With a growing number of Ontario households raising children in condominiums, many in the condo industry may have read a recent news report from British Columbia with interest: A family — consisting of mother, father and two sons, aged two and five — facing a noise fee of $50 per week, decided to move rather than continue to fight with its strata council (the B.C. equivalent to an Ontario condo’s board of directors).

The B.C. family purchased their second-floor, wood-frame townhouse unit when their first child was born. Last year, their downstairs neighbour began submitting complaints that the sound of running back and forth, jumping and stomping, was constant through the day. While the neighbour recognized that there was a family with young children living above, the neighbour claimed that the noise could be heard two floors down in the basement and was affecting the enjoyment of the lower unit.

The mother in the upstairs unit was cited saying that her two-year-old screamed, had tantrums, but also that he was supposed to be loud and there was nothing she could do to stop that. She asked the strata council for suggestions on how to keep her children quiet, but claims to have received no response.

She placed a foam mattress in her dining room for her children to jump on quietly and agreed to an offer of mediation from her condominium (but claims to have heard nothing back). She reportedly felt bullied by her strata council because she had children and felt that she was prevented from parenting in the way she wanted because she had to put a virtual stranger’s comfort before the well-being of her children.

Many things jump out from this story which have implications for Ontario condominiums.

While the mother in the B.C. story may have had good intentions and no direction from her strata council on how to abate the noise, her children jumping on a foam mattress on the floor may have been an ineffective solution. The impact from the jumping would still be present and transmitted below.

With respect to the declaration and rules, in Ontario most condos have a provision in these documents prohibiting the transmission of noise and nuisance from one unit to another (which is usually measured at the discretion of the manager or board of directors).

Rules must be reasonable but declarations need not be, so long as they are consistent with the Condominium Act. Some condos will have a corollary declaration provision that a unit owner must, at his or her own expense, take all reasonable steps to abate noise transmission.

Many newer condos’ declarations allow the corporation to charge-back a unit owner for legal fees and costs related to the breach of a declaration, bylaw or rule provision. Rules may also contain charge-back provisions with respect to noise/breach of the rules.

Whether a court would uphold a charge-back related to noise depends on whether the authority to charge-back is explicitly set out in the declaration and how the provision is worded. The Act is very clear that “common expenses,” by which a condominium would charge-back expenses to a unit, can only be specified in the legislation, in the declaration, or be related to the performance of the objects and duties of a corporation.

A corporation wishing to add an amount to the common expenses of one unit, but not all others, must have authority to do so in the Act or its declaration. The Act allows for such “single unit” charge-backs for certain items (occupancy breaches; insurance deductibles/damage; maintenance or repair work done for an owner; in relation to alterations made by a unit owner to common elements; and if costs are awarded to the condominium by the court or an arbitrator in obtaining compliance with governing documents).

Otherwise, if a corporation wishes to charge one owner for something, but not all others, the wording in the declaration must be specific and explicit.

Rules may also contain fines and charge-back provisions, but rules cannot “create” common expenses. A declaration provision specifically allowing a reasonable charge-back for noise abatement is valid.  Collection via a general “indemnity” provision may be permitted but can be subject to the discretion of a judge or arbitrator (the court has commented that the general “indemnity” provision of a declaration is not a sweeping collection tool).

What about human rights? The definition of “age” in the Human Rights Code is “an age that is 18 years or more.” The Code does not protect against differential treatment solely on the basis of a person being under 18. However, “family status” is now used to challenge condo provisions which have the effect of restricting based on age. “Family status” is defined as “the status of being in a parent and child relationship.”

When human rights are raised to challenge a governing provision, the condominium’s defence is usually that the complainant has not proven a prima facie case of discrimination. In the alternative, if a governing provision is proven to be discriminatory, the corporation must show that it has accommodated the individual to the point of undue hardship.

A corporation’s duty to accommodate is considered and balanced in light of its obligations to other unit owners. Human rights complaints are decided on a case-by-case basis.

The above considerations all factor into families and noise complaints. However, what sticks out in a case that appears to have hit a standstill and left both sides unsatisfied is that mediation was not more swiftly availed. In Ontario, mediation is mandatory in most cases before a condominium can proceed to court for a compliance order and is also offered in human rights proceedings.

In the event a board is faced with a substantiated and persistent noise complaint, the best course of offence and defence is to gather all the evidence and immediately submit the matter to mediation under the Act. If mediation under the Act fails, the matter can proceed to arbitration.

If, in the meantime, the owner brings a similar complaint to the Human Rights Tribunal, the condominium can argue that proceedings have already been started under the Act, relate to the same subject matter, and, if not resolved by mediation, an arbitrator has the jurisdiction to deal with all questions of law, including human rights issues. The corporation can ask for a stay of a human rights complaint pending the outcome of mediation and arbitration under the Act.

If there is a delay by the condominium corporation in actually proceeding with mediation/arbitration steps, the human rights tribunal/court may not grant a stay and two similar proceedings may happen at the same time. Therefore it is best to commence the dispute resolution process as soon as a verified and persistent noise complaint is received. By doing so, the corporation sets the forum for the complaint (and a forum where costs can be recovered, as legal fees are not recoverable in human rights proceedings).

In noise disputes, hearing is believing. Mediation can include unit visits to objectively witness the noise and usually allows for simple and economical solutions to noise complaints before they make the news.

Andrea Lusk is an associate lawyer at Gardiner Miller Arnold LLP, a condo-focused law firm in downtown Toronto. She can be reached at andrea.lusk@gmalaw.ca.