By Naomi Rozenberg and Todd Drever

The Ontario Court of Appeal has upheld a decision in favour of a condominium corporation that was sued for oppression by a homeowner over a noise issue.

Kikites v. York Condominium Corporation No. 382, 2024 ONCA 34 involved an owner who repeatedly complained to York Condominium Corporation No. 382 (the “Condo Corporation”) about noise from medical equipment in an upstairs neighbour’s suite.

The complainant’s suite is situated directly below a unit occupied by Nives Ceronja and her children.  Ms. Ceronja’s son is quadriplegic and needs around-the-clock medical care, which requires the use of extensive medical equipment.

The Condo Corporation sent its employee to investigate the complaints on multiple occasions. When they identified remediable instances of noise, such as where Ms. Ceronja’s daughter was running around the apartment, they asked that the bothersome activity cease. However, the Condo Corporation could not – and would not – ask that the medical care needed by Ms. Ceronja’s son cease.

The Condo Corporation commissioned a study, culminating in a report which concluded that the building was constructed in accordance with the Ontario Building Code and that noise and vibration controls were not warranted. The Corporation also retained an acoustical engineer to conduct testing, but no significant sound events occurred during these in-person monitoring sessions.

The complainant commissioned his own noise testing which detected “significant” sound intrusions during the night. However, the source of the sounds was not independently verified.

The owner claimed that the noise interfered with his quiet use and enjoyment of his home. He brought an action in the Ontario Superior Court of Justice for oppression, seeking $300,000 in damages and an order that the Condo Corporation install a raised and padded floor in Ms. Ceronja’s unit.

It is worth noting that Ms. Ceronja was not party to the application, even though she was examined as a non-party.

The Ontario Superior Court dismissed the oppression claim, finding that the Condo Corporation’s actions in retaining expert reports went “above and beyond what might be expected” and that the Corporation had no legal authority to renovate Ms. Ceronja’s unit.

The Court found that, while the occupants of Ms. Ceronja’s unit were likely making some noise by having a night nurse and by running some medical equipment, it was not “excessive” to the point that it would be particularly noticed or bothersome in the daytime, even if the noise might well be experienced as a nuisance by people who keep to standard sleeping hours.

The Court of Appeal agreed with the Superior Court that the Corporation acted reasonably and was not oppressive in its conduct. It found no error in the lower court’s finding that the Corporation could not be expected to renovate Ms. Ceronja’s unit, and the court certainly could not order such a remedy without fulsome participation and legal submissions from Ms. Ceronja.

Strata corporations that receive noise complaints should seek legal advice in regard to reasonable steps to adequately investigate and respond to the complaint. Council members should be familiar with the strata bylaws and with the proper procedure for responding to bylaw infraction complaints.

Lesperance Mendes has been representing and advising British Columbia strata corporations, strata owners, and strata managers since 1997. To find out more about our strata property law practice, contact any member of our strata property law practice group: Paul Mendes, Sat Harwood, Alex Chang, or Amanda Magee.

THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied upon without independent legal advice with respect to the specific facts of your case.