In Di Domenico v. Halton Condominium Corporation No. 118, the Applicant alleged hearing the sound of rushing water for intervals of approximately five minutes to an hour. The condo took steps to investigate and determine the source of the problem, including retaining plumbers and acoustical engineers. The condo also took some steps to try to reduce and/or eliminate the alleged noises, including disconnecting and re-balancing the jets to a bath tub in a neighbouring unit, replacing and/or modifying a number of older faucets and shower heads in other units and made some modifications to the Applicant’s unit.
In 2019, the condo’s acoustical engineer reported that the noise levels within the Applicant’s unit were within acceptable levels per the ASHRAE guidelines. Despite this, the Applicant brought the application before CAT.
The condo argued that CAT did not have jurisdiction over the dispute as it pertained to the corporation’s repair and maintenance obligations pursuant to sections 89 and 90 of the Condominium Act, 1998 (the “Act”) which CAT did not have jurisdiction over. The condo also argued that it had addressed the Applicant’s complaints and even if it had not, the remaining noise was not the result of activities of another person but rather a function of the condo’s plumbing which it acknowledged was aging.
The condo brought a motion to dismiss the application – although regrettably very late into the application itself – on the above noted basis. Ultimately, CAT dismissed the application in its entirely relying predominately on the case of Brady v. Peel Condominium Corporation No. 947. CAT agreed with the condo that it did not have jurisdiction over the condo’s maintenance and repair obligations. In the decision, CAT seemed to rely heavily on the fact that the alleged noise was not caused by activities in another unit:
[8] … However, it does not follow from this that the noise she currently experiences results from the activity of a person in another unit…
[9] … In this case, HCC 118 has taken several steps to address noise that might be resulting from activity in another unit…
Unsurprisingly, despite CAT’s finding and previous decisions with similar outcomes, CAT again left us with a cliff-hanger:
[9] … Having said this, I am not ruling out the possibility that there may be situations in which a condominium corporation’s repair and maintenance activities constitute “activities” giving rise to a nuisance under subsection 117 (2) of the Act. I am not persuaded on the evidence before me that this is the case here…
Based on the body of decisions rendered to date, it seems in most instances, CAT will not make any determinations on any noise or nuisance disputes where the noise or nuisance originates from the building systems or infrastructure. Another reminder for owners and condos to ensure their disputes are being heard in the appropriate venues!