondents’ smoking privileges will be modified to forbid smoking in Unit 801 and only allow them to smoke nine (9) meters away from all doorways, operable windows and air intakes that are located on HCC 61’s common elements. Even that privilege would not be extended to any guests of the Respondents. If that modified set of terms were violated or the Respondents were to refuse to agree to those terms, HCC 61 would revoke the Grandfathering Agreement with them. If the Non-Smoking Rule were then violated, HCC 61 would then be entitled to bring an application such as this, under s. 134, in the Superior Court of Justice. In such an application, the Minutes will be evidence.

The Smoke Report

[31] Following the signing of the Minutes, HCC 61 hired IN Consulting Inc. to prepare the Smoke Report. The Respondents reviewed the Smoke Report, and on November 26, 2021, accepted the scope of work that it detailed. HCC 61 then obtained two quotes for the remedial work called for in the Smoke Report. HCC 61 provided those quotes to the Respondents in a letter dated March 4, 2022.

[32] In response, the Respondents refused to pay for any of the remedial work. But they did not say that the work was unnecessary. In their responding materials, the Respondents provided evidence that they obtained their own quote for the work, which was less than those offered to HCC 61. However, HCC 61 states without contradiction that it was never informed of this competing quote until the Respondents placed it in their responding record for this application.

[33] Following the Respondents’ refusal, HCC 61 wrote to them to state that under the Minutes, their refusal to pay for their share of the remedial work meant that they also consent to HCC 61 not doing any work called for in the Smoke Report. HCC 61 stated that this meant that the Respondents accepted the condition of the HCC 61 common elements and their unit “as is”. It added that under the Minutes, the Respondents therefore acknowledged the risk that smoke may migrate from their unit to other units and common elements, which could lead to the revocation of the Grandfathering Agreement.

Complaints Following the Signing of the Minutes

[34] This did not end the conflict over the Respondents’ smoking or the seepage of smoke from their unit. HCC 61 states that it continued to receive complaints about smoke emanating from Unit 801. It points to 17 written complaints set out in its application record, which it received in the spring of 2022.

[35] Catherine Niles, the Secretary of HCC 61, deposes that most of the complaints received were “verified by HCC 61’s Property Manager or security personnel within an hour of receipt of the complaint.” She adds that she attended at the 8th floor of the building as part of her due diligence. She further deposes that she “ can smell smoke which appears to be emanating from the Respondents’ Unit” and finds it be “offensive.”

[36] On June 15, 2022, HCC 61’s legal counsel wrote to the Respondents. He informed them of the smoking complaints that HCC 61 had received. As a result, he stated that HCC 61 would now modify the terms of the Grandfathering Agreement to limit the Respondents’ smoking to outside the building at ground level and nine (9) meters away from all doorways, operable windows, and air intakes.

[37] HCC 61 states that the complaints about smoke coming out of Unit 801 continued unabated. As a result, its counsel wrote to the Respondents on August 10, 2022, to inform them that this proceeding would be commenced and that they were prohibited from smoking anywhere on the HCC 61 premises.

[38] HCC 61 states that the smoking and complaints have continued even after that letter was sent. All in all, HCC 61 provides evidence that it has received 27 written complaints about smoke emanating from Unit 801, from five different owners. Three of those owners have given affidavit evidence in this application. They depose to the manner in which the smoke from Unit 801 has interfered with the use of their unit, balcony or the hallway. They are Catherine Niles, Jurgen Behn, and Richard Hadfield. Mr. Hadfield occupies a unit one floor directly above that of the Respondents. The written complaints are contained in HCC 61’s evidence.

[39] As recently as the time of swearing Ms. Niles’ second supplementary affidavit of February 9, 2023, HCC 61 continued to receive complaints about smoke in the area of Unit 801. On January 16, 2023, it received a complaint from Vita Giglia in unit 806 about smoke near Mr. Jurgen’s unit. There is no evidence before me which claims that Mr. Jurgen or his wife are smokers. Three days later, Mr. Jurgen complained again. HCC 61’s property manager attended and smelled smoke in the eighth-floor corridor near Unit 801.

