Condominium Bylaws (RTA)

Metropolitan Toronto Condominium Corporation No. 933 v. Lyn, 2020 ONSC 196 (CanLII)

[4] According to Ms. Rosenstrom, before Ms. Kalicharan moved into Unit NNN1, she was a sound sleeper who was not particularly sensitive to outside noises. She had no issues with noise negatively impacting her life or her sleep.

[5] Beginning in approximately mid-July 2017, Ms. Rosenstrom began to experience noise issues originating from Ms. Kalicharan’s unit. These included what she described as extremely loud music with the bass turned up, loud television shows, and yelling and screaming, both in the unit and in the hallway outside the unit. She was awakened from her sleep on repeated occasions by the noise. These incidents occurred at various times of the night, between midnight and dawn, including at 4:50 AM, 2:15 AM, 2:40 AM, 1:00 AM, 2:00 AM, and between 3:00 AM and 4:00 AM.

[6] In light of the noise problems that she was experiencing from her next-door neighbour, Ms. Rosenstrom took several measures to try and minimize the extent to which her sleep was disturbed. She moved her bed away from the common wall. She began to wear earplugs. She began to take sleeping medication to help her sleep. She utilized “white noise" machines and humidifiers to offset the noise. From time to time, she would sleep in her living room, which is further away from the source of the noise. Despite the foregoing, she continued to experience difficulties sleeping by reason of the noise emanating from the adjacent unit.

[24] Section 134(2) of the Act imposes a pre-condition to bringing such an application: a person must have first tried to obtain compliance through mediation and arbitration. Despite this requirement for mediation and arbitration, s. 132(2) of the Act restricts mandatory mediation and arbitration to disputes between condominium corporations and owners. There is persuasive case law to suggest that where the disagreement involves both a tenant and an owner, then the mandatory mediation and arbitration provisions of the Act do not apply. See: Peel Standard Condominium Corporation No. 767 v. 2069591 Ontario Inc., 2012 ONSC 3297 at paras. 34-37, and MTCC No. 596 v. Best View Dining Ltd., 2017 ONSC 5655, at para. 4. Thus, in the present case, while mediation might have been a preferred approach to solving the noise problem, it was not mandatory and was not formally proposed by any party.

[25] On the basis of the above analysis I conclude that I have the power to make the declarations sought by MTCC 933, with the exception of a declaration terminating the tenancy of Ms. Kalicharan in the event she breaches any other order I might make. Since hers is a residential tenancy, it may be terminated only via a proceeding brought before the Landlord and Tenant Board: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 168(2); Beach v. Moffatt (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383 (C.A.), at para. 15.