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.
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.
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.
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.
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