How far should the board go in accommodating unit owner complaints about smoking?
In the case of Sharon MacKay v. Metropolitan Toronto Condominium Corp.2014, cigar smoke penetrated from one unit to the next and became too overwhelming for the unit owners; the owners had to move out of their unit into a hotel. It was acknowledged by the insurance adjuster that the unit was uninhabitable and after 5 months, the owners commenced an application seeking a declaration that the Corporation had breached its duty to repair the common elements after damage and breached its duty to maintain the common elements. The application also stated that the failure to address the problems in the owner’s unit constituted discrimination against the owners on the basis of disability contrary to the Ontario Human Rights Code and that the directors were in breach of their duty to act honestly and in good faith.
The court found that although the Board may have not breached their standard of care as directors because they followed legal advice and hired the appropriate advisors, the Board still could be in breach of the obligation to repair after damage and maintain the common elements.
The court found that the corporation did “not act with sufficient dispatch and adopted an unfortunate attitude toward the owners who were quickly branded as complainers…”
Although the court found that, at the time of the proceeding, the Corporation was compliant with its obligations to maintain and repair after damage, because the condominium corporation failed to act with “sufficient dispatch,” the condominium corporation was not in compliance with Section 89 and 90 of the Condominium Act. Costs were awarded in favour of the unit owners.