CAT Deals with Noise and Human Rights

In TSCC 2448 v Ihejirika et al., the condominium corporation received numerous complaints regarding unreasonable noise emanating from a unit occupied by Ms. Ihejirika. The complaints were ongoing for over a year and were characterized as screaming, shouting, loud chanting, loud music and repetitive banging and/or thudding noises that regularly occurred in the late night and early morning hours.

As a result of the noise complaints, the condominium corporation’s security staff wrote to Ms. Ihejirika’s landlord, the unit owner, Dr. Mojumdar, to request that he address the noise disturbances with his tenant. The communications to Dr. Mojumdar included a summary of incidents of noise disturbances as well as audio recordings of same.

The condominium corporation’s legal counsel as well as its security staff also met with Dr. Mojumdar to discuss the noise issues. Following that meeting, the condominium corporation’s legal counsel then provided Dr. Mojumdar with copies of security incident reports and audio/video recordings respecting the noise disturbances, noting that it appeared Ms. Ihejrika was engaged in religious practice. The corporation’s legal counsel stated that there was no intent to stop her from practicing but requested Dr. Mojumdar’s cooperation in reducing excessive noise.

Notwithstanding the above, the noise disturbances continued, and the condominium corporation ultimately commenced a CAT application against Ms. Ihejirika and Dr. Mojumdar.

At the Tribunal hearing, the condominium corporation presented evidence from seven (7) witnesses, including from the condominium’s security staff and the residents who were impacted by Ms. Ihejirika’s noise disturbances. The corporation also submitted 50 security incident reports – 38 of which indicated that security staff had verified the noise was coming from Mr. Ihejirika’s unit (29 of the 38 incidents were also supported by audio recordings).

In response, Ms. Ihejirika submitted her own audio/video recordings of noise complaints against other residents of TSCC 2448 and raised concerns respecting a violation of the Human Rights Code on the basis that the condominium corporation had failed to provide an accommodation for her religious practices.

The CAT ultimately found that Ms. Ihejirika was causing unreasonable noise in contravention of Section 117 (2) of the Condominium Act and the condominium corporation’s Declaration and Rules and that Dr. Mojumdar had failed to take reasonable steps to bring Ms. Ihejirika’s conduct into compliance.

Notably, in coming to its decision, the Tribunal highlighted the volume of evidence presented in support of the condominium corporation’s case:

The fact that there are 50 documented reports of complaints from six different residents about noise emanating from Ms. Ihejirika’s unit over a period of approximately 15 months, including 38 in which security verified the noise, is evidence that the noise has interfered with other owners’ use and enjoyment of their homes…

The security incident reports are supported by the testimony of the five resident witnesses. Ms. Muzyka, Ms. Hall, Mr. Oblah and Mr. Francis all testified that they heard noise which occurred frequently and disturbed them. Mr. Pinto testified that he heard noise in the short time he occupied the unit he owns. Further, Mr. Bardhoshi testified that he had personally received “at least” 30 complaints.

On the issue of the alleged Human Rights Code violation, the Tribunal found that Ms. Ihejirika failed to make a request for accommodations after being invited to do so by the corporation’s legal counsel and that it was therefore unreasonable for her to argue that the corporation had acted in a discriminatory manner. The Tribunal went on to say that:

In summary, the evidence does not support that Ms. Ihejirika has been subjected to either aggressive or differential enforcement based on a Code-protected ground; rather it indicates that the corporation responded to resident complaints, including her own, by investigating them in accordance with its set procedures.

In our view, when dealing with noise disturbances, it is essential for the condominium corporation to keep a record of the complaints received, as well as the steps it took to investigate such complaints. This evidence will be a key component of the corporation’s CAT application materials, if one should be required. In addition, where a Human Rights issue may come into play, it is important for the condominium corporation to provide an opportunity for a request for accommodation and consider the information it receives in this respect.

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