Blaise Pascal once said, “People almost invariably arrive at their beliefs not on the basis of proof but on the basis of what they find attractive.” The Condominium Authority Tribunal seems to agree… sometimes.
CAT has released several decisions recently which emphasize the importance of objective 3rd party evidence, especially in noise disputes.
In Lee v. Wong et al. (“Wong”), the Tribunal gave little weight to the applicant’s own complaints of the noises she heard as there was no corroborating third party evidence to support her allegations. The Tribunal relied heavily on the third party evidence submitted being the reports from concierge as well as an acoustics report, neither of which concluded that there was unreasonable noise. The application was ultimately dismissed.
Similarly in Delia v. Ranches et al. (“Delia”), the applicant relied exclusively on the testimonies of the applicant, his wife and his nephew. The Tribunal concluded that ”[t]here [was] no objective evidence of unreasonable noise, such as the report of an acoustical consultant as submitted in Friedlander. Based on the Applicant’s limited and subjective evidence, I cannot conclude that there is unreasonable noise.” Again, the application was dismissed.
On the other hand, the Tribunal in other cases has accepted “subjective” evidence or a lack of objective evidence in finding that the noise experienced by a party was a substantial interference. In Toronto Standard Condominium Corporation No. 1978 v. Hackman (“Hackman”), the Tribunal noted that neither party (both of which were alleging excessive noise) submitted any objective data to support their positions. At paragraph 13 of the decision, the Tribunal noted the following: “[o]bjective evidence of noise levels can be important, and a failure to provide such evidence can lead to a finding that there is insufficient evidence to support a claim of unreasonable noise (see, for example, Delia v. Ranches et al., 2022 ONCAT 127). However, objective evidence can be expensive to obtain and may or may not be helpful.”
In Hackman, the noise that was complained of was not constant – it happened periodically and unpredictably and most often in the middle of the night. The Tribunal found that in these circumstances it would be difficult to arrange for noise level measurements. The Tribunal found that the applicant produced sufficient evidence (despite no “objective” evidence) to establish that the respondent owner contravened a settlement agreement which required him to stop creating excessive noise.
While objective evidence is important, there are situations where objective evidence may not be feasible or necessary to successfully prove the existence of excessive noise or nuisance. Corporations grappling with noise complaints should consider some of these cases when determining what type of evidence may be necessary to prove, or disprove, the existence of a noise problem.