Jelena Novakovic v. Toronto Police Services Board et al.

Court File No.: CV-17-00588837-0000

Date: 2023-07-17

Ontario Superior Court of Justice

Between:

Jelena Novakovic Plaintiff

– and –

Toronto Police Services Board, Jannette Salvador, Jonathan Butson Badge No. 11153 and David Lee Badge No. 10539 Defendants

Counsel:

Daniel Lamberto Ambrosini, for the Plaintiff

Corinne A. Muccilli, for the Defendant, Jannette Salvador

Heard: November 14 – 18, and November 28 – December 2, 2022

REASONS FOR JUDGMENT

Vella J.

[1] Dr. Novakovic and Ms. Salvador were former neighbours in a condominium building.

[2] Dr. Novakovic complained to the Board of the Condominium Corporation (the “Corporation”) that Ms. Salvador, who occupied the unit directly below her, was making excessive noise from music and that from time-to-time foul odours floated up from Ms. Salvador’s balcony into her unit (largely cannabis smoke).

[3] In and around the time that Dr. Novakovic started making complaints, Ms. Salvador complained that someone was vandalizing her front door with dog feces, smashed eggs, rice, lipstick, and other unfortunate substances.

[4] Ms. Salvador called the police after allegedly having witnessed, through her peephole, Dr. Novakovic vandalizing her door. One night the police arrested Dr. Novakovic but released her that same night. The Crown ultimately declined to prosecute, but Dr. Novakovic says the experience traumatized her, temporarily delayed her ability to return to the United States to join her husband and one of her children and cost her legal fees.

[5] Dr. Novakovic also raised in her testimony accusations that Ms. Salvador also vandalized her door by leaving various substances on and at the door, predominantly cracked eggs. These allegations were not raised in her statement of claim.

[6] The action as against the Toronto Police Services Board, and Constables Butson and Lee has been resolved, and dismissed by order dated November 7, 2022.

[7] Dr. Novakovic seeks damages against Ms. Salvador, according to her statement of claim, for malicious prosecution, negligence, defamation, harassment, and the negligent and intentional infliction of mental suffering. In the body of the statement of claim, Dr. Novakovic also pleads invasion of privacy and in the course of opening submissions raised nuisance.

[8] There is no counterclaim by Ms. Salvador. A limitation period defence was plead by her but not pursued at trial.

[9] For the reasons that follow, the action is allowed in part and judgment is granted to Dr. Novakovic.

ISSUES

[10] The issues for determination are whether Ms. Salvador committed tortious conduct as a result of either her report to the police, and/or based on her allegations of excessive noise and foul odours emanating from Ms. Salvador’s condominium unit.

The Parties

[11] Jelena Novakovic was 69 years old at the date of trial. She was a military doctor in Yugoslavia for 10 years before leaving the former Yugoslavia with her husband. She has been married for 35 years and has three adult children: Stephan, Sofia, and Phillip. Her husband lives in Washington state with their son, Phillip, who is autistic and finished university.

[12] She has lived at the subject condominium unit, Unit 707, 400 Adelaide St. East, Toronto (“Unit 707”) since April 2, 2015. She is the owner of Unit 707. This unit is one floor directly above Ms. Salvador’s Unit 607. The condominium building was newly built in 2015 (“the Building”).

[13] Dr. Novakovic is a trained doctor, but she is not licenced to practice in Ontario.[^1]

[14] Janette Salvador lived in Unit 607, 400 Adelaide St. East, Toronto (“Unit 607”). She is the co-owner of this unit with her father and lived in the unit on her own.

[15] Ms. Salvador was a member of the inaugural Board of Directors from 2015 to 2017. The other Board members during this time period were Bonnie Webb, Lana Duong, Marques Durate and Michael Robertson.

[16] On or about November 2017, Ms. Salvador moved out of Unit 607.

The Plaintiff’s Evidence

Dr. Jelena Novakovic

[17] In addition to Dr. Novakovic, her husband, son, and Dr. Phillip Klassen testified on behalf of the plaintiff.

Pre-Arrest Incidents

[18] Dr. Novakovic testified that she first met Ms. Salvador on October 30, 2015 at 7:00 p.m. Dr. Novakovic was returning from the garbage room when she saw Ms. Salvador standing at her door. She did not know her name at the time. She testified that Ms. Salvador started calling her derogatory names, but she did not understand the English words very well. Ms. Salvador appeared to be challenging her because she thought Dr. Novakovic had been complaining about her. Dr. Novakovic stated that Ms. Salvador blocked her entrance to her door with her body. Dr. Novakovic called this an assault because she had an apprehension of fear. Ms. Salvador eventually left. This was the first incident experienced by Dr. Novakovic.

[19] Dr. Novakovic went into her unit, then after locking the door, went on the elevator to report this incident to the concierge. The elevator stopped at the sixth floor and Ms. Salvador entered. They both went to the concierge.

[20] Dr. Novakovic told the concierge that she had been “attacked” by Ms. Salvador. Mr. Perez-Arteaga, the property manager, was also present. After she left, Ms. Salvador stayed behind and appeared to be talking with Mr. Perez-Arteaga.

[21] In addition, Dr. Novakovic testified that she experienced a number of incidents of excessive noise, vibrations, odour and smoke in her unit which she believes emanated from Ms. Salvador’s Unit and balcony. She made many complaints to the Condominium’s property management and the police.

[22] Dr. Novakovic testified that the first incident of excessive noise she experienced was on April 9, 2015. However, she testified that she heard loud music in the late hours constantly up to May 2015. She kept a handwritten record of the noise and odour/smoke incidents and reported the early ones to Mr. Perez-Arteaga. She described this early period of noise as screaming, loud music and yelling coming from Ms. Salvador’s unit and balcony, and that she was “choking” with smoke from Ms. Salvador’s balcony.

[23] She testified that she was out of the country visiting her husband from the beginning of May 2015 to August 2015. From August 22 to October 5, 2015, she returned to the United States.

[24] When she returned from Washington in August, and then to December 27, 2015, she testified that there was constant noise, especially during the night and late night, and usually but not always on the weekends. She testified that she could not sleep due to the loudness of the noise and music. She testified that living above Ms. Salvador was like living above an “animal zoo”. Furthermore, the loud music caused vibrations that, in turn, caused shaking of the whole building and not just her own unit. This noise would go on sometimes from 6:00 p.m. to 7:00 a.m.

[25] She testified that she would ask Ms. Salvador at 1:00 a.m. to “kindly stop”.

[26] She testified that she reported each incident to the concierge and/or the property manager, Mr. Perez-Arteaga. In fact, she testified that she had to sleep in the lobby at the concierge desk on two occasions, including on November 15, 2015. She could not open the window for fresh air either, due to the constant smoke and noise. She testified that she had never experienced anything like this “even in the war zone” (referencing the civil war in the former Yugoslavia). She also called the police many times to complain of the excessive noise.

[27] She also made complaints to the Board of Directors for the period from April to November 1, 2015, and wrote a letter to the Board dated November 1, 2015.

[28] She testified that on December 11, 2015, she had a meeting with three of the Board members and Mr. Perez-Arteaga to talk about the complaints. Dr. Novakovic assumed that Ms. Salvador would now correct her behaviour and was prepared to forgive and forget. However, after this meeting, she testified that the noise got worse. For example, on December 24, 2015, there was very loud noise coming from Unit 607.

[29] She was aware that Ms. Salvador was warned in 2015 that if there was one more complaint, she would receive a letter from the Corporation’s lawyer.

[30] She believes that in total she made about 14 complaints against Ms. Salvador and that the majority were confirmed by the concierge.

The Arrest of Dr. Novakovic

[31] Dr. Novakovic testified that she was sitting in her unit when she heard a knock at the door. She opened it to find two police officers. She described that before saying anything, the police officers “grabbed” her and put her against the wall, charging her with mischief and vandalizing a door on October 4 and October 30, 2015. They put handcuffs on her, but then removed them when she told them that her son was a military officer. The police refused to tell her who the complainant was.

[32] She testified that the police frisked her in her night gown, asked for her identification, and then allowed her to take a coat. They put her into a police car and brought her to the police station where she was held for seven and a half hours. She was then released at 4:30 a.m. on the street at -40 degrees Celsius, during a winter storm, and left alone to make her way home.

[33] Dr. Novakovic signed an Undertaking given to a Peace Officer or an Officer in Charge on December 29, 2015 to secure her release. In that Undertaking, Ms. Salvador’s name is revealed. Dr. Novakovic agreed that she would not be within 100 metres of any place Ms. Salvador is known to work or be and to abstain from communicating directly or indirectly with Ms. Salvador or from going to any floor of 400 Adelaide Street East other than the 7th floor or P3 Property Locker.

[34] The criminal charges were ultimately stayed on August 31, 2016 with peace bond conditions attached.

[35] In cross examination, Dr. Novakovic admitted writing a letter of complaint against one of the arresting officers, Constable Lee, dated September 29, 2016. She admitted she wrote that he had inappropriately exercised his discretion in arresting her. Her explanation for the alleged police misconduct was that Officer Lee and the police generally were biased against her, again giving preferential treatment to Ms. Salvador. She reasoned that because Ms. Salvador was a paralegal and part of the justice system, therefore the police inappropriately exercised their discretion to arrest Dr. Novakovic when they did not have reasonable and probable grounds to do so. Dr. Novakovic stated that Ms. Salvador “ordered” her arrest, and that it was not the police officers’ decision to arrest her. Dr. Novakovic also registered a complaint against the investigating officer in charge at the Criminal Investigation Bureau (“CIB”).

[36] Dr. Novakovic testified that the arrest had a significant adverse impact on her. First, she was separated from her family, especially her disabled son, because she could not travel to the United States with the arrest hanging over her head. Second, her application for a Green Card was disrupted and ultimately withdrawn. In her words, her family, life, safety, wellbeing and health were compromised. She stated that she lived in a constant fear of what Ms. Salvador might do next, including having her arrested at any time. She was told that she suffers from PTSD as a result of the arrest, and she is not herself anymore. She feels nothing and is an empty shell. She testified that all she can do is read the law, and that is why she is at court. She wonders, how could an innocent elderly woman be arrested without, in her words, a shred of evidence. She testified that this arrest affected her immigration status because it prevented her from travelling to the United States to undergo compulsory medical examinations. She testified that she could not travel out of the country until 2019.

[37] She testified that whenever she opens her door, she has flashbacks of the police pulling her out of her unit and arresting her.

[38] Under cross examination, she clarified that she had travelled to the United States on two occasions: January 9 and February 6, 2016 to undergo her medical examinations for the Green Card, but she travelled at her own risk of being arrested at the border. As of June 5, 2019 she was able to travel to the United States again as a tourist. She was then prevented temporarily from going to the United States due to the COVID-19 pandemic.

[39] When shown an RCMP record dated June 7, 2017 and addressed to Dr. Novakovic, she admitted that it stated that a search was done of the National Criminal Records repository and that there is no criminal record of conviction associated with her date of birth, name or fingerprints. However, Dr. Novakovic maintained that there is an existing criminal record against her at the City of Toronto and the Toronto Police Services. No evidence was led to corroborate this latter assertion.

[40] She also believes that her reputation has been destroyed and she is “stuck” with the fact of the criminal charges “forever” and her good name is more important than material possessions. In short, her pride, dignity, honour and everything was taken because of Ms. Salvador’s call to the police.

[41] Dr. Novakovic also became aware of other reports by Ms. Salvador to the police against her. However, she did not have any other encounters with the police as a result of these reports.

[42] Dr. Novakovic also called the police on several occasions to report Ms. Salvador regarding the noise and odour complaints.

[43] Ms. Salvador again contacted the police in June 2019, this time in relation to dog feces being left at the door to her new residence. However, Dr. Novakovic was never approached by the police in relation to this complaint and did not find out about it until after this litigation was commenced through the discovery process. Still Dr. Novakovic says this shows that Ms. Salvador has an ongoing vendetta against her, and she fears that she could be arrested any day for any false allegation that Ms. Salvador may wish to launch with the police.

[44] It is Dr. Novakovic’s firm belief that the police, prosecution, and justice system discriminated against her because of favouritism of Ms. Salvador as a member of the justice system (a paralegal). She testified that it was her belief that the police went so far as to tamper with the evidence in order to prosecute her and committed “mass perjury”. This centred, in part, around the fact that in the Crown’s documents the incident date was listed as October 4, 2015 – a date that Dr. Novakovic was out of the country visiting her husband and son. However, Officer Lee’s notes stated the incident took place on November 4, 2015. The Crown later advised that the October 4 date was their error and confirmed the incident alleged took place November 4 as testified by Ms. Salvador. However, Dr. Novakovic testified that she did not believe it was an error, but rather evidence of a cover up by the Crown and police once they discovered she had been out of the country on October 4. This seems to be typical of Dr. Novakovic’s propensity to view all events according to the pre-determined narrative she has formulated; another example of which was her firmly held belief that the marijuana odours came from Ms. Salvador’s unit because she believed Ms. Salvador smoked day and night, notwithstanding that she did not ever see Ms. Salvador smoke marijuana.

Post Arrest Incidents: Noise, Odour/Smoke and Vandalism Complaints

[45] After the arrest, the excessive noise and smoke complaints continued. Added to this were some acts of vandalism Dr. Novakovic experienced to her door and doorway. She estimated that she heard excessive noise coming from Ms. Salvador’s unit almost every weekend and during some weekdays as well. The excessive noise complaints continued until October 11, 2017, which was the date of the last incident. Some of these complaints were made to property management and others to the police.

[46] In total, Dr. Novakovic estimates that she complained approximately 50 times against Ms. Salvador for excessive noise and odour between 2015 and 2017. From October 31, 2015 (first report) to April 14, 2017 (last report), Dr. Novakovic contacted the police approximately 21 times with respect to mainly excessive noise, but also harassment, vandalism and disorderly conduct she attributed to Ms. Salvador. The reports tended to overlap with complaints she made to property management.

[47] In her 32-page contemporaneous handwritten log of incidents from April 2015 to 2017, Dr. Novakovic records numerous occurrences against Ms. Salvador’s unit and other units in the Building, as well as matters relating to her arrest. They were not transcribed nor read into the record and are not fully legible. She admitted that at the time of the events, she did not have good relations with all of her neighbours. She explained that her noise complaints against Unit 807 had to do with music played by students, and with respect to Unit 708, those residents sometimes played their music too loud. However, she said they would fix the problem when she complained.

[48] Under cross examination around her contemporaneous notes of noise disturbances aimed at other units, Dr. Novakovic became defensive. For example, after admitting she heard excessive noise from Unit 708 she volunteered that this did not mitigate Ms. Salvador’s damage to her, and that the noise concerns she had with the other units were not like the concerns she had with Ms. Salvador.

[49] Dr. Novakovic described the volume of the music she heard as being louder than the bombs she heard in the war. She emphasized that the whole building would shake, not just her condominium unit. The sound was a persistent bass though sometimes she could hear the words to the music being played. She stood by these characterizations under cross examination and added that the whole street could hear the noises from Ms. Salvador’s unit.

[50] She testified that she did not attempt to measure the volume of sound with a decibel metre or other device because that was the duty of the management and Board of Directors of the Condominium Corporation. However, when on December 15, 2015 the management requested permission from Dr. Novakovic to perform a sound tolerance test in her unit (albeit not a “professional” test), to obtain an objective measure of the level of noise that was satisfactory to her, Dr. Novakovic refused permission. Her explanation was that she assumed the test would be “biased” in favour of Ms. Salvador in light of Ms. Salvador’s position on the Board. She agreed she did not propose any other test to be conducted, because it was not her responsibility to do so. Nor would she pay to have any such test conducted that would meet her satisfaction, since it was the Corporation’s and Ms. Salvador’s duty to do so, in her view.

[51] Dr. Novakovic described the impact of the noise and disturbances she ascribes to Ms. Salvador as follows. Before the arrest, it was impossible to relax. She was deprived of sleep. Her eyes were aggravated by the smoke, and she could not breathe properly if her balcony door was opened, or she went on to the balcony. She called the ordeal a “huge stressor” because of her advanced age. She relayed what she was told by her doctors, however, none of the doctors were called to give evidence and the medical opinions contained in the records were not admitted into evidence.

[52] When confronted with the isolated responses of the Condominium Board to her complaints, which she said were inadequate, Dr. Novakovic reasoned that it was because the Board was biased against her and gave Ms. Salvador preferential treatment as a Board member. She testified that it was “obvious” that the Board would favour Ms. Salvador. This notwithstanding the fact that the Board did sanction Ms. Salvador on two occasions, Ms. Salvador was recused from any Board discussions relating to Dr. Novakovic’s complaints and the Board had meetings with both to try to resolve this ongoing conflict.

