In August 2022, Justice Morgan, of the Ontario Superior Court of Justice, held that a unit owner had not been oppressed notwithstanding he was dissatisfied with steps taken by the condominium board to address his noise complaints. In January 2024, the Ontario Court of Appeal dismissed the unit owner’s appeal, upholding Justice Morgan’s decision.[1]
This case is instructive for condominium corporations, condominium managers, and their insurers. Some key takeaways include:
- There is a distinction between noise originating from another unit versus a common element,
- There is a distinction between noise originating from a lawful versus unlawful use of the unit,
- Condominium boards’ decision-making is entitled to deference, and
- A unit owner’s dissatisfaction with the board’s reasonable response to a noise complaint is insufficient to establish oppression.
History of the Noise Dispute
The appellant lived directly below a woman and her two children, one of whom required around-the-clock medical care involving a number of pieces of medical equipment. A nurse attended in the home every evening to care for the child overnight.
The appellant made noise complaints to security and management alleging the noise from his upstairs neighbours was disruptive, especially at night. He began making noise complaints in 2015. Building staff repeatedly investigated the source of the noise, including speaking with the upstairs resident. When the condo determined that the noise was caused by the upstairs residents’ daughter playing too loudly, it sent a warning letter and the situation was seemingly rectified. The board offered to conduct a noise study and further noise inspections, however the appellant declined stating that the issue had largely abated.
Some four years later, the appellant began making noise complaints once more. By March 2021 he had retained legal counsel. The board commissioned multiple noise studies via an acoustical engineer, which did not verify any issues with the common elements with respect to noise/vibration control or any significant sound events occurring within the appellant’s unit. The appellant retained an acoustical engineer to conduct a noise test which differed in both methodology and conclusions to that of the engineer retained by the board.
The Application
The appellant (then the applicant) commenced an application alleging that the condominium corporation had oppressed him and failed to enforce compliance with the Condominium Act and the by-laws, declarations, and rules of the corporation.
In the application decision,[2] Justice Morgan considered and applied the law on noise disputes in condos, primarily relying on:
Justice Morgan held that Zaman was most applicable to the case at bar, wherein the noise nuisance came from a neighbour engaged not in illegal or improper activity per se, but an ordinary activity (conversation on a balcony) at unusual hours of the night. He concluded that the court in Zaman had held that a condominium board does not act oppressively by failing to stop this level of activity, that there is some activity in a privately owned unit that the board simply does not have the power to stop.[3]
In the case at bar, the board’s attentiveness to the applicant’s complaints was “above and beyond” what might be expected:[4]
When the Appellant produced expert reports describing unusual sounds at night, the Respondent responded with its own expert reports. Those reports stated that the construction of the building was satisfactory and that there was not an excessive level of noise. Applicants’ counsel take issue with those reports, but that is what they say. The Respondent cannot be said to have done nothing when it invested in two different experts who produced reports that the Applicant doesn’t like.
Justice Morgan also declined to order that the upstairs neighbour install a raised and padded floor, which seemed to be the primary remedy being sought in addition to damages for alleged oppression. Accordingly, he dismissed the application.
The Court of Appeal Upheld the Dismissal
The focus of the appeal was on Justice Morgan’s decision not to order that the upstairs neighbour install a raised and padded floor. The appellant argued that the compliance section of the Condominium Act, s. 134, allowed for such an order. However, the Court noted that the focus before Justice Morgan was on making this order as a remedy for alleged oppression. The Court of Appeal held that by changing his focus on appeal the appellant was ignoring the arguments made before Justice Morgan.[5] The Court of Appeal held that the appellant should not be permitted to “re-cast his application” so late in the appellate process, after his initial litigation choice did not have its intended outcome.[6] Accordingly, only Justice Morgan’s rejection of the oppression remedy was considered on appeal.
The Court of Appeal had no basis upon which to interfere with Justice Morgan’s finding that the board had acted reasonably. Nor did the Court see fit to interfere with the finding that Justice Morgan could not order remediation of the upstairs unit because she had not been made a part to the proceeding. This, the Court held, went back to the heart of the matter before the application judge, which was redress against the board via the oppression remedy. Accordingly the appeal was dismissed.
Commentary
Noise complaints can be complicated matters. They become more complex when it is another unit that is alleged to be causing the noise as opposed to a common element. A board is left with a difficult task to decide on the appropriate course of action. Sometimes, it will be necessary to retain experts to verify the noise being complained of. Although the courts may show deference to the board’s decision-making, the courts expect a reasonable response, and not a dismissive one. Condominium boards and managers should consider consulting legal counsel to assist in determining an appropriate response to such complaints.
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