Noise Complaints (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-27
CLNP Page ID:	226
Page Categories:	[Interference of Reasonable Enjoyment (LTB)]
Citation:	Noise Complaints (LTB), CLNP 226, <https://rvt.link/1s>, retrieved on 2024-11-27
Editor:	Sharvey
Last Updated:	2024/04/11

Need Legal Help?
Call (888) 655-1076

Join our ranks and become a Ninja Initiate today

Medallion Corporation v. McIlroy, 2023 ONSC 5196 (CanLII)

[1] The Appellant Landlord appeals the order of Member J. Benham of the Landlord and Tenant Board (“LTB”) dated January 12, 2023 (LTB File No. LTB-T-068739-22) (the “Order”).

[2] The Order arose from the Tenant’s application alleging interference with his reasonable enjoyment of his rental unit due to noise from the adjacent unit. The Member determined that the noise was caused by a child with autism who lived next door. The Landlord had sent notices to the neighbouring tenant in response to the complaints, but the issue persisted.

[3] The Member cited this Court, setting out the Landlord’s obligation to take reasonably necessary action against a neighbouring tenant who denies a neighbour quiet enjoyment: Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650 (Div. Ct.). This obligation is not disputed.

[4] The Member found that the only action the Landlord had taken regarding the noise complaints was sending notices to the neighbour, and that the Landlord had decided to do nothing else. The Member found that the Landlord did not investigate other noise suppression techniques such as retaining a contractor to adjust the insulation between the two units. The Member said, “I can certainly appreciate the situation the Landlord is faced with” but found that the Landlord had substantially interfered with the Tenant’s reasonable enjoyment of his rental unit.

[5] The Member awarded a rent abatement of $7,419.60 and directed the Landlord to hire a contractor to ascertain whether soundproofing could be installed to reduce the noise. The Member declined to order the Landlord to cease the noise, finding that would be unreasonable and unenforceable.

[6] This appeal is limited to questions of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), s. 210. The standard of review is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.

[7] The Landlord submits that the Member erred in law by failing to take into account s. 3(4) of the RTA, which confirms that the RTA is subject to the Human Rights Code. More specifically, the Landlord submits that the Member failed to analyze the significance of the child’s disability under the Human Rights Code and the resulting limitations on the Landlord’s ability to address the noise complaints. The Landlord submits that it could not evict the neighbour and child under the Human Rights Code and there was nothing more that could be done.

[8] The first difficulty with this submission is that it is being raised for the first time on this appeal, which is not normally permitted. The second difficulty is that it is based on the assumption that there was nothing more that the Landlord could do given the child’s disability short of an impermissible eviction. This overlooks the basis for the Order. The Member found that there were more steps that the Landlord could have taken regarding soundproofing, specifically having a contractor adjust the insulation.

[9] The Landlord submits that the Member erred in law because the reasons for decision do not contain an express analysis of the obligations to the child under the Human Rights Code. However, the reasons for decision do reflect an awareness of and need to consider the disability and the Member did not make an order that would potentially discriminate against the child.

[10] The Landlord further submits that the Member failed to take into account the real substance and the good faith of the Tenant’s complaints, as required by s. 202 of the RTA. However, the Landlord has not shown a legal error in the Member’s consideration of the real substance of the noise complaints and it does not appear that good faith was challenged before the Board.

[11] Despite the able argument of counsel, the Landlord has not established an error of law. The Tenant raises other arguments against this appeal, which need not be addressed.

[12] This appeal is therefore dismissed with costs to the Tenant in the agreed amount of $6,000, all inclusive. The Landlord shall have an additional 30 days from today to comply with the Order.

TST-80853-17 (Re), 2017 CanLII 60769 (ON LTB)

Preliminary Matters...

At the outset of the hearing, given the multiple applications before me, I asked BLS to provide an overview of the issues advanced in the Tenants’ applications.

He provided the following summary of issues.

(...)

5. The Tenants’ allege that the Landlords failed to address the inadequacy of the soundproofing in the residential complex (in breach of the Landlord’s obligation under s.20 of the Residential Tenancies Act, 2006 (“the Act”) (T6); as well as their noise complaints with respect to the unit below them, substantially interfering with their reasonable enjoyment of the unit for the period from November 2015 until the end of the tenancy at the end of December 2016 (T2).