[53] Dr. Novakovic suspects that the videotaped recordings of Ms. Salvador’s alleged partying were purposefully erased by the Board – either that or they just do not exist anymore. This included a recording of a party allegedly held by Ms. Salvador on April 14, 2017, which was particularly raucous from her perspective.

[54] Dr. Novakovic admitted that she never saw anyone smoking from Ms. Salvador’s balcony. However, she smelled the smoke which floated upwards from the balcony. She claimed this was a regular occurrence and testified that the smoke generally smelled like marijuana, but also, she smelled smoke that she suspected was tobacco and/or other drugs. Dr. Novakovic testified that she would hear the balcony door open and then the smoke would arrive. Therefore, it was obviously always coming from Ms. Salvador’s balcony, she reasoned.

[55] Dr. Novakovic dismissed the possibility that the smoke and related odours came from another unit. She stated in cross examination that Ms. Salvador was the only one who smoked marijuana and that she smoked it constantly during the day and night, even though she never witnessed this personally.

[56] Dr. Novakovic testified that she was allegedly assaulted by Ms. Salvador a second time, on July 7, 2016. Dr. Novakovic was on the elevator, and it stopped on the sixth floor. The elevator was “packed”. Ms. Salvador entered putting Dr. Novakovic at risk of being in breach of her no-contact undertaking in the criminal proceedings (following the arrest). She believed Ms. Salvador was going to attempt to induce a breach by intentionally bumping into her, so she exited the elevator.

[57] Dr. Novakovic testified that she believed it was Ms. Salvador who began leaving cracked eggs at the foot of her door. She inferred this as being retaliatory to Dr. Novakovic’s repeated complaints against her and the fact that the “egging” only started after Dr. Novakovic started making her complaints. In examination in chief, she testified that she saw Ms. Salvador, through her peephole, egging her door on August 21, 2016. However, in cross examination, she testified that she never witnessed who was egging her doorway.

[58] Dr. Novakovic always reported the incidents to the property management. From December 31, 2015 to August 21, 2016 she made six vandalism reports and one disturbance report. The last report related to her complaint that Ms. Salvador had come to her door and was knocking loudly and screaming at her.

[59] She also testified that Ms. Salvador fabricated allegations that Dr. Novakovic was defacing and defiling Ms. Salvador’s door and doorway with various substances, including dog feces again to deflect the noise and odour complaints away from Ms. Salvador. Dr. Novakovic steadfastly denied having engaged in any such conduct.

[60] Dr. Novakovic also steadfastly denied ever being on the sixth floor, because one of her conditions following the arrest and resolution was that she was not to appear in Ms. Salvador’s hallway. She explained that she would never do this, in light of the criminal undertaking following her arrest

[61] Dr. Novakovic testified that she only started to experience vandalism (at her door) after she was arrested. At the 2016 Annual General Meeting (“AGM”), she stood up and asked if the board would install corridor cameras for extra protection – this is documented in the minutes.

[62] She testified in cross examination that despite the multiple times she called the police to investigate, they only confronted Ms. Salvador once. On November 17, 2016, the Crown withdrew these charges.

[63] On October 11 and 13, 2017 Dr. Novakovic contacted the police to report vandalism to her door and stated that she suspected Ms. Salvador was the culprit.

[64] All of the incidents consisted of raw eggs left at her door – cracked. She reported these incidents to the management and to the police. The first incident was December 31 2015, following her arrest, and the last incident was in October 2017. There were approximately 5 incidents of this “egging” that she reported to the property management. She reported to the police regarding the December 2015 incident that she believed the offender was Ms. Salvador. She acknowledged that she had no “proof” it was Ms. Salvador but reported her belief. In August 2016 she sought a peace bond against Ms. Salvador. She felt targeted by Ms. Salvador and the police.

[65] Ms. Salvador appeared in court on October 27, 2016. Dr. Novakovic was the informant. Dr. Novakovic believed this was an appropriate step for her to take against Ms. Salvador in order to “protect” her life. At the hearing, the Crown Attorney withdrew all charges.

[66] In addition, Dr. Novakovic filed a complaint dated October 13, 2016, against Ms. Salvador (as a paralegal) with the Law Society of Upper Canada (now the Law Society of Ontario) in relation to the alleged conduct. However, this complaint was dismissed at the first stage on the basis that the alleged misconduct was not alleged to have been committed in the course of Ms. Salvador’s position as a paralegal.

[67] Dr. Novakovic denied ever swinging a broom over Ms. Salvador’s balcony. She testified that she did not even own a broom, and always used a vacuum to clean and the vacuum was small.

[68] She also denied having sprayed any aerosol spray over her balcony or throwing any garbage or cigarette butts onto Ms. Salvador’s balcony.

[69] She also testified in cross examination that the Board’s suggestion that a sound test be conducted was “pretend” to make them look good. She acknowledged however that the charge back letters to Ms. Salvador were not “pretend”.

[70] Dr. Novakovic also claimed that the statements in the Ontario Human Rights Tribunal application filed against her by Ms. Salvador contained defamatory statements. She acknowledged that the first time she became aware of it was when the Human Rights Tribunal contacted her in February 2016 to tell her that the application had been dismissed. She also views all of Ms. Salvador’s reports to the police and to the security at the Corporation as defamatory against her.

[71] She confirmed that she has not discovered any further complaints against her by Ms. Salvador since June 2019, but that is “more than enough”.

[72] She agreed in cross examination that she concluded that Ms. Salvador was the person vandalizing her door based on their prior interactions, and because she believes that Ms. Salvador is a liar. She also viewed the fact that Ms. Salvador moved out of the Building as part of a plan to escape suspicion with respect to the past incidents. She still considers Ms. Salvador to be dangerous.

Stefan Novakovic

[73] Stefan Novakovic is one of Dr. Novakovic’s children. He testified with respect to his observations of his mother before and following the arrest.

[74] Stefan was careful in his testimony. He did not exaggerate and was straight forward. He was not defensive under cross examination.

[75] Stefan indicated that during the material time frame he lived in Shiloah, Manitoba with his military regiment.

[76] From time to time he visited his mother, when in Toronto to visit his then girlfriend.

[77] He indicated that when he spent about a week at his mother’s home in mid July 2015, he did not hear any noise. He also did not smell any odours but noted the air conditioning was on, and the windows were closed. He confirmed that prior to the arrest he did not hear any noise or smell odours while visiting his mother in her unit.

[78] During subsequent visits between December 2015 and 2017 he did hear “some” noise past 11:00 p.m. from time to time. He said the noise was loud enough to be heard and described hearing bass. He cannot recall when these visits were. He did not smell any odours, however.

[79] He specifically recalled hearing noise following March 2017 after he broke up with his girlfriend, meaning he would stay with his mother when he came to Toronto to visit.

[80] He described that immediately after the arrest, he observed changes in his mother’s health. He described her as being fragile in the immediate aftermath and noted that she became predisposed to crying fits which were not present before. He described that his mother had a heighted sense of fear and insecurity owing to a fear of being arrested at any time. He also has witnessed her emotional withdrawal from time to time.

[81] He described the impacts on his mother as being, based on his observation, linked to the “false arrest”. He confirmed writing a letter in or after August 2018 in support of his mother and that it was either for this litigation or Dr. Klassen. In it he recorded his observations of his mother in the immediate aftermath of the arrest.

Nesbojsa Novakovic

[82] Mr. Novakovic is Dr. Novakovic’s husband and father to their children. He lives in Washington State and was 62 years old at the time of trial. He married Dr. Novakovic on December 13, 1986.

[83] He was born in the former Yugoslavia, in Sarajevo (now known as Bosnia-Herzegovina). He is a Canadian citizen.

[84] He has a permanent resident card from the United States, typically referred to as a “Green Card”.

[85] He has a Bachelor’s degree in Electrical Engineering and a Master of Electrical Engineering, and is currently licenced to practice engineering in the United States (and in Canada, before that).

[86] He and Dr. Novakovic left the former Yugoslavia (then called Bosnia) in May 1992 after the civil war broke out. They went to Serbia as refugees and applied for Canadian refugee status. After being accepted, they arrived in Toronto on November 19, 1992: he, his wife, and their two children, Stefan and Sofia. Phillip was not yet born.

[87] Mr. Novakovic recounted his employment history. Notably there were significant periods of time when he lived away from his family and would travel back and forth. Between 2004 and 2006, he moved to Moscow with the family. Since 2007 he has lived and worked in Washington with the youngest son, Phillip.

[88] Mr. Novakovic and Dr. Novakovic purchased a home in Toronto in 1999 and sold it in March or April of 2015. Dr. Novakovic bought the condominium Unit and moved in at the end of April 2015. The idea was that they would have the Unit in Toronto so they could have a place to stay when visiting Stefan and his family. By this time, Stefan had joined the Canadian Armed Forces.

[89] Prior to October 2016, after he secured his permanent resident status in the United States, Mr. Novakovic only visited her at the Unit once (in April 2015). He spoke to Dr. Novakovic frequently by telephone prior to the arrest.

[90] Mr. Novakovic learned about the arrest from Dr. Novakovic by telephone on December 29, 2015. He described her as sounding very distressed and crying. He started speaking with her every day by telephone after this.

[91] Mr. Novakovic explained that the arrest caused a delay in Dr. Novakovic’s ability to apply for a Green Card, which his employer had been assisting with. The reason was that, upon disclosing the fact of the arrest, the U.S. authorities required Dr. Novakovic to submit criminal records from her past countries she lived in, including the former Yugoslavia. This was impossible because Yugoslavia no longer exists. Similarly, she could not obtain criminal records from Bosnia-Herzegovina or Serbia because they were new countries. Hence, she could not prove that she has no past criminal record. Furthermore, once the Green Card process is started (and it had been) the applicant cannot leave the United States, nor can they enter. Since Dr. Novakovic had to be in Canada for the criminal proceeding, she could not risk going to the United States.

[92] Dr. Novakovic ultimately abandoned the Green Card process, so that she could visit her family in the United States as an ordinary tourist.

[93] The only time that Mr. Novakovic visited Toronto after the arrest was in December 2016. He obtained his Green Card in 2016.

[94] Under cross examination, Mr. Novakovic clarified that he has not explored the option of re-applying for a Green Card for Dr. Novakovic because there is no impediment to her coming to visit.

[95] During the course of telephone calls, he did not generally hear any noise initially. However, after Thanksgiving of 2015, he could hear some music over the telephone from time to time. Dr. Novakovic complained of excessive noise and smoke many times during the course of the telephone calls. On cross examination, he admitted that he heard noise on only one occasion over the telephone, and otherwise he did not witness anything else.

Dr. Philip Klassen

[96] Dr. Klassen was qualified as an expert in forensic psychiatry, forensic assessments, and the general field of psychiatry. Dr. Klassen explained that the recognition of forensic psychiatry as an area of specialization is a recent one. In fact, 2022 was the first year in which psychiatrists could sit the subspeciality examination for forensic psychiatry.

[97] Dr. Klassen defined forensic psychiatry as the application of psychiatry to third party contexts. Forensic psychiatrists will usually have subspecialities in various areas of psychiatry.

[98] The assessment of Dr. Novakovic was conducted in 2020, and his report is dated July 28, 2020.

[99] Dr. Klassen conducted eight hours of clinical interviews of Dr. Novakovic and a detailed collateral interview of her son, Stefan. He found Stefan’s information to be an important component of his assessment, stating that he relied on Stefan’s observations heavily.

[100] Dr. Klassen’s opinion is that Dr. Novakovic does not satisfy the diagnostic criteria for PTSD as set out in the DSM-5.[^2] A person must satisfy all of the diagnostic criteria set out for PTSD in the DSM-5. This is a mandatory requirement. Dr. Novakovic did not satisfy two of the five mandatory diagnostic criteria.

[101] First, neither the arrest nor Dr. Novakovic’s various complaints relating to Ms. Salvador and the condominium unit qualify as a life-threatening event (Criteria A for PTSD in the DSM-5).

[102] Second, she does not satisfy the diagnostic criteria of avoidance (Criteria C in the DSM-5). In fact, Dr. Novakovic presents the opposite from avoidance; namely counter-phobic behaviour. This means that Dr. Novakovic engages in conduct that keeps her linked to the “traumatic” incidents, such as by starting this lawsuit and taking other actions against Ms. Salvador (such as the complaint to the Law Society). On the other hand, Dr. Klassen’s opinion is that her engagement in counter-phobic behaviour may be intended to ameliorate the loss of her control and safety in her home.

[103] However, Dr. Klassen’s opinion is that Dr. Novakovic suffers from some of the symptoms and conditions associated with PTSD and having suffered from a traumatic event; namely, hyperarousal, re-experiencing the incident (the arrest), and negative mood. He testified that he had “a high degree of confidence” based on Dr. Novakovic’s symptoms, her self-report and the available information (Dr. Novakovic’s clinical notes, records and reports, and the collateral interview of Stefan) that the symptoms were caused by the December 2015 events (arrest) and the events that followed. He does not specifically reference the noise and odour complaints, but focused on the arrest as the seminal event.

[104] She also suffers from “narcissistic injury”, not to be confused with a narcissistic personality disorder. This type of psychological injury captures her loss of her own honour, dignity and reputation as measured against her extreme high moral standards which she holds herself, and others around her, to.

[105] Notwithstanding that Dr. Novakovic does not meet the mandatory diagnostic criteria, he testified that PTSD is his “working diagnosis”.

[106] Dr. Klassen’s view is that the arrest is the most significant clinical factor and this was the factor chosen by Dr. Novakovic when Dr. Klassen completed the Clinician-Administered PTSD Scale for DSM-5(CAPS).[^3] However, he testified that he could not “parse out” the impact of the arrest compared to other disturbances in Dr. Novakovic’s life such as the alleged harassment by Ms. Salvador and her inability to travel to the United States.

[107] He also speculated that Dr. Novakovic has suffered from a “moral injury”. This condition is not recognized by the DSM-5. It is not in his expert report either. However, he explained that a moral injury is one in which the patient believes she has suffered a breach of her moral code. He believes this aptly describes Dr. Novakovic’s reaction to having been arrested, in particular. She believes the arrest was unjust and unwarranted, and caused by a failure of the justice system in general, and specifically the arresting police officers, prosecuting Crown attorney, her criminal counsel and prior civil counsel too, according to Dr. Klassen.

[108] Dr. Klassen testified that, related to the “moral injury”, is Dr. Novakovic’s heightened response to the way she perceives she has been treated in the justice system. It has not met her standards.

[109] It appears that the actors in this lawsuit have also not met her standards: the Board of the Condominium Corporation, the property management staff, the police and prosecutor in the criminal proceeding initiated by Ms. Salvador, and Ms. Salvador herself as a former director of the Board and a paralegal.

[110] Dr. Klassen testified that Dr. Novakovic has experienced these “substandard” relationships as a betrayal of trust.

[111] In addition, it is Dr. Klassen’s opinion that Dr. Novakovic suffers from symptoms associated with PTSD. In particular, Dr. Novakovic suffers from significant anxiety, somatic symptoms, depressed mood and damage to her self esteem and her concept of herself. He also opined that there has been some disruption to her interpersonal relationships caused by her initial inability to move to the United States as a resident and help with their autistic son (who has now graduated from university). He observed that she is clearly distressed but notwithstanding is able to function at a high level. He also queried whether the level of her distress might be due to her personality characteristics.

[112] Dr. Klassen testified that Dr. Novakovic also suffers from cognitive symptoms, arousal symptoms, low mood, anxiety symptoms and somatic or physical symptoms.

[113] In terms of causation, Dr. Klassen’s opinion was that on the basis of the available information he had a high degree of confidence that the symptoms were caused by the events surrounding the 2015 arrest and the subsequent events. He did not address specifically in his evidence any symptoms or diagnosis attributable to Dr. Novakovic’s reported experiences of excessive noise, odour and smoke. The issue of vandalism was also not discussed. He did not consider any incidents attributed by Dr. Novakovic to Ms. Salvador that occurred prior to the arrest. He opined that it is hard to parse out the impact of events subsequent to the arrest but referenced the separation of Dr. Novakovic from her family in the United States as a result of the arrest.

[114] It was clear based on his testimony (which is confined to what he addressed in his report[^4]) that the focus of Dr. Klassen’s assessment was the arrest. Indeed, his instructions were to undertake an assessment in relation to the “incident in question”, meaning the arrest.

