06/06/2022 – Jurisdiction Ontario
Part 78 published on 01/06/2022
Condominium corporation failed to properly address noise from garbage room
The owner claimed that the condominium corporation had failed to properly address noise coming from the condominium corporation’s garbage room (including noise from the trash compactor and noise from garbage falling down the building’s garbage chute).
The Court held that the condominium corporation’s actions, since May of 2017, had been insufficient and oppressive to the Applicant. The Court ordered the condominium corporation to pay damages to Ms Wong in the amount of $30,000 “to reflect the interference with the use and enjoyment of her unit as a result of the ongoing excessive noise and vibrations caused by the use of the garbage system”. The Court also directed the condominium corporation to complete certain remediation work that it had commissioned but had stopped when the Application was commenced.
The Court said:
As stated in Zaman (the case of Zaman v. TSCC 1643), at para 28: “[e]xpectations of privacy and quiet may also be diminished somewhat due to the nature of apartment living in which some noise from neighbours must be expected, and tolerated”. I agree with the Corporation’s submission that the present situation is analogous and it ought to have been within the reasonable expectations of Wong to experience some enhanced noise and vibrations during waking hours due to having purchased a unit whose demising wall is shared with the garbage room. Furthermore, the fact that Wong has apparently not attempted to sell her unit over these past twelve years is also suggestive of the fact that she expects to have to tolerate some level of noise and vibration emanating from the garbage room and system, particularly given the proximity of the Unit to the garbage room.
On the other hand, the evidentiary record does support a finding that Wong’s interests have been unfairly disregarded by virtue of the inexcusable length of time the Corporation has taken to address Wong’s real and demonstrated concerns about the functioning of the chute and compactor, and the interference with her peaceful enjoyment of her Unit. It was within Wong’s reasonable expectations that the Corporation would take her concerns seriously and attend to remediating the noise and vibration problem more quickly, particularly when it is considered that as of 2017 the Corporation had already been apprised of the problems for seven years and taken a few steps towards remediation. There are unacceptable gaps in time between the Corporation’s responses, and it is apparent on the record that the Corporation or its agents are responsible.
Furthermore, I find that the Corporation advice to Wong’s lawyer that no further remediation work by JAD would be done unless and until Wong rescinded this application was inappropriate. This response suggests that the Corporation has engaged in reprisal against Wong in light of her decision to start this proceeding and is an unacceptable response.