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Noisy Neighbour? You May Not Be Entitled To A Legal Remedy – Trials & Appeals & Compensation


Introduction

In Kikites v. York Condominium Corporation No.
382
, 2022 ONSC 4606, a condominium unit owner (the
Applicant) complains of noises coming from the upstairs unit. The
Applicant seeks a number of remedies under the Condominium
Act
, 1998, SO 1998, c. 19, alleging that the condominium
corporation was oppressive towards her in handling the noise
complaints.

Background

The Applicant complains of noise, particularly in the night,
which interferes with his quiet enjoyment of his unit. The noise
allegedly emanates from the unit immediately above him.

The upstairs unit owner has twin children – a daughter and
a son who is disabled. The disabled son is quadriplegic and
requires extensive medical equipment, such as an oxygen and heart
rate monitor on a table, a pump on a medical hospital pole with
wheels, and an oxygen concentrator and humidifier.

A nurse attends every night of the week and stays all night long
to provide care for the son. The nurse starts her shift at midnight
and her duties require that she walk back and forth from the
bedroom to the bathroom, kitchen, and other parts of the unit.
Certain medical procedures and the operation of medical equipment
are done all night long.

Building management and security services visited both units on
several occasions and generally found that there were no unusually
loud noises generated by the medical equipment.

The Applicant retained an expert who found that noise from the
medical equipment seeps into the unit below. The expert suggested
installing a raised and padded floor in the unit above. The
condominium corporation’s expert found no or negligible
noise.

Analysis

Justice Morgan reviewed and considered other noisy neighbour
cases and found Zaman v. Toronto Standard Condominium
Corporation No. 1643
, 2020 ONSC 1262, most similar to the case
at bar.

The court in Zaman was satisfied that a request to a
noisy neighbour that they keep quiet at night was enough. Ordinary
levels of noise, even if done at night, are not excessive enough to
warrant any further intervention. Accordingly, the court in
Zaman held that a condominium corporation does not act
oppressively by failing to stop this level of activity, and that in
any case some activity within a privately owned unit is simply not
within a condominium corporation’s power to actually stop.

In the case at bar, the condominium corporation sent its
employees to both the Applicant’s unit and to the upstairs unit
on multiple occasions. When they identified remediable instances of
noise, such as where the upstairs unit owner’s daughter was
running around the apartment, the upstairs unit owner was asked to
stop. On the other hand, the condominium corporation could not, and
would not, ask that the medical care needed by the upstairs unit
owner’s son cease.

Moreover, by commissioning an expert report, the judge suggested
that the condominium corporation went above and beyond what one
expects of a condominium corporation in its management
function.

The judge ultimately concluded that the condominium corporation
had done what it could to manage the noise complaints and it had
not been oppressive in its conduct.

The judge reasoned that the corporation is not in a position,
and cannot be expected, to do internal renovations to another unit
owner’s unit. Further, given the conflicting sound engineering
evidence and the fact that the noise is not bothersome all day
long, the judge held that the corporation is not in a position to
compel the other unit owner to renovate her unit.

At paragraph 23, the judge stated:

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. The Respondent
has not been oppressive toward the Applicant; it simply has no
realistic means at its disposal to further address his
concerns.

The judge dismissed the application.

Takeaway

There are limits to what a condominium corporation must and can
do when handling a unit owner’s noise complaints. The court
will be very reluctant to interfere with a unit owner’s normal
and private use of their unit.

In this case, the judge recognized that there may be noise
emanating from upstairs into the Applicant’s unit, even at
nighttime. However, this noise was associated with the medical care
of the unit owner’s child. The condominium corporation was not
expected to ask the upstairs unit owner to cease making any of
these kinds of noises.

Simply put, having a noisy neighbour may not entitle you to a
legal remedy.

Rogers Partners LLP is an experienced civil litigation firm in
Toronto, Ontario. The firm represents insurers and self-insured
companies in numerous areas, including motor vehicle negligence,
occupiers’ liability, product liability, professional
negligence, construction claims, statutory accident benefits,
disability benefits, municipal liability, medical negligence,
sexual abuse, and insurance coverage disputes.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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