In Abrecht v Sheikh Al-Zoor, the Applicant brought an application before the Condominium Authority Tribunal (CAT) with respect to an ongoing noise issue. The Applicant argued that she was facing unreasonable noise and nuisance from the unit above. The Respondent lives in the unit with his wife and university aged son. Occasionally, his other adult son with would stay with him, and his grandchildren frequently visit the unit.
The Applicant asked CAT to order the Respondent to cease making unreasonable noise and causing a nuisance. In particular, the Applicant asked that noise and vibration from running, jumping, thumping, banging and the screaming/playing of young children be ceased.
The Applicant submitted a noise log and two recordings as evidence of the noise coming from the Respondent’s unit. One of the videos was taken from the Applicant’s balcony and the other was taken from outside of the Respondent’s door in the common element hallway. The Applicant acknowledged challenges to recording the noise from within her unit due to the concrete ceiling. One of the recordings picked up on a child “yelling loudly.” While the child appeared to be singing louder than a speaking tone, the CAT acknowledged that this volume is not atypical of a young child.
The manager employed by PCC 98 testified that the Applicant, along with another resident, complained about the noise and that the Respondent was notified of the complaint by email, followed by 2 additional letters, one of which suggested an area rug be installed. The Respondent declined this suggestion.
The Respondent described the complaints as arising from “normal” activities. He testified that he attempts to control the movement of the children after 9:00pm, reduce family visits, and prevent the children from playing and raising their voices. The Respondent has installed brand-new flooring with a sound barrier which was approved by PCC 98 and exceeded their sound proofing requirement.
The CAT held that the Applicant’s audio recordings did not persuasively demonstrate the noises as nuisance or a violation of PCC 98’s rules. The Applicant’s explanation for why the recordings inside her unit are not adequate to capture the noise she complains of suggests that the ceiling is a somewhat effective noise barrier, and that the noise within her unit is not as audible or loud as the noise heard from outside of her unit. Therefore, the Applicant’s evidence and explanation undermine the Applicant’s claims in this case.
CAT noted as follows:
“Residing in an apartment-style complex, whether condominium or otherwise, comes with the inherent possibility of neighbours who live in a variety of circumstances. Some may have families with young children who will be active and inevitably create some noises of the kind complained of in this case. This is to be expected and, unless becoming unreasonably excessive, tolerated. “
The Tribunal has consistently held that nuisance requires a “substantial and unreasonable” interference with the quiet enjoyment of the property. While the noise being experienced by the Applicant may be distressing to her, CAT concluded that the noise level did not rise to that of nuisance. The CAT characterized almost all the activities complained of in both the Applicant’s testimony and her “noise log” as regular and expected activities in a busy household with young children.
The CAT held that the Respondent is not in violation of either the Act or PCC 98’s governing documents. No costs were awarded, and the application was dismissed.
