Condominium Authority Tribunal
Date: July 18, 2023 Case: 2023-00071N
Order under section 1.44 of the Condominium Act, 1998.
Member: Dawn Wickett, Member
The Applicant: Ozzy Mermut Represented by Jackie Bartlett, Counsel
The Respondents: York Region Standard Condominium Corporation No. 1381 Represented by Bharat Kapoor, Counsel
Shagun Dhir Represented by Jaskaran Sandhu, Counsel
Kledi Hasani Self-Represented
Hearing: Written Online Hearing – June 1, 2023 to June 30, 2023
REASONS FOR DECISION
A. INTRODUCTION
1The Applicant is a unit owner in the Respondent condominium corporation, York Standard Condominium Corporation No. 1381 ("YRSCC 1381"), residing there since July 2018. The Respondent, Shagun Dhir, ("Dhir") is the owner of the unit above the Applicant's. The Respondent, Kledi Hasani, ("Hasani") resides in Dhir’s unit. The evidence before me indicates that Hasani’s spouse and baby reside with them in Dhir’s unit.
2The Applicant brings this application to the Tribunal alleging Hasani and their family interfere with the Applicant's quiet enjoyment by creating unreasonable noise which is contrary to the corporation’s governing documents. The Applicant alleges they have experienced unreasonable noise since August 2022, and that both Dhir and YRSCC 1381 have failed to meet their obligations pursuant to the corporation’s declaration and rules by not taking the necessary steps to thoroughly investigate and mitigate the unreasonable noise.
3Hasani joined the case but never participated in the hearing.
4The Applicant seeks orders requiring YRSCC 1381 to enforce its governing documents and requiring Dhir and Hasani to comply with the same.
5Dhir takes the position that they have gone “above and beyond” in dealing with the Applicant’s noise complaints in relation to the occupants of their unit. Dhir rejects the Applicant’s assertion that they have failed to comply with the YRSCC 1381’s declarations and rules. Dhir submits that YRSCC 1381 “failed to take any meaningful action of its own” to determine if the nuisances as complained of by the Applicant violate the Condominium Act, 1998 (the “Act”) or the corporation’s governing documents. Dhir submits that the complaints against them should be dismissed. Dhir has requested an order for costs to be reimbursed by the Applicant and/or YRSCC 1381.
6YRSCC 138 takes the position that this application is not about noise related disputes, but rather about the Applicant alleging they have been “unfairly prejudiced and/or his complaints have been ignored”, which falls under section 135 of the Act and is not within the Tribunal’s jurisdiction. YRSCC 1381 further submits that only the Superior Court of Justice (“SCJ”) has jurisdiction to determine whether a corporation “threatens to be oppressive or unfairly prejudicial or unfairly disregards the interests of an applicant”. YRSCC 1381 submits that in the event the Tribunal finds it does have jurisdiction to hear this application, it takes the position that the Applicant is overly sensitive to noise and is not entitled to “absolute quiet” as some noise transmission between units is to be expected. As such, YRSCC 1381 believes the application should be dismissed. YRSCC 1381 seeks an order for costs payable by the Applicant.
7For the reasons that follow, I find the Applicant has established that they experience unreasonable noise which is transmitted into their unit from Dhir’s unit. The noise stems from activities carried out by Hasani and the other occupants of Dhir’s unit. Further, I find the unreasonable noise has been permitted to continue because Dhir and YRSCC 1381 have failed to enforce the provisions of the corporations governing documents which prohibits owners, their families, guests, tenants, invitees, licensees, and visitors from the creation of unreasonable noise which constitutes a nuisance, annoyance, or disruption. I also find it appropriate to make an order for costs, compensation, and the application filing fee, payable to the Applicant by Dhir, YRSCC 1381 and Hasani.
B. ISSUE OF JURISDICTION AND RULINGS MADE DURING THE HEARING
Does the Tribunal have jurisdiction to hear this application?
8YRSCC 1381’s Counsel submits that the Tribunal does not have jurisdiction to hear this application because it is not about nuisance, annoyance, or disruption, but rather about the Applicant alleging they have been “unfairly prejudiced and/or his [sic] complaints have been ignored”, which falls under the provisions of section 135 of the Act. Counsel submits the Tribunal does not have jurisdiction over this section of the Act and that only the SCJ has the jurisdiction “to make an order to rectify the matter.” As such, Counsel requested that this application be dismissed.
9The Applicant’s Counsel submits that the Tribunal has jurisdiction to hear this application. Counsel submits that the Tribunal jurisdiction is set out in section 1(1)(d) (iii.1) and (iii.2) of the Ontario Regulation 179/17 which states the Tribunal has jurisdiction over noise disputes, specifically those under section 117 (2) of the