Owners Bear the Burden of Proving that Remedial Work Undertaken by Condominium Corporation is Inadequate

In a recent Superior Court of Justice decision, Wong v Toronto Standard Condominium Corp. No. 1918 (“Wong”), the Court held that owners bear the burden of proving that remedial work undertaken (or proposed to be undertaken) by a condominium corporation in response to a noise complaint is inadequate. Specifically, the owner must furnish expert evidence to prove that the corporation’s remedial work is inadequate such that the owner’s right to quiet enjoyment and/or the corporation's duty to repair the common elements or the unit (if required by the corporation’s governing documents) has been breached. This article first provides a brief summary of the Court’s decision in Wong. Keep reading for helpful tips on addressing noise complaints made by owners as well as further information on the extent of a corporation’s responsibilities to address noise complaints under the Condominium Act, 1998 (“Act”).

Summary of the Wong Decision

In Wong, the owner’s unit was located next door to the garbage room and, as a result, the owner experienced loud noises and vibrations in her unit due to the garbage compactor and the day-to-day functioning of the garbage system. The owner made her first noise complaint to the condominium corporation in 2010. Reports from professionals were obtained by the condominium corporation beginning in 2018, most of which reported on the inspections of noise levels in the unit and the garbage room and one of which conducted a peer review of a report obtained by the owner’s professional. The condominium corporation also conducted some remedial work to the garbage room and took other measures, such as sending notices to residents advising them not to use the garbage chute overnight. 

However, and importantly, the noise persisted and the condominium corporation did not conduct further remedial work to the unit and refused to conduct any work (as recommended by its professional) after the owner commenced the legal proceeding. The Court found that, notwithstanding the owner’s burden to furnish expert evidence to prove that the condominium corporation’s proposed remedial work will be inadequate, the reports obtained by the corporation were admissible (a) in showing the steps that were taken by each party in relation to the noise issue; (b) to inform the Court on the respective party’s states of knowledge; and (c) to assess the responses of the corporation as well as the owner’s reasonable expectations. 

The Court held that the condominium corporation’s failure to adequately address the owner’s complaints, particularly its refusal to conduct remedial work after the legal proceeding was commenced, unfairly disregarded the owner’s interests and constituted oppressive conduct pursuant to section 135 of the Act. In addition to paying damages in the amount of $30,000.00, the Court ordered the condominium corporation to complete the remedial work to the unit as recommended by its professional in its most recent report.

Condominium Corporation’s Responsibilities to Address Noise Complaints

Anytime a condominium corporation receives a complaint of excessive noise, the corporation has a duty under the Actto investigate the complaint to determine whether (a) the excessive noise can be verified, and (b) the noise is excessive and unreasonable. The noise emanating from a unit must be unreasonable in order to have grounds to require compliance by, and enforce compliance against, an owner of a unit that causes the excessive noise. A determination of whether or not the noise is unreasonable cannot be made without investigation. If the appropriate investigation is not undertaken and it is later proven that the affected resident has been unreasonably affected, then the condominium corporation may be found to have breached its duties under the Act. If investigations are made by the condominium corporation’s professionals, e.g. acoustic assessments, the corporation generally cannot charge back costs associated with such investigations. Reports produced by professionals should provide the condominium corporation with recommendations (as necessary) to address the noise issue.

Helpful Tips on Addressing Noise Complaints Made by Owners

Owners must be advised to make their complaints to property management as soon as the incident of excessive noise takes place or is observed. Ideally, complaints by owners should be made contemporaneous to the incident. Upon receipt of a complaint, property management, and/or security guards, and/or appropriate corporation staff must attend to the subject unit and independently verify the complaint. A contemporaneous written report (i.e. incident report) should be produced setting out the result of the independent investigation. Incident reports should include the following information, at minimum:

• The date of the complaint and investigation;
• The name of the resident who reported the complaint;
• Whether the complaint was verified by security or management at the time the complaint was made;
• The name of the security or management personnel who verified the complaint; and
• The actions taken by security or management personnel to address the complaint. 

Other helpful tips:

• Detailed Post Orders should be provided to security guards to clearly describe the protocols that the guards must take, contemporaneously, when a noise complaint is made to property management. The protocols should involve the production of a written incident report;
• After investigating the noise complaints, the condominium corporation may take the position that noise levels are within a reasonable standard. In these circumstances, no further action may be required and the owners may be advised accordingly;
• The condominium corporation can implement rules to address certain issues related to noise, such as only permitting the use of garbage chutes, etc. during the daytime;
• The condominium corporation should promptly deliver the appropriate letters to non-compliant units setting out any noise rules in the corporation’s governing documents and requesting compliance;
• Check the condominium corporation’s governing documents to determine whether the owner or the corporation is responsible to conduct any remedial work in the unit to address the noise issue, e.g. repairs to the HVAC system;
• The condominium corporation may deliver general notices to residents to remind them of their obligation to not interfere with the use and enjoyment of the common elements and the units by other residents; and
• In some circumstances, the condominium corporation may elect to place security guards, cost permitting, in the hallway of the non-compliant unit to help enforce the corporation’s rules and otherwise evaluate and control any excessive noise emanating from the unit. 

Please note that the information provided in this article does not constitute legal advice and you should always consult with your legal counsel for circumstance-specific legal advice.