And it begins…The first CAT Decisions on Noise

The Condominium Authority Tribunal (CAT) was given jurisdiction over certain prescribed nuisances, including noise, vibration, smoke, and odour. We have been waiting patiently for the first few cases to be released so we can see how the CAT resolves these mattes. Well, the wait is over. We discuss three cases in this post.

In the first case, an owner commenced an application against another owner regarding noise from a piano. The responding owner made a motion to dismiss the application as it was frivolous or vexatious or not initiated in good faith or disclosed no reasonable cause of action. The condominium did not respond to the motion despite being an intervenor to the application.  The CAT refused to dismiss the application as it was not a minor issue. The CAT member felt there was a dispute between the two owners that fell within the jurisdiction of the CAT and the owners had not been able to resolve it on their own. The CAT reminded the parties of the “important roll that condominium corporations can and should play in helping neighbours resolve their disputes.”

In the second case, an owner commenced an application against the condominium for failing to enforce its noise rules against the owner of the unit above hers. The condominium brought a motion to add the owner of the unit above as a respondent to the application. The CAT member felt the application was mainly about the condominium’s rule about flooring, but added the owner from the unit above as an intervenor because an order requiring the condominium to enforce the rule has the potential to impact the owner of the unit above.

These first two cases suggest that where there is an allegation that the noise is caused by another owner (as opposed to a building issue, for example) it is appropriate to add that owner as a party to the application or at least an intervenor to the case, depending on the specific relief sought.

In the next case, the condominium commenced an application against an owner who was making excessive noise that was disturbing other residents. The condominium requested an order that the owner comply with noise rules and indemnify it for its legal costs. The condominium also requested an order that if the owner continued to violate the rules the condominium would be at liberty to give notice requiring the owner to soundproof his and neighbouring units. The owner did not participate in the third stage of the process, despite several notices from the CAT.

The condominium provided the following evidence in support of its application: 1) 94 security incident reports between August 2019 and March 2022 with reports of loud music coming from the owner’s unit; and 2) emails from owners reporting noise. In addition, the condominium’s managers sent 4 letters in about 18 months, followed by four more from the condominium’s lawyers between October 2019 and February 2021. There was no reference to other evidence, like acoustical testing or recordings.

The CAT member found that the owner failed to comply with the condominium’s noise rules as well as subsection 117(1) of the Condominium Act, 1998, which prohibits unreasonable noise that is a nuisance, annoyance, or disruption to an individual. The owner was ordered to comply and keep noise to a reasonable level, but the CAT member was not prepared to make the order requested by the condominium that would permit it to send the owner notice and require him to soundproof his unit and neighbouring units. The CAT warned the owner that if further legal proceedings were required such an order would be on the table.

The CAT member ordered the owner to pay $9,848.51 of legal costs to the condominium in accordance with the indemnification clause in the condominium’s declaration and the CAT’s Rules because the owner refused to participate in the process and continued to create excessive noise despite several notices from the condominium.

This case suggests that the CAT will accept evidence from the condominium that demonstrates that noise reports have been made (i.e. reports, emails, noise log) and will not require independent acoustical testing to confirm the noise is an unreasonable nuisance, annoyance, or disruption. This is great news given the cost of acoustical testing. Acoustical testing or other independent assessments may be required in some cases, such as where the owner disputes that they are the source of the noise, but the condominium ought to be able to seek the costs of the acoustical testing from the owner as damages if successful in its application.

Stay tuned for more CAT decisions as they are released!