Response of the Respondents

[40] The Respondents do not deny smoking in their unit, but they deny its leakage from their unit. They assert that all the complaints against them are politically motivated because of internal condominium politics. They state that,

1. Mr. Behn’s first smoking complaints were resolved after he first complained of smoke, when HCC 61 sealed any openings between the two units.
2. Nonetheless HCC 61 later insisted on mediation to resolve an issue that had been resolved.
3. The mediation process was unfair to them.
4. HCC 61 is retaliating against them for having raised complaints about Mr. Behn’s abuse of his power and harassment of them in his role as president of HCC 61.
5. They were always willing to cooperate with HCC 61 to remediate any problems, although there were no such problems.
6. HCC 61 failed to investigate whether the smoke odours that allegedly emanated from the Respondents’ balconies could have come from other balconies. Yet at least one such complaint was made at a time that they were out of town.

Issues

[41] This application raises the following issues:

1. Did the Respondents violate the terms of the Grandfathering Agreement?
2. If so, may HCC 61 enforce the Non-Smoking Rule Against the Respondents under s. 134 of the Act?
3. If so, should HCC 61 be entitled to ban smoking by the Respondents in Unit 801 and the premises of HCC 61, or impose a less restrictive constraint in their smoking?

Issue No. 1: Did the Respondents violate the terms of the Grandfathering Agreement?

[42] The basic factual issue to be determined by the court is whether the Respondents violated the terms of the Grandfathering Agreement by allowing smoke to escape from their unit to that of an adjoining unit, its adjoining hall, and its balcony. I find that it did so, not just once, but repeatedly.

[43] As set out above, HCC 61 has provided the sworn evidence of three separate witnesses to the exfiltration of smoke from Unit 801 and the fact that the presence of this smoke is an annoyance. It also offers the written complaints of a total of five people (including the three deponents cited above) who reported smoke escaping from Unit 801 and no other unit. While the Respondents point to the potential that others have allowed smoke to escape their units, they offer no evidence but their word and their speculation.

[44] The Respondents point to the alleged animus of Mr. Behn against them. He is the author of more than half of the 27 written complaints against them. The assertion is that he is using his power as president of the condominium corporation to turn the HCC 61 board against him. However, they do not contradict the fact that Mr. Behn has been recused by that board from any discussions regarding the issue of the Respondents’ smoking. They point to no evidence that he exercises any power over the HCC 61 board regarding the smoking issue.

[45] Further, I cannot ignore the fact that the animus seems to go the other way as well. The Respondents have attempted to have the local police arrest Mr. Behn for purported harassment. The police found insufficient merit to the claim to intervene.

[46] While Ms. Niles is also a board member, the resident of a unit above that of the Respondents, Mr. Hadfield is not. Mr. Hadfield supplied an affidavit and was cross-examined on it. The Board also produced the written complaints of at least one other non-board member as well (the board affiliation of the other complainant is not clear from the record).

[47] Further, I accept the evidence of Ms. Niles that the HCC 61 Board did not simply accept the word of complainants about smoke leaving Unit 801. They arranged for a third party, whether property manager, security guard and/or superintendent to verify the complaint. Ms. Niles deposed to her own role in confirming smoke when a complaint came in.

[48] I also do not accept that HCC 61 is bringing this application to punish the Respondents or to carry on a vendetta against them, as the Respondents assert. Quite the contrary, HCC 61 seemed to be willing to bend over backwards to resolve the smoking issue without having to bring an application such as this. That began when HCC 61 paid for repairs for the space between the units owned by Mr. Behn and the Respondents in the hopes of avoiding any direct leakage of smoke from Unit 801 to that of Mr. Behn.

[49] When HCC 61’s counsel first wrote to the Respondents and received little cooperation in return, it could have acted unilaterally in enforcing the Grandfathering Agreement. Rather than doing so, it suggested and ultimately paid for mediation. The parties reached an agreement, the Minutes of Settlement, at the mediation that led to the Smoke Report, paid for by HCC 61.

[50] HCC 61 then obtained two quotes of its own for the remediation called for in the Smoke Report. The Respondents refused to accept either of them or offer its own quote to HCC 61. Only during this application did the Respondents disclose that they had obtained their own, cheaper quote. But they never disclosed it to HCC 61 until they responded to this application, never followed up on it and never performed any remediation. While it is not clear whether the suggested remediation would have resolved the smoking issue, the process was revelatory about the motivations of the parties. HCC 61 was looking for solutions short of court. The Respondents cannot make the same claim.