[115] There are problems with Dr. Klassen’s opinion, as revealed in the cross examination. First, Dr. Novakovic declined to fill out any psychological tests. This means that Dr. Klassen did not have any objective data, nor did he have the benefit of any validity scales to detect whether or not there was any malingering. He admitted that such tests would have been useful to his assessment as he had to rely on self-reported symptoms from Dr. Novakovic. Without the psychological testing battery he would generally have had administered, he could not rule out the possibility that Dr. Novakovic has exaggerated her constellation of symptoms.

[116] No explanation was provided for Dr. Novakovic’s refusal to cooperate with Dr. Klassen’s request to submit to psychological testing.

[117] Second, Dr. Klassen relied, in part, on clinical notes and records of other doctors and psychiatrists. However, none of these records were tendered in evidence.

[118] Third, Dr. Klassen was also careful to premise his responses on the assumption that Dr. Novakovic’s self report was true.

[119] Finally, Dr. Klassen admitted that he did not explore Dr. Novakovic’s civil wartime experiences including an incident with Dr. Novakovic that was reported to him by Stefan. According to Stefan, his mother was pulled out of her home at gunpoint during the civil war in the former Yugoslavia, which caused his mother and father to leave as refugees. Dr. Klassen admitted that this could have been a traumatic event within the meaning of Criteria A of the PTSD diagnostic criteria, meaning that this prior event may have caused the PTSD related symptoms that Dr. Novakovic reportedly suffers from now.

The Defendant’s Evidence

[120] In addition to Ms. Salvador, the former property manager of the Condominium Building, a former director, one of the arresting officers, and two of Ms. Salvador’s friends testified.

Jannette Salvador

[121] Ms. Salvador was 38 years old at the time of the trial. She was a licenced paralegal, though she only worked in the capacity of a law clerk from September 2013 to around February 2017, in a corporate services firm.

[122] While working as a law clerk, her hours of employment were from 9:00 a.m. to 5:00 p.m., Monday to Friday. On the weekends she helped some of her friends with their baking business, and she also worked about one day each weekend travelling to trade shows across the province. After leaving her employment as a law clerk, she worked for a company in a non-paralegal capacity, to November 2017. In this role, her hours of employment were from 8:00 a.m. to 6:00 p.m.

[123] She moved into 400 Adelaide St. East, Unit 607, in June 2015. The Building was substantially completed but not entirely.

[124] She was elected to the inaugural Board of Directors of the new Condominium Corporation in 2015 at its first AGM and was appointed Secretary. She did not take the minutes of Board meetings or AGMs, as the Board hired a professional minute taker for that. She described her role as Secretary as being just a notional title, with no specific duties or functions. Rather all of the directors, of which there were five, jointly made decisions and discharged general Board functions with the exception of the President, who chaired meetings. She finished her two-year term in 2017 and did not run for re-election.

[125] She described her social gatherings at her unit as being small and quiet affairs. Typically she had two girlfriends over on the weekends and her family visited occasionally. Her (former) boyfriend also visited her.

[126] On these occasions, she played a variety of musical genres including dance music, funk and soul however she stated that she played music on her television set. She did not own a stereo or separate music system. She testified that she played music at low volumes, such as would not interfere with the ability to speak and hear each other without shouting. She stated she only hosted one party in the approximately two and a half years that she lived in Unit 607, being a birthday party. She testified that she had around eight or nine guests and the party was held in April 2017. She denied that it was a loud party.

[127] She acknowledged that she and her guests would go out on the balcony, especially in the warm weather months.

[128] She described her unit as comprising of about 600 square feet. It was a one-bedroom unit with a small balcony. She confirmed that her unit was directly below Dr. Novakovic’s Unit (707). She testified that approximately six to seven people would fit comfortably in her unit, and approximately three to four people would fit on the balcony where she had two chairs and a small table.

[129] Ms. Salvador denied ever smoking on her balcony. She stated that she does not smoke cigarettes or anything else. However, she testified that her ex-boyfriend smoked on the balcony. He visited from out of town only once or twice a month on the weekend and he smoked cigarettes and “weed” occasionally – and when he did it was only once during the night as she disliked the smoking. Also, one of her friends smoked cigarettes on the balcony, once or twice in the evening. She testified that the smoking was not frequent, and she permitted this as she thought it would not bother anyone so long as it was outdoors. She admitted that this was a mistake on her part. However, at the time, she did not believe that there were any condominium regulations that prohibited smoking on the private balconies.

[130] She acknowledged that she would have received a newsletter from the Condominium Corporation dated May 2015 that notified residents that smoking was not permitted on the common elements, and it listed balconies under common elements.

Pre-Arrest Incidents

[131] Ms. Salvador testified that when she received complaints and a letter from the lawyers representing the Condominium Corporation (Lash/Condo Law) dated December 30, 2015, she prohibited future smoking on her balcony.

[132] Of note, the Lash/Condo Law December 30, 2015 Letter advised that the property management company (First Service Residential) had received “many complaints” beginning in August 2015 with respect to “various incidents of excessive noise and odour coming from your suite, at all hours of the day and night” consisting of loud music, loud voices and marijuana odour. Furthermore, the letter stated that this “excessive noise and odour” was disturbing the quiet enjoyment of the other residents and in contravention of s. 3.1(a) of the Corporation’s Declaration.[^5] It referenced the attendance of police on “numerous occasions” to respond to these complaints, and letters sent by FirstService in respect of excessive noise on October 11, 2015 and November 3, 2015. In addition, the letter advised that there had been “several occasions” on which security attended her unit “in an effort to reduce the excessive noise emanating from your unit” and notwithstanding these efforts, the Corporation continues to receive complaints. The letter further stated that if there was any further noise or odour complaints received, then the Corporation would instruct its lawyers to take steps to enforce compliance.

[133] Ms. Salvador acknowledged receiving this letter, though she disputed the accuracy of the contents on the basis that she felt the property management staff (typically the concierge) had too low a threshold for validating noise complaints; for example, they would be validated even if there was only normal volume talking going on which the security could hear standing outside her door. Furthermore, she testified that some of the complaints related to times when she would have been at work and therefore the noise could not have come from her unit. She also pointed out that the units were not sound proofed, and she too could often here noises in the hallway emanating from her neighbours’ units such as voices, television, music, vacuums, dog barking and dishwashers. Ms. Salvador claimed that she went to her nearby neighbours to see if they were disturbed by noise coming from her Unit, and the response she received was that no one had made a complaint.

[134] She testified that she also heard piano playing and vacuuming on a daily basis coming from Unit 707 when she was in her own unit. In her view, it was to be expected that when one lives in a condominium building with no sound proofing, that you are going to hear some noise from the various units.

[135] She testified that she, herself, made a few complaints about excessive noise occurring after hours.

[136] She testified that she did not learn that it was Dr. Novakovic who was making the noise and odour complaints until in or around December 2015, and that it became her understanding later from FirstService that Dr. Novakovic was the only one making those complaints. She did not know the identity of the resident of Unit 707 in October 2015.

[137] Ms. Salvador testified that she started experiencing vandalism to her door in October of 2015. On October 30, 2015, she heard a noise at her door from inside her unit. When she went outside to investigate, she saw an egg smashed. She went upstairs to Unit 707 as she had heard that the complainant lived upstairs from her unit (she did not know the complainant’s name at this time). On her way to the 7th floor, she encountered who she came to know as Dr. Novakovic. Initially, Dr. Novakovic denied living in the building. Ms. Salvador described Dr. Novakovic as erratic, so she decided to go to the concierge to report the incident. When she arrived, the concierge and the property manager (Daniel Perez-Arteaga) were in the lobby as was, who she came to know as, Dr. Novakovic. Both were upset and complaining about the other. The police were called but there was no resolution. This was not the first incident, but the first one that Ms. Salvador had specific recollection of. She testified that she thought this had happened once or twice or a few times before this incident. At this time she also did not know that it was Dr. Novakovic who was making the noise complaints against her.

[138] Ms. Salvador described that by November 2015, the frequency of the vandalism she experienced escalated. Things were thrown onto her door such as flour, bleach, coffee, lipstick, nail polish, eggs, tomato sauce and rice. She testified this occurred once or twice a week thereafter and she was embarrassed by these occurrences. She testified that she approached the Board, but they offered her no recourse and told her that her only option was to contact the police.

[139] In an email dated January 8, 2016, from Mr. Perez-Arteaga to Ms. Salvador, there is a record of the number of times the police were on site speaking with her and the number of vandalism incidents to her door that were confirmed by the concierge. The number of such confirmed incidents were 13, occurring between October 9 and December 29, 2015. As well that email confirmed that there was a total of 23 noise complaints made against Ms. Salvador, of which 13 were confirmed by the concierge. The date range of the noise complaints is not revealed but would have been over the course of 2015 up to January 8, 2016.

[140] Photographs of the vandalism taken by Ms. Salvador were also admitted as exhibits and showed incidents from November 4, 2015 to June 6, 2016.

[141] Ms. Salvador testified that on or before December 2, 2015, she installed an extra lock to her door to protect herself, as the vandalism caused her to be afraid for her safety.

[142] Then on December 26, 2015, she found, for the first time, dog feces stuck on to the bottom of her door. This caused her to be particularly fearful as she did not know what to expect next.

[143] She testified that on one occasion she witnessed Dr. Novakovic at her door doing something. She testified that, on November 4, 2015, she was eating when she heard a noise at her door. When she looked through the peep hole, she saw Dr. Novakovic rubbing something on to her door. She opened the door later and saw an egg. She testified that at this time, she did not know Dr. Novakovic’s name. She called the concierge and the police on this occasion.

[144] She testified that on another occasion she went to the door as someone was banging at it and yelling. She looked through the peephole and saw Dr. Novakovic. She does not know what date this occurred.

[145] In an email dated October 24, 2016 to Ms. Salvador, Mr. Perez-Arteaga sent a list of the reported vandalism dates and the nature of the vandalism to her unit. This list records 14 confirmed incidents from November 4, 2015 to June 13, 2016.

[146] She testified that she was summonsed to a meeting by the Board on December 11, 2015, for the purpose of asking her why she had so many excessive noise complaints against her and trying to mediate a resolution. The three members of the Board also met with Dr. Novakovic, though separately. Ms. Salvador was told that if there was one more report of excessive noise, then a charge letter from the Corporation’s lawyer would be sent to her. A charge letter is when a unit resident had been found to be in violation of the Corporation’s rules or Declaration and the resident is charged the legal fees associated with the letter. Payment of these fees are enforceable as a lien against the resident’s unit. The purpose of the charge back letter is to give the resident fair warning that should there be any future transgressions, the Corporation will seek full costs of its enforcement proceedings which, according to the letter, can range from $5,000 to $50,000 and up.

[147] The fee that was associated with preparing the December 30, 2015 letter and charged back to Ms. Salvador was $528.50. She paid it without protest, not because she agreed with the contents, but because she did not want there to be any issue with her standing on the Board and did not want to fight this.

[148] On or about December 11, 2015, Ms. Salvador filed a human rights complaint (dated October 12, 2015) against Dr. Novakovic, alleging discrimination on the basis of race. She characterized the vandalism which she attributed to Dr. Novakovic as being in retaliation for the alleged excessive noise and odour she believed was coming from Ms. Salvador’s unit as being discriminatory against her. However, the application was dismissed for want of jurisdiction.

[149] In or around the Fall of 2015, the Board suggested that a sound test be conducted to get an objective measure of the volume. Ms. Salvador agreed to this. It did not occur. Ms. Salvador understands that Dr. Novakovic did not agree to having this done. Ms. Salvador testified that she moved her television hoping that it would make a difference in the projection of the sound, but it did not stop the complaints from Dr. Novakovic.

Circumstances leading to Dr. Novakovic’s arrest

[150] In December of 2015, the situation escalated from Ms. Salvador’s perspective. There were an increased number of noise complaints by Dr. Novakovic, and there was an increased number of vandalism incidents to Ms. Salvador’s door. According to Ms. Salvador, in light of the Board’s inability to intervene, she followed their advice and called the police on December 25, 2015. The precipitating incident was the first-time dog feces were thrown onto her door.

[151] She contacted the police twice by telephone in the days leading to the arrest. The court listened to the two audio recordings from police dispatch of these calls held on December 26 and 28, 2015. On these recordings, which both parties agreed were accurate and authentic recordings, Ms. Salvador can be heard to telling the dispatch operator that Dr. Novakovic is harassing her, that she is insane and unstable, that she witnessed her on one occasion vandalizing her door, that she is swinging a broom stick over her balcony from above, and that Dr. Novakovic is making noise complaints because she does not want Ms. Salvador to make any noise at all. The dispatcher said that the police would come when they had an opportunity. On the follow up call two days later, after another vandalism incident, the dispatcher said the police would come right away, and they did.

[152] Ms. Salvador explained that the purpose of calling the police was that the police would persuade Dr. Novakovic to stop the harassing conduct and leave Ms. Salvador alone. She said she was exasperated.

[153] She testified that later that evening two officers arrived at the building: Constable Butson and Constable Lee. She was interviewed for about 30 minutes by the police and gave her statement. She told them about the incidents as documented by Mr. Perez-Arteaga, and later emailed the photographs she had taken. She then went back to her Unit. Subsequently, the police called her and informed her that Dr. Novakovic had been arrested.

[154] She was shown the charge sheet which reflected an occurrence date of October 4, 2015. However, she stated that the charge sheet was wrong, and she had told the police officers that the first incident took place on November 4, 2015. This is important, because Dr. Novakovic was out of the country visiting her family in the United States on October 4, 2015. The police notes reflect that Ms. Salvador told them the date of the first incident was November 4, 2015.

[155] Ms. Salvador had no further involvement in the arrest and subsequent investigation, but ultimately the charges were not pursued.

Post Arrest events

[156] As indicated above, Ms. Salvador testified that she continued to be the subject of noise and odour complaints from Dr. Novakovic, and also the subject of vandalism complaints by Dr. Novakovic involving egging her door. As well, she continued to experience vandalism of the same nature as occurred prior to Dr. Novakovic’s arrest. A number of official Incident Reports filed with the Corporation by each of Ms. Salvador and Dr. Novakovic were filed as exhibits.

[157] In or around June 2016, the Board decided to instal a hidden surveillance camera on the 6th floor. The purpose was to try to capture footage of the vandalism reported by Ms. Salvador. This camera was operating for about one month. The residents of the sixth floor were apprised of this step and did not object. They were asked to keep this information confidential from the other residents of the Building. Prior to this surveillance cameras had been installed throughout the Building to monitor the activity in the common elements, however, this was unrelated to the subject complaints by Ms. Salvador and Dr. Novakovic.

[158] The surveillance camera did not capture any suspicious activity and was removed after about one month. Ms. Salvador testified that the number of incidents of vandalism decreased after the camera was installed.

[159] Ms. Salvador denies having bumped into Dr. Novakovic in the elevator at any time after the arrest.

[160] However, on August 21, 2016, she became the subject of a complaint to the police made by Dr. Novakovic. She received a summons to appear for a peace bond hearing, however, the Crown declined to proceed with the complaint.

[161] At the AGM held on December 6, 2016, Ms. Salvador described witnessing Dr. Novakovic getting up three times to raise accusations against her about excessive noise and smoke. The Corporation’s lawyer asked Dr. Novakovic to sit down each time, as she had not given notice of this issue for the agenda. Ms. Salvador felt intimidated by Dr. Novakovic about these public accusations made in front of the residents.

[162] Then, Ms. Salvador was made aware that Dr. Novakovic made a complaint against her with the former Law Society dated October 17, 2016. The complaint was dismissed at the early stage, and Ms. Salvador did not have to respond.

[163] On April 17, 2017, Ms. Salvador received a second charge back letter from the Corporation’s lawyers. This letter was substantially the same as the previous, and referenced its prior letter dated December 30, 2015. This letter also lacks particulars of noise complaints, except to state that there are ongoing excessive noise complaints and marijuana odours emanating from her unit. The letter repeats that if the pattern of “disturbances” continue giving rise to further complaints, the Corporation will take further steps to enforce compliance with the quiet enjoyment provision of its Declaration (s. 3.1(a). Ms. Salvador was charged the legal fees associated with responding to this breach of Declaration in the sum of $406.60. This time Ms. Salvador protested and refused to pay. As a result, a lien was placed against her unit, and the charge doubled.

