On February 3rd, the CAT Member, Patricia McQuaid rendered a decision in the Tribunal's 17th case this year.
Toronto Standard Condominium Corporation No. 2048 v. Mortazavi appears to be another #CATcase of an ongoing, prolonged and embittered intracommunal relationship that has progressed to the point where at least one party has been actively, intentionally engaging in malicious behaviour.
In this case, the evidence indicated the #condoowner causing a noise issue had been doing so, intentionally, and may have been making this noise almost 3 years.
The CAT Member described the evidence from other members of the community as follows.
"Some residents described the noise as a banging noise, like the sound from hitting a metal pipe; others described it as a ‘tapping’ noise. Their evidence was consistent in that the noise is sporadic, occurring between 9 or 10 pm and midnight, lasting between 15-30 seconds, and that the noise is disruptive and diminishes their quiet enjoyment of their homes. Several residents made recordings of the sound, which were submitted as evidence in this hearing. They described the anxiety caused by the anticipation of the noise in the evenings and loss of sleep."
In due diligence, the corporation performed a detailed noise analysis by a professional engineering firm at an expense of $14,175.67. The investigation concluded that “the only possible source of noise which could produce the results, as measured over the course of several weeks, is unusual and deliberate human activities conducted within the kitchen/bathroom of [the owner/Respondent’s unit]”.
During an inspection of the owner's unit, it was also discovered that the pipes under a bathroom sink were damaged, and appeared to have been struck repeatedly by a hammer and other tools located under the sink.
It was noted that the corporation had written to the owner demanding the $14,175.67 cost of the engineer's noise inspection be reimbursed to the corporation, but it does not mention if those costs were recovered, and these costs were not considered in this case.
What was considered was the $22,196.00 in legal fees sought by the corporation to gain compliance from the owner via this CAT hearing.
Despite the weight of the evidence, the delays in the case, the refusal on the part of the respondent to participate in the hearing, and the malicious nature of the rule/declaration violations, the CAT Member awarded just 22% of the legal fees born by this condo community.
In noting the reason for this $5,000 judgement, the CAT Member reminded the corporation that "enforcing compliance – which includes, at times, litigating – is part of “doing business” for a condominium corporation. Not all issues of non-compliance will or should result in a condominium being awarded the full or even partial legal costs associated with enforcing their rules. This is the kind of activity for which unit owners contribute to the common expenses."
Sadly, it was noted that there are other ongoing legal cases between these parties, and it is not likely that this CAT decision will bring long-term peace to the community affected.
To read this interesting CAT decision, please follow the link below.