112. It is well-settled law that a landlord has a duty to address disturbances to a tenant’s enjoyment of a unit caused by noise from other tenants.

113. Here, I have documented and essentially undisputed evidence that there were repeated noise complaints by the Tenants to the Landlord concerning sound from the first floor unit from November 2015 to November 2016. The Tenant from the first floor, ST, in his evidence, conceded that there were multiple noise complaints by the Tenants.

114. The Landlord’s response was essentially to telephone the first floor unit tenant(s) and ask them to keep the noise down.

115. The disturbances continued. The response by the Landlord remained the same. In these circumstances, it was inadequate.

116. As the Landlord is well aware from the decision of my colleague, Member Jean-Paul Pilon in Order TST-16760-11 issued September 11, 2011 (“the September 2011 order”) – in which she was the respondent with respect to an ongoing noise issue at the same address, a landlord has a duty to take reasonable steps to address noise complaints to “…correct the intrusion of the neighbouring tenant on the tenant’s right to quiet enjoyment” (see Hassan v. Niagara Housing Authority [2000] O.J. No. 5650 (Ont. Div. Ct). These reasonable steps included (as highlighted at para. 4 of the September 2011 order), serving upon “…the offending tenants a notice of eviction”.

123. In the context of considering the impact on the Tenants of this breach and the appropriate remedy, it seems striking to me – particularly in light of the occurrence of an incident with ST that was reported to police – that no written complaint was ever made to the Landlord (as admitted in oral evidence). While I am alive to the fact – as clarified in re-examination by BLS – that the Landlord provided no email, text or fax number to the Tenants, this level of disturbance over this period of time, ought reasonably have provoked at least one letter or posting to the Landlord (apart from the police documentation and logs that were shared with her) to emphasize the nature and extent of the incursion into their lives imposed by these noise disturbances. I find the absence of any correspondence to the Landlord regarding the noise complaints even more conspicuous in light of the fact that the Tenants have claimed that they concluded that the unit was “uninhabitable” as of early November 2016).

125. Based on my knowledge of, and experience with, similar cases and, further, given the duration and nature of the noise problem as described by the Tenants and the Landlord’s inadequate investigation and follow-up of these issues, and the lack of convincing evidence that the unit was otherwise not habitable, I am satisfied that the Tenants are entitled to an abatement of 10% of the rent ($2,300.00) for the period from November 6, 2015 to November 11, 2016 (370 days), which totals $2,797,81).

TST-72908-16 (Re), 2016 CanLII 40100 (ON LTB)

1. The Tenant’s application is based on allegations that the tenants in two other units in the residential complex have made excessive noise that has disturbed the Tenant and the Landlord has failed to address the Tenant’s complaints.

2. This is a case where a tenant is alleging that a landlord is interfering with her reasonable enjoyment by failing to address substantial interference by another tenant or tenants. To be successful in this application, the Tenant must establish that the other tenants substantially interfered with her reasonable enjoyment of the residential complex and her rental unit by making excessive noise. The Tenant must also establish that the Landlord failed to take reasonable steps to address the interference with the Tenant’s reasonable enjoyment.

13. In her e-mail of November 10, 2015, responding to the Tenant’s noise complaint of November 9, 2015, the building manager states the tenant in 1602 denies making noise and the building manager further suggests that the noise may be coming from another unit. The building manager’s e-mail to the Tenant on November 10, 2015 is perplexing and very unreasonable, given that the building manager had personally witnessed the noise coming from unit 1602 the night before and this noise had been sufficiently loud for the police to request that the building manager provide access to the unit.

15. The building manager’s responses to the Tenant’s noise complaints were insufficient and, as stated in paragraph 13, above, unreasonable. If the building manager was genuinely concerned that the Tenant was overly sensitive to noise, the building manager could have attended the rental unit when the Tenant made a noise complaint to verify the level of noise. The building manager accepted the neighbouring tenant’s denial that he made noise the day after the building manager entered the neighbouring tenant’s unit to find him passed out with music blaring. Under these circumstances, the building manager ought to have, at the very least, issued a warning letter to the tenant at 1602 but instead she suggested that the noise may have been coming from another unit.