[164] On April 24, 2017, Ms. Salvador received a further notice of excessive noise violations related to an incident on April 24, 2017 at 12:55 a.m. through to 9:05 a.m. the next morning. The letter states that the concierge/security attended at her unit, confirmed the complaints and recorded the incident. This letter came from Genevieve Hunt, the new property manager of the Corporation. She acknowledged that she held a birthday party that evening, with 8 or 9 people in attendance though denied making excessive noise.

[165] Ms. Salvador decided to move out of her unit in November 2017 to get away from this situation. She sold the unit in October 2019, after renting it out for a while.

[166] After moving to her new residence on Mill Street, Ms. Salvador experienced one further event of vandalism in June 2019. Again, dog feces were left at the door of her new residence. This caused her to contact the police, fearing Dr. Novakovic had found her. She told the police about her history with Dr. Novakovic and that she suspected it was her. However, the police did not pursue an investigation and did not confront Dr. Novakovic who learned of this only through the course of the litigation.

[167] Under cross examination, Ms. Salvador acknowledged that she owned a small dog that passed away in 2016. However, she claimed that the pet lived with her parents primarily. It was an elderly dog by the time she moved into Unit 607 and rarely had it in her unit. She denied owning any pet at her new residence on Mill Street. She also acknowledged that the neighbour across the hall from her at 400 Adelaide St E owned a dog.

[168] She also acknowledged that she likely told Constables Lee and Butson that she wanted criminal charges to be pressed against Dr. Novakovic.

[169] She denied seeing Dr. Novakovic swinging the broom stick at her friend’s head on one occasion.

[170] She denied having a party on December 29, 2015. She said she had three girlfriends over that night. She denied playing music excessively loud.

[171] She conceded that perhaps one could fit five to six people on her balcony but thought that was high.

[172] She maintained she saw Dr. Novakovic through the peephole smearing something on her door.

[173] She acknowledged that as a member of the Board of Directors, she was bound to the directors’ Code of Ethics, and had to avoid conflicts of interest and making defamatory statements against residents in her capacity as a director.

[174] She also acknowledged being aware of the Rules and Regulations of the Corporation including, in particular, rule 5 preventing injury, harassment, threatening behaviour against other residents, and Part C relating to quiet enjoyment of units.

[175] She acknowledged that the police came to her unit regarding noise complaints, but that no charges were ever laid against her regarding excessive noise or disorderly conduct.

[176] She identified that after she moved out a notice was circulated by the Corporation to all residents advising that there were too many complaints around excessive noise.

[177] In her view, the Corporation’s system for validating noise complaints was too subjective. If the concierge attended outside someone’s unit and heard any noise through the door, it was deemed to be a confirmed excessive noise complaint. She felt that the level of noise coming from her unit was no worse than noises that emanated from her neighbours’ units, and that they were all at an acceptable level and to be expected when living in this type of housing.

[178] She conceded that, aside from the two occasions she witnessed Dr. Novakovic in the act, others could have been responsible for other vandalism occasions. However, given the temporal connection between her incidents of vandalism and Dr. Novakovic’s complaints, and the history of their antagonistic relationship, she maintained her belief that Dr. Novakovic was responsible for all of the acts of vandalism to her door.

[179] Before the arrest and starting November 4, 2015, Ms. Salvador recorded by photograph 12 incidents of vandalism to her door; mostly of smashed eggs, and all of which could be wiped away with a cloth. After the arrest, she recorded about 6 more incidents by photograph.

[180] She testified that only her boyfriend smoked marijuana on her balcony infrequently and a girlfriend smoked cigarettes on the balcony, until she realized the smoke was bothering others after which she put a stop to smoking on the balcony after 2015.

[181] She testified that in the latter part of her residency at Unit 607, she would come home to find many cigarette butts on her balcony. She does not know who put them there but believes Dr. Novakovic threw them down from the upper balcony.

[182] She confirmed that the broomstick swinging happened only on December 4, 2015.

[183] She testified that aerosol sprays started coming down from Dr. Novakovic’s balcony pretty much any time she went on to the balcony if she was making any noise. She did not keep a record of these incidents, nor did she make complaints however

Officer Butson

[184] Constable Jonathan Butson is a member of the Toronto Police Services, assigned to 51 division.

[185] He was one of the arresting officers who attended at Unit 707 and arrested Dr. Novakovic on suspicion of mischief on the evening of December 28, 2015. He testified that he had independent recollection of this arrest but referred to his contemporaneous police notes to refresh his memory.

[186] He attended at 400 Adelaide St. with Constable Lee, after being dispatched by radio for a harassment complaint. They were dispatched at 19:20 p.m. and arrived at the Building around that time.

[187] He testified that after having received no answer at Ms. Salvador’s door, they went down to the concierge. However, he saw the coffee stain on the door.

[188] Once in the lobby, they met Ms. Salvador at 19:29 p.m. and Constable Lee conducted an interview of her in private and took the formal statement, while Constable Butson wrote some notes. He wrote down that Ms. Salvador provided a list of dates and the activity of the various incidents of vandalism she attributed to Dr. Novakovic (from October to December 28, 2015). Ms. Salvador told them that she “would like criminal charges pressed” against the female who was allegedly committing the harassment against her, and “would like her arrested”. However, he testified that the fact that Ms. Salvador wished for Dr. Novakovic to be arrested played no role in their ultimate decision to arrest Dr. Novakovic.

[189] Ms. Salvador advised that she witnessed Dr. Novakovic through the peephole in her door vandalizing her door on November 4, 2015. She also advised that she believed that the vandalism was in response to “a noise issue” and that the Condominium Corporation was not providing any assistance to Ms. Salvador and her reports of vandalism.

[190] Constable Butson stated that they “did the things” they do to form the grounds to make an arrest.

[191] After receiving the information from Ms. Salvador, including Dr. Novakovic’s name, age and a physical description, and confirming with security that Dr. Novakovic did in fact live in Unit 707 and that there were videos on the floors and elevators, they attended Unit 707. At this point, Constable Butson testified that they had reasonable grounds to place Dr. Novakovic under arrest for mischief based on the information they had collected and witnessed, the multiple dates of the alleged acts of vandalism, and Ms. Salvador’s statement. Another important factor leading to their decision was that Ms. Salvador had expressed concerns for her safety, and she only lived one floor below Dr. Novakovic (so in close proximity). Later that evening, they received photographs from Ms. Salvador recording various acts of vandalism to her door with the dates. However, they had no further contact with Ms. Salvador other than the interview and receiving the photographs by e-mail.

[192] When Dr. Novakovic answered the door, they arrested her.[^6]

[193] Due to the safety concern, the police officers decided that it was not appropriate to release Dr. Novakovic at the scene, so they chose to take her to the police station to process the charge. She was brought to the station, provided with the opportunity to make a phone call, and the officers handed over the case to the CIB. Constable Butson and Constable Lee’s role ended when they handed the matter over.

[194] Constable Butson explained that it is the CIB who undertakes the actual investigation and processes the case, including preparing the Information. The CIB can determine not to proceed with the charges. Detective Hanna Barts was the lead investigator at the CIB that evening.

[195] The specific charges, as reflected on the Information, against Dr. Novakovic were that on or about October 4 and 30, 2015, she wilfully damaged the front door of Unit 607. However, Constable Butson testified that they were never told by Ms. Salvador that one of the counts occurred on October 4, 2015. His police notes and those of Constable Lee bear this out.

[196] Under cross examination, Constable Butson confirmed that when they arrested Dr. Novakovic they put handcuffs on her, but they removed the handcuffs when they escorted her through the lobby to the marked police car waiting outside.

Daniel Perez-Arteaga

[197] Mr. Perez-Arteaga is a senior regional director with FirstService. In 2014 he was the property manager at 400 Adelaide St. East and held that position until December 2016, when he received a promotion.

[198] As property manager, he was in charge of managing the Building. This entailed maintenance, enforcing the Corporation’s rules and regulations, and reporting to the Board of Directors. The property management company generally provides advice to the Board and runs the day-to-day operations. It will recommend courses of action, and whether a matter should be referred to a lawyer.

[199] While property manager at the Building, Mr. Perez-Arteaga was physically present from Monday to Friday during business hours. He had a property management office on site.

[200] He recalled that during his tenure at the Building, they received many noise complaints – not just from Dr. Novakovic, especially on weekends. There were over 1000 tenants in 349 units and on 22 floors in this Building.

[201] He issued the newsletters to the residents. The May 2015 newsletter referenced no smoking in the common elements. Typically, he prepared these newsletters and addressed issues commonly raised by the residents.

[202] He specifically recalled noise and smoking complaints in relation to Ms. Salvador’s unit starting in or around the summer of 2015. He recalled that the complainant was Dr. Novakovic. He does not recall any other residents making complaints against Ms. Salvador. He does recall that Dr. Novakovic made complaints about other units as well.

[203] The process for complaints during his tenure was that the complaint is directed to the concierge. The concierge would then visit the unit to see if the complaint is confirmed. If confirmed, the resident was asked to comply with the relevant rule or regulation. If there is excessive noise coming from the unit, then the concierge will knock and ask the resident to turn down the music or other source of the noise. He confirmed that no instruments were used to measure the noise levels objectively. He explained the rationale was that the Condominium Act, with which he was very familiar in the course of his duties, does not define what noise level is excessive. If the noise complaints persist, then a warning letter is issued. If the warning letter is ignored, then the confirmed complaints will be directed to the Corporation’s lawyer who will send a charge back letter with a further warning to the offending resident, and the resident will be charged the legal fees incurred by the Corporation for this warning process.

[204] He recalls that the majority of Dr. Novakovic’s complaints against Ms. Salvador arose in the evening. The complaints process he described was applied to Ms. Salvador.

[205] He recalled attending at a meeting on December 11, 2015 at which three members of the Board, and himself, met separately with each of Dr. Novakovic and Ms. Salvador to see if they could mediate a resolution with respect to the complaints. The Board proposed that a noise tolerance test be performed in Dr. Novakovic’s unit to determine the level of noise that would be acceptable to Dr. Novakovic. He could not recall what the outcome was except that no test was conducted, and no resolution was reached. However, he recalled that Dr. Novakovic was prepared to forgive Ms. Salvador and move on if there were no more incidents.

[206] Mr. Perez-Arteaga testified that the judgment as to whether noise was excessive was a subjective one. A sound engineer would be required if an objective measure of the noise was needed, however, this was reserved for extreme cases and was not proposed with respect to the Novakovic/Salvador conflict.

[207] Mr. Perez-Arteaga confirmed that two charge back letters were sent to Ms. Salvador arising from Dr. Novakovic’s confirmed noise and smoke complaints. He was responsible for issuing the initial warning letters about excessive noise dated October 11, 2015 and November 3, 2015 consistent with the process.

[208] He also testified that there were incidents of vandalism involving both units. Eggs and other types of food began to be thrown at Ms. Salvador’s door – especially eggs. Dr. Novakovic’s door was also subsequently vandalised – both doors had red lipstick smeared on them.

[209] As a result of the vandalism occurring to Ms. Salvador’s door, the Board authorized the installation of a hidden camera on the sixth floor. Mr. Perez-Arteaga was charged with checking the camera and replacing batteries every 8 hours during the day. The concierge changed the batteries at night. He reviewed the footage. If there was nothing on it, the tape would be erased. He did not see anything suspicious from the video footage.

[210] However, one day he went to change the battery. He was waiting for the elevator on the sixth floor when he saw Dr. Novakovic exiting Stairway 6-A next to Ms. Salvador’s unit on to the sixth floor. She had a glass in her hand. The elevators are located further away from Stairwell 6-A. According to Mr. Perez-Arteaga, as soon as Dr. Novakovic saw Mr. Perez-Arteaga, she turned around and “ran” back to the stairwell. He saw Dr. Novakovic clearly, but could not see what was in the glass. When he saw her, he ran to ask her why she was coming to the sixth floor (given the dispute with Ms. Salvador) but she left before he could catch up to her. By the time he reached the stairwell, she was gone. Unfortunately, the camera was not operating at that moment, as he had not replaced the batteries and had emptied the video already. He reported this to the Board, but no steps were taken as Dr. Novakovic was allowed to go onto any of the floors. On cross examination, he testified that he was unaware that being on the sixth floor was a breach of Dr. Novakovic’s conditions imposed in the criminal proceedings. He had not seen the Undertaking.

[211] He testified that the reason why cameras were not installed on every floor, contrary to Dr. Novakovic’s request, was because the legal advice they received was that they would have to obtain the consent of all of the residents of each floor due to potential privacy concerns. This was determined to be too difficult. He did not recall Dr. Novakovic asking to have a camera only installed on her floor.

[212] He testified that the vandalism to Ms. Salvador’s door occurred during the day as noted by the cleaners, but some happened at night and the concierge would document them.

[213] Under cross examination, Mr. Perez-Arteaga clarified that one of the roles of the concierge was to investigate complaints. The concierges were hired by FirstService on behalf of the Corporation. However, a concierge will not intervene in physical altercations. In those cased the police are called. There was no security division provided to the Corporation at that time. The concierges rotated shifts at the Building.

[214] He confirmed that he reported to the Board, and that they are bound by a Code of Ethics.

[215] He confirmed that Ms. Salvador was not given copies of the incident reports reflecting complaints made by Dr. Novakovic and vice versa. Residents were only given copies of incident reports from complaints they filed.

[216] Mr. Perez-Arteaga confirmed that the Corporation and residents are governed by the rules and regulations, which in turn reflect the principles broadly stated in the Declaration of the Corporation. This included provisions prohibiting residents from harassment, threatening, and other untoward conduct towards fellow residents, and provisions affirming residents’ general right to quiet enjoyment of their respective units. He also confirmed that the Building permitted pets.

[217] He recalled being invited to Dr. Novakovic’s unit for tea on three or four occasions, and he went. He never went inside Ms. Salvador’s unit, however. He specifically denied that he told Dr. Novakovic that Ms. Salvador did not know how to live in a condominium building.

[218] Mr. Perez-Arteaga had a general recollection of Dr. Novakovic being vocal at AGMs and complaining that her concerns were not being heard by the Board.

[219] He denied knowing Ms. Salvador better than the other directors, and indeed had the least friendly relationship with her. In fact, he was aware that Ms. Salvador had called for him to be removed as the property manager and this had upset him.

[220] He testified that smoking (cigarettes, marijuana or anything else) in a unit is not an issue unless it becomes a “nuisance” for someone else. Management would only intervene if someone complains. He stated that there is a difference between common elements and exclusive common elements. Balconies fall into the latter category and were not captured in the Ontario rules prohibiting smoking on the common elements. He was referring, in the newsletter dated May 2015, to the balconies that were used by all residents, not the balconies attached to private units. He also testified under cross examination that the complaints about noise and marijuana relating to Ms. Salvador’s units did not stand out compared to other similar complaints until they were elevated to the charge back letters. He was not aware of any other lawsuits at the Building involving the issues raised by this lawsuit.

[221] He confirmed that 13 of the 23 noise complaints made by Dr. Novakovic against Ms. Salvador were verified by the concierge. He denied the suggestion that the concierge disclosed Dr. Novakovic’s identity as the complaint to Ms. Salvador and said if the concierge did, that would be against the Condominium Corporation’s protocol.

[222] He also confirmed the incident reports made by Dr. Novakovic of vandalism to her door that were verified on the following dates: December 31, 2015 (egg), May 7, 2016 (looks like an egg), May 18, 2016 (egg in the corner at her door, cracked), June 3, 2016 (egg white and yolk on the floor by the door). He acknowledged there was no photograph of red lipstick on her door but maintained his recollection that he saw the red lipstick at different times on each of Dr. Novakovic’s and Ms. Salvador’s doors.

[223] On August 21, 2016, he confirmed receiving a telephone call from Dr. Novakovic who was crying and said someone came to her floor. He immediately attended and was advised that she would be calling the police and wanted a report made, but she would not tell him the identity of the person she saw.

Michael Robertson

[224] Michael Robertson lives on the 12th floor at 400 Adelaide St. E. Like Ms. Salvador, he was a member of the inaugural Board of Directors. He was a director for six consecutive years and held various positions. They were each two-year terms.

[225] He also moved into the Building in 2015.

[226] He testified that the acoustics in the Building are “not great”. He can hear loud noises such as washers and dryers and renovations from nearby units inside his unit. He testified that during COVID, his neighbours sometimes contacted him to stop doing his home workouts – jumping rope. However, he did not receive any formal complaints relating to noise or vibrations.

[227] He testified that as a member of the Board, excessive noise complaints were a “normal occurrence”. As a result, a “handful of letters” went out to various unit owners each year. However, none escalated to the situation that developed between Dr. Novakovic and Ms. Salvador.

