CONDOMINIUM AUTHORITY TRIBUNAL
DATE: December 4, 2023
CASE: 2023-00563N
Order under section 1.44 of the Condominium Act, 1998.
Member: Laurie Sanford, Member
The Applicant: Toronto Standard Condominium Corporation No. 2745
Represented by Victor Yee, Agent
The Respondent: Nicholas Akinola
Not appearing
Hearing: Written Online Hearing – November 15, 2023 to November 21, 2023
REASONS FOR DECISION
A. INTRODUCTION
1Toronto Standard Condominium Corporation No. 2745 (“TSCC 2745”) brings this application for an Order directing Mr. Nicholas Akinola, a unit owner, to comply with specific provisions of the Condominium Act, 1998 (the “Act”) and with provisions of its governing documents. TSCC 2745 alleged that Mr. Akinola and the other occupants of his unit, as well as any guests and visitors, have persistently created noise and contravened its no smoking rules. There was evidence that this behaviour has not moderated and there have been disturbing incidents of pushing people and full-body banging against walls.
2Mr. Akinola did not join this case. TSCC 2745 produced evidence of multiple security incident reports, compliance letters from TSCC 2745 management and warning letters to Mr. Akinola from TSCC 2745’s counsel for the period from August, 2022 to date. Based on this evidence, and the testimony of Victor Yee, TSCC 2745’s president, I conclude that the conduct of Mr. Akinola and the other occupants of his unit is creating a noise nuisance. He and his fellow occupants or guests have also violated TSCC 2745’s no smoking rules, creating an annoyance or disruption. I am ordering him to bring himself and his fellow occupants into compliance with the relevant sections of the Act and of TSCC 2745’s governing documents. Mr. Akinola will also reimburse TSCC 2745 $150 for its fees in filing this application.
B. DECISION
3Mr. Yee’s testimony was that, beginning on August 26, 2022 and continuing through to October 12, 2023, TSCC 2745 investigated eight incidents, occasionally involving complaints from more than one neighbour, about noise coming from Mr. Akinola’s unit or the hall in front of the unit, often in the early hours of the morning. The management of TSCC 2745 has repeatedly sent warning letters to Mr. Akinola. TSCC 2745’s lawyers have sent two enforcement letters concerning the noise. The lawyers sent a third letter regarding an incident in which Mr. Akinola urinated on the common elements and another incident in which someone from his unit repeatedly banged with his full body into a divider between the balcony of Mr. Akinola’s unit and the neighbouring one.
4TSCC 2745 provided an “enforcement file” detailing the noise complaints, the follow-up by security and the letters of warning. TSCC 2745 also provided video and written evidence of altercations between Mr. Akinola and his neighbours.
5Mr. Yee testified to four incidents of smoking in July, 2023 by Mr. Akinola, his fellow occupants or their guests on the BBQ Terrace of TSCC 2745, which is a common element. There was video of one incident in which someone from Mr. Akinola’s unit shone a bright light through the balcony divider. I accept Mr. Yee’s testimony and the supporting documentation. It was detailed and internally consistent.
6Mr. Yee notes that under Articles 2.2, 5.2 and 6.1 of TSCC 2745’s declaration, Mr. Akinola is responsible for the conduct of other occupants and guests of his unit. Article 4.1(b) of the declaration states that each owner must require the occupants, guests and visitors of the units comply with the Act and TSCC 2745’s governing documents. Similarly, subsection 2 of section 119 of the Act says, “An owner shall take all reasonable steps to ensure that an occupier of the owner’s unit and all invitees, agents and employees of the owner or occupier comply with this Act, the declaration, the by-laws and the rules [of the condominium corporation].”
7TSCC 2745 submits that Mr. Akinola is in violation of subparagraph 117(2)(a) of the Act. This provision prohibits people from carrying on activities which create an unreasonable noise which is a “nuisance, annoyance or disruption” to an individual in another unit.
8TSCC 2745 submits that Mr. Akinola is also in violation of the Act in the incidents of smoking on the BBQ terrace. Subparagraph 117(2)(b) of the Act refers to a prohibition of “any other prescribed nuisance, annoyance or disruption”. Paragraph 5 of Section 26, Ontario Regulation 48/01 to the Act prescribes as a nuisance, annoyance or disruption smoke in a unit or the common elements that is unreasonable.
9TSCC 2745 also has provisions in its declaration and its rules that address the creation of noise or nuisance and that prohibit smoking on the common elements, such as the BBQ Terrace. In addition to violations of certain of the general provisions of the declaration, referred to above, TSCC 2745 alleges violations of what Mr. Yee characterised as the “Noise Provisions” and the “Smoking Provisions” of the Rules. These may be summarised as follows:
Noise Provisions in the Rules of TSCC 2745
Section 2(a) – the owner and the occupants must not create or permit the continuation of any noise or nuisance which disturbs the comfort or quiet enjoyment of the units or common elements;
Section 2(c) – No noise to be transmitted from one unit to another or to the common elements between 11:00 pm and 7:00 am.
