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Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 et al. - 2023 ONCAT 42 - 2023-03-17

Corporation:

ZTSCC 2680

Date:

2023-03-17

Under:

CAT Decisions - Decision
Compliance with Governing Documents
Odour
Smoke and/or vapour

Summary:

In the case of Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 et al., the applicants alleged that smoke and odor migration from a neighboring unit interfered with their quiet use and enjoyment of their property, constituting a nuisance and a violation of the condominium's declaration and rules. The applicants sought an order to prohibit smoking inside and outside the neighbor's unit and for the condominium corporation to enforce compliance. The Condominium Authority Tribunal (CAT) determined that although there was evidence of smoke and odor migration, the condominium corporation had fulfilled its obligations and the neighbor's behavior did not constitute a nuisance. The CAT dismissed the application without costs.

Verdict:

In the case of Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 et al., the Applicants, who are owners of a condominium unit, alleged that they were negatively affected by smoke and odour migrating from a neighboring unit owned by the respondents. They sought an order to prohibit smoking in and around the Rushlow unit and claimed indemnification for their legal costs. However, the tribunal found that the condominium corporation had taken appropriate compliance measures, and the smoke or odour did not constitute a nuisance or annoyance, so no remedy was ordered. Additionally, no party was awarded costs in this case.




Takeaways:

In the case of Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 et al., several key takeaways can be identified:

Smoke and Odour Dispute: The case revolved around a dispute between condominium neighbors. The Applicants, who were non-smokers, alleged that they were severely impacted by smoke and odour migrating from their neighbor's unit. They sought remedies to prohibit the neighbors from smoking inside and immediately outside their unit.

Complex Compliance Issue: The case underscores the complexity of enforcing compliance with governing documents in a condominium setting, especially when the issue involves behavior that is not explicitly prohibited in the condominium's rules. In this case, smoking was not prohibited by the governing documents, which made addressing the issue challenging.

Mitigation Measures: The evidence presented in the case showed that both the Applicants and the Respondents took measures to mitigate the smoke and odour migration issue, such as sealing gaps and conducting repairs. These efforts demonstrated that the parties were responsive to the situation.

Costs Considerations: The decision discusses the costs incurred by the parties involved. While the Applicants were not successful in their claims, the decision considered various factors, including the conduct of the parties, in deciding not to award costs to any of the parties.

Balancing Rights: The case highlights the importance of balancing the rights and expectations of unit owners in a condominium community when addressing disputes related to behavior that is not explicitly prohibited by governing documents. It underscores the need for reasonable and proportionate solutions to complex issues in such settings.




Recommendations: 

Open Communication: Encourage neighbors to communicate openly and respectfully about their concerns. It's often better to address issues informally before resorting to legal action.

Review Governing Documents: Before moving into a condominium, potential owners should carefully review the condominium's governing documents, including by-laws and rules. This will help them understand their rights and obligations.

Condominium Rules: If you have concerns about particular issues like smoking, make sure you understand the condominium's rules and regulations. If there are rules against certain behaviors, be sure to follow the appropriate channels to enforce these rules.

Seek Mediation: If disputes arise, consider mediation as a means of resolving issues. Mediation can be a more cost-effective and less adversarial way to address conflicts.

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