[228] Mr. Robertson testified that each member of the Board had one vote and an equal say. In his initial role as Treasurer he was responsible for the financial affairs. He held this position from 2015 – 2017.

[229] He indicated that they relied heavily on the property management company, FirstService, for guidance and recommendations because they, as a Board, were not familiar with how to operate a condominium corporation. FirstService was hired by the builder, and they continued with this company. However, the Board gave instructions to FirstService.

[230] He confirmed that the Board of Directors was, and is, accountable to the unit owners.

[231] Mr. Robertson confirmed that if any Board member had a conflict of interest with respect to an issue, the director had to recuse himself. He recalls that Ms. Salvador recused herself from meetings relating to Dr. Novakovic.

[232] Mr. Robertson also confirmed the protocol for investigating noise complaints, consistent with Mr. Perez-Arteaga. He added that a charge letter would only be sent if the number of complaints received were excessive.

[233] He confirmed that he is an acquaintance of Ms. Salvador, met her at the Condominium Building and then they became fellow Board members and would share a drink from time to time.

[234] The Board was aware of the multiple noise complaints against Ms. Salvador received in late 2015 or early 2016. The Board’s understanding from the property manager was that the complainant was the same in all of the complaints. No other unit owners made complaints against Ms. Salvador. He also recalls that multiple complaints were verified. He recalled the Board received noise complaints against other unit owners and sent three or four letters out to them in this general timeframe.

[235] Mr. Robertson testified that his understanding was that Ms. Salvador felt that the complaints were unreasonable, and she did not believe the two charge letters were warranted.

[236] He also testified that there were a couple of instances in which the noise complaints against Ms. Salvador were not confirmed by the concierge because the noise was not loud enough to have warranted a complaint.

[237] The property management company was instructed to tell unit owners to call the police if excessive noise continued to persist from a unit.

[238] Mr. Robertson was aware that three members of the Board, and the property manager, Daniel Perez Arteaga, had a meeting, separately, with each of Dr. Novakovic and Ms. Salvador in 2017 to try to resolve this issue. Mr. Robertson did not attend because of a perceived conflict of interest in light of his acquaintanceship with Ms. Salvador.

[239] Mr. Robertson testified that the Building was experiencing vandalism issues aside from those relating to Ms. Salvador and Dr. Novakovic’s doors. The vandalism had to do with the lockers and the fire box, and lights were also stolen. Hence, the Board installed surveillance cameras in certain areas. Vandalism issues are within the purview of the Board’s responsibilities.

[240] When Ms. Salvador’s complaints of vandalism to her door were raised, the Board ultimately decided to temporarily place a hidden video camera on the sixth floor. He believes it was installed in the stairway at the sixth floor, however, he never personally saw it. In any event, the Board was advised by Mr. Perez-Arteaga that the video footage did not capture anything suspicious. He added that only the residents of the sixth floor were apprised of the camera and all consented to its installation.

[241] Ultimately, the Board told Ms. Salvador that if the vandalism continued, she should call the police because the Board and management could not do anything further.

[242] Mr. Robertson testified that he visited Ms. Salvador at her unit once or twice. One of the times he left her unit he saw that an egg and rice had been thrown at her door while they were in her Unit. He cannot recall when this was but believes it was 2017 and occurred between 8:00 p.m. and 10:00 p.m. He emailed the property manager, Mr. Perez-Arteaga, about this incident.

[243] Mr. Robertson also recalls Dr. Novakovic disrupting the December 6, 2016 AGM. He recalls her getting up in the meeting three times and making what he considered defamatory comments about the Board, management and security and stating that she felt she had been mistreated and abused by many. Dr. Novakovic accused the Board of collusion or favouritism in favour of Ms. Salvador and being in a conspiracy against her. He also recalls that Dr. Novakovic requested that the Board instal corridor cameras.

[244] Under cross examination, he admitted that he must have got the date of the egg/rice incident wrong since there had been no incidents to her door reported by Ms. Salvador after May 2017. Also, he reiterated that he recalled there being both rice and an egg – unless his memory is wrong.

[245] He testified that he was also aware that another unit on Ms. Salvador’s floor was vandalized on one occasion.

[246] He confirmed that the Board was told that the temporary camera was installed in the stairwell of the sixth floor, but he did not see it. He confirmed that the Board was not shown any of the video footage by Mr. Perez-Arteaga.

[247] Under cross examination he also stated that he had been to Ms. Salvador’s unit on five or six occasions, that she had a television with speakers on the stand beside it and played music on it.

[248] He testified that he recused himself from a December 11, 2016 meeting because he was Ms. Salvador’s friend. He then corrected the date to December 11, 2015, when challenged, and added that his memory is bad.

[249] He expressed his view that the arrest of Dr. Novakovic was excessive and that things had got out of hand. He confirmed that the Board told both Dr. Novakovic and Ms. Salvador that they should report vandalism to the police.

[250] He confirmed that he is still in contact with Ms. Salvador every couple of months, but they have not socialized since she moved out from 400 Adelaide St. E.

[251] In re-examination, Mr. Robertson testified that Ms. Salvador did not smoke in her unit in his presence, except on one occasion when he shared his marijuana cigarette with her on her balcony.

Maria Adelia De Jesus

[252] Ms. De Jesus was a prior co-worker of Ms. Salvador. This is how they became friends. They had been friends from 2012 to 2016. She testified that they socialized together over that time period.

[253] She recalled going to Ms. Salvador’s unit in December of 2015, before Christmas to see Ms. Salvador’s new home.

[254] She attended with Ms. Rodrigues. They went for dinner and to catch up. They did not play any activities, but there was music playing as there always was. She characterized the music as not too loud, and the type of music was the old classics like Frank Sinatra. She testified that the music was low enough that they could hear each other without raising their voices.

[255] She recalls that at some point, Ms. Rodrigues was outside talking to her boyfriend. Ms. Rodrigues came back in and told them that someone was trying to hit her with a broom. They went out to the balcony and saw something that appeared to her to look like a broom. It was dark but the condominium lights were on. She saw that the broom was being swung from the balcony above Ms. Salvador’s unit. Her response was to go inside. She figured someone was not having a good day, and she didn’t want anyone to get hurt. They went back inside the unit, finished their evening, and she drove home at around 10:00 p.m. She said that she did not drink alcohol that evening and drove Ms. Rodrigues home that night. She also said she was not smoking that evening. This was the last time she saw Ms. Salvador, though they speak occasionally on the telephone. She cannot recall if either Ms. Salvador or Ms. Rodrigues were drinking that night.

Paula Rodrigues

[256] Ms. Rodrigues is a friend of Ms. Salvador. She used to socialize with Ms. Salvador and another friend, Ms. De Jesus. She met Ms. Salvador in 2014 and would sometimes socialize in Ms. Salvador’s Unit.

[257] She recalls attending a small housewarming party for Ms. Salvador at her unit in 2015 before the Christmas Market at the nearby Distillery District. She testified that she and Ms. De Jesus were in attendance. They arrived at around 7:00 p.m.

[258] She testified that at one point during the evening she stepped onto Ms. Salvador’s balcony to speak on the phone with her partner. She then started hearing a loud voice and a banging noise. She initially paid no attention, but the voice got louder. She ended the call, looked up and could hear that the loud voice was coming from above. Furthermore, she saw a broom swinging from the upstairs balcony towards Ms. Salvador’s balcony where she was standing. She was sure it was a broom because she saw the wicker portion.

[259] She went inside and told Ms. Salvador what was happening. Then all three girlfriends went on to the balcony and saw the wicker end of the broom swinging over top. After a couple of minutes, the swinging stopped.

[260] She did not see the person who was swinging the broom, but it was clearly from the balcony directly above.

[261] Ms. Rodrigues further testified that she does not smoke and to her knowledge neither Ms. Salvador nor Ms. De Jesus smoke either. She also testified that she was not drinking that night because she was driving. She and Ms. De Jesus left together later that evening. She could not recall when they left except that it was not into the early hours of the morning. She also could not recall whether either of Ms. De Jesus or Ms. Salvador were drinking alcohol that evening.

[262] Under cross examination, Ms. Rodrigues agreed it was dark by the time she went on to the balcony and confirmed she did not see who was swinging the broom. However, she maintained that she was able to see it was a broom and it was being swung at her. Before going out on to the balcony, the balcony door had been closed. She reiterated that she heard loud words which she characterized as screaming as the broom was being swung.

Findings of Fact re the Arrest

[263] Dr. Novakovic’s account of how she was arrested was exaggerated and inconsistent with the contemporaneous police notes and the testimony of Constable Butson. This is particularly evident in her insistence that the police officers told her one of the counts related to vandalism on October 4, 2015 – a date she was not in the country. The testimony of Constable Butson, consistent with the contemporaneous police notes of the arrest, was that they were told that the alleged incident occurred on November 4, 2015, not October 4, 2015, and that the latter was a mistake reflected in the Information prepared by the CIB and was subsequently corrected.

[264] Furthermore, Dr. Novakovic’s account that the police officers only removed the handcuffs when she told them her son was a military officer is not plausible, as compared with Constable Butson’s testimony that they were removed when they walked through the public lobby and had determined she was not a risk. Dr. Novakovic’s account is consistent with her perception, however, of what should occur based on her moral code; i.e., that dignity and respect will be accorded to the mother of a military officer.

[265] Dr. Novakovic’s perception that the police were “ordered” to arrest her by Ms. Salvador and that Ms. Salvador was respected to the point of favouritism by the police because of her position as a paralegal in the justice system is indicative of Dr. Novakovic’s rigidly held views according to her moral code. However, they are not plausible.

[266] I accept Constable Butson’s account of the arrest, including the rationale justifying the arrest, over Dr. Novakovic’s. His evidence was consistent with the contemporaneous police notes and plausible. Dr. Novakovic’s description was exaggerated. The lawsuit as against these police officers has been settled, and there was no plausible credibility attack against Constable Butson. His evidence was unshaken under cross examination. Accordingly, I prefer his evidence over that of Dr. Novakovic.

[267] I also accept Ms. Salvador’s explanation of why she called the police and her bona fides belief that Dr. Novakovic was the offender. Her rationale makes sense in the context of the interrelationship between her and Dr. Novakovic and is also supported by the audiotape recordings of the dispatch calls made by her. Mr. Perez-Arteaga and Mr. Robertson confirmed that the Board told her she should contact the police. She also admitted that she wanted Dr. Novakovic to be arrested, though she was hopeful that if the police talked to her, the alleged vandalism would stop.

Findings of Fact Regarding the Excessive Noise and Odour/Smoke Complaints

[268] I find that Dr. Novakovic’s description of the volume and frequency of sound from the music being played was exaggerated. It is unlikely that the music she complained of was so loud that it shook the entire building, given the lack of complaints from other nearby neighbours or the condominium staff on site at night or the Board of Directors who were also all residents and had an obligation to enforce the rules, regulations and Declaration, for that matter. For example, she testified that she had never experienced anything like what she suffered through at Ms. Salvador’s hands “even in the war zone”.

[269] The tendency by Dr. Novakovic to exaggerate is reflected in the number of complaints filed as well. Of the approximately 50 complaints Dr. Novakovic testified she filed against Ms. Salvador, only 13 were confirmed according to Mr. Perez-Arteaga. Furthermore, neither her husband or son, nor any other person such as a neighbour, provided corroboration or evidence in the nature of confirmation of the frequency or extreme volume of noise, much less the source of that noise. Stefan visited his mother from time to time at her unit, while Dr. Novakovic’s husband frequently spoke on the telephone with Dr. Novakovic, including on almost a daily basis after the arrest. Mr. Novakovic testified that only once did he hear loud noise in the background. The same can be said with respect to her complaints about smoke and odour. Dr. Novakovic’s testimony may well be based on how she experienced the noise and sound (and odour/smoke), but it is not reliable in terms of an objective assessment or measurement of the volume and frequency of noise that can be characterized as excessive.

[270] If the music played caused vibrations that shook the whole building and was louder than bombs exploding it is reasonable to would expect that the Condominium Board would have taken more aggressive action against Ms. Salvador and commissioned a noise test to establish that the noise was not only excessive but intolerable. Proceedings for violations against residents by the Board is available under the Condominium Act such as an application to enforce its internal by-laws, rules and regulations. Rather, the Board sent (two) charge back letters providing further warnings to Ms. Salvador that if the noise and odour/smoke complaints persisted, the Board would escalate the consequences and charging the legal fees. No further escalated action was taken against Ms. Salvador, such as commencing an application before the court.

[271] A more neutral and credible assessment of the volume and frequency of noise violations is provided by the Board’s responses and the number of times the “excessive noise” was validated by the concierge, not the number of complaints or the characterization of the noise levels and smoke/odour frequency testified to by Dr. Novakovic.

[272] Even the assessment of the volume of sound by the concierges is somewhat unreliable. There was no objective measure of the noise level or vibrations. Rather, this was left to the subjective judgment of whichever staff member attended at Ms. Salvador’s door. The fact that Dr. Novakovic refused the Board’s offer to conduct a noise tolerance test is also telling. Dr. Novakovic testified that she refused because she effectively did not trust the Board. However, she could have hired her own sound engineer or other qualified professional to measure the noise level and/or vibrations particularly given her testimony that the excessive noise levels occurred most weekends at night. There was no expert evidence to establish what the noise levels actually were.

[273] Dr. Novakovic’s tendency to be definitive and not allow for any other possibilities other than her version was also informative. Dr. Novakovic refused to accept the possibility that some of the noise or fumes could be coming from another unit, even though she never saw people smoking on Ms. Salvador’s balcony. Dr. Novakovic was also adamant, repeatedly, that she was never on the 6th floor after her arrest. She went to great lengths to explain that she would never have done that because she was prohibited under the criminal no contact clause in her Undertaking following the arrest. This was flatly contradicted by Mr. Perez-Arteaga who saw her enter the 6th floor from the stairwell next to Ms. Salvador with a glass in her hand. Dr. Novakovic also denied vandalizing Ms. Salvador’s door.

[274] Dr. Novakovic was also defensive from time to time under cross examination. For example, she minimized the seriousness of the noise complaints she made about other units under cross examination.

[275] On the other hand, Mr. Perez-Arteaga presented as a neutral witness. He had no reason to exaggerate or not tell the truth. He has no current connections with either Dr. Novakovic or Ms. Salvador and in fact had a more friendly relationship with Dr. Novakovic than Ms. Salvador who had tried to have him removed from his post. Mr. Perez-Arteaga answered questions in a credible manner. He had a good memory of the complaints, the protocols in place for handling these types of complaints, the general experience of the property management with noise complaints in the Building, and his interactions with Dr. Novakovic and Ms. Salvador. He was not shaken in cross examination.

[276] Furthermore, I find Mr. Perez-Arteaga’s eyewitness evidence that he saw Dr. Novakovic enter Ms. Salvador’s floor from the stairway during the currency of the criminal undertaking to be credible and reliable. This siting was after the arrest, and after the incidents of reported vandalism to Ms. Salvador’s door. There is no reason for Mr. Perez-Arteaga to lie about this incident and no suggestion that he was mistaken in the identity of the person he saw. He is no longer active on a day-to-day basis at this Building having been promoted. He testified in a calm, and straight forward manner. There was no embellishment. This incident stood out in Mr. Perez-Aretaga’s memory. This evidence directly contradicts Dr. Novakovic’s evidence that she was never on the sixth floor after the Undertaking. I prefer Mr. Perez-Arteaga’s evidence to Dr. Novakovic’s evidence where there is a conflict.

[277] As stated above, this credibility assessment does not mean that Dr. Novakovic’s description was insincere, reflecting her subjective reaction and experience to the noise, odours and smoke. Rather, I have found that it is not a fair objective description. Dr. Novakovic’s exaggerated description is, however, consistent with Dr. Klassen’s assessment of her.

[278] Mr. Robertson answered questions in a straightforward way. However, he was not a very careful witness, and he had a friendly relationship with Ms. Salvador, particularly while she was on the Board (to the extent that he recused himself from the Board meeting with Dr. Novakovic and Ms. Salvador in 2015). He mixed up his dates and volunteered that he had a bad memory. Overall, however, I found him to be credible with respect to his account of the complaints, the Board’s handling of them, general board procedures, and his interactions with Dr. Novakovic and with Ms. Salvador as a former Board member. He was also credible with respect to (1) his description that the Board received excessive noise and smoking complaints as a commonplace event, (2) his description of the Building itself in terms of hearing noises in the hall and from neighbouring units, and (3) volunteering that he himself had been called a few times by neighbours for excessive noise and vibrations. He also testified in re-examination that he had shared a joint with Ms. Salvador on the balcony. The fact that noise and smoking complaints were issues generally experienced by the residents is evident by the May 2015 newsletter, issued by Mr. Perez-Arteaga on behalf of the Board, and the May 2018 Notice issued by the Board reminding residents of their obligations not to permit loud noise or smoking on the balconies.

