18/01/2024 – Jurisdiction Ontario
Part 85 published on 01/03/2024
Appeal dismissed. No oppression on the part of condominium corporation in relation to noise from unit above.
The owner asserted a claim for oppression due to alleged failure by the condominium corporation to take reasonable steps to address noise from the unit above. The source of the noise was medical equipment needed for the care of one of the occupants of the unit (a child with a disability). The owner of the unit above (Ms Ceronja) was not joined as a party to the proceeding. The Application Court dismissed the claim. [See Condo Cases Across Canada, Part 79, September 2022.]
The owner appealed to the Court of Appeal. The Court of Appeal dismissed the appeal. The Court of Appeal said:
While the application judge agreed that ongoing noise at late hours could be bothersome, he dismissed the application because the Corporation acted reasonably in the circumstances. Although the Corporation sent only one letter to Ms. Ceronja (about the noise created by her
daughter), the Corporation engaged her numerous times in trying to solve the
problem. The application judge found that, in fact, the Corporation had gone above
and beyond what was expected of it in the circumstances by retaining acoustic
engineers and conducting noise-testing. The analysis of steps one and two of the
test merged – the application judge found neither a breach of reasonable
expectations nor conduct that was unfairly prejudicial or that unfairly disregarded
the interests of the appellant.
Kikites v. York Condominium Corporation No. 382, 2024 ONCA 34