The CAT Deals With Complaints About Noise
In the case of Hovagimian v. TSCC 1754, an owner complained about intermittent party noise, in the early morning hours, coming from the unit above and occurring over a number of years. The complaining owner claimed that the condominium corporation had failed to take reasonable steps to address the noise.
The condominium corporation had generally responded to the complaints by having security personnel attend and witness the noise, whereupon the security personnel would typically prepare an incident report which then normally prompted the condominium corporation to send an enforcement letter to the resident of the upper unit. The Tribunal’s decision also refers to one or more discussions (about the complaints) between the manager and the resident of the upper unit. There were, however, also quite lengthy periods of calm (without any complaints). In any event, the condominium corporation ultimately arranged for a “final warning letter” to be sent by the corporation’s legal counsel (which included a demand for the related legal costs). No further enforcement steps had been taken.
The decision also notes the apparently “tumultuous” relationship between the condominium corporation and the complainant. The decision refers to the complainant’s “harassing and disruptive behaviour towards TSCC 1754 management and staff.”
In the CAT proceeding, the condominium corporation took the position that the noise in question was not so bad as to constitute a “nuisance”, and also took the position that the corporation’s enforcement efforts were reasonable.
The Tribunal did not agree. The Tribunal said that the condominium corporation’s arguments were not supported by the historical written evidence (namely the incident reports and enforcement letters). The Tribunal said:
I find that Mr. Convrey (the resident in the upper unit) repeatedly violated TSCC 1754 Rules 15.15 and 5.11 against disruptive noise. I will order him to bring himself into compliance with these rules. In the ordinary case, that would be sufficient and it could be left to TSCC 1754 to take reasonable steps to enforce Mr. Convrey’s compliance. However, in this case, I am troubled by Mr. Hollinger’s (the condominium President’s) testimony. He has displayed a lack of good faith in his testimony that causes me concern about TSCC 1754’s response to Mr. Hovagimian’s legitimate grievances. To address this concern, I will direct TSCC 1754 to post or publish this decision and Order prominently within TSCC 1754, wherever it usually posts or publishes important notices to the unit owners. My hopeful expectation is that the unit owners will hold their management and board of directors accountable for the enforcement of this Order.
At the same time, the Tribunal expressed concern about the actions of the complainant. The Tribunal said:
Mr. Hovagimian repeatedly spoke aggressively to TSCC 1754 staff and incurred a number of rule enforcement letters as a result. The security staff was enjoined at one point to carefully record any dealings it had with Mr. Hovagimian given his verbal aggression. While it is possible to empathize with Mr. Hovagimian for the sleep disruption he has endured, there is no excuse for the course of action he threatened and the action he took in knocking on Mr. Hollinger’s door in the early hours on one morning. What is even more troubling is that during this hearing, Mr. Hovagimian expressed no remorse for his threats and action and no understanding that what he did was wrong. He excused his actions as the only way to get the board’s attention. I find that Mr. Hovagimian acted in violation of rule 15.15 of TSCC 1754 and was also in violation of rule 3.4.
In the end, the Tribunal declined to order any of the parties to pay compensation to another party. The Tribunal made only the following orders:
1. Mr. Convrey will bring himself into compliance with the Rules of TSCC 1754, in particular Rule 15.15 against disruptive conduct and Rule 5.11 against noise which disturbs the comfort or quiet enjoyment of other unit owners.
2. TSCC 1754 will publish or post this decision and Order wherever it normally publishes or posts important notices to its unit owners.
3. TSCC 1754 will pay Mr. Hovagimian $200 to reimburse him for his filing fees in this proceeding.
The bottom line is that the Tribunal in this case was not happy with any of the parties – the condominium corporation, the complainant or the resident causing the noise. The Tribunal’s order that the decision be posted in the building was also an unusual order showing the Tribunal’s lack of confidence in the condominium corporation.
In my view, it is particularly challenging for a condominium corporation – for the Board and manager – to deal with complaints from a “difficult” complainant. In such cases, it is not always easy to give the complaints the respect they deserve. But I think this case stands for the principle that a condominium corporation must look past the complainant’s misbehavior, and carefully consider the complaints in a fair and impartial manner, with appropriate follow-up and enforcement as justified by the circumstances.
As always, stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!