[51] The conduct of HCC 61 cited above, including its many attempts to work with the Respondents, its offer to pay its share of the costs of remediation in order to avoid conflict, and its action of walling Mr. Behn off from the decision-making process, belies the Respondents’ claims of its animus against them.

[52] In considering the evidence as a whole, I find on a balance of probabilities that the smoke from Unit 801 escaped to the hallway, perhaps under the doorway, and through the use of its balcony to adjoining areas. Having rejected arguments of bad faith, I rely on the numerous and continuing complaints, the variety of complainants, and the attempts by HCC 61 to confirm the allegations rather than take them at face value.

[53] While the Respondents may have been away when an allegation of smoke escaping their unit was raised, the evidence disclosed that HCC 61 was also concerned with the smoking of their son. It is conceivable that his smoke caused the complaints when they were away.

Issue No. 2: May HCC 61 enforce its Non-Smoking Rule Against the Respondents under s. 134 of the Act?

[54] Article V of HCC 61’s Declaration entitles it to make by-laws:

a. Governing the management of the property; b. Governing the use of units or any of them for the purpose of preventing unreasonable interference with the use and enjoyment of the common elements and use of the common elements; c. Governing the use of the common elements.

[55] Article XII(2) of those by-laws sets out that “[a]ll present and future owners, tenants and residents of units and their families … shall be subject to and shall comply with the provisions of this declaration, the by-laws, and any rules and regulations of the Corporation”.

[56] Article XII(2) continues, stating that:

[t]he acceptance of a deed or transfer…shall constitute an agreement that the provisions of this declaration, the by-laws, and any other rules and regulations, as they may be amended from time to time are accepted and ratified by such owner … and all such provisions shall be deemed and taken to be covenants running with the unit and shall bind any person having, at any time, any interest or estate in such unit as though such provisions were recited and stipulated in full in each and every deed or transfer …

[57] As set out above, the Non-Smoking Rule is one of the Rules of HCC 61 set out in its Declaration as binding upon all unit holders. A further Rule of HCC 61, regarding balconies, states that:

While Owners/Residents may have exclusive use of their designated balconies, parking spaces and storage lockers, these areas are part of the common elements. Like other common element areas, undesirable behavior/activities in these areas can adversely affect other Owners/Residents.

Relevant Provisions of the Act

[58] Under s. 119(1) - (3) of the Act, HCC 61, as a condominium corporation, has a legal obligation to abide by the terms of its condominium agreement, its by-laws and the Condominium Act. It is also required to ensure that its unit holders abide by the same rules. The same obligation rests on unit holders themselves regarding all occupants of their units. Those provisions read as follows:

Compliance with Act

119 (1) A corporation, the directors, officers and employees of a corporation, a declarant, the lessor of a leasehold condominium corporation, an owner, an occupier of a unit and a person having an encumbrance against a unit and its appurtenant common interest shall comply with this Act, the declaration, the by-laws and the rules.

Responsibility for occupier

(2) An owner shall take all reasonable steps to ensure that an occupier of the owner’s unit and all invitees, agents and employees of the owner or occupier comply with this Act, the declaration, the by-laws and the rules.

Enforcing compliance

(3) A corporation, an owner and every person having a registered mortgage against a unit and its appurtenant common interest have the right to require that a person who is required to comply with this Act, the declaration, the by-laws and the rules shall do so.

See also: York Condominium Corporation 187 v. Sandhu, 2019 ONSC 4779, at para 21 (a) and 22.

[59] In Sandhu, at para. 21 (b) and (c), Bawden J. stated the following about the role of courts in enforcing the by-laws and declarations of condominium corporations:

b. Courts have ruled that the by-laws and declarations of a condominium should be strictly enforced in order that unit holders will recognize consistency and certainty in the application of the rules. c. It is not the function of courts to review the by-laws of a condominium to decide whether they are fair or not. Courts must enforce the by-laws unless they are clearly unreasonable or contrary to the Condominium Act.

[60] In Re Carleton Condominium Corp. No. 279 v. Rochon (1987), 1987 4222 (ON CA), 59 O.R. (2d) 545 (Ont. C.A.) at para. 12, Finlayson J.A. writing for the Ontario Court of Appeal, described the binding nature of a condominium corporation’s foundational governing documents. He stated:

The declaration, description and by-laws, including the rules, are ... vital to the integrity of the title acquired by the unit owner. He is not only bound by their terms and provisions, but he is entitled to insist that the other unit owners are similarly bound.

