The Duty to Reasonably Investigate Complaints
In the case of TSCC 1978 v. Hackman, the CAT dealt with noise complaints (made by other residents) against a particular owner (Mr. Hackman). But at the same time, the CAT also dealt with complaints from Mr. Hackman about noise created by others.
The CAT concluded that Mr. Hackman was indeed making unreasonable noise (in contravention of the corporation’s governing documents and also in contravention of a previous settlement agreement). The Tribunal ordered Mr. Hackman to avoid creating unreasonable noise.
But again, the CAT was also required to deal with Mr. Hackman’s complaints about noise from others. In particular, he complained about three types of noise:
- noise from his neighbours’ normal activities of living;
- “stomping” or loud walking in the unit above his;
- the sound of doors closing.
Mr. Hackman asserted that there was “little or no sound insulation and that as a result, normal sounds that would not usually be heard in a neighbouring unit are experienced as very loud”.
The Tribunal said:
I conclude that TSCC 1978 has an obligation to investigate Mr. Hackman’s complaints of noise to determine if the noises are unreasonable, or an annoyance, nuisance or disruption and, if so, what, if any, abatement measures may be appropriate. After that, the issue of who may be responsible for any abatement measures that may be necessary can be considered.
I therefore order TSCC 1978 to conduct an investigation and pay for any costs involved in the investigation to determine the nature and source of noises that may be coming into Mr. Hackman’s unit, if they are unreasonable, and what could be done to abate the noise if it is determined to be unreasonable. The investigation should include noise coming from the floor of the unit above Mr. Hackman’s unit. The board shall ensure that Mr. Hackman has notice of the investigation so that he can be present if he wants to be. The board shall share the part of any report that pertains to Mr. Hackman’s unit with Mr. Hackman.
A duty to investigate will of course depend upon the particular circumstances. In my view this duty flows from a condominium corporation’s obligation to enforce the Condominium Act and the corporation’s governing documents (including obligations in the governing documents to avoid unreasonable noise that disturbs others). In appropriate circumstances, investigation may be necessary in order for the condominium corporation to assess its enforcement obligations.
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