Noise complaints are common in multi-residential settings and have been the subject of numerous cases before the Condominium Authority Tribunal (CAT). Some have noted an increase in such complaints in recent years due in part to the Pandemic and residents spending more time at home, as well as an influx of unit owners who may be new to living in a condo setting. Regardless of the cause, condo boards, managers, and owners have struggled to balance the realities of condo life with expectations and rights of quite enjoyment.
In the CAT's 171st case of 2023, Park v. Toronto Standard Condominium Corporation No. 2775, and the decision rendered by CAT Member Brian Cook provides instructive guidance on how condo communities can weigh the competing rights of owners when it comes to noise.
In this case, the unit owner (Park) purchased a unit above the condo's gym in
March 2022, and began submitting complaints about the noise from the gym shortly thereafter. Within a year of moving in, Park had sent about 50 messages to security and 28 emails to the board complaining of the noises. The owner had also engaged an engineer to investigate and report on the noise, ultimately culminating in their CAT Application in May 2023.
TSCC 2775 had been responsive to the complaints and engaged in the following to mitigate the noise coming from the Gym:
· Security responding to complaints in real-time to warn the party creating the noise.
· Installing security cameras in the gym.
· Spending significant time reviewing footage to try to locate those dropping weights.
· Circulating notices to the community regarding the issue and requesting cooperation in prevention.
· Closing the gym nightly at 9pm.
· Posted notices in the gym.
· Hired WSP Engineering to conduct an inspection of the noise issue and provide a report.
The reports of the engineers hired by Park and TSCC 2775 respectively, largely agreed that the noises experienced by the unit owner were disruptive, and CAT Member Cook took this opportunity to provide a detailed explanation of how the validity of a noise complaint can bee verified objectively.
In his Decision, Cook provides a description of how to interpret the findings contained in such audio-engineering reports. He begins by providing a description of the decibel scale noting its logarithmic nature.
"To understand the decibel readings in this case, it is necessary to appreciate that the decibel scale is logarithmic rather than linear. On a linear scale, 60dB would be twice as loud as 30dB. On the logarithmic decibel scale, 60dB is 100 times more intense than 30dB although this does not translate directly to the loudness of the noise as registered by the human ear."
Member Cook goes on to explain the standards by which the disruptive nature of a noise can be objectively determined. It is noted that "obtrusive noise" is that which exceeds the ambient sounds in a home, and that the reasonable ambient sounds are typically considered to be 35 becibels or less. The following "qualitative rating" chart was provided to further explain the perceived impact of various levels of obtrusive noise.
Sound level increase dB - Qualitative rating
The noise levels in Park's unit resulting from various activities in the gym were tested by the engineers and some were found to surpass the threshold for "very significant", or more than 10 dB over the ambient sound level in the room.
With regards to the frequency with which the noises from the gym occur, the CAT Member wrote:
"Assuming for the purpose of this analysis that people who drop barbells are doing so accidentally, this activity would more probably than not happen only occasionally. I find that the issue of gym users dropping barbells has not been resolved by signage and the general communications to residents that have been sent out. I find that it is more probable than not that Mr. Park hears noise from barbells being dropped on an occasional and irregular basis but not something that happens daily. However, this noise is “very significant” on the qualitative scale noted above." Cook goes on to say: " I accept that the fact that the noises are random and unexpected makes the noise more disruptive. For example, a person living on a street with streetcars will be disrupted by the noise of a streetcar passing by. However, that noise will be anticipated and becomes louder as the streetcar comes closer. The noise from the gym, especially noise from dropping barbells is sudden, impact noise. That sort of noise is more disruptive because it cannot be anticipated."
A takeaway from this could be that noises which are regular in nature, may be considered less obtrusive than those which occur more randomly.
It was acknowledged that there is an element of "buyer beware" as Park had purchased a unit directly above the gym. TSCC 2775 cites Wong v. TSCC NO. 1918, 2022 ONSC 3409 (“Wong”) which notes
“[e]xpectations of privacy and quiet may also be diminished somewhat due to the nature of apartment living in which some noise from neighbours must be expected and tolerated”. The citation continues: "I agree with the Corporation’s submission that the present situation is analogous, and it ought to have been within the reasonable expectations of Wong to experience some enhanced noise and vibrations during waking hours due to having purchased a unit whose demising wall is shared with the garbage room."
In response, Member Cook noted
"The legal issues in Wong were different than those in this case. However, the decision suggests that while the owner ought to have anticipated some degree of noise because of the location of her unit, the condominium corporation nevertheless has a responsibility to investigate concerns and participate in finding solutions and that this is to be done in a timely fashion."
Finally, the decision considers whether the complaints and the responses to them have been "reasonable". The most subjective part of all CAT decisions inevitably results form their unique interpretations of this term. Here, Cook notes that section 117(2) of the Act establishes a two-part test for determining if a nuisance is unreasonable in noise cases.
First, the subjective experience of the person complaining of the noise and whether the person experiences the noise as a nuisance, annoyance, or disruption. This part of determining if the noise is unreasonable is somewhat moot. As stated in the decision
“for a person who is experiencing noise that results in nuisance, annoyance, or disruption, it could seem that the noise must be unreasonable, almost by definition – it is unreasonable for them to experience a nuisance, annoyance, or disruption.”
The second part of the test is whether the noise and the nuisance are objectively “unreasonable”. Cook relies on the engineers’ reports to conclude that the noise experienced by Park was, in fact, unreasonable, as they confirm the noise levels exceed what is typically considered reasonable.
Another consideration noted in determining if a nuisance is unreasonable, is the reasonableness of the solutions that could be applied to remedy or mitigate the source of the noise. This tertiary and subjective valuation of reasonableness upon which it appears this decision largely depends, appears to be quite arbitrary. For example, the CAT Member says that closing the gym completely or spending a significant amount of money to make alterations that might be considered unreasonable because the rest of the condo community would, in effect, be paying for the benefit of Park alone. To this point, Cook noted that “there may be low-cost solutions that have not been explored, such as adding padding to equipment”. While engineering reports about such noise concerns typically include potential mitigation measures that could be employed, such recommendations were not expanded upon in this decision and the CAT made gave TSCC 2775 no clear direction on what exactly was expected of the corporation in this respect or what a “reasonable” cost for such interventions would be.
In the end, the CAT ordered that TSCC 2772 pay Park $200 for the Tribunal fees, and they must advise Mr. Park in writing, within 30 days, about the steps it will take to mitigate the gym noises experienced in the unit.
While this decision provides a significant amount of insight into what the CAT will consider to be unreasonable noise, it fails to provide objective measures by which a condo corporation’s response to noise complaints may be deemed to be reasonable. In this case, it is apparent that the community had already invested considerable resources into trying to mitigate the noise for the unit owner, however, the CAT determined that these efforts were not sufficient based on its subjective interpretation of what a reasonable response would be. Would $5,000 or $30,000 in new gym flooring be enough to satisfy the CAT that reasonable efforts had been made to mitigate this noise, or would it still find the community needed to spend more in order to appease one unit owner who purchased a unit above the gym? In the absence of providing definitive measures in this respect, condo corporations are left guessing if they have done enough.
Well done!