[279] Ms. De Jesus and Ms. Rodrigues presented in a credible manner. They both testified with respect to the broom incident in an overall consistent manner. However, their evidence with respect to the volume and frequency of the noise and smoke/odour emanating from Ms. Salvador’s unit is only relevant for those occasions on which they were in attendance and therefore of limited utility on those issues.

[280] Ms. Salvador presented in a straightforward manner. She was not defensive and was generally responsive to questions. However, I find that, when considering the totality of the evidence, including the documents issued against her, that she was minimizing the level and frequency of the noise in the form of music and voices. If Dr. Novakovic was exaggerating, Ms. Salvador was in denial about the volume and frequency of the noise that emanated from her unit. That said, she did readily testify in examination in chief that she permitted her boyfriend to smoke marijuana on her balcony and her friend to smoke cigarettes on her balcony until she was informed that she was causing an annoyance. I find that Ms. Salvador was responsible for the confirmed incidents of excessive noise from her unit and balcony that violated the rules and regulations of the Condominium Corporation.

[281] It appears that Dr. Novakovic accuses everyone who did not take her side in this proceeding (as a witness) as being biased against her as the explanation for why they have not wholly corroborated her accounts of the excessive noise, odour, and vandalism: Mr. Perez-Arteaga, Mr. Robertson (and the Board generally) and Constable Butson (and his fellow arresting police officer, Constable Lee). She did not call any neighbours to corroborate any of the excessive noise complaints which she claimed were so loud that they shook the Building and her own family members who testified could not corroborate the excessive noise allegations or the odour/fume allegations.

[282] Even Ms. Salvador’s decision to move out of the Building was characterized by Dr. Novakovic as a plot to keep “harassing” her, the evidence of which consisted of a further police complaint by Ms. Salvador in June 2019 when Ms. Salvador found a bag of dog feces outside her new residence. Dr. Novakovic explained that this all was part of an elaborate scheme by Ms. Salvador to show that she was a victim of Dr. Novakovic.

[283] On the other hand, the Board found, through its concierges, that Ms. Salvador violated the internal rules and regulations on multiple occasions leading to the issuance of two charge letters. That said, the Board did not find the complaints severe enough to elevate them to an application under the Condominium Act to obtain remedies, including an enforcement and compliance order against Ms. Salvador through the court.

[284] I find that Ms. Salvador did play music that was loud enough to constitute a violation of the Condominium Corporation’s internal rules on the specific occasions that the noise complaints were confirmed. I also find that Ms. Salvador, by her own admission, permitted her former boyfriend and her friend to smoke on the balcony periodically during 2015. I further find that she shared a marijuana cigarette on one occasion with Mr. Robertson on her balcony.

[285] The next issue is whether any of the proven conduct amounts to tortious conduct.

ANALYSIS AND THE LAW

Malicious Prosecution

[286] The gravamen of Dr. Novakovic’s claim is that Ms. Salvador caused her to be wrongfully arrested. She frames this allegation under the tort of malicious prosecution. She seeks $60,000 in general damages arising from this cause of action.[^7]

[287] Malicious prosecution provides a remedy for losses flowing from an unjustified prosecution (Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 42).

[288] The plaintiff has the onus to prove (on a balance of probabilities) the following four elements of this intentional tort:

(a) The defendant initiated the prosecution;

(b) The prosecution was terminated in favour of the plaintiff;

(c) There was an absence of reasonable and probable cause to commence or continue the prosecution; and

(d) The defendant’s conduct in setting the criminal process in motion was prompted by malice. (Miazga, at paras. 53-56; Nelles v. Ontario, [1998] 2 S.C.R. 170, at pp. 192-193).

Dr. Novakovic must prove all four elements. If she fails on any element, then the tort claim fails.

[289] A prominent issue in this case is whether Ms. Salvador initiated the prosecution. In order for her to have done this she must have been “actively instrumental” in setting the prosecution in motion (Miazga at para. 53).

[290] Dr. Novakovic submits that, but for Ms. Salvador’s complaint to the police, she would not have been arrested. Therefore Ms. Salvador initiated the prosecution.

[291] However, Ms. Salvador did not file a private information in this case. Rather she made a report to the police who, in turn, exercised their independent judgment in determining that they had reasonable and probable grounds to arrest Dr. Novakovic. Thereafter, the file moved to the CIB for further investigation. Ultimately, it was the Crown who determined to stay the charges on terms. I reject Dr. Novakovic’s evidence that Ms. Salvador somehow ordered the police to arrest her. This was squarely denied by Constable Butson, and he was unshaken in his testimony. The claim was supported by nothing more than Dr. Novakovic’s unsubstantiated belief.

[292] As stated in Chaudhry v. Khan, 2015 ONSC 1847, at paras. 12 - 13, the “general rule is that the police are treated as a prosecutor, and the court will consider the police officer who laid the charge as the person who set the prosecution in motion” unless there are exceptional circumstances. See also Harrison v. Wicro Products, 2011 ONSC 1049, at para. 8; Kefeli v. Centennial College of Applied Arts and Technology, 2002 45008 (Ont. C.A.) at para. 24. In this case there are no exceptional circumstances, and the prosecutor exercised his judgment in ultimately resolving this proceeding. While it is clear that Ms. Salvador wanted Dr. Novakovic to be charged, she has not proven that Ms. Salvador furnished information she knew to be false or withheld information she knew to be true to fuel her report and statement.

[293] Ms. Salvador made a complaint which was then independently investigated by the police who determined that they had reasonable and probable grounds for making the arrest. I do not accept Dr. Novakovic’s submission that the police essentially delegated their authority to Ms. Salvador by ultimately accepting the veracity of her statement and allegations in the course of exercising their independent judgment. The police must consider the veracity and plausibility of an alleged victim’s allegations and they do so regularly. The police in this situation did not simply accept Ms. Salvador’s statement; they interviewed her, saw the coffee stain on Ms. Salvador’s door, considered the fact that Ms. Salvador had recorded the dates of previous incidents of vandalism to her door, provided a physical description of Dr. Novakovic, and confirmed with the concierge the identity of the resident living in Unit 707. While Officer Butson confirmed that they did rely on the veracity of the statement provided by Ms. Salvador, he was clear that he and Constable Lee concluded that they had good grounds to arrest Dr. Novakovic on suspicion of mischief, and that Ms. Salvador’s fears for her safety were legitimate.

[294] Dr. Novakovic, in this action, did allege that the arresting police officers and the Toronto Police Services Board were liable for the tort of malicious prosecution. However, she settled her claim against those defendants.

[295] This is enough to dispose of the malicious prosecution claim. However, I will consider the other three elements of the tort.

[296] I am satisfied that the prosecution was terminated in favour of Dr. Novakovic. Ultimately, the charges were stayed. This was not the result of a settlement or plea bargain.

[297] If it was Ms. Salvador who initiated the prosecution, and I have found she did not, I am also satisfied that she had reasonable and probable grounds to initiate the prosecution against Dr. Novakovic. She testified about the pattern of behaviour that preceded her contacting the police, the steps she took to try to resolve the vandalism complaints in other ways, and her belief that Dr. Novakovic was vandalizing her door in retaliation for the incidents of excessive noise and smoke that Dr. Novakovic attributed to her and her Unit.

[298] In Chaudry, at paras. 30 and 31 (citing Oniel v. Marks (2001), 2001 24091 (ON CA), 141 O.A.C. 201 (C.A.) at paras. 40, 43), the court stated that where the prosecutor is a private person, and not bound to engage in a public duty (like a public prosecutor) the subjective belief of the prosecutor may be sufficient to establish this element of the test. That said, the private prosecutor must “have an honest belief in the guilt of the accused, and his intention may be to protect his own or the public interest”. See also Miazga, at para. 64.

[299] Ms. Salvador was forthright in testifying that she did not see who committed the vandalism, with the exception of one occasion, but outlined the reasons why she believed the offender was Dr. Novakovic. Mr. Robertson confirmed that he witnessed vandalism to Ms. Salvador’s door that occurred while he and Ms. Salvador were in her Unit. Ms. Salvador was unshaken in her testimony concerning her belief and the grounds underlying that belief. The pattern of interactions between her and Dr. Novakovic for justifying her allegations against Dr. Novakovic was also relied upon by Dr. Novakovic as supporting her belief that Ms. Salvador was vandalizing her door. The burden lies on Dr. Novakovic, and she has failed to discharge that burden.

[300] The fourth element of malice requires that the plaintiff demonstrate that the defendant initiated the prosecution for an improper purpose (Chaudry, at para. 44; Miazga, at para. 78, and Oniel). In this case the improper purpose alleged is that Ms. Salvador wanted to deflect her own alleged misconduct by painting Dr. Novakovic as a criminal.

[301] Dr. Novakovic has not established malice. Ms. Salvador was following the advice of the Board in contacting the police. Mr. Robertson and Mr. Perez-Arteaga both confirmed that the Board did not know how to respond to the allegations of vandalism and recommended that she contact the police as they were unable to assist.

[302] I listened to the audio taped recordings to the two calls made by Ms. Salvador to the police dispatcher complaining about Dr. Novakovic and ultimately leading to the arrest. While the tapes confirm that Ms. Salvador wanted the police to arrest Dr. Novakovic, the statements made by Ms. Salvador were again reasonable and do not evince malice. Ms. Salvador ties the vandalism to the complaints of noise made against her by Dr. Novakovic as the basis for her belief that Dr. Novakovic is the culprit.

[303] Accordingly, Dr. Novakovic has also not proven that Ms. Salvador acted with malice when she contacted the police and reported her suspicion that Dr. Novakovic was responsible for the acts of vandalism to her door and that she was fearful of Dr. Novakovic as a result.

[304] The claim for malicious prosecution is therefore dismissed.

Defamation (Qualified and Absolute Privilege)

[305] Dr. Novakovic asserts that Ms. Salvador has defamed her in the following for:

(a) Her statements (oral and written) made to the property management and Board of Directors in relation to complaints against Dr. Novakovic;

(b) Her statements plead in the Human Rights application; and

(c) Her statements made to the police.[^8]

[306] Dr. Novakovic seeks the sum of $10,000 for loss of reputation.

[307] In Botiuk v. Toronto Free Press, 1995 60 (SCC), [1995] 3 S.C.R. 3, at para. 62, the Supreme Court of Canada defined defamation as a “publication which tends to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule” and will attract liability.

[308] The elements of the claim are:

(a) The defendant made a statement;

(b) The words of the statement are defamatory;

(c) The statement refers to the plaintiff; and

(d) The statement is published.

[309] The allegedly defamatory statement can be spoken or in writing (or other documentary form).

[310] In considering whether the statement is defamatory the court will consider the plain and ordinary meaning of the words, and the context within which the words were communicated.

[311] Once the plaintiff proves the elements of the tort, on a balance of probabilities, the onus switches to the defendant to prove one of the available defences: justification, qualified privilege, absolute privilege and fair comment.

[312] One difficulty with this claim is the lack of precision with which it was plead. It references generically to the types of complaints that Ms. Salvador made such as “the plaintiff threw or smeared eggs and other substances on the defendant’s door”.[^9]

[313] Furthermore, the statement of claim fails to plead that Ms. Salvador made defamatory statements to any other party, including the Board of Directors or property management. Accordingly, these claims cannot be asserted now and cannot succeed.[^10]

[314] In any event, Ms. Salvador asserts the defences of qualified privilege with respect to the statements made to the police, Board of Directors, and property management, and absolute privilege with respect to the statements plead in the Human Rights application.

[315] Qualified privilege attaches to an occasion in which a defamatory statement is made, and not the statement itself (D’Addario v. Smith, 2015 ONSC 6652, at para. 55, citing Cusson v. Quan, 2007 ONCA 771, 87 O.R. (3d) 241). The test is whether the maker of the defamatory statement had an interest or duty to make it and the person to whom it was made had a corresponding interest or duty to receive it (Cusson, at para. 38). Cusson, at para. 39, specifically references complaints to police as a “classic” example of where this privilege will arise. Furthermore, the categories of qualified privilege are not closed, though they will not be easily expanded (Cusson, at para. 41; D’Addario, at para. 57).

[316] Qualified privilege can be lost if the statements were made with malice, or “proof that the defendant either knew the statement was false or was reckless as to its falsity” (Cusson, at para. 40).

[317] It is clear that the statements made by Ms. Salvador to the police in the context of making her report is protected by qualified privilege. This privilege was not lost because the statements were not made with malice and Ms. Salvador did not believe that the statements were false.

[318] In my view, it is equally clear that the statements made by Ms. Salvador to the Board of Directors and property management are also protected by qualified privilege. She was following the proper procedure established by the Corporation in reporting the incidents of vandalism. As a member of the Corporation, she had a duty to make these reports and the Board of Directors and property management on behalf of the Board had a duty to receive them.

[319] Furthermore, Dr. Novakovic has not proven that when Ms. Salvador made these statements, she was acting with malice or knowing that the statements were false or was reckless as to their falsity. Her reports were made in good faith and in the bona fides belief that Dr. Novakovic started vandalizing her unit in retaliation for the arrest and the incidents of excessive noise and smoke that she attributed to her. In my view, complaints to the Board of Directors of a condominium corporation and to property management on behalf of the Board is an analogous category to complaints to authorities. At the Corporation, the Board of Directors is the authority to whom complaints about prohibited conduct such as vandalism within the Building are to be made. The Corporation then has powers to enforce compliance with its Declaration, rules and regulations through the courts under the Condominium Act.

[320] In Amato v. Welsh, 2013 ONCA 258, 305 O.A.C. 155, at para. 1, the Court of Appeal explained that the “common law doctrine of absolute privilege protects judges, counsel, jurors, witnesses and parties from any action ‘for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law’ so long as the words sought to be cloaked with the privilege were ‘uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.’”

[321] It is beyond doubt that the words pleaded in an originating document commencing a legal proceeding are protected by absolute privilege (Amato, at para. 34). Accordingly, the words plead by Ms. Salvador in her Human Rights application are cloaked with this privilege. This affords Ms. Salvador “complete immunity” (Amato, at para. 38).

[322] The defamation claim is dismissed.

Negligence

[323] Dr. Novakovic framed her negligence claim as follows.[^11] Ms. Salvador breached her duty of care owed to Dr. Novakovic as a director. The standard of care invoked by Dr. Novakovic is the Board of Director’s Code of Ethics. She also relies on sections 37(1) and 135 of the Condominium Act.[^12] The duty is allegedly owed to Dr. Novakovic as a member of the Corporation.

[324] To establish the basis for this tort, as framed, Dr. Novakovic has to demonstrate that when Ms. Salvador was engaging in the alleged pattern of causing excessive noise and smoke to interfere with Dr. Novakovic’s use and enjoyment of her unit, Ms. Salvador was acting within the scope of her duties as a director.

[325] Dr. Novakovic also submitted that Ms. Salvador owed a duty to inform the Board of Directors of her intention to call the police before she did so and, furthermore, should have told the Board before trying to evict a resident.

[326] Dr. Novakovic relies, in part, on s. 1.19(1) of the Condominium Act. That section provides that directors are immune from civil liability for “an act done in good faith in the exercise or performance or intended exercise or performance of any of the person’s powers or duties under this Act or the regulations or for any neglect or default in the exercise or performance in good faith of such a power or duty.” Dr. Novakovic contends that Ms. Salvador was not acting in good faith and therefore she is disentitled from this statutory immunity.

[327] Dr. Novakovic also relies on s. 135(1) of the Act, which provides that on application to the Superior Court, the court may make an order to rectify conduct by an owner, a corporation, a declarant or a mortgagee of a unit that “is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant”. However, the statement of claim does not plead this provision, nor did Dr. Novakovic bring the requisite application. Indeed, the statement of claim does not plead the Act at all. Accordingly, this issue is not before me.

[328] The evidence falls far short of establishing that the alleged tortious acts attributed to Ms. Salvador were committed by her while acting in her capacity as a director or were within the scope of her duties as a director. In fact, the evidence establishes the contrary.

