Decision says communal living requires 'civility, compromise and patience'
As condominium living becomes more of a reality for those living in urban areas, a recent Ontario Condominium Authority Tribunal ruling emphasizes that both sides in any complaint over noise from one unit disturbing those living in other units must try to solve their disputes with mutual respect.
And while the tribunal ruled that a condo owner did violate Toronto Standard Condominium Corporation 1754’s regulations against disruptive noise, the decision also had something to say about the complainant’s “aggressive behaviour” towards the resident making noise and the condo’s board of directors when making his complaints.
“Living in a condominium has its challenges. Communal living requires civility, compromise, and patience,” said tribunal member Laurie Sanford in her ruling on the case of Hovagimian v. TSCC No. 1754, a downtown condo development which goes by the name Waterpark City. “Far too often, the parties before this tribunal have notably failed to demonstrate one or more of these attributes.”
Some not cut out for condo living
Natalia Polis, a Toronto lawyer with Lash Condo Law who acted for the condo corporation in this case, says, “there are absolutely a lot of people who are not cut out for condo living.” Some people “don’t understand that when they purchase a condo, they may have to give up some things in return for some benefits – like good security, amenities, and concierge services.”
Natalia Polis
She adds that being in a communal environment, “you have to expect some level of noise, you are not in a cabin in the woods.”
However, she points out that this doesn’t mean a condo corporation is not obligated to investigate complaints and enforce rules when they are broken. She notes that since the creation of the Condominium Authority Tribunal in 2017, along with the COVID-19 pandemic, there have been more complaints about nuisances, such as noise, and especially a dramatic jump in complaints about daytime noise.
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Polis attributes the increase to the number of people working from home, at least part-time, and the relative ease of owners and tenants to bring their complaints. Not only is making an initial complaint inexpensive - $25 – taking the matter up to the tribunal stage costs no more than $200. As well, the Ontario government recently expanded the CAT’s jurisdiction to deal with such nuisance complaints. “So, a lot more people are applying and representing themselves before CAT when they want to pursue their complaint,” says Polis, who has represented both condo corporations and complainants.
As for the behaviour of frustrated complainants, Polis says: “Of course, it’d be great if everyone would be cordial and reasonable and complain in a way that isn’t aggressive or overly hostile.”
Tribunal orders corporation to post decision
In this case, the tribunal ordered the resident considered the source of the noise to “bring himself into compliance” with the condo’s bylaws. It also ordered the corporation to post or publish the decision “prominently” within the TSCC 1754 community. Sanford wrote she wanted the decision displayed as she was particularly troubled by the president of the condo board’s testimony. He often downplayed the complainant’s concerns even though condo management had sent enforcement letters to the condo owner, who was considered the source of the noise.
Said Sanford: “My hopeful expectation is that the unit owners will hold their management and board of directors accountable for the enforcement” of the order against the resident making noise in this case.”
Complainant singled out for aggressive behaviour
The complainant was also singled out for his behaviour, including acting aggressively with staff and threatening to bang on the doors of condo board members should his complaints against the noise made by his upstairs neighbour not be dealt with adequately.
The complainant “repeatedly spoke aggressively to TSCC 1754 staff and incurred a number of rule enforcement letters as a result,” the decision said, noting security staff were told to record any dealings it had with the complainant carefully. It said the complainant did knock on the door of the condo board president after one noise incident “to see what it feels like,” though the president was not in his suite at the time.
“While it is possible to empathize with [the complainant] for the sleep disruption he has endured, there is no excuse for the course of action he threatened and the action he took in knocking on [the president’s] door in the early hours on one morning. What is even more troubling is that during this hearing, [the complainant] expressed no remorse for his threats and action and no understanding that what he did was wrong. He excused his actions as the only way to get the board’s attention.”
The tribunal ruled the complainant also violated two of the condo board’s rules against aggressive behaviour.” All people or organizations involved in the management or regulation of condominiums must speak with one voice against aggression, verbal or physical, within a condominium.”
The tribunal decision pointed out the condo corporation was within its rights to retain a lawyer to write a warning letter against the complainant for his behaviour. It could also charge him the cost of preparing the letter and take a lien on the complainant’s unit should the charge not be recovered.
Noise complaint case dates goes back to 2017
The Waterpark City case dates to June 2017, when the complainant reported numerous incidents of noise coming from his upstairs neighbour’s unit, describing it as “pounding on the floor, yelling, talking loud, screaming and singing.” It would usually occur between midnight and 4 am. He would frequently complain multiple times a night to TSCC 1754 security, saying that the noise he experienced either continued or resumed after stopping for a while.
Whenever the complainant voiced his concerns to security, the protocol would be for staff to investigate the complaint and file an incident report. The board management, on several occasions, issued the complainant’s neighbour an enforcement letter saying he had broken condo bylaws, including Rule 5.11, which reads, “occupants shall not create nor permit the creation or continuation of any noise or nuisance which, in the opinion of the board or management, may or does disturb the comfort or quiet enjoyment of the units or common elements by other occupants.”
