Owner’s Complaints Cannot Be Ignored

Sometimes there are well reasoned decisions from other Canadian jurisdictions with which boards of directors and lawyers in Ontario should be familiar. A recent case from Alberta is one of those.

The problems of noise in condominium buildings are not just that which arises between residents in units, sometimes it arises from common element areas and this article is intended to give boards direction on their obligations when owners complain of noise emanating from the common elements.

In this case a unit owner (Aubin) claimed that the wall between the common property social lounge used by all the unit owners and their guests and Aubin’s condominium unit did not adequately prevent or limit the transfer of noise from the lounge to her unit and the board had failed to take appropriate steps to correct the problem.  

Aubin’s ground floor condominium unit was the only one beside the lounge and her bedroom was adjacent to the lounge wall. Aubin raised concerns about what she considered inordinate noise levels with the board of the condominium corporation over a 10-year period.

The board considered the wall in question to be in a state of good and serviceable repair; noted that it had “taken significant steps” to reduce the noise level in the lounge; conveyed its understanding that the wall in question was built to the original construction specifications; claimed that Aubin’s request to resolve the noise issue would require a special resolution of the condominium unit owners; and contended that Aubin’s claim was “limitation barred.” Aubin sought a declaration that the condominium corporation had engaged in “improper conduct” under s. 67 of the Condominium Property Act, R.S.A. 2000, c. C-22 (the “Act”) regarding her noise complaints.

The Alberta Court found that Aubin had made out a prima facie case that the condominium corporation had a duty to investigate whether the wall separating the lounge from her unit wall was deficient in terms of sound transference and the evidence presented established that the wall was inadequate. The court also found that Aubin’s investigation request to the board was both objectively and contextually reasonable, given the location of Aubin’s unit and the use of the lounge as common property.

The court noted that the bylaws did not permit noise disturbances that interfered with a condominium unit owner’s comfort and quiet enjoyment of their property and given the magnitude of the noise transference issue, it was not unreasonable for Aubin to expect the board to do more than it did to correct the problem. The condominium corporation did not challenge Aubin’s evidence that the noise transference from the lounge to her bedroom was greater than the noise transference from another unit to her unit. The court concluded that the condominium corporation’s refusal to investigate the issue was oppressive and unfairly disregarded Aubin’s interests.

The condominium corporation argued that the obligation to investigate rested with Aubin; that Aubin was responsible for proving that the wall between her bedroom and the lounge was not built to code; and that Aubin should build a sound barrier on her bedroom wall. This argument was rejected by the court.

The court held that there was no limitation bar to Aubin’s action: Aubin had   brought an action based on improper conduct, not on nuisance, and the fact that Aubin tolerated the noise issue for so long did not deprive Aubin of her right to request that the board reasonably investigate her complaint and “determine whether something needed to be done and what it might be and what it might cost.”

Having found that the condominium corporation had acted improperly, the court ordered the condominium corporation to retain an expert to determine whether the wall was sufficient to “diminish, dampen or lessen” the sound transference from a public space to a private space and, if not, to ascertain the available options to improve the wall to gain a reasonable standard for use under the Act.

The court made no determination about what steps the condominium corporation had to take concerning the wall but it found that the condominium corporation was obligated to take reasonable steps, within its authority, according to the findings presented to it. It also found that should a deficiency requiring correction be found, the condominium corporation would need to determine whether the expense was capital or operational in nature.  

Boards must understand their obligations when owners complain about noise from garage doors , garbage room compactors and exercise and party room facilities. A board cannot just say, “well, that’s how the building was constructed and you bought next to it so it is your problem.” The courts expect that boards of directors will investigate and complete necessary repairs so that owners are not affected by noise coming from the common areas into their units. Failure to take these steps can result in a finding that the board has not acted fairly in dealing with the complainant.