Smoking Provisions in the Rules of TSCC 2745
- Section 4(h) – no smoking allowed in units or on the common elements outside the balcony or a designated smoking area. No designated smoking area on the BBQ Terrace.
10When does a noise become both unreasonable and a nuisance, annoyance or disruption prohibited under subsection 117(2) of the Act? This question was considered in the Tribunal case of Carleton Condominium Corporation No. 132 v. Evans, 2022 ONCAT 97. In that case, the Tribunal found that, given that:
. . . .there is no definition of nuisance in its declaration and rules, it is instructive to consider the well-established jurisprudence on the law of nuisance. To support a claim of nuisance, the interference must be substantial and unreasonable; the requirement for substantial interference can incorporate a component of frequency and duration of the interference. A ‘trivial’ interference will not suffice to support a claim in nuisance.
11Eight noise incidents over a fifteen-month period is on the less severe end of the continuum of noise complaints with which the Tribunal has dealt. However, a number of these incidents involved complaints by multiple neighbours. As well, there is evidence that Mr. Akinola is intractable. For example, in 2022, he requested that a female neighbour approach him directly with complaints about noise rather than going to security. The neighbour attempted to do this on December 5, 2022 at around 3:30 am by knocking on Mr. Akinola’s door. A few hours later as the neighbour was returning to her unit after using the garbage chute, Mr. Akinola came into the hallway, clad only in shorts, accosted the neighbour and blocked her path. The incident ended when an occupant of Mr. Akinola’s unit restrained him and brought him back into his unit. On October 5, 2023, when a neighbour knocked on the door of Mr. Akinola’s unit to ask that disturbances stop, Mr. Akinola came out and physically blocked the neighbour from returning to his unit. The incident was videotaped on the hallway security surveillance system and ended with Mr. Akinola pounding on the neighbour’s door until an occupant of Mr. Akinola’s unit again restrained him and brought him back into his unit. Mr. Akinola has shown no signs of any interest or concern with how his conduct was affecting others. He was unresponsive to any of the warning letters sent to him and did not join this action.
12No interest would be served by obliging the neighbours to endure more incidents of noise and disruption and there is no evidence to suggest that Mr. Akinola will moderate his conduct or that of his fellow occupants or visitors to his unit. In all the circumstances of this case, I conclude the conduct of Mr. Akinola, his fellow occupants or his guests or all of them, is non-trivial and constitutes a substantial interference with the quiet enjoyment by his neighbours of their units. Mr. Akinola is responsible for conduct which is creating an unreasonable noise which is a nuisance, annoyance or disruption. This is a breach of subparagraph 117(2)(a) of the Act and of the Noise Provisions of TSCC 2745.
13Concerning the smoking by Mr. Akinola, his fellow occupants or guests on the BBQ Terrace of TSCC 2745, there were four incidents reported in July, 2023. There is no evidence of alleged smoking since then. I conclude that this does not meet the threshold to constitute a smoking nuisance under the Act.
14The smoking is, however, a repeated violation of the Smoking Provisions of TSCC 2745’s Rules. Under subparagraph 1(1)(d)(iii.1) of Ontario Regulation 179/17 to the Act, the Tribunal has jurisdiction over disputes with respect to “provisions that prohibit, restrict or otherwise govern the activities described is subsection 117(2) of the Act or section 26 of Ontario Regulation 48/01.” Section 26 of Ontario Regulation 48/01 requires that the smoking on the BBQ Terrace be unreasonable. A violation of the Smoking Provisions is inherently unreasonable. The smoking was also an annoyance or disruption. It may be assumed that the unit owners of TSCC 2745 determined that smoking on the common elements outside a designated smoking area would be an annoyance or disruption. Otherwise, they would not have prohibited it. The smoking on the BBQ Terrance was a violation of the Smoking Provisions and was both unreasonable and an annoyance or disruption.
15TSCC 2745 is seeking an order from the Tribunal declaring that Mr. Akinola has violated certain provisions of the Act and of TSCC 2745’s governing documents. The usual formulation of such an order is one directing Mr. Akinola to bring himself into compliance with sections of the Act and TSCC 2745’s governing documents he has violated. This formulation is consistent with the Tribunal’s powers set out in section 1.44 of the Act. TSCC 2745 has also requested that Mr. Akinola reimburse it for its costs of filing this application with the Tribunal. Under Rule 48.1 of the Tribunal’s Rules of Practice, TSCC 2745 shall be reimbursed for its filing costs with the Tribunal in the amount of $150.
C. ORDER
16The Tribunal Orders that:
Mr. Akinola will immediately take all the steps necessary to bring himself, the occupants of his unit and his guests or visitors into compliance with subparagraph 117(2)(a) of the Act and with the Noise Provisions of TSCC 2745’s governing documents.
Mr. Akinola will immediately take all the steps necessary to bring himself, the occupants of his unit and his guests or visitors into compliance with the Smoking Provisions of TSCC 2745’s governing documents.
Within 30 days of the date of this Order, Mr. Akinola will pay TSCC 2745 the amount of $150 in reimbursement of its filing fees with this Tribunal.
Laurie Sanford
Member, Condominium Authority Tribunal
Released on: December 4, 2023