CONDOMINIUM AUTHORITY TRIBUNAL
DATE: October 25, 2023
CASE: 2023-00248N
Citation: Metropolitan Toronto Condominium Corporation No. 694 v. Velasco-Navalta, 2023 ONCAT 156
Order under section 1.44 of the Condominium Act, 1998.
Member: Marc Bhalla, Member
The Applicant,
Metropolitan Toronto Condominium Corporation No. 694
Cezar Georgian, Agent (President)
The Respondent,
Lilian Velasco-Navalta
Represented by Caryma Sa'd, Counsel
Hearing: Written Online Hearing – August 4, 2023 to October 4, 2023
Video Hearing – August 16, September 6, 13 & 19, 2023
REASONS FOR DECISION
A. BACKGROUND
[1] The Applicant is a 63-unit condominium. It was created in 1985 and is self-managed. The Applicant brought this case against one of its unit owners. It alleges the Respondent is making unreasonable noise. Complaints originate from the occupants of the unit directly below the Respondent’s. The Respondent has two young children who have been identified as the source of the noise. Both parties acknowledge that noise exists; the focus of the case is on the nature of it. The Applicant claims the noise is unreasonable. The Respondent suggests it is attributable to ordinary living.
[2] The unit underneath the Respondent’s is the unit of Siva Kumar, a long-standing director on the board and current vice president. The complainant took steps to address the concern that the Respondent did not appreciate. This included knocking on their unit door, trying to engage in discussion and banging on the ceiling. These actions were received as bullying and scared the children. The neighbours should find a mutually comfortable way to interact going forward.
[3] The capacity of the involvement of the complainant was unclear. They are on the board, take part in the operation of the self-managed condominium and have a personal interest about the noise in question. There were times where it could seem that the complainant alone set, analyzed and enforced the noise standards of the community.
[4] On many occasions in the hearing and related evidence, the Applicant offered suggestions to the Respondent about how their family should live. This included suggestions about parenting style and children’s activities, speculation on the supervision of the children and commentary about parental work schedules. All of it is inappropriate. The focus of this case is on the nature of the noise in question. I make no judgment about the Respondent’s parenting, lifestyle or scheduling decisions. That is not the business of this Tribunal or, frankly, the Applicant.
[5] It is one thing for those experiencing noise-related conflict to attempt to work together to understand more, including how it might practically and creatively be addressed. Here, the Applicant went too far peering into the personal and family life of the Respondent. It is hard to understand how any family could comfortably live in a condominium environment facing the level of scrutiny and intrusion the Respondent has experienced.
[6] The issues to be decided in this case are as follows:
1. Is there an activity carried on or permitted by the Respondent which creates noise?
2. Is the noise unreasonable?
3. If unreasonable, does the noise qualify as a nuisance, annoyance or disruption?
[7] For reasons set out below, the Applicant has not proven the Respondent to be responsible for creating unreasonable noise.
ISSUE & ANALYSIS
Has the Respondent failed to comply with the Act and the Applicant’s governing documents regarding noise and nuisance?
[8] The Applicant’s Declaration states:
Article IV(1)(a):
Each dwelling unit shall be occupied and used only as a private single-family residence...
Article IV(1)(b):
No unit... shall be used by anyone in such a manner... that will unnecessarily interfere with the reasonable use or enjoyment by other unit owners of their units...
[9] The Applicant’s Rule 15 states:
Owners... shall not create or permit the creation of or continuation of any noise or nuisance which, in the opinion of the board or the Manager, may or does disturb the comfort or quiet enjoyment of the property by other owners...
[10] The Applicant had four witnesses testify to hearing excessive noise coming from the Respondent’s unit. Two of these witnesses reside in the unit below and spoke to the noise levels within that unit. It is the level of noise heard within the unit below that is core to this case.
[11] The Applicant’s president represented the Applicant in the hearing and took part as a witness. The president spoke to the credibility of the complainant and offered first-hand confirmation of noise heard in the corridor.
[12] Another neighbour also took part in the hearing as a witness. They observed an altercation between the primary complainant and the Respondent’s partner. This witness got involved out of concern about the prospect of a physical altercation. While they spoke of “countless days of screaming and banging noises”, their detailed testimony was focused on isolated incidents. As with the president, this witness also could not speak to noise heard within the complainant’s unit.
[13] Siva and Shagitha Kumar each stated they are disturbed by noise from the Respondent’s unit above them. The noise is described as running, jumping and loud bangs/thuds. These witnesses have resided in their unit for 20 years and say they have not previously encountered noise like this. They allege noise occurs at all times of day and into the evening hours. “One of us works from home for most of the week and hearing running intermittently or banging is a distraction when conducting work meetings.” They attempted to capture the disturbance through a recording and were unsuccessful.
[14] I am not convinced that noise distracting the meetings of someone working from home necessarily supports a claim of unreasonable noise within a residential condominium. It is not reasonable for someone working from home in a residential condominium to expect the same audio climate of a professional office environment. The sounds of everyday living, including the sounds of children, are to be expected in a residential condominium.
[15] The Respondent points out that the noise complaints come from members of the same family. Other witnesses could not speak to noise in the unit below. No independent assessment has been offered to support a claim of unreasonable noise within that unit.
[16] The Respondent claims they are just carrying out ordinary living activities. They offer evidence of mats where the children most commonly play to mitigate noise transmission. In response to one incident cited by the Applicant, the Respondent evidences a child crying for a few minutes before being consoled by a parent. Other evidence has the children acting in the manner one would expect of young children. More than this is needed to establish unreasonable noise.
[17] The Respondent cited Abrecht v. Sheikh Al-Zoor, 2023 ONCAT 49. In that case, visits by the Respondent’s grandchildren gave rise to noise complaints. What was alleged to be “romper room activity” the Tribunal found to be related to “everyday living”.
[18] The Respondent also cited Lee v. Wong et al., 2022 ONCAT 147, where the Tribunal accepted that the applicant experienced noise that disturbed them; yet there was little objective evidence that the respondent was creating unreasonable noise. Similarly, the Applicant has insufficient evidence to prove the Respondent is creating unreasonable noise in the unit below.
[19] When cross-examined, the Applicant’s president expressed that there is no acoustical insulation within the condominium’s units. As a result, “you can hear everything”. This gives rise to noise complaints from various units each year. It appears to be due to the lack of acoustical insulation within units – a condition of the building, not the activities of its residents. I find nothing wrong with the manner in which the Respondent is using their unit.
[20] While the Applicant has suggested the installation of insulation would likely resolve the noise complaint, I will not order it to be completed at the Respondent’s cost as the Applicant requested. While this insulation may offer the practical solution to this case, the Applicant has not established that the Respondent is creating unreasonable noise.
ORDER
[21] The Tribunal orders this case dismissed.
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Marc Bhalla |
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Member, Condominium Authority Tribunal |
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Released on: October 25, 2023