18. After considering the duration of this problem and the impact on the Tenants’ enjoyment and use of the rental unit, I find that the Tenant is entitled to a rent abatement of $500.00. I have taken into account the number of incidents for each of the months of November 2015 to April 2016. I have also taken into account the degree of disturbance for each incident (some went on all night).

CET-64932-17 (Re), 2017 CanLII 48768 (ON LTB)

27. The Landlords substantially interfered with the Tenant’s reasonable enjoyment by failing to take reasonable steps to address the Tenant’s noise complaints.

28. The Tenant first complained about noise in September 2016. She testified that she had guests and the noise from the Landlords’ unit was such that her guests could not hear each other. She described the noise as banging, dragging and tapping constantly. I am satisfied that this incident substantially interfered with the Tenant’s reasonable enjoyment. The Tenant is entitled to $50.00 as a rent abatement for this incident.

34. Despite the living arrangements, section 22 of the Act provides that a landlord shall not at any time during a tenant’s occupancy of a rental unit substantially interfere with the reasonable enjoyment of the rental unit. In this circumstance, the Landlords failed to take reasonable steps to address the Tenant’s noise complaints. Merely informing the Tenant that their activities are normal especially since they had a baby in April 2016 is not sufficient to meet their obligations under the Act. There was no evidence of attempts to schedule some of the housekeeping activities such as vacuuming or other steps taken to reduce the consistent noise reported by the Tenant.

35. I am awarding the Tenant a 10% rent abatement for January 2017 ($1,325.00 x 10% - $132.50). I am also awarding the Tenant a 20% abatement for February ($1,325.00 x 20% = $265.00).

TET-06355-10 (Re), 2010 CanLII 65651 (ON LTB)

4. Commencing around October or November 2009, the Tenant’s quiet enjoyment of her rental unit was substantially interfered with by excessive noise coming from the next door rental unit. The noise included yelling and fighting, vulgar language, children crying and items being dragged across the floor. These disturbances occurred dozens of times each day, generally between the hours of 6:30 a.m. to 9 p.m. As a result of the disturbances, the Tenant had difficulty using her unit for normal purposes such as watching TV and sleeping, and she sometimes was forced to take a long bus ride to stay at her daughter’s house. The Tenant’s claims were substantiated by dozens of lengthy emails she sent to PS describing the nature of time of each disturbance. The first such email was sent to PS on February 16, 2010. The Tenant testified that she never called the police because she was afraid that this might cause the offending tenants to act in a more aggressive manner towards her. The disturbances ceased on or around May 30, 2010 when the offending tenants moved out without giving the Landlord any notice.

5. PS agreed that he had received many noise complaints from the Tenant, and stated that he felt that she was harassing him because her complaints were so long and detailed. He advised the Tenant that she should try to speak nicely to the offending tenants and call the police if necessary. He testified that he spoke to the offending tenants once and asked them to keep their noise level down. He noted that these tenants had four young children and that children can be expected to make noise. PS testified that he served the tenants with a N5 Notice to Terminate a Tenancy Early based upon the noise complaints, but did not bring a copy to the hearing. PS did not file an application with the Board to evict the offending tenants based upon the N5 Notice but instead decided to file an L9 application seeking an order for rent arrears only in early May 2010. He asserted that his choice was successful because the offending tenants moved out at the end of the month.

6. In Hassan v. Niagara Housing Authority (February 5, 2001), Hamilton Docket No.99-002412-DV, [2000] O.J. No. 5650 (Div. Ct.), the Court found that landlord who fails to take reasonable steps to address harassment and substantial interference with reasonable enjoyment by one tenant of another tenant can be found to have substantially interfered with the “victim” tenant’s reasonable enjoyment of the premises. The Court stated that “the landlord has the positive obligation to provide the tenant with quiet enjoyment and take the reasonably necessary action against any tenant that denies a neighbouring tenant quiet enjoyment of his premises.”

7. In this case, I find that the Landlord has not met its positive obligation to provide the Tenant with quiet enjoyment and take the reasonably necessary action against the offending tenant as per the decision in Hassan. Having received dozens of well-documented noise complaints from the Tenant, the Landlord had a duty to take active steps to address the problem. Speaking to the offending tenants on one occasion and service one N5 Notice is an inadequate response. Further, the fact that the Landlord chose to file an application for rent arrears only instead of filing an application seeking eviction of the offending tenants, and was aggrieved at the fact that she made repeated complaints to him, indicates that the Landlord had no intention of providing a meaningful response to the Tenant’s justified complaints.