[329] The Board of Directors and the Condominium Corporation’s management responded to Dr. Novakovic’s and Ms. Salvador’s complaints against each other in an arms-length manner. Ms. Salvador was required to recuse herself from Board meetings dealing with these complaints. The warning letters and charge back letters were delivered to her in her capacity as a unit owner. The complaints were made against her as a unit owner. There is no basis in the evidence to support Dr. Novakovic’s claim of negligence as she framed it and I find as a fact that Ms. Salvador was not acting, or ostensibly acting, in her capacity as a director in relation to the validated noise and odour complaints (or in relation to any of the tortious conduct alleged against her) but rather in her capacity as a unit owner.

[330] There is no basis in the evidence to substantiate Dr. Novakovic’s claim. Ms. Salvador was clearly acting in her capacity as a resident of the Corporation in relation to the complaints of excessive noise and smoke.

[331] In addition, there was no evidence led that supported Dr. Novakovic’s theory that Ms. Salvador owed any obligation to advise the Board of Directors of her intention to call the police or to attempt to “evict” Dr. Novakovic. There is also no evidence that Ms. Salvador engaged in a process to cause Dr. Novakovic to be evicted.[^13]

[332] Accordingly, the claim based in negligence, as framed, must fail.

Invasion of Privacy

[333] Dr. Novakovic claims that Ms. Salvador obtained her name as the resident making complaints against her from either the Board of Directors, or a concierge, because of Ms. Salvador’s position on the Board of Directors. She seeks damages in the sum of $5,000.00.

[334] Dr. Novakovic submits that the identities of the residents are confidential from one another, and therefore, Ms. Salvador is liable for the tort of invasion of privacy or, as particularized by the Court of Appeal in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, intrusion upon seclusion.

[335] The tort of intrusion upon seclusion was first recognized in Ontario in Jones. It captures the wrongful intrusion upon the plaintiff’s seclusion, or solitude or into her private affairs. The Court of Appeal set out a four-part test. The plaintiff must prove on a balance of probabilities that:

(a) There has been an unauthorized intrusion;

(b) The intrusion was highly offensive to the reasonable person;

(c) The matter intruded upon was private; and

(d) The intrusion caused anguish and suffering.

[336] The court explained that the first element focusses on the act of intrusion. The second element focuses on the degree of intrusion, the context, conduct and circumstances of the intrusion, the tortfeasor’s motives and objectives and the expectations of the rights holder. The third element requires the plaintiff to prove that the expectation of seclusion was objectively reasonable, and the fourth element is generally presumed once the first three elements are established (Jones, at paras. 57-60).

[337] In my view the evidence falls far short of establishing that Ms. Salvador committed this tort. At its highest, Mr. Perez-Arteaga speculated that if Ms. Salvador obtained Dr. Novakovic’s identity as the complainant, then it might have come from a concierge. No concierge was called by Dr. Novakovic to establish that her name was transmitted to Ms. Salvador, never mind that the concierge felt compelled to disclose this information due to Ms. Salvador’s stature as a director.

[338] Mr. Robertson testified that the Board did not provide this information to Ms. Salvador, and Mr. Perez-Arteaga testified that he did not provide this information to Ms. Salvador.

[339] Constable Butson testified that he secured Dr. Novakovic’s name from the concierge the night he made the arrest. At that point in time, Ms. Salvador did not have the name of the resident of Unit 707.

[340] There is also no evidence to suggest that Ms. Salvador received favoured treatment over Dr. Novakovic by the Board. To the contrary, Ms. Salvador was required to be recused when the Board discussed this situation, Ms. Salvador received warning letters from the property management, and Ms. Salvador ultimately received two charge back letters for the Corporation’s lawyers charging her the legal fees associated with preparing those letters.

[341] Eventually, Dr. Novakovic and Ms. Salvador discovered each other’s identity as the persons making complaints against them.

[342] Furthermore, I do not think that having discovered Dr. Novakovic’s identity as the resident of unit 707 making complaints is “highly offensive” given the context, conduct and circumstances of having Ms. Salvador discovering her name. They are all residents in the same condominium building. They are all members of the same Condominium Corporation. Dr. Novakovic stood up at the 2016 AGM, gave her name and unit number (as reflected in the Minutes) and accused the Board of favouring Ms. Salvador over her.

[343] Finally, the expectation of privacy in the circumstance of Dr. Novakovic seeking the Board to sanction Ms. Salvador for the excessive noise and smoke was not reasonable. Ms. Salvador was entitled to know the identity of her accuser.

[344] Accordingly, the claim based in breach of privacy/intrusion upon seclusion, is dismissed.

Intentional Infliction of Mental Suffering

[345] Dr. Novakovic seeks $20,000 for the tort of intentional infliction of mental suffering. She relies on the incidents of excessive noise and smoke as the tortious activity.

[346] In order to establish this tort, Dr. Novakovic must prove that the incidents of excessive noise and smoke:

(a) Amounted to flagrant and outrageous conduct on the part of Ms. Salvador;

(b) Were calculated to harm Dr. Novakovic; and

(c) Caused Dr. Novakovic to suffer a visible and provable illness (see Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 48).

[347] What amounts to “flagrant and outrageous conduct” is not well defined in the caselaw (Piresferreira v. Ayotte, 2010 ONCA 384, 263 O.A.C. 347, at para. 70). In my view, flagrant and outrageous conduct is conduct that offends common decency and is extreme in nature. For example, in Fitzpatrick v. Orwin, 2012 ONSC 3492, at para. 117, the defendant disconnected the plaintiffs’ security camera and placed a dead coyote on the hood of their truck. Justice Stinson characterize this as flagrant and outrageous conduct.

[348] Expert evidence is not required to prove the “visible and provable illness” component of this test. It can be satisfied when depression accompanied by physical illness results from the tortious conduct (Prinzo, at para. 46). Furthermore, the second element will be satisfied where the tortfeasor desires the resultant harm to flow from the tortious act or harm is substantially certain to follow (Prinzo, at para. 45).

[349] I also find that the noise level with respect to the confirmed complaints (while unacceptable within the context of the rules of the Condominium Corporation) do not constitute flagrant and outrageous conduct. First, I find that Dr. Novakovic greatly exaggerated the volume of sound. It is not plausible that if noise emanating from Ms. Salvador’s unit reached the level of bombs exploding and shook the entire building, that only Dr. Novakovic would have complained. Second, there is no objective evidence before this court as to how loud this noise was. Rather, the evidence is that a concierge exercised his subjective judgment, and the threshold was fairly low; if he heard noise in the hallway, that was sufficient to confirm the noise complaint. None of the smoke complaints were actually confirmed by the concierge. Furthermore, the evidence of Mr. Perez-Arteaga and Mr. Robertson is that noise complaints were a common occurrence within this Building and that some level of noise was inevitable. Hence the issuance of the newsletter after Ms. Salvador left the Building reminding residents of their obligation not to be too noisy. The noise level did not reach the level of flagrant and outrageous conduct.

[350] Furthermore, the evidence does not support Dr. Novakovic’s position that the noise and smoke was calculated to cause her harm, nor that the harm was substantially certain to follow. The noise and smoke did not appear to bother any of Ms. Salvador’s or Dr. Novakovic’s neighbours – at least not sufficiently to cause complaints to be filed according to the evidence of Mr. Perez-Arteaga. Dr. Novakovic did not lead any evidence to demonstrate that the noise and smoke emanating from Ms. Salvador’s unit and balcony caused a disturbance to anyone else in the immediate vicinity of her unit or Ms. Salvador’s unit, either. There is no evidence that Ms. Salvador engaged in a course of conduct that was aimed at targeting Dr. Novakovic. Dr. Novakovic’s own testimony did not suggest that – it was focussed on the impacts on her and her use and enjoyment of her unit. In addition, Dr. Klassen’s opinion falls short of establishing that Dr. Novakovic suffered a psychiatric disorder, psychological symptoms or other adverse consequences, or a physical illness that was caused by the excessive noise and/or smoke and odours.

[351] Accordingly, this claim is dismissed.

[352] In my view, the type of conduct alleged is better captured under the tort of nuisance analysis in any event.

Tort of Harassment

[353] Dr. Novakovic urges the court to recognize a tort of harassment, which she requests in the alternative to the claim based in the intentional infliction of mental suffering, and in the event I find that she did not prove the latter tort. She seeks $20,000 in damages under this cause of action.

[354] In Merrifield v. The Attorney General of Canada, 2019 ONCA 205, 145 O.R. (3d) 494, the Court of Appeal found that there is no existing common law tort of harassment in Ontario, nor is there any good reason to recognize a new tort of harassment. In that case, the court found, at para. 42, that when there were other legal remedies available to redress the conduct complained of, the creation of a new tort is not warranted.[^14]

[355] The pattern of conduct complained of here by Dr. Novakovic is the excessive noise and smoke that she claims interfered with her use and enjoyment of her unit and adversely impacted her health. There are existing torts that are available to provide remedies for this type of misconduct, including nuisance and the intentional infliction of mental suffering.

[356] This is not a situation such as was addressed by Justice Corbett when the court recognized a new tort of internet harassment in Caplan v. Atas, 2021 ONSC 670. In that case, the defendant had “engaged in a vile campaign of cyber-stalking against the plaintiffs” (at para. 92). Justice Corbett found that the law’s response had failed to respond adequately to Atas’ misconduct. The misconduct in question was internet based – a type of behaviour that the law had not yet afforded a civil remedy. Justice Corbett observed at para. 104, that the law of defamation provided some recourse, but “that recourse [was] not sufficient to bring the conduct to an end or to control the behaviour of the wrongdoer”. While Justice Corbett found that the common law tort of harassment should be recognized, it was to address harassment perpetrated via the internet.

[357] Accordingly, Dr. Novakovic has not satisfied the test for the recognition of a new tort in the circumstances of this case. There are already existing torts that adequately provide redress for the type of conduct and harms that she is advancing in this action. Accordingly, there is no gap in the common law that justifies the creation of a new tort of harassment to address the conduct and harms that are at issue in this action.

Nuisance

[358] Dr. Novakovic advances a claim based in private nuisance. While this claim was not asserted as a cause of action in her prayer for relief, the underlying facts are plead. It was advanced in the opening submissions without objection, and fully argued at trial. Hence, I have addressed this cause of action.

[359] The Supreme Court of Canada in Antrim Truck Centre v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at para. 19, affirmed the two-part approach to establish this tort. The Plaintiff must prove, on the usual balance of probabilities, that the alleged interference with the use and/or enjoyment of her property was both substantial and unreasonable:

A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances.

[360] The court emphasized that not every interference, however minor or transitory, is an actionable nuisance. The court stated, at para. 21, “some interferences must be accepted as part of the normal give and take of life”. In order to constitute substantial interference, the conduct must “substantially alte[r] the nature of the claimant’s property itself” or interfere “to a significant extent with the actual use being made of the property” (Antrim at para. 22, emphasis in original).

[361] Put another way, “actionable nuisances include ‘only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes’, and not claims based ‘on the prompting of excessive “delicacy and fastidiousness”’” of the owner (Antrim, at para. 22). Nuisance can also take the form of damage to the health, comfort or convenience of the owner, in addition to physical damage to property (Antrim, at para. 23).

[362] Thus, the first element of “substantial interference” will screen out the weaker claims.

[363] Once that hurdle is surmounted, however, then the more complex reasonableness analysis must be undertaken.

[364] While in Antrim, the claim at issue was public nuisance, the court, at para. 26, addressed unreasonable interference within the private nuisance context. The court is to balance the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances. The factors considered in determining all of the circumstances include the character of the neighbourhood, the sensitivity of the plaintiff, and the frequency and duration of the interference. These factors are neither mandatory nor exhaustive, but rather they are an example of the types of considerations a court may refer to. It is a fact driven exercise.

[365] The burden is on the plaintiff to demonstrate that the interference is substantial and unreasonable and not to show that the nature of the defendant’s use of her own property was unreasonable (Antrim, at para. 28).

[366] However, the nature of the defendant’s behaviour is relevant to this reasonableness analysis if the behaviour was malicious or careless (Antrim, at para. 29). The duty owed by neighbours is also not necessarily discharged by taking reasonable care or even all possible care to avoid the interference. The Supreme court in Antrim, at para. 29, states that in this sense the liability is strict.

[367] In Antrim, at para. 48, the court adopts La Forest J.’s statement in Tock v. St. John’s Metropolitan Area Board, 1989 15 (SCC), [1989] 2 S.C.R. 1181: “the law only intervenes ‘to shield persons from interferences to their enjoyment of property that were unreasonable in light of all the circumstances’”.

[368] Dr. Novakovic relies on Banfai et al. v. Formula Fun Centre Inc. (1984), 1984 2198 (ON SC), 51 O.R. (2d) 361. In that case, an automobile racing amusement ride racetrack was built in the vicinity of motels. The nearby motels complained that the noise caused by the cars on the racetrack substantially interfered with their customers’ use and enjoyment of their motels.

[369] In that case, the court found that when the racetrack was operating it substantially and unreasonably interfered with the motels. However, in that case, the court had the benefit of objective expert evidence that concluded that the decibel level was far higher than the acceptable limits. Furthermore, the noise was considerably louder and sharper than the other noises typical in this community. The fumes and smoke also exceeded the air pollution that otherwise existed. In addition, the complaints did not arise from any “abnormal sensitivity or delicacies on their part”. Hence with the benefit of the expert evidence, the court concluded that on an objective basis, the noise was disturbing and unacceptable and was a noise that the plaintiffs should not have to tolerate given the character of the neighbourhood.

[370] In Gordner v. 2384898 Ontario Limited, 2017 9631 (ON SCSM), the court considered a complaint arising from a neighbouring night club’s playing of music that was characterized as disturbing noise with deep bass rhythmic vibrations that interfered with the plaintiff’s use and enjoyment of his condominium unit. The plaintiff called five witnesses who were also residents in the condominium building and echoed the plaintiff’s complaints. The defendant nightclub called several witnesses who disputed the level of noise the plaintiff and his witnesses allegedly experienced.

[371] Like Banfai, the court in Gordner had the benefit of expert evidence. In this case it was a sound engineer, who installed equipment in the plaintiff’s unit and the night club to correlate the noise level data. The expert concluded that the noise level in the plaintiff’s unit was unreasonable, and that it was caused by the noise coming from the night club. The court accepted the expert’s unchallenged evidence about the level of the noise measured and causation.

[372] The court found that the noise generated by the night club occurred between 11:00 p.m. and 2:00 a.m. three nights a week “when normal citizens sleep” (para. 159). The court was satisfied by the testimony of the plaintiff and the five other residents that the noise was substantial and unreasonable. Of note, the noise in question was a new noise introduced into the neighbourhood by the nightclub. (para. 171).

[373] I accept that the noise was excessively loud on the times validated by the concierge within the standards of the Corporation and therefore of this community of residents. The reasonable expectation of the condominium residents is that the Condominium Corporation will regulate the acceptable noise level and enforce them through this process. On at least one confirmed occasion, Dr. Novakovic slept in the lobby because she could not tolerate the noise coming from Ms. Salvador’s unit. It is not the role of the court to second guess the judgment of a Condominium Corporation, but rather to consider whether the corporation’s processes were fair and reasonable (Metropolitan Toronto Condominium Corporation No. 933 v. Lyn, 2020 ONSC 196, at paras. 32-33). In this case, I have no evidentiary basis to suggest that the Corporation’s protocol for investigation was not fair and reasonable with respect to the consequences that flowed; i.e., warning letters and ultimately charge back letters. Again, the Board did not escalate this matter to an application under the Condominium Act to enforce compliance or seek remedies against Ms. Salvador.

[374] However, the fact that the Corporation found the noise levels to be on the confirmed occasions, in violation of its internal rules and regulations does not automatically equate into a finding that the offensive activity reaches the bar of common law nuisance. In this case, the Corporation’s system for validating excessive noise complaints was subjective, apparently relying on a concierge’s sensibilities as to whether noise was excessive or not. There was not any objective measure of what the noise levels were, and whether those levels were tolerable. There was also no objective evidence led by Dr. Novakovic substantiating her claims that the noise coming from Ms. Salvador’s unit was substantial and unreasonable for purposes of establishing nuisance.

[375] Furthermore, while the Corporation caused its lawyer to send two charge letters, the excessive noise and odours/smoke apparently did not warrant the Corporation bringing an application under s. 135 of the Condominium Act against Ms. Salvador to enforce compliance speaking to the level of severity of the breach. Dr. Novakovic also had this option but did not avail herself of that more cost efficient and timely process. Of course, once Ms. Salvador left the Building, this potential remedy was no longer available.

