Noise Complaints (LTB)
See Also
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.