8. While the Tenant was away during the week at her job, her quiet enjoyment was disturbed in the mornings, evenings and weekends and during the period the Tenant was home on sick leave. Therefore, I find that the Landlord substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant.

9. In light of type and frequency of the noise disturbances, their substantial impact upon the Tenant and the Landlord’s failure to take any meaningful action, I find that the Tenant is entitled to a rent abatement equal to approximately 30% of the rent payable during the relevant period. The period starts on February 16, 2010, the date the Tenant first advised the Landlord, and ends on May 30, 2010, the date the offending Tenants moved out of their rental unit. This amount is equal to $1070.00

TST-81609-17 (Re), 2017 CanLII 60438 (ON LTB)

18. Abatement of rent is a contractual remedy on the principle that if you are paying 100% of the rent then you should be getting 100% of what you are paying for and if you are not getting that, then a tenant should be entitled to abatement equal to the difference in value.

19. In other words, an abatement of rent can be viewed as compensation to a tenant for the inconvenience or actual loss of use of the rental unit. In determining the amount of an abatement of rent, I have to consider the impact on the Tenants.

20. The monthly rent is $966.34. I am of the view that the Tenants are entitled to a lump sum abatement of rent in the amount of $210.00. In considering this amount I took into account that the Tenants were not complaining to the Landlord on a daily basis about the noise issue and still had the full use of the unit. The Tenants complained on November 26, 2016 to the Landlord and the Landlord did not take any action to address the complaint. The Tenants complained again on January 13, and January 24, 2017. Again, the Landlord took no action to address the complaint in a timely fashion until February 23, 2017. I considered the Landlord’s explanation that he was building a file in order to issue a Form N5 as he would require a detail log of the noise complaint. Notwithstanding, the Landlord should have acted promptly to deal with the issue. I also considered the impact statement of CT. I am of the view that CT may be overly sensitive to noise. I say this because a lot of the noise he described can be construed as sounds of everyday living in a multi-unit dwelling. CT also complains about the young child playing and dropping things in the unit. In my view, these are normal day to day activity that would be expected of a young child playing in his or her home. However, this would be an issue if it were being done during unreasonable hours of the day. At the hearing, the Tenants say that the young child was still running around but did not say that this was occurring at 2:00 a.m. or 3:00 a.m. which would be unreasonable hours.

TST-69619-15 (Re), 2016 CanLII 40107 (ON LTB)

18. It was the evidence before me that the Tenant notified the Landlords about the excessive noise emanating from the unit directly above his unit. The Tenant described the noise to be “loud banging and very loud music”, “stomping”, “bowling balls being dropped”. The Tenant sent a total of 39 text messages to the Landlords from the period beginning September 18, 2015 to November 30, 2015. The issue was resolved when the tenants residing in the unit directly above the Tenant’s unit vacated on December 1, 2015. There have been no further noise issues after that date.

19. The Landlord’s witness, PK, one of the tenants who lived directly above the Tenant testified that she had complained repeatedly to the Landlords of the excessive noise emanating from the Tenant’s unit. She asserts that the Tenant’s claim that she or her children were making excessive noise were completely baseless. PK testified that the Landlords attended her unit repeatedly in response to her noise complaints to verify her claims. Those noise complaint investigations eventually formed the basis for the Landlords’ notice of termination served on the Tenant and subsequent application with the Board seeking termination of the Tenant’s tenancy.

20. There is no dispute that the Landlords did not attend the Tenant’s rental unit to investigate his claims of excessive noise from PK’s unit.

21. It is clear from the evidence that the Landlords were faced with two tenants complaining that the other was creating an excessive noise disturbance that was effecting their reasonable enjoyment of their respective units. It is acknowledged that the competing allegations placed the Landlords in a difficult position however it does not absolve the Landlords of their obligation under the Act. While the Landlords may have taken reasonable steps by investigating PK’s complaints, the same cannot be said to be true for the Tenant’s complaints. The Landlords never attended the Tenant’s unit to investigate his complaints. There was clearly preferential treatment given to PK’s complaints over that of the Tenant’s.

