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Noise
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Dyke v. Metropolitan Toronto
Condo. Corp. No. 972
Ontario Superior Court of Justice—Toronto
CV-11-443081
18 January 2013
Tenants moved into the unit above the applicant and ran a dance studio.
The applicant complained about the noise many times to the property
manager and to security.
The board and the manager did nothing to stop the noise. Finally, the
applicant stated that she would take legal action. Then, instead of
enforcing the declaration, the manager and the board
started jerking the applicant around.
In response, since she could no longer stand the noise, the applicant
moved into a rental unit and sued the condo corporation.
She won the costs of renting an apartment and her court costs.
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Dyke vs
MTCC No. 972
Ontario Superior Court of Justice
Court File No: CV-11-443081
Before: Justice E.M. Morgan
Heard: 30 January 2015
Ms. Dyke won a judgment against MTCC # 972 in
January 2013 when the corporation did not stop a renter from running a
commercial dance studio in the residential unit that was situated right
above hers.
The dancing tenants moved out of the building in November 2013.
At this hearing, Ms. Dyke complained that there continue to be noises
that disturb her coming from the upstairs apartment from a new tenant.
Her complaints now have to do with the annoying but sporadic sounds
made when a chair is pulled up to the dining room table, or the
upstairs tenant vacuums the floors or walks with shoes on the part of
the floor that is uncovered by area rugs.
Justice Morgan wrote:
“The record before me contains photographs of the apartment above Ms.
Dyke’s apartment. The impression is of a very attractive residence,
with dark hardwood flooring and some rather elegant oriental-style area
rugs. While the rugs cover only part of the hardwood floor, the overall
impression is not of an apartment that is inhabited by tenants that
stomp in their work boots or make any other unusual noises. Indeed, Ms.
Dyke herself has indicated that she does not blame the post-November
2013 tenants above her for the disturbances that she continues to
experience. As she put it, referring to the post-November 2013 tenant
above her, ‘This poor guy thinks he’s being quiet, but I’m writing
letters saying ‘no, it’s tortuous to us.’
Ms. Dyke appears to object to the occasional noises that result from
ordinary residential usage. Although I do not doubt that she feels some
discomfort from these sounds, what she seems to be seeking is a level
of quiet to which an apartment dweller is not legally entitled.
There is no evidence of ongoing noise in the apartment above Ms. Dyke
beyond that ordinarily associated with residential living. Ms. Dyke has
a number of suggestions for further insulating the flooring of the
condominium above her, but installing extra soundproofing under the
hardwood floors is above and beyond the obligations that are on condo
corporation."
(Please see Dyke
vs MTCC No. 972 in Courts- Excessive legal fees to read the
findings on this case's legal costs.)
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Dyke v.
MTCC No. 972
Ontario Superior Court of Justice
Court File No: CV-13-486555
Heard before: Master Lou Ann Pope
Motion Heard: 05 February 2015
Endorsement on costs
This application was in response to the application above. The action
was dismissed with
costs to the defendants. In fixing costs, the judge considered the
overriding
principles of fairness and reasonableness.
With respect, the judge rejected
the plaintiff’s submission that she was successful on the motion. The
plaintiff wanted this action
dismissed without costs. The result was a discontinuance but with costs
to
the defendants.
Costs of the
Action
MTCC # 972
The defendants,
MTCC # 972, Marilyn Green,
Norman Hall, Bruce Darlington, Wilhelmina Dumas also known as Willow
Dumas, and Andrea Belanger were entitled to partial
indemnity costs of this action in the amount of $15,000 inclusive of
disbursements and HST.
In arriving at that
amount, the judge took into consideration the fact that MTCC #972
cross claim was
allowed to continue.
Samir Gupta and Renu Gupta
These defendants were
entitled to partial indemnity costs of this action in the amount of
$17,500 inclusive of disbursements and HST.
Feizal Satchu and Parul Gupta
These defendants were entitled to partial
indemnity costs of this action in the amount of $12,500 inclusive of
disbursements and HST.
Costs of the
Motion
The judge rejected the plaintiff’s submission that she was
entitled to costs of the motion. Therefore, the defendants were
entitled to their
costs on a partial indemnity scale as follows:
(a)
|
To MTCC the sum of $4,500
inclusive of disbursements and HST; |
(b)
|
To Samir Gupta and Renu Gupta
the sum of $3,000 inclusive of disbursements and HST; |
(c)
|
To Feizal Satchu and Parul Gupta
the sum of $750. |
Conclusion
The plaintiff was ordered to pay the defendants for their costs of the
motion and the action the following amounts:
(a)
|
To MTCC #972, the amounts of
$15,000 plus $4,500, for a total sum of $19,500; |
(b)
|
To Samir Gupta and Renu Gupta,
the amounts of $17,500 and $3,000, for a total sum of $20,500; |
(c)
|
To Feizal Satchu and Parul
Gupta, the amounts of $12,500 and $750, for a total sum of $13,250. |
These costs were made payable within 120 days.
Ms. Dyke was successful with her first court application but she paid a
very heavy financial penalty for losing this second court application.
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