Tribunal orders restaurant to fix ‘oniony’ smell seeping into condo units

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Cooking smells from a restaurant in a recently built condo building in downtown Victoria were so “nauseating” to an owner that he was forced to stay in hotels, at campgrounds and at friends’ places, according to a B.C. tribunal ruling.

The restaurant tried to fix the problem of smells in some suites, the lobby, parkade and outside the building, but B.C.’s civil resolution tribunal found the owners broke the strata’s nuisance bylaw in the mixed-use residential/commercial building and told them to try again.

Jack Fan, who owns Ox King Noodles with his wife said he installed a charcoal filter and got rid of the deep fryer and is waiting to discuss further changes with the strata. He is worried the conflict could force them to close.

“We invested everything we have in this restaurant,” he said. “I don’t want to cause anybody problems.”

He said he complied with zoning and city bylaws and the ventilation system was approved by the developer and the city.

The strata didn’t reply to a call for comment.

Construction of the View Street building ended in 2019. The restaurant opened on the ground floor in September 2019. That month, the owner of suite 207, identified only as MM, complained of “an oniony smell that was not very pleasant,” plus smells of burnt barbecue meat and boiled egg in his suite, about three metres above the restaurant’s vent, even with his windows and fresh air vent closed.

He took a medically approved stress leave from work in October and November 2019.

A strata councillor who visited the unit smelled a “thick, unpleasant odour,” a “steamy smell that permeated MM’s furnishings and walls.” The strata said seven residents complained and it fined the restaurant $400 under the strata’s nuisance bylaw.

Tribunal member Shenelle Goodwin determined the smells of “boiled onions and cooked meat” came from the restaurant and the owners’ attempts to fix the problem “do not protect it from a finding that its cooking smells are a nuisance at law, and contrary to strata bylaws.” She agreed with the restaurant that residents must expect noise and odour in an urban mixed-used building, but “I find a reasonable person would object to strong cooking odours in their apartment.”

Goodwin dismissed the ­strata’s request to order the restaurant to stop or reduce the smells “as too vague to be enforceable” and said they hadn’t “yet exhausted other possible remedies.” She also dismissed the $400 in fines because process wasn’t followed.

But the restaurant “has a statutory duty to comply with the strata’s bylaws” and “I expect (the restaurant) to respect my finding that the restaurant smell is a nuisance and take steps” to comply with bylaws.”

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