22. As a result, I find that the Landlords have substantially interfered with the Tenant’s reasonable enjoyment of the rental unit by failing to take steps to address the issue of noise emanating from the other unit.

23. The remedies sought by the Tenant are one again a rent abatement, rent differential and moving expenses.

24. It was the Tenant’s evidence that the noise from the unit above disrupted not only his sleep but also that of his seven year old daughter.

25. Given the frequency, the time of day of the occurrences, and the impact statement of the Tenant, I am of the view that a reasonable abatement of the rent would be $402.52 which represents a 15% rent abatement for the period commencing September 18, 2015 and November 30, 2015.

26. For the same reasons provided above, I am not satisfied that the Tenant has established that the Landlords’ actions induced him to vacate the unit and as a result, the Tenant’s request for rent differential and moving expenses is denied. I am satisfied that the Tenant moved as a result of the Landlords’ application against him.

TET-90623-18 (Re), 2018 CanLII 141617 (ON LTB)

4. According to the Tenants the noise began when the tenancy began. Due to the time limitation as determined above in the preliminary issue, the only noise issues the Board has jurisdiction to award from April 24, 2017 and forward based on the occurrences in the application.

5. The Tenants said the Landlord and/or the Landlord’s guests created excessive noise on a regular basis. The Tenants played recordings of the noise they would hear. The noises sound like banging and footsteps. The recordings were taken April 30, 2017, July 26, 2017, and January 21, 2018.

6. The Tenants said they notified the Landlord of the noise when it happened via text message or by phone. The text messages the Tenants provided messages from prior to April 24, 2017 and after April 3, 2018. The phone call logs the Tenants provided show outgoing calls to the Landlord on August 31, September 21, 30, November 3, 16, 2017 and January 16, 2018. The Tenants state these calls were about noise.

7. The Landlord testified that he was not aware of the noise issue to the extent that the Tenants claim. He made a summary of communication the between the parties outlining the absence of correspondence from the Tenants to the Landlord. The Landlord also provided phone call logs from both Tenants. The Landlord testified that not all of the phone calls were concerning noise at all. He agrees there were noise complaints on February 20 and 21, April 11, 12, and 17, 2018. The Landlord said the reason for the noise was due to family day, unexpected guests and a family emergency.

8. While the Tenants said the noise was continuous I find that their lack of evidence for the period in question is concerning. The Landlord has provided evidence that shows there were noise issues and he owns up to this issue on those dates. I find the Landlord’s evidence to be persuasive.

9. It is clear there were noise issues during certain days as outlined by the Landlord. For those days the Tenants will be awarded an abatement. I understand the Landlord believes the noise was warranted during these times because it may be happening during the day or due to an emergency; however, the Tenants have the right to live in their rental unit without the intrusive sounds from above. The Tenants said they had to leave their rental unit to study due to the noise and this will be taken into consideration in the determination of the abatement.

25. Abatement of the rent is the most common remedy awarded to tenants in these kinds of situations. It is intended to reflect the idea that if a tenant is paying rent for a bundle of goods and services and not receiving everything being paid for, then the tenant is entitled to abatement of the rent proportional to the difference between what is being paid for and what is being received.

26. In this case, the Tenants dealt with excessive noise at least five separate dates listed by the Landlord and noise recordings from the Tenants. Usually an abatement is calculated by percentage; however, in this case this would result in a woefully inadequate amount. Instead, a flat amount is more appropriate. Given my knowledge of similar applications and effect of the noise on the Tenants I find an amount of $200.00 to be appropriate.

TST-72189-16 (Re), 2016 CanLII 88318 (ON LTB)

5. The Tenant’s application is about noise in the rental unit. For the reasons that follow, I find that between mid-April, 2015 to January, 2016, the Landlords did not respond reasonably to the Tenant’s noise complaints. Beginning in February, 2016, the Landlords began responding in diverse, but consistent and reasonable ways to the complaints. My order will include an abatement of rent for the period during which the Tenant complained to the Landlords about noise, and the Landlords did not respond adequately.

