A decision dealing with a noise complaint between units was recently released by our courts. The facts are as you would expect them: unit below complains of noise from unit above. The unit below sued the condo corporation (but not the owner above). Ultimately, the question in this case was: what are the obligations (and powers) of a condo corporation when dealing with noise disruption between two units.
The outcome may surprise you.
The Facts of the Case
As stated in the intro, the facts of this case are similar to countless other cases.
Andreas Kikites lives on the 22th floor of a highrise condo. For years now (more than 5 years), he had complained of ongoing night time noise disruption coming from the unit above, which he said interfered with his quiet enjoyment of the premises and which seriously disrupted his sleep.
The complicating factor was that the upstairs neighbour lives with her two children, one of whom is quadriplegic, requiring oxygen and heart rate monitors on a table, a pump on a medical hospital pole, an oxygen concentrator and humidifier and a night time nurse, every night, to provide care for him. Naturally perhaps, this equipment makes noise, which is more intrusive and audible at night when all is quiet.
There were other noises such as furniture moving, cleaning and playing or jumping around by the daughter above but the corporation did ask the owner above to address those and these noises appear to have stopped.
Andreas has raised the issue for years with little result. Each side (him and the condo corporation) accused the other of being the faulty one. The Corporation took the position that the owner below was too sensitive to noise and was exaggerating the issue. The owner complained that the corporation was only “going through the motions” of looking into the matter but never did anything of substance to address the noise problem.
The record contained dozens of separate conversations and emails between Andreas and the building management where he complained of noises invading his unit. It also contains documentation of numerous visits by the building management and security personnel to both units, with them generally finding that there were no unusually loud noises created by the medical equipment.
Both sides obtained acoustical engineering reports, which reached vastly different conclusions on the level of noise being perceived in the unit below.
The owner below commenced an application for compliance and oppression, seeking an order compelling the Corporation to take further steps to address the noise disruption and seeking damages.
The Court found that while the noise generated above may not be bothersome during the day, they may well in fact constitute a nuisance at night. The Court went on to find the owner below was not being overly sensitive to the noise and that his claim of disturbance was credible.
Still, perhaps surprisingly, the Court ultimately decided to dismiss the owner’s case.
The Court supported this decision by noting that the noise above was not being caused by some unlawful or improper source (partying, or shouting or midnight renovations). Likewise, the noise was not coming from the common elements, or something that the Corporation had control over.
While the owner below had suggested that the Corporation install a raised and padded floor in the unit above, the Court found that this would be an over-reach of the Corporation’s authority over one’s unit. The Court also commented that perhaps, if the owner of the unit above had also been added as a party, the result may have been different.
Costs of the Case
Ultimately, while the Court found against the owner below, it expressed sympathy for his “burden” and refused to impose the Corporation’s litigation costs on them. Each party was required to absorb their own costs.
There are a few key takeaways from this case:
- In cases of noise nuisance, the court’s decision may be highly influenced by the source of the noise (necessary noise vs. noise that ought not to take place);
- The court is apparently unlikely to order a condo corporation to perform invasive or significant modifications to an owner’s unit to abate noise – ultimately this responsibility rests with the owner of the unit;
- The condo corporation should be proactive and take complaints seriously and investigate them; and,
- Even if nuisance is occurring, the one suffering may not be entitled to a legal remedy – as infuriating as this may be for the victim of the disturbance.
One of the biggest takeaways here though, is the question of whether the outcome would have been different if the upstairs neighbour herself had been a party. Would the Court have ordered her to modify her unit to abate the noise? It’s impossible to say with certainty, but as a final remark, I will conclude with a quote from the case, which really does summarize the finding:
“ I understand why the Applicant has brought these proceedings. I am willing to take him at his word that he hears noises that interfere with his sleeping hours. I sympathize. But that does not mean that this Application yields a legal remedy.”
Ultimately, what a corporation is required to do in cases of nuisance is to take reasonable steps to enforce its rules. It may not have an obligation to implement changed in the unit above.
Courts or CAT
Some of you may be wondering why this matter went to the Superior court of justice and not the Condo Authority Tribunal. We see two possible reasons. The first one is that this matter was framed as an oppression and compliance matter. These continue to go to the Superior Court of Justice. Most importantly however, it is possible that the matter went to court because it was started before the CAT acquired jurisdiction over noise disputes.
You can read the case here.