Condominium Corporation Was Not Oppressive in Its Management of a Noise Complaint

In the case of Kikites v. York Condominium Corporation No. 382, the Applicant owner claimed that he was experiencing nighttime noise from the unit above, which interfered with his quiet enjoyment. Along with his complaints of nighttime noise, Mr. Kikites also complained of noises resulting from furniture moving and/or children jumping and playing loudly in the unit above.

The owner of the unit above, Ms. Nives Ceronja, lives in her unit with twin children. Ms. Ceronja’s son is disabled, requiring the operation of certain medical equipment (an oxygen and heart rate monitor, pump, an oxygen concentration and a humidifier), as well as a nurse who attends nightly at Ms. Ceronja’s unit in order to perform certain medical procedures required for his care throughout the night.

In response to Mr. Kikites’ noise complaints, the Corporation’s building staff made numerous visits to Ms. Ceronja’s unit to investigate. While the noises caused by Ms. Ceronja’s daughter jumping and playing ceased once the Corporation notified Ms. Ceronja of the noise complaints, the Corporation’s investigations revealed no unusually loud noises created by the medical equipment that Ms. Ceronja’s son required for his care.

As a part of its investigation of the nighttime noise, the Corporation also engaged an acoustical engineer to review the matter. The engineer’s report confirmed that the condominium building was built to Code and that there were no issues with the structure of the building itself producing noise, or otherwise departing from what was expected from a building such as YCC No. 382. In other words, any unusual amount of noise was not due to a physical/structural flaw in the building’s construction.

The Court concluded that the Corporation had fulfilled its obligations under the circumstances.

In finding that the Corporation had not been oppressive, the Court noted that not only did the Corporation send its employees to investigate Mr. Kikites’ noise complaints on several occasions and ask that any bothersome activity (e.g. Ms. Ceronja’s daughter jumping/playing) cease, it also went above and beyond what might be expected from a condominium corporation in this matter, in commissioning an expert report on the noise issues.

The Court went on to say that it could not order that the Corporation renovate Ms. Ceronja’s unit to address the noise concerns as requested by Mr. Kikites, citing the Corporation’s lack of ownership of, and authority over, Ms. Ceronja’s unit interior. The Court also refused to order that Ms. Ceronja carry out such renovations. The Court stated as follows:

The condominium corporation–the one and only Respondent before me–has done what it could and has not been oppressive in its conduct. It is not in a position, and cannot be expected, to either do internal renovations to another unit owner’s unit. And given the conflicting sound engineering evidence and the fact that the noise is non-bothersome all day long, the Respondent is not in a position to compel another unit owner to renovate her unit. In any case, the Court certainly would not be in a position to order such a remedy without fulsome participation and legal submissions from that unit owner.

In our view, the key takeaway is this: when it comes to noise complaints, condominium corporations should take all reasonable steps to investigate the complaints. In some cases, it may also be necessary to engage an expert to review the matter in order to rule out the possibility that there are any defects within the condominium building that are resulting in unusual noise transfer.  With the benefit of this background information, the Board can then decide what (if anything) needs to be done to address the noise concerns. 

As long as the corporation makes such reasonable investigative efforts and then gives reasonable consideration to the complaints, the corporation will have met its obligations.

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