09/09/2022 – Jurisdiction Ontario
Part 79 published on 01/09/2022
Owner caused noise that was a nuisance
The Tribunal held that the owner had created unreasonable noise “largely in the form of loud music, television sounds and banging noises between 10 pm and 7am”. This contravened noise and nuisance provisions in the condominium’s governing documents. The Tribunal said:
In any condominium where walls are shared, some noise transmission between units is to be expected. However, in this case, the evidence demonstrates an ongoing pattern of loud noise emanating from Mr. Franklin’s unit during hours when a reasonable unit owner would expect relative quiet from their neighbours. Although not limited to these times, most of the complaints take issue with the noise coming from Mr. Franklin’s unit during the early mornings (before 7am), late evening (often after 10pm) and overnight when people are typically asleep. In this case, the time of the noise matters. Noise which may be tolerable or expected during the day, may be intolerable and a nuisance in the overnight hours when people are asleep. In this case, the evidence shows that the noise, which is often being made at night is, in many instances, loud enough to disturb the sleep of Ms. Borges and her children and thus is disturbing her quiet enjoyment of her unit.
The Tribunal also ordered the owner to pay to the condominium corporation $3500 in costs for the CAT process. [The condominium corporation had claimed costs of over $17,000.] In relation to costs, the Tribunal said:
In deciding on the appropriate costs award, I have weighed all of the factors above and, in summary, taking into account the fact that despite being well aware of the rules, his duty to comply with them, the noise complaints against him, the impact of his behavior on his neighbors and the potential cost consequences of failing to comply, Mr. Franklin has continued to make noise that is a nuisance in violation of TSCC 1791’s declaration and rules. I have also taken into account that while, generally, as per CAT Rule 48.2 the Tribunal will not order one party to be reimbursed for the other parties legal fees and disbursements, in this case some of the behavior of Mr. Franklin and his counsel did result in additional work being required although not nearly enough to justify the awarding full costs, of $17796.38, particularly given when proportionality and complexity is considered: the issues in this case and the hearing were not complicated. Weighing all of the factors above, I award costs in the amount of $3500.
The Tribunal declined to order the owner to pay roughly $5000 claimed by the condominium corporation in order to obtain a report from a noise consultant. The Tribunal said:
While TSCC 1791 submitted that they procured this report because they had received yet another complaint about Mr. Franklin’s unit – TSCC 1791 only set out to procure this report once the hearing had begun, and it was clear that Mr. Franklin was intending to argue that his complaints had not been adequately addressed and the building itself was responsible for the noise issues. TSCC 1791 had four years (the first complaint being from 2018) to have an engineer investigate Mr. Franklin’s complaints about noise transmission and seek solutions, they chose not to do so. There is no evidence that this cost was reasonably incurred as a cost related to enforcing compliance and Mr. Franklin should not be responsible for this cost in this case.
In the course of the decision, the Tribunal also dealt with the following important issues:
- Some of the alleged noise violations occurred prior to the expansion of the Tribunal’s jurisdiction (and therefore including these sorts of claims respecting noise and/or nuisance). The Tribunal said: “…there is nothing in the Condominium Act, 1998 (“the Act”) or the Regulations that restricts the ability of the Tribunal to hear noise and nuisance disputes that emerged prior to the expansion of the Tribunal’s jurisdiction. Regardless, the issues in front of me relate to a current and ongoing dispute of noise, nuisance, and compliance, with the most recent complaint of noise emanating from Mr. Franklin’s unit being filed with TSCC 1791 in February 2022.”
- The owner also alleged that the condominium corporation’s application was “out of time” due to expiry of the relevant two-year limitation period (in the Limitations Act, 2002). The Tribunal said: “The Limitations Act, 2002 does not apply to administrative tribunals.”
Toronto Standard Condominium Corporation No. 1791 v. Franklin