The CAT Deals With Alleged Inadequate Flooring Installation and Related Noise

In the case of Friedlander v. YCC 427, the CAT dealt with an owner’s complaint about noise from the unit above. The complainant alleged that she was experiencing unreasonable noise disturbance (from the unit above) and that replacement flooring installed as part of a renovation in the above unit contravened the condominium corporation’s rule relating to unit renovations, “which required that replacement flooring meet specific impact insulation and sound transmission standards.”

The CAT noted that it was required to consider two separate questions:

Question No. 1:  Was the complainant being exposed to unreasonable noise constituting a nuisance, annoyance or disruption?  [If so, this would contravene Section 117 (2) of the Condominium Act.] 

The CAT noted that this question falls within the CAT’s jurisdiction under Section 1 (1) (c.1) of Regulation 179/17.

On this question, the CAT held as follows: I find that the evidence does not support a finding that the noise Ms. Friedlander is experiencing is unreasonable.”

Question No. 2:  Has there been a violation of the condominium corporation’s rules respecting noise?   

The CAT noted that this question falls within the CAT’s jurisdiction under Section 1 (1) (d) (iii.1) of Regulation 179/17.

I found the CAT’s answer to this question most interesting. In the end, the CAT concluded that there was no violation of the condominium corporation’s “Rules Governing Flooring and Noise.” But what I found interesting is that the CAT said it did not have jurisdiction to enforce the corporation’s rule relating to impact insulation and sound transmission standards (applicable to new flooring installations).

On this issue, the CAT said:

As its name indicates, YCC 427’s 2011 “Rules Governing Flooring and Noise” address both flooring and noise. There are provisions that set out specific requirements for the way in which replacement flooring is to be installed including the type of sound attenuation barrier that must be used and the FIIC rating which the flooring must obtain. However, the Tribunal’s jurisdiction is only with respect to disputes about noise; that jurisdiction does not extend to disputes about flooring.

(Underlining added for emphasis)

So in summary:  this case tells us that the CAT does not have jurisdiction to enforce specific requirements (in a condominium corporation’s rules) about how flooring is to be installed. According to this decision: when it comes to noise and nuisance, it seems that the CAT can only enforce rules that speak to those particular matters – noise and nuisance.

I was somewhat surprised by this, because it seems to me that a rule that establishes minimum specifications for new flooring is essentially directed at preventing unreasonable noise and nuisance. But on the other hand, flooring that has not been installed as required by such a rule might still serve to prevent unreasonable transmission of noise.  [The flooring might not be quite as sound attenuating as if the rule had been met, but might still be “reasonably acceptable” (in terms of noise and nuisance).] As a result, this case seems to be saying that these sorts of “flooring specification rules” are really not directed at noise or nuisance, and therefore do not fall within the jurisdiction of the CAT.

That leaves the following important question: can a condominium corporation still enforce these sorts of flooring specification rules? In my view, the answer is “perhaps yes.” However, this would likely require mediation / arbitration (under Section 132 of the Condominium Act).  [In rare cases, a Court application, under Section 134 of the Act, would be necessary – namely if a tenant happens to be involved in the violation.] But I hasten to add that it would still be necessary to satisfy the arbitrator or judge that the rule in question meets the tests in Section 58 of the Condominium Act. This is something to be assessed on a case-by-case basis.

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