Executive Summary: Key Legal and Evidentiary Issues

• Jurisdictional dispute raised over whether the Condominium Authority Tribunal or the Superior Court of Justice should hear the nuisance and odour claim.

• Determination of whether the odours transmitted from the Defendants’ spice business constitute a legal nuisance under Ontario law.

• Assessment of whether the Plaintiff satisfied the legal test for a mandatory interim injunction, including the requirement to show a strong prima facie case.

• Evaluation of evidence regarding the existence and impact of odours, including health complaints, customer reactions, and business losses.

• Consideration of whether the harm suffered by the Plaintiff is irreparable and not compensable by damages.

• Balancing the convenience and potential harm to both Plaintiff and Defendants in granting or refusing the injunction.

Facts of the case

The Plaintiff, The Fitness Factory (Whitby) Inc., operates a fitness equipment retail store and owns condominium Unit 6 in Whitby, Ontario. The Defendants—MNG International Inc., 15591783 Canada Inc., 16472257 Canada Inc., and Yash Malani—operate a licensed, food-grade spice import, storage, and distribution business out of Units 4 and 5 of the same condominium. The Defendants’ business involves storing, packaging, and labeling spices, including dehydrated onions, with 1,500 to 2,000 pallets on site at a time. Both parties purchased their respective units in 2024, and the Plaintiff opened for business in May 2025.

The Plaintiff claims that extreme foul odours have been transmitted from the Defendants’ units to its own, causing health effects among employees such as burning eyes, nausea, and headaches, as well as business losses including customer complaints, returned inventory, and loss of goodwill. The Plaintiff asserts that the condominium rules prohibit the transmission of odours between units and that the Defendants have failed to address the issue despite repeated requests. The Plaintiff seeks an order requiring the Defendants to cease creating odours that enter the Plaintiff’s premises, to seal their premises appropriately, and to install suitable exhaust and air filtration systems.

The Defendants argue that the Plaintiff is in the wrong forum, claiming the Condominium Authority Tribunal has exclusive jurisdiction. They also contend that the problems are due to building deficiencies, not their operations, and that the Plaintiff has not demonstrated irreparable harm. The Defendants further argue that the order sought would cause significant harm to their business and employees.

Legal arguments and policy terms

The condominium’s rules entitle owners and occupants to quiet enjoyment of their units and prohibit the transmission of noise or odours from one unit to another. If such transmission occurs and is deemed an annoyance or nuisance, the owner responsible must abate the odour at their own expense. If not remedied, the board may intervene and recover expenses from the owner. Mr. Malani, for the Defendants, acknowledged reading these rules before purchasing the units.

The Plaintiff provided affidavit evidence, an engineering report from CDW Engineering, and records of customer complaints to support its claim. The CDW report confirmed intense spice odours, identified that the concrete block walls were permeable and not sealed, and recommended sealing gaps and upgrading the HVAC system. The Plaintiff’s evidence included employee health complaints and business impacts, such as a customer returning 100 floor mats due to odour contamination.

Analysis and findings

Justice S.E. Fraser found that the evidence, including the engineering report and HVAC plans, established that a foul, pungent, and overwhelming smell was emanating from the Defendants’ operations and being transmitted to the Plaintiff’s unit. The court found that the Plaintiff had attempted to resolve the matter before bringing the motion, but without success. The court accepted that the building design may have contributed to the odour transmission but found the inadequate HVAC system to be a major contributing factor.

The court held that the Condominium Authority Tribunal did not have jurisdiction over this dispute because it involved health and property damage issues under section 117(1) of the Condominium Act, 1998, and the quantum exceeded the $25,000 CAT limit. The court defined nuisance as a substantial and unreasonable interference with the enjoyment of land and found that the Plaintiff had demonstrated a strong prima facie case. The court found that the Plaintiff would suffer irreparable harm, including impacts to health, reputation, and loss of goodwill, which could not be quantified in monetary terms. The balance of convenience favoured the Plaintiff, as the ongoing harm was a direct result of the Defendants’ operations and the Defendants’ HVAC was wholly inadequate for their business.

Ruling and outcome

The court granted the Plaintiff’s motion for a mandatory interim injunction, ordering the Defendants to take steps to prevent the transmission of odours into the Plaintiff’s premises, including sealing their units and upgrading their HVAC system as necessary. The Plaintiff was successful in obtaining the relief sought. The amount of costs or any monetary award was not determined at this stage; the parties were directed to attempt to resolve costs, with written submissions permitted if agreement could not be reached.