The CAT Bites Landlord for Ignoring Noisy Tenants

The Condominium Authority Tribunal (CAT) was given jurisdiction over certain prescribed nuisances, including noise, vibration, smoke, and odour. The number of reported nuisance cases has exploded in recent months, a trend which is likely to continue. Today, we briefly review a recent nuisance case in relation to the evidence required to support these cases and the award of legal costs.

In the case, the condominium commenced an application against the owner of a unit and their tenant for creating unreasonable noise. Neither the landlord nor tenant participated in any stage of the proceeding. The CAT member found both landlord and tenant had not complied with their obligations and the tenants were causing unreasonable noise (primarily screaming and yelling from apparent domestic disputes).

The condominium’s evidence was primarily security incident reports, complaints from other residents, and audio clips. The CAT member noted some inconsistencies with dates and other minor points, but generally accepted the condominium’s evidence of the noise disrupting other residents. With respect to the audio clips, the CAT member stated:

The neighbour recorded the majority of these incidents and the recordings were also submitted as evidence. I note that audio/video recordings are of limited evidentiary value in determining whether there is unreasonable noise unless they indicate a decibel level or there is some other benchmark by which to objectively judge the volume of the sound. However, notwithstanding that limitation, my review of the recordings does allow me to conclude that yelling/screaming can be clearly heard in the neighbour’s unit.

 The CAT member found that it was not the case of an occasional domestic dispute being overhead by neighbours. It was sixty disruptions over a seven-month period. It was a significant and substantial interference with the use and enjoyment of the property by other residents. As such, the tenants violated the Act and the condominium’s noise rules.

The owner did not participate in the proceeding or respond to any emails or voicemails from the CAT staff or the condominium’s lawyer before the proceeding was commenced. Given their lack of participation and the fact that the noise continued to be a problem, the CAT member unsurprisingly found the owner had not satisfied their duty to take reasonable steps to obtain the tenant’s compliance.

The condominium sought its legal costs on a full indemnity basis, being $8,530.37.

While Rule 48.2 of the CAT’s Rules of Practice makes it clear that legal fees are generally not awarded, in this case the CAT member felt it was appropriate when looking at the various factors, including the conduct of the parties, whether they attempted to resolve the issues before the CAT was filed, potential impact the order of costs would have on the parties, and the provisions of the governing documents. The CAT member noted that the declaration and rules required the owner to indemnify the condominium for costs of seeking compliance by their tenants. There was no evidence of any efforts made by the landlord or tenant to resolve the matter. They did not participate in the proceeding. It was unfair to burden the other innocent owners with the costs incurred by the condominium to obtain the owner and tenant’s compliance. Accordingly, the CAT member awarded the condominium its costs on a substantial indemnity basis, being about $7,250 plus $150 for the filing fees.

In early cases the CAT seemed more willing to accept evidence from the condominium that demonstrates that noise reports have been made (i.e. reports, emails) and some description of the noise (i.e. noise log, audio clips taken by other residents or the condominium). These recent cases suggest the CAT may have slightly increased the burden on condominiums to prove the noise exists, that it is caused by the owner blamed for it, and the noise is disturbing others. This isn’t that surprising given evidentiary principles that normally apply in courts and tribunals, but it does mean condominiums need to be organized and ensure they have properly investigated the complaints before filing with the CAT.

Will independent acoustical testing be required in future cases? I hope not given the expenses involved and the time required to investigate and produce reports. There may be some cases where it is necessary, such as where the owner disputes they are creating noise and the person reporting it has some sort of conflict or credibility issue, but it should not be required in obvious cases where multiple owners are reporting being disturbed by noise like in this case.