‘This singular issue has been outstanding … for the better part of 10 to 11 years,’ writes the justice in her decision about garbage room clamour.
A case released by the Superior Court last month is a textbook example of how condominium boards should respond to noise complaints from a building resident.
Fung-Ling Wong owns a condominium unit on Canterbury Place, in Toronto. Her unit shares a wall with the garbage room that contains a compactor. The room is also the termination point of the garbage chute for all residents in the highrise.
Wong bought her unit in 2010 and immediately began experiencing loud noises at all hours of the day and night. She has been continuously distressed by the wheezing and thumping noise from the compactor, and by crashing sounds and tremors caused by other owners sending their garbage down the chute. Even worse, she felt vibrations caused by the operation of the garbage system.
Starting in 2011, Wong filed numerous complaints with the condominium management relating to the noise and vibrations in her unit.
Over the next few years, the board conducted sound testing and made some repairs. It told residents not to use the garbage chute at night.
Remedial measures were undertaken in 2018, but they were not completely successful. A company called So Quiet Soundproofing was engaged to conduct sound testing. It found the noise to be “unacceptable” causing “human annoyance” in Wong’s unit.
After further complaints, the board hired an engineering firm to conduct a peer review of the So Quiet report and recommendations, but no further action was taken.
A contracting firm was hired by the board in 2020, and its report confirmed the findings of the So Quiet report — after a delay of 2-1/2 years.
The noise continued through early 2021, when Wong finally issued an application in Superior Court to force the condominium to remedy the noise and vibration issues, and pay damages for nuisance and mental distress.
The matter came before Justice Susan Vella last November and her decision was released last month. She noted that under the Condominium Act, the corporation is responsible for maintenance, repair, operation and upkeep of the common elements. It is also required to enforce its own rules in order to ensure that the garbage chutes are closed overnight.
The judge found that the corporation had breached its statutory duties and Wong’s reasonable expectations of quiet enjoyment of her unit. She also referred to what she called “a paralysis of the board” about what to do regarding Wong’s ongoing complaints.
Wong based her court application against the corporation under the oppression section of the Condominium Act, asking the court to force the board to address her complaints.
“What stands out in this situation,” the judge wrote, “is the fact that this singular issue has been outstanding, subject to intermittent steps taken here and there, for the better part of 10 to 11 years.” She found that the board was in breach of the legislation by forcing Wong to endure unacceptable noise and vibration.
Justice Vella ordered the board to pay Wong damages of $30,000 and to have its engineers proceed with the recommended remedial work.
The case provides an important lesson for other condominium boards tempted to avoid their legal duties.
Wong v. TSCC NO. 1918, 2022 ONSC 3409 (CanLII), https://canlii.ca/t/jpvj4