by: Michelle Kelly -
An owner complains about noise from her neighbour’s balcony late at night and asks the condominium to prohibit the neighbour from talking on the balcony after 11 p.m. The condominium does not have a rule prohibiting residents from talking on their balconies at night, but has a rule prohibiting noise that disturbs the other residents.
With more of us staying at home these days this is bound to be a common problem, especially once the warmer weather comes. What should the condominium do when faced with these sorts of complaints? Should the condominium send demand letters to the neighbour? Start a court application? Should the condominium pass a rule prohibiting these late night discussions on the balconies? Fortunately, a recently reported case gives us some guidance.
For years, an owner complained of noise from her neighbour. Most of the complaints related to loud conversations on the balcony late at night. Other times loud music and conversations that could be heard through the walls of her unit. The owner said that she found it difficult to work or sleep because of the noise and has developed anxiety over the problem. For over 8 years she complained to the condominium about the noise. The owner would call security to break up late night parties and other disturbances, which would temporarily address the problem. The owner asked the condominium to prohibit the neighbour from having loud conversations on the balcony after 11 p.m. The condominium declined to do so, telling the owner that she should keep her balcony door closed or speak to the neighbour directly. The condominium offered to send a letter to the neighbour if the owner would pay for it.
For unknown reasons, the complaints stopped for two years. The owner began to complain again in 2016, three years after the last demand letter was sent to the neighbours. A new demand letter was sent and there were no more complaints for the remainder of the year or the following year.
In 2018, the noise complaints started again. The noise was verified by security and confirmed by other neighbours. The owner expressed concern about being intimidated by the neighbour when she tried to address the issue directly. Another demand letter was sent to the noisy neighbour.
The parties agreed to mediation, but it was ultimately unsuccessful. Frustrated by the lack of progress, the owner’s lawyer wrote to the condominium’s lawyer with an ultimatum – commence an application or arbitration against the noisy neighbour or the owner would commence an oppression application against the condominium. Two weeks later the condominium’s lawyer replied indicating that it had reached an agreement with the neighbour that would resolve matters. The condominium refused to disclose the terms to the owner claiming they were privileged. The owner commenced the court application for oppression against the condominium the next day.
The condominium later advised the owner of two of the terms of the agreement (the neighbour would not wear hard-soled shoes inside the unit and not have loud conversations on the balcony after 11 pm), but refused to disclose the rest of the terms.
At the hearing, the condominium took the position that it acted reasonably in response to the complaints, reducing the noise from the neighbours, and the owner must expect some degree of noise from the neighbours. The owner argued that the condominium had acted oppressively towards her by unfairly disregarding her interests over the interests of her neighbour.
The court found that the owner had “no doubt…been subjected to loud noise from her neighbours…who appear to show a lack of consideration for [the owner’s] right to have a quiet home, particularly during the night.” The question for the court was whether the condominium had acted oppressively in responding to her complaints, and if so, what was the appropriate remedy?
The court reviewed section 135 of the Condominium Act, 1998, which prohibits conduct that is “oppressive”, “unfairly prejudicial”, or “unfairly disregards” the interests of the applicant. The court also reviewed the relevant cases defining these terms and the factors to be considered in assessing a claim under section 135.
 More recently, in 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, at paras. 51 – 53, the Court of Appeal has confirmed that deference must be shown to boards of condominium corporations: “As representatives elected by the unit owners, the directors of these corporations are better placed to make judgments about their interests and to balance the competing interests engaged than are the courts.” Consequently, “courts should be careful not to usurp the functions of the boards of condominium corporations” and therefore “[t]he question in such circumstances is not whether a reviewing court would have reached the same decision as the board. Rather, it is whether the board reached a decision that was within a range of reasonable choices. If it did, then it cannot be said to have unfairly disregarded the interests of a complainant.” [emphasis added]  In Lyn, after quoting from Ramadani, Stinson J. stated, at para. 33, that “[t]he enforcement of a rule regulating noise and nuisance will be properly exercised where the corporation holds the opinion that an owner or occupant is creating, or permitting the creation, of a noise which may or does disturb the comfort of others, and that opinion is reasonably held.” The same must be true where a corporation has decided, as here, that some noise must be tolerated by residents.
The court said “no one is free of blame”. The neighbour was inconsiderate in making too much noise. The owner was aggressive and hostile toward the condominium’s staff and directors. She was entrenched in her position that there should be no talking on the balconies after 11 p.m and unwilling to accept other perspectives. There was no evidence of steps she had taken to mitigate the disturbances, such as wearing earplugs or acquiring a device, such as a humidifier or other item, to cover the noise.
The court found that, prior to 2018, the condominium should have done more to enforce against the noisy neighbour, such as “putting economic pressure on the neighbour for her to behave more appropriately late at night, such as by charging her for the condominium’s legal fees associated with the complaints.” (Note: this is normally a very effective way to obtain compliance, but requires proper indemnification provisions in the Declaration). However, the court was satisfied that the condominium had not unfairly disregarded her interests because it responded quickly to the complaints and there were long gaps in time during which there were no complaints.
The court found that the condominium should have disclosed the terms of the agreement with the neighbour earlier than during the hearing of the application and only on the urging of the court. The terms of the agreement included much of the relief sought by the owner and could have resolved the matter without the application.
In the end, the court dismissed the owner’s application as it was not satisfied that the condominium acted oppressively toward her. Before inviting the parties to make submissions on costs, the court stated:
 Although this application is dismissed, I have stated my concern that the respondent ought to have done more in earlier years. In addition, had the terms of the settlement agreement been disclosed by the respondent in July 2019 and the parties then focused on its enforcement, this application might have been avoided.
In my opinion, these final remarks are a suggestion to the parties that the judge may choose not to award costs to the condominium, despite its success in having the application dismissed. In reading the decision it was clear that the court was not pleased with the condominium’s refusal to disclose the terms of the agreement to the owner. It isn’t addressed in the decision, but I wonder if there was a confidentiality clause that prevented the condominium from disclosing the terms as these sorts of settlements normally include confidentiality clauses.
This case serves as a reminder for all parties involved to be reasonable. The neighbour ought to have been more considerate of the owner, especially at night. The owner ought to have been less aggressive and hostile toward the staff and directors. The condominium ought to applied more pressure to the neighbour to be considerate of the owner. As the court stated, no one was free of blame.
As far as the questions posed at the beginning of this post, it seems reasonable for a condominium to, at a minimum, send demand letters to the neighbour and charge those costs to the neighbour (if the condominium has adequate indemnification clauses in the declaration). Mediation, arbitration, or court would be reasonable next steps if the complaints continue. Could the condominium prohibit talking on the balconies after 11 p.m.? Like the condominium in this case, I’m not sure an outright prohibition on talking would be reasonable. Restricting loud conversations late at night seems reasonable as it would balance the competing interests of those trying to sleep and those wishing to use their balconies at night for normal conversations.
Lastly, I find it interesting that the owner did not bring the application also against the neighbour seeking compliance if she felt the noise was ongoing and violated the rules. The condominium similarly could have filed an application against the neighbour and requested that it be heard in conjunction with the oppression application. If the noisy neighbour was a party to the applications the owner and condominium could have then sought costs from the neighbour. It only seems fair that the person responsible for the dispute be responsible for a portion of the costs. That said, there could be reasons the neighbour was not included, such as the terms of the settlement agreement.
The case is available on CanLii if you would like to read it. You can find it here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1262/2020onsc1262.pdf