On April 21, 2022, lawyers for TSCC 1754 wrote to the neighbour, “concerning the excessive noise coming from [the] unit, which is disturbing the quiet enjoyment of the property by other residents.” It reminded him that excessive noise issues have been “ongoing since approximately June 2017” and refers to “loud talking and screaming and loud music.”.
The letter pointed to previous warning notices and said that despite multiple opportunities to comply, incidents have “become more frequent since Fall 2021.” The letter added that “many” of the noise complaints were substantiated by security.
While this letter told the neighbour, “This is your final warning,” it did not say what further steps might be taken. It ended by charging the neighbour $533.70 in legal fees for preparing the letter, like what it charged the complainant, and says that the charge may be recoverable through a lien on his unit.
While TSCC 1754 sent these letters, it took several positions at the hearing. It argued that the noises that the complainant took issue with are “sporadic and do not constitute a nuisance,” and that management and the board have taken “reasonable steps to deal with any rule violation.”
Condo board president testimony determined not credible in some cases
The president of the board of TSCC 1754 testified that many of the noise complaints by the complainant were unfounded. When there was a finding of noise from the neighbour’s unit, “these findings were frequently the result of bullying of the security guards by [the complainant].” The board president also speculated that the complainant is “unusually sensitive to noise.”
He also testified that many complaints were “deemed not to constitute excessive noise or a nuisance, in the opinion of the corporation’s security.” The president also said that no other unit has ever complained about noise from the neighbour’s unit and that he had been advised that the security guards “usually did not hear any egregious noises.”
He testified the complainant’s “aggressive demeanour and emphasis on documenting noises had pressured them into speaking” with the neighbour about shutting down his gathering or turning off his music “even though no excessive noise was heard.”
However, the tribunal ruled the board president’s testimony was inconsistent with other evidence. For example, he said that no one other than the complainant ever complained about noise from the unit. But Sanford wrote that some of the letters sent to the neighbour noted “several noise complaints from neighbours.”
The rule enforcement letters also appear to contradict the president’s testimony that many of the complaints received by security did not result in finding excessive noise coming from the unit in question. In fact, the letters gave many details on when noise complaints were received and investigations that indicated excessive noise was recurring.
“What [the board president] is asking me to believe is that over a period of four years, and over ten incident reports, security guards were repeatedly bullied into writing false incident reports reporting loud noise when no such noise in fact occurred.,” Sanford wrote in her decision. “He is also asking me to believe that TSCC 1754 and its solicitors together wrote eleven rule enforcement letters or emails based on these falsified incident reports.”
Sanford concluded that she prefers “the evidence in the letters as these were written at the time of the events and are more detailed than the president’s general statement.”
The neighbour at the centre of the complaint also testified, calling the complainant’s allegations “vexatious and baseless.” And even if noises came from his unit and were audible to the complainant, he testified, “such noises were the result of normal activities that are to be expected in a communal living environment.” Furthermore, such noises “did not amount to a nuisance.”
He also testified, without supporting evidence, that TSCC 1754’s “standard for what constitutes nuisance-level noises is, at times, overly sensitive.”
When is noise a nuisance?
Sanford said that the neighbour’s testimony was “with few exceptions, little more than a set of submissions.” She also noted, “there is a material difference between noise that is heard during the day and noise that penetrates into the hallway in the small hours of the morning. I do not find the testimony credible, and I am not persuaded by his submissions.”
Both TSCC 1754 and the neighbour “framed the issue in this case as whether or not the noise . . . constituted a nuisance,” Sanford wrote. However, condo bylaw 5.11 makes it clear that the bylaw can be breached “not only by noise that is a nuisance but also by noise which may . . . disturb the comfort or quiet enjoyment of other residents.” She concluded the TSCC 1754 rules might be violated “whether or not the noise amounts to a nuisance,” though adding it is the condo board or management that generally decides whether the threshold for this rule has been reached.
The neighbour testified to the tribunal that he is now “walking on eggshells” in his unit. He has stopped listening to music and has ceased entertaining and socializing with friends in his home.
However, Sanford wrote:” “While these measures may seem draconian, if ceasing to socialize and host parties in his unit is the only way he can avoid creating disruptive noise, then that is what he must do. Whether [he] will be able to listen to music in his unit is entirely a function of whether he is able to keep the volume of the music within acceptable limits.”
Advice for condo dwellers and management
Polis’s advice for condo dwellers, beyond “being reasonable” in their expectations about noise in a communal setting, is to ensure they complain to security, the concierge or condo management when the alleged noise happens and to “be patient” in resolving the issue as it might take time.
For condo boards and management, it’s essential to follow up on complaints and resolve them before it escalates to a complaint before CAT, Polis says.
As well, it’s “just good governance” to notify residents when there are renovations in another unit, what are acceptable hours for contractors to work, and how long the renovations will take.
“If there are changes to the schedule, keeping residents apprised of what is happening can de-escalate complaints.”