(See also: Ballingall v. Carlton Condominium Corporation No. 111, 2015 ONSC 2484, at para. 62-63).

[61] In Peel Condominium Corporation No. 108 v. Young, 2011 ONSC 1786, 4 R.P.R. (5th) 162 at para. 27, Gray J. described a condominium corporation’s declaration as akin to its constitution, having the force of law for all unit holders. He wrote:

Once registered, the Declaration has the force of law, at least as far as the unit holders are concerned. It is a sort of Constitution that binds them all, and which the Board of Directors is legally obliged to enforce. There is an interest, in the collective, in having the Declaration enforced, even if some transgressors have been allowed to violate it. In such a situation, the collective's interest in having the Declaration enforced must prevail over the private interest of the respondent. The situation would undoubtedly be different if there was massive non-enforcement as was the case in some of the cases involving pets.

[62] Under s. 117(1) of the Act, no person is entitled by act or omission to take or neglect to take steps in a condominium unit, the common elements, or assets of a corporation which “is likely to damage the property or the assets or to cause an injury or an illness to an individual”. In addition, under s. 117(2), persons are prohibited from carrying on or causing to be carried on an activity which causes or allows to be caused a nuisance, annoyance, or disruption to an individual in a unit, common elements, or assets of a corporation.

[63] In Metropolitan Condominium Corporation No. 747 v. Korolekh, 2010 ONSC 4448, 322 D.L.R. (4th) 443, 95 R.P.R. (4th) 198 at para 78, when determining whether prohibited conduct had taken place and whether it was likely to damage the property or cause injury, Code J. considered the totality of the conduct complained of under s.117.

[64] The mechanism for the enforcement of a condominium corporation’s declaration, by-laws and rules is found in s. 134 of the Act. That provision reads as follows:

Compliance order

134 (1) Subject to subsection (2), an owner, an occupier of a proposed unit, a corporation, a declarant, a lessor of a leasehold condominium corporation or a mortgagee of a unit may make an application to the Superior Court of Justice for an order enforcing compliance with any provision of this Act, the declaration, the by-laws, the rules or an agreement between two or more corporations for the mutual use, provision or maintenance or the cost-sharing of facilities or services of any of the parties to the agreement.

Analysis

[65] HCC 61, as a condominium corporation, has a statutory duty to enforce the terms of its Non-Smoking Rule as it does its other rules, by-laws and its Declaration. The reasons that it must do so were succinctly set out by Wood J. in Muskoka Condominium Corporation No. 39 v. Kreutzweiser, 2010 ONSC 2463, 2010 CarswellOnt 2504, at para. 8 as follows:

These provisions are crucial to the orderly operation of condominiums and for the protection of condominium unit owners and occupiers. The owner of a condominium unit does not have a classic freehold. He or she is not at liberty to deal with property in the same manner as the owner of a single family residential dwelling might be. The nature of a condominium is that in return for the advantages gained through common ownership of certain elements some degree of control over what can be done with those common elements is given up. The details of what is given up are set out in the condominium declaration and its bylaws and rules. It is both the right and obligation of a unit owner or occupier to see that these are obeyed. Carleton Condominium Corporation N 279 v. Rochon et al 1987 4222 (ON CA), [1987] O.J. No. 417, Ont. C.A. Finlayson J.A. at para. 26.

[66] As set out above, the factual foundation of HCC 61’s application is accurate in that smoke is escaping from Unit 801 to the common hallways and balconies of units in close proximity to it. Further, the Respondents have shown themselves unwilling to take any action or even admit any responsibility for the problem. While mediation offered a potential resolution of the issue, the Respondents refused to follow up on the agreed upon terms of the Minutes of Settlement. While the issue of the enforcement of that agreement is not properly before me, I can look to it as evidence of the willingness of HCC 61 to resolve the issues in this case short of litigation and the refusal of the Respondents to do so. Even when told that their violation of the Grandfathering Agreement would lead to its termination, the Respondents appear to have been unwilling to take any further steps to limit the release of cigarette smoke from their unit.