7. The Tenant testified that she maintains a log of the noise she hears in her unit, which was submitted at the hearing. In her testimony and in her log, the Tenant described the noise she hears as stomping, thumping, things dropping on the floor, doors slamming, furniture dragging, a television being played loudly and the base from music being played. The Tenant testified that she believes that tenants in unit 506, the unit directly above hers, are the source of the noise because she hears the noise coming from above. The Tenant also testified that she believes that the tenants in unit 506 deliberately make noise to disturb her because the noise got worst after she began complaining about these tenants to the Landlords and when she hits her ceiling with a broom, she hears a thump in response.

8. The Tenant testified that the noise has been continuous since December, 2014, although it seems to have improved recently. The first entry in the Tenant’s log is from “middle of April, 2015” and the last entry is from June 8, 2016. In the Tenant’s log, there are records of noise occurring on consecutive days or a few days apart. For many days, there are several different times when noise was recorded. The log suggests that the noise primarily occurs at night, although there are entries for all times of day and night.

9. According to the Tenant’s testimony and her log, the Tenant first complained to the Landlords about noise in the rental unit in middle of April when she “called about a loud base”. In the Tenant’s testimony, she provided multiple specific dates when she complained verbally to the Landlords’ staff in 2015 and 2016. The Tenant also submitted 9 emails that she sent the superintendent in January to March, 2016. The Tenant also testified that she called the police three times in February, 2016 in connection with the noise. The Landlords did not dispute the Tenant’s evidence with respect to her complaints to the Landlords or calling the police.

19. However, there was no evidence before me of specific instances when the Landlords responded to the Tenant’s complaints in 2015 or January, 2016. The Landlords did not dispute that the Tenant was complaining about noise in April, 2015 onwards and yet the Landlords did not give evidence of any specific dates when it took action to address those complaints. Therefore, I cannot find that the Landlord’s response to the Tenant’s complaints was reasonable during this time. Accordingly, I find that a rent abatement beginning mid-April when the Tenant made her first verbal complaint to the Landlords and ending January 31, 2016 to be appropriate. In the application, the Tenant provides that her rent in April – December, 2015 was $1,049.73 and the rent in January, 2016 it was $1,070.72. In the circumstances, I find that an abatement of $150.00/month is reasonable to address the Landlords’ lack of response to the Tenant’s complaints. The total abatement is $1,425.00 ($75.00 for half of April, 2015 and $1,350.00 for the 9 months between May, 2015 to January, 2016).

TST-82509-17 (Re), 2017 CanLII 60553 (ON LTB)

1. At the hearing MD testified that she and her roommates were disturbed in the rental unit by loud construction noises from early October 2016 until December 1, 2016. MD testified that the construction noises, which consisted of hammering, drilling, and sawing noises, would often occur in the evenings, late at night, and on weekends.

2. MD testified that the construction was being done in the unit below the Tenants’ unit.

3. MD testified that the loud noises were very disruptive and that her sleep was disturbed often by the noises.

4. It is uncontested that the Tenants notified the Landlords about this issue in early October 2016 and that they complained to the Landlords by text message several times in November 2016 about this issue. On November 24, 2016 the Tenants complained to the City of Toronto by-law enforcement office, who investigated. MK gave no evidence as to the result of this investigation.

5. SK is the Landlords’ property manager. At the hearing SK testified that the unit below the Tenants’ unit is rented by a commercial tenant, who in October and November 2016 had a contractor renovating the commercial space. SK testified that when the Tenants complained about the construction noise, the Landlords notified the commercial tenant, who assured them that they would take care of it. SK testified that after the Landlords spoke to the commercial tenant, the contractor stopped making noise at odd hours for five or six days and then the noise at odd hours would resume, at which time the Landlord made a further complaint.

6. SK testified that by mid-November the Landlords had decided to escalate the situation to the point where they were going to instruct their lawyer to write a demand letter to the commercial tenant. SK testified that by November 24, 2016, in response to the Landlords’ complaints, the commercial tenant fired their contractor and hired a new one, who only worked during reasonable hours. SK testified that the Landlord received no further complaints from the Tenants after November 24, 2016.

