Friday, April 5, 2013

Dancing can get out of hand; a Board's obligation to enforce its noise bylaws/rules

In a recent decision of the Ontario Superior Court (analogous to our Queen’s Bench) Dyke v. Metropolitan Toronto Condo. Corp. No. 972, 2013 ONSC 463 the Honourable Justice E.M. Morgan concluded that a Board of Directors of an Ontario condominium corporation had not done enough to enforce its noise bylaws/rules.
In the Dyke case, the aggrieved owner in suite 811 had lived below suite 911 for thirteen years without much issue.  However, in 2010 a dancer moved in above the aggrieved owner.  Many noise complaints and calls to the police followed as a result of the “dance lessons” being held in suite 911; the suite may have been converted into a dance studio.  The Board of Directors and Property Manager ignored the pleas of the aggrieved owner and instead rebuffed her complaints with a letter from the Board’s lawyer.
The aggrieved owner sought and received an Order from the Court that the Bylaws/Rules were required to be enforced.  The Court concluded that failing to do nothing amounted to “unfairly prejudicial conduct” (in Alberta it would be analogous to our “improper conduct”).  Justice Morgan stated clearly the balancing act which is necessitated by owners and Boards in condominiums:

[24] I hasten to say that the Applicant does not, as she has occasionally suggested in her correspondence and her cross-examination, deserve absolute quiet in her condominium units. The Respondent has a responsibility to enforce its rules in a balanced way so as to ensure that all of the owners and tenants can enjoy their respective units. McKinstry v York Condominium Corporation No. 472, [2003] OJ No 5006, at para 33 (SCJ). However, it stands to reason that the Applicant is entitled to live underneath a residential apartment unit, and not underneath a professional dance studio. That level of quiet enjoyment is certainly within the Applicant’s reasonable expectation. Hakim v Toronto Standard Condominium Corporation No. 1737, [2012] OJ No. 211, at paras 38, 40 (SCJ).

The Court concluded that the condominium corporation was responsible to pay special damages to the aggrieved owner in the amount of $40,325.78 related to the aggrieved owner’s costs in moving out of suite 811 due to the excessive noise.  The Court also awarded costs in favour of the aggrieved owner in the sum of $19,500.00.
This case establishes in Ontario that there is a limit to how much noise an owner must tolerate and clearly established in Ontario that a Board of Directors MUST act to enforce its bylaws to prevent owners making excessive noise.  In this case operating a dance studio clearly is not acceptable from a noise perspective.  This case may well be referred to in Alberta in similar situations.