Condo Life Part II – Headache Free Living or NOT?

Posted on: Tuesday, July 16th, 2013

In a recent decision out of the Ontario Superior Court of Justice, a condominium unit owner was awarded the sum of $59,825.78 to be paid by the condominium corporation as a result of their failure to satisfy their duty to ensure that unit owners complied with the by-laws and rules. The decision, Dyke v. Metropolitan Toronto Condo. Corp. No 972, was released on January 18, 2013 and shed light on the fact that condominium corporations are responsible for taking the necessary steps to ensure that rules are enforced in a balanced way so that all owners/tenants are able to enjoy their respective units.

In this particular case, the Applicant (Elizabeth Dyke) had lived in her unit since 1994 and up until 2007, experienced no issues in relation to noise. In 2007, the owners of the unit above her replaced the carpeted flooring with hardwood flooring (resulting in more noise) and subsequently sold the unit to new owners in 2010. One of the new owners was a “professional dancer” and explained to the Applicant that she would be using her residence as a “dance practice area”. On a number of occasions the Applicant called the new owners to ask them to minimize the noise, however, the noise just continued to escalate.

By the summer of 2011, the Applicant was informed that the unit above her was being used as a full time dance studio. As a result, she reported this as a nuisance to the police and began complaining about excessive noise to the Respondents (Metropolitan Toronto Condo. Corp No. 972) property management office.  No action was taken at this time so the Applicant continued to complain to the management and/or security desk. There are numerous security reports confirming the excessive noise emanating from the unit above her and describing it as “similar to the constant banging of a hammer.”

Despite the fact that the residential condominium had been turned into a professional dance studio the owners were never sent a letter from the property manager requesting that they cease making excessive noise. In fact, it was the Applicant who began receiving letters from the property management requesting that she remove her two small dogs from the building, and that she must cease to continue her small law practice within the unit that she had been operating for the past 17 years. The only letter the Applicant received in relation to the noise issue was as a result of a letter she sent to the unit owners above her stating that she would be holding the Respondent legally responsible. The Respondent then replied in a letter indicating that they “had been unable to independently verify the intensity of the disturbing noise” even though security personnel had verified this on several occasions.

Due to the “detrimental health effects from the noise and related stress” the Applicant testified that she was forced to move out of her condo in December 2011. The Applicant requested an order from the Court that the Respondent be required to enforce its by-laws and regulations and also sought out an award of special damages to compensate for the costs that she had incurred associated with moving out and arranging alternative accommodation.

To determine the duty that the Respondent owed to the Applicant the Court looked at the Rules of the Respondent as well as Section 17(3) of the Condominium Act, 1998, S.O. 1998, c. 19. This section of the Act pertains to “ensuring compliance” and reads as follows:

The corporation has a duty to take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.

The Court did not believe that the Respondent had satisfied this duty and stated that the Respondent had “acted in unfair disregard of the Applicant’s interests”. As a result, the Court ordered the Respondent to pay special damages to the Applicant for the costs associated with moving, a total of $40,325.78, as well as costs associated with the Application which amounted to $19,500.00 including disbursements and HST.

The Respondent also submitted a claim requesting further compensation for “pain and suffering, mental anguish and distress, loss of income and loss of comfort and quiet enjoyment”. However, the Court decided to defer this claim to a later hearing date which will be scheduled with the court.

The full decision can be accessed at the following link http://canlii.ca/t/fvsg1

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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