7. At the hearing SK submitted a letter from the commercial tenant, dated April 10, 2017. The letter states that the Landlords brought the Tenants’ noise complaints to the commercial tenant’s attention and that the commercial tenant spoke to their contractor about it. The letter further states that when the commercial tenant found out that the contractor was continuing to make noise at unreasonable times, the commercial tenant let that contractor go and then hired a new contractor who only worked during acceptable hours. The letter does not give any dates (except to say that the construction mainly took place in November). Specifically the letter does not say when the communications between the Landlords and the commercial tenant took place.

8. This is a case where tenants are alleging that a landlord has interfered with their reasonable enjoyment of the premises by failing to address substantial interference by another tenant. To be successful in this application, the Tenants must establish that the other tenant substantially interfered with their reasonable enjoyment of the rental unit by making excessive noise. The Tenant must also establish that the Landlord failed to take reasonable steps to address the interference with the Tenant’s reasonable enjoyment.

9. MK did not contest any of the Landlords’ evidence on this issue. SK did not contest any of the Tenant’s evidence on this issue.

10. Based on the uncontested evidence, I am satisfied that the construction noise substantially interfered with the Tenants’ reasonable enjoyment of the rental unit.

11. Based on the uncontested evidence, I find that the Landlords took steps to address the issue of the construction noise and that their efforts were ultimately successful. I am satisfied, on a balance of probabilities, that the Landlords spoke to the commercial tenant more than once about the problem. However, the Landlords did not give any evidence as to when they spoke to the commercial tenant about the problem or how often. The letter from the commercial tenant mentions two complaints from the Landlords: an initial complaint and then a follow-up complaint after the construction at odd hours continues. The evidence does not show when the Landlord made the initial complaint or the follow-up complaint to the commercial tenant.

12. Once the Landlord did make a complaint to the commercial tenant, it is reasonable to assume that it took two or three weeks for the following events to take place: the commercial tenant spoke to their contractor, the contractor refrained from making noise for a few days, then the contractor resumed making noise at odd hours, the Tenants complained to the Landlords, the Landlords made their second complaint to the commercial tenants, and then the commercial tenants fired the contractor.

13. Considering all of the circumstances, the problem should have been resolved within two or three weeks, but in fact it took approximately seven weeks to resolve. I therefore find that although the Landlords took appropriate steps, they did not take timely steps, and so their response to the issue was not reasonable.

14. Given the circumstances, including the duration of the problem, the timing of the Landlords’ response, and the impact on the Tenants, I find that the Tenants are entitled to a lump sum rent abatement of $480.00. This is 20% of the monthly rent (which is $2,400.00) for one month.

Wu v Peel Condominium Corporation No. 245, 2015 ONSC 2801 (CanLII)

[1] Ms. Wu says that she has been oppressed by Peel Condominium Corporation No. 245. She alleges that it has failed to maintain the common elements at her condominium. In particular, she states that the elevators are causing excessive noise and vibrations in her unit. She claims that Peel attempted to interfere with test results confirming the existence of the problem. And, finally, she says that Peel has failed to produce documents that she is entitled to review.

[174] While I accept that the reports confirm that there is a problem, the reports do not support Ms. Wu’s dramatic description of life in her unit. Those reports are objective evidence of what the circumstances are in her home. Ms. Wu and her parents have remained in the home for more than seven years. There is no evidence that she has attempted to sell the unit. No one but Ms. Wu has provided evidence of such an atrocious situation. Her parents are not parties or supporting witnesses. I can draw the inference that the extent of this problem is not as described by Ms. Wu. The noise and vibration need to be fixed but I cannot find that they are to the level alleged by her.

[175] In TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 at para 61, the Court of Appeal stated:

It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence.

Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases. The controlling principles were clearly expressed by Finlayson J.A. of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 112 O.A.C. 138, at para. 75, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 516:

I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.

[176] I do not see this case as similar to Kenny. There, the plaintiff attended to give via voce evidence at an assessment of damages. Here, I am asked to determine Ms. Wu’s loss only from the written record. There are no corroborating records. What other evidence there is, as set out above, does not corroborate her upset. There is no medical evidence to support her medical diagnosis or any treatment. Ms. Wu’s parents are not applicants. I cannot award damages to Ms. Wu for any hardship that may have occurred to them.

