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| Ray Mikkola |
In Wong v. Toronto Standard Condominium Corp. No. 1918 2022 ONSC 3409, Fung-Ling Wong complained over a period of 10 to 11 years about noise and vibrations in her ground floor unit arising from a garbage chute and a trash compactor in the common elements garbage room located beside her unit, sharing a demising wall with her primary bedroom. The property manager agreed that the noise in her unit from these sources was “unbearable,” after two years of Wong’s complaints.
At different points of time during this period, the condominium corporation responded slowly, in a few ways, including making repairs to the compactor and posting a notice that the garbage chute was not to be used overnight. The board also authorized certain work to be done. Wong complained that the noise and vibration issue had not been resolved to her satisfaction. Although Wong was satisfied with the efforts of the condominium corporation regarding limiting garbage chute hours of use, the ongoing noise had a more direct and negative impact on her unit once she began to work from home.
The condominium corporation hired an engineer, who identified the source of the noise as coming both from the vibrations of the compactor and the noise of falling garbage through the chute located above her primary bedroom. The engineer recommended installing cement blocks in the garbage room to mitigate the noise and vibration. The condominium corporation took certain further steps to reduce the sound of the compactor.
In response to Wong‘s continuing complaints, as she alleged that the measures taken did not do enough to remedy the issue, the corporation asked Wong to locate a soundproofing company on behalf of the condominium corporation to undertake a study. Wong did so, and the manager retained that company. The company recommended certain improvements to the demising wall separating the unit from the garbage room and further recommended that the compactor and chute installation should be remounted to reduce noise.
The board then informed Wong that the corporation’s lawyers advised that the soundproofing company’s recommendation should be peer-reviewed. The peer review was critical of the soundproofing company’s recommendations, and it concluded that the recommended work should not be undertaken.
This resulted in a paralysis at the board as to what to do with Wong’s complaints, although the board undertook noise testing which confirmed that the “large noise” in Wong’s unit did indeed come from the garbage system. The board enacted a policy prohibiting certain objects from being thrown down the garbage chute.
Two years after the initial report, a new noise consultant retained by the board recommended various work, including locating the source of the noise and installing absorption and noise blocking barriers in the walls and ceiling of certain rooms within Wong’s unit.
Wong did not agree and preferred the recommendations of the initial soundproofing company. Wong retained a lawyer, who brought an application to court for relief, including damages, under the oppression remedy provisions of the Condominium Act.
The court held as follows (square brackets indicate the relevant paragraphs of the decision):
1. The condominium corporation is generally responsible for the maintenance, repair, operation, and upkeep of the common elements, as set out in ss. 89 and 90 of the Act, and the relevant provisions of the condominium’s declaration.
2. In determining whether a condominium corporation has discharged its responsibilities, the court must apply a “fact specific test of reasonableness.” This test must be used to consider all pertinent factors to achieve a fair and equitable result, having regard to [51]:
(a) The relationship of the parties, including a history of complaints by the owner;
(b)The contractual obligation of the parties;
(c) The cost and work required ; and
(d) The benefit to all parties, if the repairs are affected, compared to the detriment which may be occasioned by the failure to undertake them.
(b)The contractual obligation of the parties;
(c) The cost and work required ; and
(d) The benefit to all parties, if the repairs are affected, compared to the detriment which may be occasioned by the failure to undertake them.
3. Wong had the burden to prove that the condominium corporation had breached its statutory duty to repair the common element garbage system contrary to Wong’s reasonable expectations, and that such breach was occasioned by the impugned conduct (or lack thereof) of the board, which conduct constitutes oppression, unfair prejudice, or an unfair disregard of the unit owner’s rights [70, 78].
4. Some prejudice or disregard to a unit owner’s complaints by a board may be acceptable, provided that such disregard must not be “unfair” [67]. In this case, the court found that the condominium corporation’s steps to address the complaints were “inadequate“ and “piecemeal.” The length of time the corporation took to act appeared to be a major factor that affected the court’s decision.
5. The remedial steps that were taken by the corporation led to the “inference that the corporation has acknowledged that the noise and vibrations emanating from the garbage room both triggered a duty to repair the common elements” [64,71,74].
6. A unit owner has an entitlement to quiet enjoyment of the unit which is a unit owner’s reasonable expectation. Wong’s entitlement was not lost by her knowledge of the location of the garbage room in relation to her unit when she purchased it [71].
7. While it was reasonable for the condominium corporation to have the initial report peer-reviewed, and to accept or reject the initial report based on the peer review, what stood out for the court was that the “singular issue” had been outstanding “for the better part of 10 to 11 years.” The court found this to be “an inexcusable length of time” and that the “corporation or its agents” are responsible for “unacceptable gaps in time between the corporation’s responses” [80].
The court was critical of the condominium corporation’s position that no further remediation work would take place “unless and until Wong rescinded this application,” and held that the lack of timeliness and ceasing the remedial work following the issuance of the application prove that the condominium corporation was in breach of s.135 of the Act. The court ordered damages of $30,000 to Wong for “interference with the use and enjoyment of her unit” and required the condominium corporation to proceed with the noise blocking barriers to Wong’s bathroom, hallway, and master bedroom walls, and ceilings, and further directed Wong to co-operate in providing access to her unit for that purpose.
This case demonstrates the difficult task of condominium boards when faced with a noise complaint which emanates from the common elements. The obligation of the board to cause the condominium corporation to remedy the matter is not absolute, but a board will be held to have failed in its duty based on inaction (or a piecemeal or inadequate approach to solving the problem).
A board must show a level of diligence and good faith in order to discharge its obligation to maintain, repair and operate the common elements. Of course, the board should recognize that the owner cannot unilaterally undertake the necessary work on the common elements and must therefore rely on the diligence and good faith of the board to resolve the problem. The court itself acknowledged that the board must balance the interests of an individual unit owner with the interests of the collective group of unit owners, and it has a duty to consider both when acting.
But the owner must also realize that the condominium corporation did not construct the building or, usually, cause the problem. The tests to apply as to whether the corporation must remedy the complaint and the manner in which the complaint is remedied include the entitlement of the board to balance the costs of doing so against the inconvenience caused to the owner arising from the complaint, which must mean that there are complaints which the board is not required to resolve [67-70]. The key is to determine if the unit owner’s expectations are objectively reasonable [52], and if so, the overarching indicia regarding when a board has acted reasonably appear to be the length of time taken to address the complaint, the steps actually taken to resolve or to try to resolve the problem, and the absence of the use of objectionable leverage to put the board in a better position at the expense of the unit owner (such as requiring Wong to rescind her application in order for the board to act).
The court in Wong also held that the steps taken by the condominium corporation to remedy the default are themselves evidence that the duty had been triggered. This may result in a board’s unwillingness to take meaningful steps to address a complaint (perhaps at least not without advising the unit owner that any such steps are taken expressly without it acknowledging any duty).
Of course, too high a standard imposed on the board to address every complaint raised by an unhappy owner could make condominium living extraordinarily expensive for all owners, given that typically common expenses payments are the sole source of money available to a board [72].
No bright line rules exist that provide a clear guide the board for every occasion, and what is appropriate action by the board faced with a complaint will depend on the particular facts of each situation. Importantly, noise and vibration complaints are now within the matters authorized to be resolved by the Condominium Authority of Ontario, which may hopefully make the resolution of such disputes less expensive.
Ray Mikkola is a partner with the firm of Pallett Valo LLP. The author thanks Ann Twigg for her assistance with this article.
Photo credit / swasdee ISTOCKPHOTO.COM
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