Wolodko v. Zhang (B.C. Supreme Court) March 25, 2014

The parties were owners of adjoining strata lots on the eighth floor of the strata property.  The plaintiffs claimed that piano playing, by the defendant’s son, was a nuisance.  The plaintiffs had originally also joined the strata corporation in the court proceeding, and had claimed that the piano playing contravened the noise by-laws of the strata corporation.  But the claim against the strata corporation was subsequently dismissed, on consent.

The Court held that the piano playing, in this case, was not a nuisance.  The Court said:

The test for determining whether there is a nuisance is an objective one:  It is whether a reasonable person in this specific locality would find the impugned activity to be a nuisance.

…

In my view the evidence is not sufficient to find that a reasonable person would conclude that the described incidents of piano playing constitute a nuisance.

In the circumstances here where:

(a)   There are only the complaints of Mr. and Mrs. Wolodko in respect to the piano noise;

(b)   There is an absence of complaints regarding the Zhang unit from others in the complex, which can be contrasted with another piano-noise complaint problem in the complex arising from unit #904 in 2009, where there were several complaints of noise throughout the complex and from people residing on different floors (7^th to 10^th) and which complaints led to fines being imposed;

(c)    There are no recordings of the complained of piano playing;

(d)   There is the absence of any objective measures or readings of the piano noise; and

(e)    The plaintiffs refused to permit members of the Council to come to their unit to listen for themselves to determine if there had been a contravention of the noise by-laws. 

the case of nuisance, objectively, cannot be said to have been made out.