Rod: Hello. Good evening, everybody, and welcome to the next episode of the Condo Adviser webinars. I'm looking for my notes very quickly here, just to make sure that I'm on topic. My name is Rod Escayola. That's the part that I almost forgot. My name is Rod Escayola and I'm your condominium lawyer with Gowling WLG. As you know last month we took a month off, mainly to sort of accommodate important holidays, but also to allow me to have some Vinho Verde in Portugal. It was an amazing trip. Here we are, we're back, and today's webinar will focus on noise in condos. Did we get Martin on the line?
Martin: Can you guys hear me now?
Rod: Yeah, for sure. Okay, wonderful. Just in time, buddy.
Martin: Yeah, I know, I know.
Rod: So today we'll focus on noise in condos and it's possibly one of the most challenging situations to resolve in condos, it's noise disruptions. Noise is highly disruptive. In fact, it can be debilitating for some people. Ask anybody in the Ottawa downtown core about the Freedom Convoy and you have to see how I spelled 'freedom'. It ends with 'dumb'. The other problem with noise disruption is that it's extremely subjective. A noise that somebody's going to find annoying sometimes is not even perceived by someone else. I remember there was the case once where an owner kept complaining about a noise that she kept hearing. At one point we just threw our hands up in the air, sent in someone like Martin Villeneuve, it wasn't him it was somebody else, an acoustic engineer, they went in. They measured and in fact they concluded yes, indeed, there is a sound in the unit but that can only be heard by bats and aquatic mammals. I mean what do you do with that? She's got super bionic ears, I guess, she can hear that. So the other problem with noise disruption is how do you resolve it and it's going to vary greatly. One thing is party and TV, music, that's too loud. The other one is noise emanating from just normal daily activities. You handle these very differently and there may be a third category of noise; it's noise that's coming from a common element tool or equipment, whether it's the garbage compactor, whether it's a transformer, whatever it is, or whether it's the sound that you're probably hearing is coming from outside because sometimes the sound has nothing to do with the condo. So we're going to try to tackle all of that because at the end of the day, regardless of the sound and the disruption and the source of it, the condo corporations may have different obligations with respect to that, and not tackling it properly and not acting diligently, may leave the corporation exposed to risk and litigation and cost and so on and so forth. So we're going to talk about all that tonight.
Before I dive in I'm going to do the usual housekeeping matters. Chat lines are open. Feel free to say hi, feel free to ask questions and to interact with one another. David's going to try to monitor that.
David: The chat is currently not functioning. We're working behind the scenes to get the chat open to everyone.
Rod: Again. We did that again. That's the second time. So, Graeme, you fixed it last time. Whatever you did 2 months ago, if you can maybe get that going. My usual disclaimers. Today we're going to be talking mostly about Ontario legislation so you may need to make sure that it applies to you. We will <sound cuts out> giving sort of general advice in nature and get the experts to assist you with this. This webinar is being recorded and we'll upload it eventually when we get to it. It usually takes me just a couple of days. Last time it took me a little longer but I'll do my best. Maybe give me until Monday or so. I think that's usually what I go with. I didn't give you a warning, everybody, but I'm going to introduce you using a theme or a question and I'm not going to start with Martin because the poor guy has never been at one of our webinars. He doesn't know what's coming so I'm going to give him a little chance to react to that. So the question I'm going to ask each of our panelists is this: If you wanted to keep your condo neighbour awake at night what music, or band, would you be blaring? Okay, so no preparation. I haven't given them a heads up that this is coming their way. So I'm going to start by introducing our two condo twins. I'm going to start with David Plotkin, because he sort of strikes me as one that would have a couple on his playlist for that.
David: I don't have anything in mind other than I recently watched the movie about Guantanamo Bay and saw how they kept the prisoners awake with music. So whatever their playlist was I think I would just go off that.
Rod: Nice. How about you, second condo twin, Graeme MacPherson, condo lawyer extraordinaire. What would you be blaring, Graeme?
Graeme: Honestly, if you were my neighbour you would probably get real sick real quick of 80s music. I'm obsessed with it so you'd be deep into the New Wave era.
Rod: We've got to tell you folks at home that we actually have seen the Graeme karaoke a couple of years ago and if we has to sing that on repeat I think it would get me pretty upset I think. Okay, Martin Villeneuve. Martin Villeneuve is an acoustic engineer. He's an expert in that field and he's with Englobe. So, Martin, what song would you be blasting if you wanted to disrupt your neighbours?
Martin: Two answers. If it was really my music it would be some sort of rock music like really loud Pink Floyd or Radiohead or something like that, but if I wanted to disrupt them, I would pick something with a lot of bass in it.
Rod: Nice.
Martin: Because bass just goes right through the walls.
Rod: Right. You're absolutely right. Okay, without further ado, what we're going to do we're going to be talking about noise disruption and we're going to talk about what is noise and how does it travel, and we chatted with Martin yesterday and he's a passionate individual so I am going to have sometimes to keep pushing him forward because we have so much ground to cover. But we're going to talk about what noise is, how it travels, the type of noises. That's going to be an important one because it's going to inform you on how to tackle it. We're going to talk about noise perception as well. Why is that some people perceive it differently and why is that one sound is more disrupting than the other one. Then we're going to turn also again to Martin, we're going to ask him what are the acceptable limits? So somebody complains about noise. There's noise. We can see it's noise. Is this one of these cases where it's just too bad and you just have to live with it? Then after that we're going to talk about noise solution and at the very end the two condo twins are going to share some condo cases that dealt with noise. So that's kind of the program today. Martin, let's start with what is noise? You only have 30 seconds for this, what is noise and how does it travel?