[177] However, Ms. Wu has been left in a difficult situation for almost five years since the elevator modernization. She has had to put up with elevated noise levels and Peel’s belittling conduct. In my view, Peel has been oppressive and unfair to her for approximately 5 years. Based on what I have, I assess damages at $30,000.00.

O. Reg. 332/12: BUILDING CODE: under Building Code Act, 1992, S.O. 1992, c. 23

5.8.1.1. Required Protection

(1) Except as provided in Sentence (2), a dwelling unit shall be separated from every other space in a building in which noise may be generated by,

(a) a separating assembly and adjoining construction, which, together, provide an apparent sound transmission class rating not less than 47, or

(b) a separating assembly that provides a sound transmission class rating not less than 50 and adjoining construction that conforms to Article 9.11.1.4.

(2) Construction separating a dwelling unit from an elevator shaft or a refuse chute shall have an STC rating not less than 55.

...

Section 9.11. Sound Transmission

9.11.1. Protection from Airborne Noise

9.11.1.1. Required Protection

(1) Except as provided in Sentence (2), a dwelling unit and a suite in hotels shall be separated from every other space in a building in which noise may be generated by,

(a) a separating assembly and adjoining construction, which, together, provide an apparent sound transmission class rating of not less than 47, or

(b) a separating assembly that provides a sound transmission class rating of at least 50 and adjoining construction that conforms to Article 9.11.1.4.

(2) Construction separating a dwelling unit or suite in a hotel from an elevator shaft or refuse chute shall have an STC rating of at least 55.

9.11.1.2. Determination of Sound Transmission Ratings

(1) The STC ratings shall be determined in accordance with ASTM E413, “Classification for Rating Sound Insulation”, using the results from measurements carried out in accordance with ASTM E90, “Laboratory Measurement of Airborne Sound Transmission Loss of Building Partitions and Elements”.

(2) The ASTC ratings shall be,

(a) determined in accordance with ASTM E413, “Classification for Rating Sound Insulation”, using the results from measurements carried out in accordance with ASTM E336, “Measurement of Airborne Sound Attenuation between Rooms in Buildings”, or

(b) calculated in accordance with Article 5.8.1.4. or Article 5.8.1.5.

9.11.1.3. Compliance with Required Ratings

(1) Compliance with the required STC ratings shall be demonstrated through,

(a) measurements carried out in accordance with Sentence 9.11.1.2.(1), or

(b) the construction of separating assemblies conforming to Table 1 or 2 of MMAH Supplementary Standard SB-3, “Fire and Sound Resistance of Building Assemblies”, as applicable.

(2) Compliance with the required ASTC ratings shall be demonstrated through,

(a) measurements or calculations carried out in accordance with Sentence 9.11.1.2.(2), or

(b) the construction of separating assemblies conforming to Table 1 or 2 of MMAH Supplementary Standard SB-3, “Fire and Sound Resistance of Building Assemblies”, as applicable, that have an STC rating of not less than 50 in conjunction with flanking assemblies constructed in accordance with Article 9.11.1.4.

9.11.1.4. Adjoining Construction

(1) This Article applies where the required protection is provided in accordance with Clause 9.11.1.1.(1)(b) and compliance is demonstrated in accordance with Clause 9.11.1.3.(2)(b).

(2) Flanking wall assemblies connected to a separating floor or ceiling assembly shall be constructed with,

(a) concrete or concrete block having a mass per area greater than 200 kg/m2 , or

(b) gypsum board finish that,

(i) is supported on wood or steel framing, and

(ii) ends or is interrupted where it meets the structure of the separating floor or ceiling assembly.

(3) Flanking wall and ceiling assemblies connected to a separating wall assembly shall be constructed with,

(a) concrete or concrete block having a mass per area greater than 300 kg/m2, or

(b) gypsum board finish that,

(i) is supported on wood or steel framing, and

(ii) ends or is interrupted where it meets the structure of the separating wall assembly or, for double-stud walls, where it meets the space between the two lines of studs.

(4) Flanking floor assemblies connected to a separating wall assembly shall be,

(a) constructed,

(i) with concrete having a mass per area greater than 300 kg/m2 , or

(ii) in accordance with Section 9.16., or

(b) supported on joists or trusses that are not continuous across the junction and are covered with floor treatments in accordance with Table 9.11.1.4. for the applicable wall construction.