[67] As Gray J. pointed out in Peel Condominium Corporation No. 108 v. Young, above, the interests of the collective in having the rules of the condominium corporation enforced must prevail over the private interests of any unit holder. That is especially so in light of the health risks that the Respondents’ second-hand smoke may pose to others who unwillingly inhale their emanations. In light of the notoriously noxious effect of second-hand smoke on passive inhalers, that smoke is also conduct that is, in the wording of s. 117 of the Act, likely to cause injury or illness to an individual. It certainly represents a nuisance or annoyance to other unit holders.

[68] I add, as stated above, that it is not for this court to second guess the fairness of the Non-Smoking Rule (although it appears to be fair, particularly when coupled with the Grandfathering Agreement): York Condominium Corporation 187 v. Sandhu, above, at para 21 (c). Further, if a condominium corporation board has acted within its mandate and not capriciously or unreasonably, as I find that it has done here, the court should not substitute its discretion for that of the board: York Condominium Corporation v. Ramadani, 2011 ONSC 6726, 13 R.P.R. (5th) 137 at para. 54; Muskoka Condominium Corp. No. 39 v. Kreutzweiser, above, at para. 9.

[69] In York Condominium Corp. No. 137 v. Hayes, 2012 ONSC 4590, 20 R.P.R. (5th) 154 at paras. 22-23, Penney J. wrote of the affirmative value of consistent enforcement of a condominium corporation’s governing documents as follows:

One of the advantages of requiring compliance is that a message is sent, by the board and the court, to unit owners that the declaration, bylaws and rules are in place for a good reason and that they will be enforced. To permit noncompliance opens the door to the noncompliance of other unit owners [authorities omitted].

The general message should be that enforcement will be expected and exceptions will be rare. This is to foster the result that people only move into the condominium if they are prepared to live by the rules of the community which they are joining. If they are not, they are perfectly free to join another community whose rules and regulations may be more in keeping with their particular individual needs, wishes or preferences.

[70] Thus, I find that it is appropriate that HCC 61 be empowered to enforce the Non-Smoking By-law in the manner described below.

Issue No. 3: Should HCC 61 be entitled to ban smoking by the Respondents in Unit 801 and the premises of HCC 61, or impose a less restrictive constraint in their smoking?

[71] The broad range remedies available on an application such as this are set out in s. 134(3) of the Act are as follows:

Contents of order

(3) On an application, the court may, subject to subsection (4),

(a) grant the order applied for; (b) require the persons named in the order to pay, (i) the damages incurred by the applicant as a result of the acts of non-compliance, and (ii) the costs incurred by the applicant in obtaining the order; or (c) grant such other relief as is fair and equitable in the circumstances

[72] HCC 61 has attempted to take a number of steps short of bringing this application and banning any smoking by the Respondent in Unit 801 or HCC 61’s premises, all to no effect. In the circumstances, it is clear that only a more rigorous application of the Non-Smoking Rule for the Respondents is appropriate.

[73] I have considered whether to ban all smoking by the Respondents, their family, and guests anywhere on the premises of HCC 61. But I note that HCC 61 was willing to agree to a somewhat less restrictive term that would ban all smoking in Unit 801 but allow the Respondents to smoke outside of the HCC 61 building at least nine meters away from all doorways, operable windows, and air intakes of the building. That is a term which I have been advised is successfully in effect at Mr. Kolarovaliev’s place of work and one to which he has abided. That is an appropriate remedy for now. However, if the Respondents were to violate those terms, even more rigorous remedies may well be necessary.

Order

[74] For the reasons set out above, I order as follows:

1. The terms of the Grandfathering Agreement between the parties are terminated;
2. The Respondents and any other visitor or resident of HCC 61 Unit 801: a. Are prohibited from smoking anywhere in Unit 801 itself, and b. May only smoke on the Property of HCC 61 if they do so outside of the HCC 61 building and at least nine meters away from all doorways, operable windows, and air intakes of the building
3. If the Respondents violate the terms above, HCC 61 is at liberty to apply for further relief under s. 134.

Costs

[75] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, HCC 61 may within 14 days submit its costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs and any offers to settle. It need not include the authorities upon which it relies so long as they are found in the commonly referenced reporting services (i.e., LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondents may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.

“ Marvin Kurz J. ”

Electronic signature of Justice Marvin Kurz

Date: August 29, 2023