[376] In addition, while the police attended at Ms. Salvador’s unit on several occasions in response to Dr. Novakovic’s complaints to the police, she was never charged with any offence, again speaking to the level of the noise and/or marijuana odours. However, the lack of criminal charges is not determinative of whether nuisance is made out.

[377] On the other hand, when members buy a condominium unit, they agree to be bound by the rules, regulations, and Declaration of the Condominium Corporation. This includes rules regarding the level of acceptable noise and concerning where people can smoke. Ms. Salvador agreed to be bound when she bought her unit with her father, and then took on the responsibility, with the other directors, for development of these rules and regulations and enforcement when she became a member of the Board of Directors.

a. Was the interference substantial, meaning non-trivial and not transitory?

[378] The number of confirmed excessive noise complaints was 13 out of 22 from August to December 2015. The December 30, 2015 charge back letter also references an unspecified number of odour complaints, but they were not the subject of warning letters. On two occasions, Dr. Novakovic slept in the lobby. There was an unspecified number of confirmed excessive noise complaints that were the subject of warning letters reflected in the April 17, 2017 charge back letter. This letter also references odour complaints, but again they were not the subject of warning letters. However, there is no evidence that the noise and odour/smoke complaints made by Dr. Novakovic after December 2015 were confirmed by the Condominium Corporation.

[379] That said, the pattern and number of confirmed excessive noise complaints from August 2015 to December 2015 were not trivial and not transitory. These were not isolated rare events. Accordingly, the interference was substantial, meaning neither non-trivial and not transitory.

b. Was the interference unreasonable?

[380] In determining whether the interference was unreasonable, the court will examine the relevant factors including the severity of the interference, having regard to its nature, duration and effect, the character of the locale, the utility of the defendant’s conduct, the sensitivity of the use interfered with and any other relevant defences. The relevant circumstances in this case are:

(i) Dr. Novakovic lived in a large condominium building with over 1,000 tenants, 22 floors, and 369 units;

(ii) The Condominium Corporation had rules prohibiting excessive noise and a process, albeit subjective, for determining how to assess whether a noise level was excessive and confirming the validity of the noise complaint;

(iii) The Condominium Corporation commonly received complaints about excessive noise levels from various residents, including based on music;

(iv) Dr. Novakovic’s subjective perception and experience of the noise levels were exaggerated when measured against the lack of any complaints by any of her or Ms. Salvador’s neighbours against Ms. Salvador on their respective floors;

(v) There is a reality that some level of noise will permeate the confines of a unit particularly where the walls, as here, lacked sound proofing;

(vi) Dr. Novakovic refused to participate in a noise tolerance test when offered by the Board of Directors;

(vii) The type of noise that was typically the subject of Dr. Novakovic’s complaints was music being played on a television;

(viii) The Condominium Corporation confirmed some, but not all, of the noise complaints and took action against Ms. Salvador;

(ix) On two occasions Dr. Novakovic felt she had to sleep in the lobby because of the noise coming from Ms. Salvador’s unit; and

(x) Ms. Salvador’s response to the complaints was to deny that she was causing excessive noise. She conceded that in the early part of her residence in the Unit she did permit her boyfriend to smoke marijuana occasionally and a friend to smoke cigarettes occasionally, and that when she was made aware that the smoke was bothering Dr. Novakovic, she put an end to it.

[381] Turning first to the severity of the confirmed noise incidents, they interfered with Dr. Novakovic’s ability to sleep. She felt stressed and could not relax in her own home. The noise would sometimes occur throughout the night and on 13 occasions in a relatively short period of time. The nature of the noise consisted of loud voices, and loud music with a pervasive bass sound.

[382] Turning next to the character of the locale of the incidents, the noise and odour/smoke experienced by Dr. Novakovic was not uncommon in this Condominium Building. What was uncommon was the frequency with which she experienced the noise, compared to the number of similar complaints filed against other unit owners. More importantly, however, the noise levels were confirmed by the Condominium Corporation to be in violation of the internal rules and regulations of this Corporation. All residents were obliged to adhere to these rules and regulations, including an obligation not to subject other residents to “excessive” noise.

[383] There was no valid public utility in the noise and fumes. These derived from private recreational activities.

[384] Dr. Novakovic’s sensitivity to each occurrence of noise however was exaggerated. While some of the occurrences violated the Corporation’s noise and odour prohibitions, they were not nearly as severe in intensity or frequency as Dr. Novakovic claimed. Dr. Novakovic failed to prove with objective evidence what the level of intensity of the noise was on any occasion, and she failed to prove the frequency she claimed to have experienced excessive noise and odour/smoke beyond the complaints that were confirmed by the Corporation. This factor weighs in favour of Ms. Salvador in terms of the intensity and frequency of the complaints advanced by Dr. Novakovic. However, a reasonable person in the shoes of Dr. Novakovic should not have had to tolerate the noise violations committed by Ms. Salvador as validated by the Condominium Corporation.

[385] Ms. Salvador did not advance any other defences.

[386] Whether the tort of nuisance has been made out is a question of fact. In my view, having considered all of the relevant circumstances, Dr. Novakovic has proven on a balance of probabilities that Ms. Salvador is liable for the tort of nuisance comprised of the 13 confirmed incidents of excessive noise. Dr. Novakovic experienced interference in the use and enjoyment of her unit and adverse impact to her health that she should be compensated for.

Damages

General Non-Pecuniary: Pain and Suffering and “Moral Damages”

[387] In closing submissions Dr. Novakovic’s lawyer submitted that the amount of $30,000 would be appropriate by way of damages for the tort of nuisance. He then added that, in addition, an amount should be awarded for pain and suffering in an amount to be determined by the court.

[388] Damages for nuisance are intended to compensate the victim for the loss of her quiet enjoyment, use, and/or convenience of her property including loss of amenities, and harm to her health. I have taken these losses and harms into consideration.

[389] Dr. Novakovic also seeks compensation for her “moral injury”. However, “moral injury” is not a compensable harm under this tort. It was used as a descriptive term used by Dr. Klassen to frame Dr. Novakovic’s perception of how she has, in her view, been betrayed by the various actors involved in the arrest, responses to her complaints, and treatment of her in relation to Ms. Salvador’s complaints against her. It is not a recognized psychological or psychiatric disorder or condition according to Dr. Klassen.

[390] Furthermore, while Dr. Klassen addressed the concept of moral injury in his testimony, it is not reflected in his report, and thus was outside the bounds of his expert testimony. He was clear that he was not asked to address this question in his report. Notwithstanding the lack of objection, I decline to attach any weight to this aspect of his evidence.

[391] Turning to the issue of harm to Dr. Novakovic’s health, much of Dr. Klassen’s testimony was framed using terms such as his “sense” and his “belief”, and “may” in terms of causation. Dr. Klassen is an extremely experienced expert witness and assessor. His use of such phrases over phrases such as “my opinion” or “more likely than not/probable” is intentional.

[392] As stated earlier in my Reasons, the primary focus of Dr. Klassen’s assessment was the arrest. In the course of his testimony, he also focussed on the impacts of the arrest and incidents following the arrest. The noise and smoke incidents did not feature prominently in his testimony and are not reflected in his report. Dr. Klassen offered no opinion on any incidents that pre-dated the arrest.

[393] I am not persuaded that Dr. Novakovic suffers from PTSD, given Dr. Klassen’s opinion that she does not meet the mandatory diagnostic criteria. In any event, Dr. Novakovic has not proven that, if she does suffer from PTSD, it was caused by the noise, odours and/or smoke. Dr. Klassen did not characterize any of these incidents as meeting the definition of “trauma” within the meaning of PTSD (e.g., a life-threatening event such as childhood sexual abuse or war time life-threatening actions). Dr. Klassen did not adequately explore Dr. Novakovic’s experiences during the civil war in Sarajevo, including what appeared to be a life-threatening event, notwithstanding that he was aware of this from Stefan. Curiously, neither Dr. Novakovic nor Stefan testified about the life-threatening event of being taken outside at gunpoint by various warring factions to treat their wounded or the impact of the civil war from which they fled as refugees.

[394] However, the lack of a diagnosis of a psychiatric mental disorder does not mean that Dr. Novakovic did not suffer harm. Rather, the court will examine the impacts of the tortious conduct on the cognitive and psychological functioning of the plaintiff. In other words, what symptoms does the plaintiff suffer and are they caused by the tortious conduct.

[395] Therefore, I must consider what symptoms and physical ailments (including those associated with PTSD) Dr. Novakovic suffers from, the degree they have adversely affected Dr. Novakovic’s ability to function and enjoy life, and whether they are solely caused by the nuisance committed by Ms. Salvador.

[396] Again, the burden of proof lies with Dr. Novakovic to establish both the harms and causation.

[397] Dr. Novakovic has not proven that the excessive noise and odours caused her to suffer from the symptom burden that Dr. Klassen described. Dr. Klassen did not persuade me that this symptom burden was caused or contributed to by the noise, smoke and/or odour complaints. Dr. Klassen’s opinion focussed on the arrest and not the noise and smoke/odour complaints, and he did not even consider pre-arrest incidents.

[398] I am satisfied Dr. Novakovic suffered distress and interference with her sleep as a result of the noise.

[399] I am also satisfied that the noise interfered with Dr. Novakovic’s use and enjoyment of the unit and deserves compensation for the loss of the associated amenities. For example, on two occasions, she slept in the lobby because of the noise disturbance.

[400] As stated, Dr. Novakovic failed to prove that any of her noise or smoke/odour complaints for the period after December 2015. The second charge back letter (April 2017) failed to specify the number of confirmed incidents, much less dates of confirmed incidents, and references only that property management has received “many recent complaints with respect to various incidents of excessive noise and odour”. The duration of this conduct was over the course of approximately one and a half years, consisting of 13 confirmed incidents from August to December 2015.

[401] The level of noise with respect to the confirmed complaints was unacceptable in terms of the reasonable expectations of residents as reflected by the Corporation’s own rules and regulations that every unit owner agrees to abide by when they purchase a unit in the Building. However, the severity of the noise level was largely annoying and not catastrophic as suggested by Dr. Novakovic. This is evidenced by the fact that Mr. Perez-Arteaga testified that the Board would only consider performing a noise test in extreme circumstances. The Board took no such action with respect to Ms. Salvador.

[402] Furthermore, Dr. Novakovic failed to lead any objective or expert evidence to establish the volume or level of the noise, including the bass sounds, that she complained of. She failed to discharge her burden of proof with respect to the balance of the approximately 50 incidents that she complained about.

[403] Damages in nuisance are to compensate the plaintiff for actual physical damage to land, and interference with the health, comfort or convenience of the owner. The law of nuisance focuses on harm to the plaintiff rather than the conduct of the defendant.

[404] In this case, Dr. Novakovic is entitled to compensation for interference with her health, comfort and convenience as the owner of Unit 707.

[405] There are no aggravating factors that would justify enhancing the general damages award in this case.

[406] The court must make the assessment of damages on the available evidence which, in this case, consists of Dr. Novakovic’s testimony, the observation evidence of Stefan and Nesbojsa Novakovic, and Dr. Klassen’s expert evidence. In my view, the interference and impact suffered by Dr. Novakovic in relation to the proven, confirmed, complaints was modest and over a relatively short period of time.

[407] Reviewing the jurisprudence with respect to damages awards for nuisance of this nature, awards have tended to be modest (see for example, Gordner v. 2384898 Ontario Limited, 2017 9631, damages assessed at $34,320 plus aggravated damages of $10,000 for 50 months of constant proven noise complaints that occurred three nights every weekend to at least 2:00 a.m.).

[408] I find that the appropriate award to compensate Dr. Novakovic for the interference and harms she suffered as a result of the nuisance is $15,000.00.

Special Damages – Recovery of legal fees paid for criminal defence

[409] In light of my findings, dismissing the claim for malicious prosecution, the claim for special damages in the form of legal fees paid by Dr. Novakovic for her criminal defence is also dismissed.

Punitive Damages

[410] Punitive damages “are awarded in exceptional cases for ‘malicious, oppressive and high-handed misconduct’ that ‘offends the court’s sense of decency’” and “their objective is to punish the defendant rather than compensate a plaintiff”. [^15]

[411] It is rare that punitive damages will be awarded for fault-less torts (unlike intentional torts which may attract punitive damages). This is not one of those cases in which punitive damages are warranted. The misconduct was not reprehensible and does not satisfy the objective of deterrence.

[412] However, the objectives of punitive damages are not satisfied in this case. While Ms. Salvador’s conduct was not thoughtful and injurious to Dr. Novakovic it was not malicious, oppressive or high-handed conduct. Accordingly, they are denied.

DISPOSITION AND COSTS

[413] Judgment is granted to Dr. Novakovic in the sum of $15,000 as general damages, together with prejudgment and postjudgment interest under the Courts of Justice Act.

[414] In the event that costs cannot be settled, the plaintiff may submit her Cost Outline and Cost Submissions within 15 days from the release of this judgment. The defendant may then submit her Cost Outline and Responding Cost Submissions within 15 days thereafter. The respective Cost Submissions shall not exceed 5 double spaced pages each. The outlines and submissions will be delivered to my judicial assistant.

Justice S. Vella

Released: July 17, 2023

[^1]: The court recognizes that only a doctor licensed to practice medicine is entitled to use the prefix “Dr.”. However, in my view, Dr. Novakovic’s stature as a formerly licensed doctor in the former country of Yugoslavia entitles her to be addressed in these Reasons as “Dr.” Novakovic. This stature is part of Dr. Novakovic’s identity, and it was lost because of the necessity of she and her family’s escape to Ontario from a war-torn country as refugees. [^2]: Diagnostic and Statistical Manual of Mental Disorders; Fifth edition. [^3]: Dr. Novakovic also completed a questionnaire in advance of the assessment: the Post-Traumatic Symptom checklist-5 or PCL-5, but did not complete any psychological tests that would have been administered by a psychometrist or psychologist and interpreted by a psychologist (psychiatrists are not trained to interpret psychological tests). There are no validity scales in the PCL-5 or the CAPS. [^4]: Dr. Klassen’s report was not entered into evidence, however, it was made available to the court as an aid memoire on consent. [^5]: This subsection prohibits noise, vibration, odour, smoke or other nuisance that “does or may unreasonably interfere with or disturb the comfort, use, occupancy or enjoyment of the Units or the Common Elements…by the Owners or occupants of same” as “deemed by either the Corporation or the property manager…in their sole and unfettered opinion”. [^6]: A physical description of the arrest was not provided in examination in chief, or under cross examination. [^7]: Counsel for Dr. Novakovic also submitted that the court should award additional damages for pain and suffering in an amount to be determined by the court in addition to the cumulative amounts being sought for each cause of action. However, he confirmed that the sum of $60,000 (and the other sums he requested) was intended for general non-pecuniary damages. General non-pecuniary damages compensate for pain and suffering and accordingly I rejected this submission. [^8]: In the statement of claim, the plaintiff pleads that statements made to the police were defamatory. On the other hand, the pleading under the heading “defamation” does not refer to either statements made in the Human Rights application (nor is that document mentioned at all) or statements made to the Board of Directors or members of property management including the property manager and concierges. [^9]: Para. 58(b.) of the statement of claim [^10]: There was no motion for leave to amend the statement of claim made at trial. [^11]: The statement of claim pleads negligence and malicious prosecution, together, at paras. 43 – 50, however the facts plead are focused on the malicious prosecution claim and are very sparse with respect to negligence. Under the “Facts” section of the statement of claim, the facts plead relate to the malicious prosecution claim against Ms. Salvador, the individual police defendants and the TPSB. The only place in the statement of claim that references Ms. Salvador as a Director is para. 61 in relation to the invasion of privacy claim. [^12]: Section 37(1) of the Condominium Act sets out the standard of care owed by directors and officers of the condominium corporation. Those duties relate to the exercise of their powers and discharging the duties of the office. Section 135 of the Act sets out an oppression remedy right of action, which can be asserted by an owner, corporation, declarant or mortgagee of any unit by way of application. Dr. Novakovic’s lawyer conceded that this action did not plead s. 135, and that this provision is therefore not engaged. [^13]: Section 135.1 vests jurisdiction in the court to order a person to vacate a property permanently in certain limited situations. However, this provision was not engaged by the Board or Ms. Salvador, nor was it plead or referred to by Dr. Novakovic. [^14]: Since hearing closing submissions, the Court of Appeal rendered its landmark ruling, Ahluwalia v. Ahluwalia, 2023 ONCA 476 which re-affirms this test at para. 3. [^15]: Whiten v. Pilot, 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36.