Nanaimo store owner convinces judge that a foul odour hurt her business

(Editor's Note: On June 3, 2014, the B.C. Court of Appeal overturned the decision highlighted in the article below. The three-judge panel ruled that Justice Loryl Russell erred in holding the landlord responsible. For more information, see "B.C. Court of Appeal ruling finds tenant responsible for stinky building".)

A stinky building is going to cost a landlord almost $19,000 in damages to a former tenant.

A B.C. Supreme Court decision has ordered Randall Stearman to compensate Penny Powers for losses she incurred as a result of leasing his property in downtown Nanaimo.

Justice Loryl Russell established with “little doubt” that Stearman’s premises had a foul odour that drove customers away from Powers’s high-end clothing store.

“The whole purpose of leasing this commercial space was to facilitate the sale of outdoor clothing,” Russell wrote in her decision dated June 28, 2013. “The presence of a strong and unpleasant odour defeats that purpose entirely by discouraging clientele from entering the Premises and ruining the product for sale.”

The judge noted that the undesirable whiff was somehow connected with the building’s heating, ventilating and air conditioning system.

Powers will be paid for expenses in moving to another location. The court didn’t grant her claim for sales losses amounting to $30,000, which the judge noted was “based on a speculative estimate”.

Stearman never acknowledged that his building reeked. The judge noted that the landlord referred only to a “ghost odour” in a legal filing and stated that “defendant Penny Faith Powers is the only one who smells.”

“I assume this last phrase is meant to suggest that the defendant is the only one who can smell the ‘ghost odour’, not that the defendant herself is odorous,” Russell wrote.

Stearman sold the building in December 2011. The current tenant testified in the trial that the place still stinks when its heating, ventilating, and air-conditioning system is turned on.