Owner Victorious in Condo Authority Tribunal Noise Complaint Dispute.
December 2022
By John Recker
In Jones v. Toronto Standard Condominium Corporation No. 2017, the CAT awarded Ms. Jones $700 in costs and $1400 in damages for reimbursement of the cost of the expert noise reports.
Ms. Jones moved in in 2018 and said she immediately noticed the noise from surrounding units. In January 2019, she reported these noises to management. An inspection was performed in March 2019 and the corporation's management team concluded that the noise was coming from the unit's heat pump. The heat pumps are an owner's responsibility according to the corporation’s Declaration.
Shortly after this inspection, the corporation's engineers (WSP Canada) provided Ms. Jones with a proposal provide a report on the noises, and WSP noted its opinion being that the noises were from adjacent units. The corporation declined to pay for the WSP proposal, as they did not find the noise to be excessive.
In May, 2019, Ms. Jones hired the engineering team at J.E. Coulter & Associates Limited (“Coulter”) independently to generate a noise report which demonstrated there was, in fact, excessive noise from the neighbouring unit's heat pumps as per the American Society for Heating Refrigeration and Air Conditioning Engineers (“ASHRAE”). The acceptable noise level is 35dB whereas they recorded a level of 45dB.
The corporation hired Merit Building Solution Inc. (“Merit”) to investigate. Merit opined that the noise was normal, but did not do noise level testing. Options for installing insulation, as suggested by Coulter, to reduce the noise were extremely limited by the heat pump design.
After the Corporation agreed to do its own acoustical testing in 2020, COVID hit and the testing was postponed, indefinitely, it would seem.
Five months after Ms. Jones declined access to the unit due to the Pandemic, the corporation received a message from her solicitor following up on scheduling for the acoustical testing. But, the corporation failed to schedule the test, but the manager did personally inspect the surrounding units and started they did not have excessively noisy heat pumps. Management was refused entry to Ms. Jones' unit for this inspection.
In September 2022, the corporation hired Arbitech to conduct sound level test in the unit. Arbitech also consulted with Coulter who provided a second report which found that the noise level had been reduced to acceptable levels.
Ms. Jones stated that the noise continued to disturb her 'peaceful enjoyment' despite the findings in the secondary report.
DECISIONS
1. The noise level is now acceptable as demonstrated by the evidence in the secondary report.
2. The Corporation failed to discharge their obligation pursuant to section 17(3) to ensure that neighbouring unit owners take necessary steps to comply with the Act, and TSCC 2017’s rules. However, as the neighbouring unit owners appear to have rectified the Noise Nuisance issue, the Corporation was not required to take any further steps in this regard.
3. Ms. Jones entitled to compensation, and/or costs?
Ms. Jones requested $25,000 in general damages on the basis that the Corporation had interfered with her use and enjoyment of the Unit from the period of January 4, 2019 up to and including September 6, 2022 (the date the tests for the Second Coulter Report were conducted).
The CAT awarded Ms. Jones:
$1,400 for the acoustical testing,
$200 in CAT fees, and
$500 in legal expenses, because the CAT found that the corporation neglected to investigate the noise complaint effectively, even though neighbouring units appeared to have taken corrective action.
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