CAT Deals With Competing Needs Respecting a Water Feature

In a recent CAT case, one resident had installed a small water feature (a small portable one gallon fountain) in that resident’s backyard.  The resident who had installed the water feature said that the water feature was installed to help create a therapeutic relaxing environment, needed because of a serious medical condition suffered by the resident. A neighbour, with an adjacent backyard and balcony, claimed that the water feature was causing her harm, due to the neighbour’s bladder condition.  In particular, the sound of running water (coming from the water feature) caused her to suffer urinary urgency. She argued that the other residents and the condominium corporation were causing an unreasonable noise or nuisance (namely the sound from the water feature).

The Tribunal dismissed the claim.  The Tribunal said:

 I am satisfied that a “reasonable person” would be unlikely to object to the sound of the water feature that the Applicant experiences. The sound is a natural sound, and it is not very loud. It is unlikely that other residents of the condominium community would find the noise to be unreasonable.

It is important to note that this does not mean that the Applicant is not a reasonable person. The Applicant objects to the sound only because of her disability and related symptoms. But for her disability there is no reason to think the Applicant would find the noise objectionable.

A person with a disability who is disproportionately affected by something may have rights under the Human Rights Code (the “Code”). A remedy can be sought under the Code if something that would not be an issue for others results in a barrier for a person because of disability. This could include a noise that because of disability is a barrier to the right to equal quiet enjoyment of living in a condominium unit.

However, the Code does not apply in this case. The Code does not apply to all social interactions. It does not apply to disputes between neighbours although it may create an obligation on a condominium corporation to accommodate a person with a disability.

I found it interesting that the Tribunal decided – in this case – that there was no violation of the Human Rights Code.  As I read the decision, the Tribunal held that there was no discrimination in this case (and no unreasonable noise) because the noise in question was consistent with the quiet enjoyment that can be expected by residents in a condominium.

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