Condowise Learning - Caselaw Summary
Hovagimian v. Toronto Standard Condominium Corporation No. 1754 2023 ONCAT 5
The Tribunal found that an owner had repeatedly violated both of TSCC 1754's rules against noise and ordered him to comply. However, the Tribunal was not confident that TSCC 1754 would enforce the owner's compliance. As a result, TSCC 1754 was ordered to post this decision within the condominium with the hope that owners would hold TSCC 1754 accountable.
In this case, the Applicant complained of party noise from the unit above his. The noise included "pounding on the floor, yelling, talking loud, screaming, and singing", and had occurred since June 2017 between midnight and 4:00 a.m. The Applicant was repeatedly awoken from his sleep, sometimes several times in a night. These disturbances occurred intermittently over the course of four years. There was no evidence that the unit owner had ever notified the Applicant about his parties, so the Applicant had no way of knowing when his sleep would be disrupted.
The Tribunal considered whether the owner had breached TSCC 1754's rules against noise and disruption, and whether TSCC 1754 had responded to the noise complaints appropriately.
TSCC 1754 responded to the Applicant's complaints by dispatching security to investigate the noise and issuing enforcement letters to the owner. The Applicant was repeatedly advised that he would receive a second warning letter, after which his matter will be referred to TSCC 1754's solicitors and he would be responsible for any legal costs incurred. However, TSCC 1754 did not escalate the matter in accordance with its stated protocol. Rather than referring the owner to TSCC 1754’s solicitors, TSCC 1754 responded to noise complaints by issuing two second warning letters and one third warning letter. TSCC 1754 did not engage its solicitors to issue a "final warning" until almost four years after the first complaint. The Tribunal observed that when there was a long period of time between noise complaints, TSCC 1754 would reset its escalation procedure. This approach did not effectively ensure the owner’s compliance with the rules as his transgressions worsened over time. The Tribunal found that TSCC 1754 failed to take all reasonable steps to enforce its rules against noise and disruption.
On a separate note, the Tribunal declined to award damages to the Applicant as it did not want to create the appearance of endorsing his verbal aggression and threatening behaviour towards TSCC 1754 staff. The Applicant had threatened that, the next time he was awoken by noise during the night, he would knock on the doors of board members so they could understand "what it feels like". The Applicant was true to his word as he knocked on a board member's door in the early hours of the morning. The Tribunal found it troubling that the Applicant showed no remorse for his behaviour.
This decision highlights that the Tribunal will not turn a blind eye to inappropriate behaviour, even where the party is successful in their proceeding. In another recent decision, Lochner v. Toronto Standard Condominium Corpora5on No. 1953, 2023 ONCAT 6, the Tribunal responded similarly. Although the Applicant was partially successful, the Tribunal did not award Tribunal fees due to their inappropriate conduct.
Read full decision here.
