Noise, Smoke or Odour From Next Door: What s.117(2) and the CAT Give Ontario Condo Owners

The Condominium Act sets no decibel limit and bans no cigarette. It names a short list of nuisances, hangs them all on one word, and gives owners a tribunal that can order compliance and compensation, but not an eviction.

I’m Arthur Zhao of AZ Real Estate Partners. “Unreasonable” is the word you end up holding if you go into Ontario’s Condominium Act, 1998 looking for a rule about the unit next door. There is no decibel number in it. There is no clause that bans smoking inside a unit. What you find instead is a short, named list: noise in the Act itself, and five more items in a regulation, odour, smoke, vapour, light and vibration, each of them caught only “if it is unreasonable.”

That looks thin until you see what is attached to it. The same provision binds every owner and occupier, puts a duty on the condo corporation to enforce it, and is on the list of disputes the Condominium Authority Tribunal (CAT) is allowed to decide. It also has a hard edge that matters if you rent your unit out: a bill the tribunal orders you to pay the corporation can end up on your unit’s common expenses. The word is vague on purpose. The machinery around it is not.

What is actually on the list

The prohibition is in s.117(2). No person may carry on an activity, or permit one, in a unit, the common elements or the corporation’s assets if it creates or continues (a) “any unreasonable noise that is a nuisance, annoyance or disruption to an individual” there, or (b) “any other prescribed nuisance, annoyance or disruption.”

The prescribed list sits in s.26 of O. Reg. 48/01. It has five entries and no more: 1. Odour. 2. Smoke. 3. Vapour. 4. Light. 5. Vibration. Each counts “if it is unreasonable.” Noise is not on the regulation’s list because it already has its own clause in the Act. Neither the Act nor the regulation defines “unreasonable” or attaches a measurement to it, so whether a particular sound or smell crosses the line is a judgment the decision-maker makes on the facts of each case.

Smoke is where readers expect a separate law to do the work, so it is worth being exact. The Smoke-Free Ontario Act, 2017 (s.12) bans smoking or holding lighted tobacco or cannabis, and using an e-cigarette, in the places listed in s.12(2). Paragraph 5 of that list is “any indoor common area in a condominium,” with elevators, hallways, parking garages, party rooms, laundry facilities, lobbies and exercise areas given as examples. Units are not on that list. That does not mean smoking in a unit or on a balcony is permitted; it means this provision does not answer the question. Whether a building bans it is a matter for its declaration and rules. Separately, smoke or odour drifting into another unit can fall under s.117(2)(b) and s.26 if it is unreasonable, whatever the building’s own rules say about where people may smoke.

Where s.117(1) ends and s.117(2) begins

Whose job enforcement is

Three provisions stack on top of each other. First, s.119(1) requires the corporation, its directors, officers and employees, every owner and every occupier of a unit to comply with the Act, the declaration, the by-laws and the rules. A tenant next door is bound directly, not only through the owner.

Second, s.17(3) gives the corporation “a duty to take all reasonable steps to ensure that the owners, the occupiers of units” and others comply. That is a duty, not a discretion. The board and the property manager are the ones who carry it out, but the duty belongs to the corporation.

Third, s.119(3) gives the corporation, each owner and each registered mortgagee “the right to require” compliance from anyone bound by the Act. You do not have to wait for the corporation. Under s.1.36(2) an owner can apply to the CAT against another owner, an occupier, a mortgagee or the corporation itself, which is the route if your complaint is that the corporation has not acted. If the corporation is not a party, s.1.38(2) requires you to serve it with a copy of the application, and it is entitled to intervene.

Writing to the property manager or the board first, and keeping copies, is sensible practice: it gives the corporation the chance to do its s.17(3) job and it gives you a record. The provisions of the Act I have quoted here do not make that a legal precondition to applying; the CAT’s own rules and online process may set out what it expects from applicants, so check its website for the current process and fees before you file.

For a s.117(1) problem, the CAT is not available, and other routes in the Act come into play, such as an application to the Superior Court of Justice for a compliance order under s.134. Which route fits a particular dispute is a question for a lawyer or licensed paralegal.

What the CAT can order, and what it cannot

Section 1.44(1) lists the orders the tribunal may make. In a nuisance dispute the relevant ones are:

• an order that a party comply with anything that can be brought to the tribunal;
• an order prohibiting a party from taking a particular action, or requiring a party to take one;
• an order to pay another party compensation for damages caused by the non-compliance, up to the greater of $25,000 or a prescribed amount, if any;
• an order to pay another party’s costs;
• an order to pay the tribunal’s costs;
• whatever other relief the tribunal considers fair in the circumstances.

The list has one more item, a penalty, but it applies only to disputes about access to the corporation’s records under s.55(3), not to nuisance cases.

The limits are just as specific. Under s.1.44(4), “The Tribunal shall not make an order requiring a person to vacate a property permanently.” It cannot hear s.117(1) disputes, and under s.1.36(4)(b) it cannot decide title to real property.

Money ordered must be paid within 30 days unless the order sets another time (s.1.45(1)). The order is final and binding, with an appeal to the Divisional Court only on a question of law (s.1.46). If the parties settle in writing and sign, the settlement binds them (s.1.47(1)).

If you rent your unit out and your tenant is the source

This is the part of the scheme that lands on the owner who does not live there. s.119(2) says an owner “shall take all reasonable steps to ensure that an occupier of the owner’s unit” and their invitees comply with the Act, the declaration, the by-laws and the rules. A tenant playing music at 2 a.m. is breaching s.117(2) themselves, and the owner has a separate duty about it.

Under s.1.36(1), the corporation can apply to the CAT against an owner, an occupier, or both. And s.1.45(2) says that if an order requires an owner to pay compensation or costs to the corporation, the corporation may add that amount to the common expenses payable for the owner’s unit.

Tenants are on the other side of this too. A tenant who is bothered by a neighbour cannot apply to the CAT, because s.1.36(2) gives that right to owners and mortgagees. A tenant’s route runs through their own landlord under the Residential Tenancies Act, 2006, which is a separate article.

Before you file: three piles of paper

Sort what you have by kind, not by date. Gaps show up faster that way.