Martin: I'll give you a 30 second answer then. Basically what I really wanted to drive home with this was that you have three parts to it. If it's source, then the source is basically a vibration of some sort. It's exciting as the particles in a medium, mostly air, like we're not dealing with underwater stuff. So that's creating pressure waves in the air and it's propagating through the air through maybe a wall and then back into the air (the propagation part is pretty important) and then it is received by your ear and interpreted by your brain as sound. Like that is really basically in 30 seconds what it is. It's important to keep in mind source, propagation, receiver. Source could be one condo unit. Propagation through their walls and receiver in another adjacent condo unit. I just want to put that in context.
Rod: Right. Right. Sound is a wave and like any kind of wave it's going to travel differently through air or through material or through wood or through cement, or whatnot and so therefore, a specific noise may be stopped by a barrier and another noise could maybe go through it. I think a couple of minutes ago you indicated that if you wanted to disrupt your neighbours you'd use bass because bass has such like a wave length that it actually is more likely to go through a wall, for instance, right?
Martin: Correct. Yeah, you're absolutely right. So to stop those large waves you need thickness, you need mass, and basically it starts to get a little bit out of hand to attenuate low frequency noise, but luckily our ear is mostly sensitive to mid and higher range sounds. So that's good. It's kind of by design. But yeah, you're absolutely right. Different frequencies will go through, or not, different wall assemblies.
Rod: Then let's talk about the type of noises that we will encounter in a condo. We see already on the screen, assuming I'm still sharing my screen, you've divided these in two categories: sounds between neighbours and then more sort of mechanical sounds. Tell us more about that.
Martin: Sure. I think we can divide it into, eventually we'll get it down to four categories, but I think everyone just needs to take a step back and say there's noise between neighbours and then there's noise coming from a mechanical room or a mechanical equipment nearby or something like that. They should be thought of differently. Sometimes both are happening at the same time but more often than not it's one or the other.
Rod: Sure.
Martin: If we want to start with noise between neighbours, really there are two sort of propagation methods. One is airborne noise. So you know that tuba in the image is just making airborne noise. It is going through the wall and it is being heard by the lady next door. That's just airborne noise. Impact noise would be the same tuba player tapping his foot while he's practicing and it's bothering, well the party downstairs probably not bothered, but you know what I mean. Basically impact noise is always from the vertical pair of condo units and it's always the lower unit that's affected. If you have someone calling you about a noise complaint, they're saying hey there's noise. It's bothering me. First thing is to narrow it down. What is bothering you? Is it people? Is it machines? So for mechanical it can be airborne noise, again, so it's the same type as before where a machine is loud and it's making so much noise it's going through the wall and into your unit. Then structure borne noise and vibration, especially important in mechanical rooms, because that's basically injecting vibration into a hard structure. Usually a concrete structure is the culprit for this. Then it will propagate all throughout the building, and the further you are the less you'll be affected, but you don't have to be right beside the mechanical room to be hearing mechanical stuff because it is vibrating the whole floor plate. So anyways, when someone calls you and says I have a noise problem you've got to ask the right questions to kind of narrow down what are we dealing with here.
Rod: Yeah, absolutely, and it's important to know which kind of noise we're dealing with because it's going to affect the kind of testing that you will do. It will affect the kind of solution that will come into place and so on and so forth. I think we could spend the next couple of minutes trying to identify sound and you would tell us if it was airborne or mechanical or impact, but at the end of the day, one thing is a TV that's too loud, another thing is somebody hammering a nail, another thing is somebody with high heels. I think we get a sense of what are these noises out there. So now let's move to noise perception. It's kind of odd it's there. Maybe I'm the one who put it there, in fact. Maybe we should have done that a bit earlier. Why is it so difficult to identify the source of the noise or to try to sort of fix the noise problem? It's all about perception, I think.
Martin: It absolutely is. Perceiving noise is a very, very subjective thing. You and I perceive noise differently and differently to everyone else. There are obviously similarities and statistical values. Like we all hear more or less the same but some people are quite sensitive and others are quite deaf. The deaf person next door probably won't mind but the very sensitive person on the other wall will. That's just the nature of being human. So we're entering into kind of the realm of psychoacoustics, which we talked about briefly yesterday, so I'm not a psychoacoustic expert. That's basically the interpretation of sound by the brain.
Rod: Right.
Martin: I am really like an acoustic engineer, like the science of decibel readings with a sound level meter. It's still very relevant because some things listed on the screen here are really important to keep in mind. If we're given two sounds at the same sound level and one of the transients, so a transient is like an impact sound like, <sound of hands smacking together>, that's a transient. It's a 'pow' sound. It just comes out of nowhere versus a steady sound which would be like an engine idling. That's a steady sound. People are more bothered by the transient sound then they are the steady sound, even if they're at the same level.
Rod: Right.
Martin: Like per the sound volume meter. Scientifically they're at this level. Tonal versus broadband. Tonal means there is a tonal frequency. So really, really basically it just means you can hum, like hmmmmmmmmmmmmmm, or whatever, like a pure tone to like hum along with the source. Like transformers are really good for this. They have a tone at 120 hertz. They all do and it's just hmmmmmmmmmmmmmm and that's tonal and it bothers people more than just a broadband, kind of like the sound of a waterfall. You can't hum the sound. It's sort of just like a wash. So people are more annoyed by tonal noise than they are broadband noise, again, at the same level.
Rod: Right.
Martin: When the sound occurs is important. Which kind of goes hand in hand with background noise. If you have a low background noise in your condo you're going to be able to hear other noises more easily, or you'll perceive them more, than if your background noise is kind of high and then any sort of noise happening you may not even perceive it. You might hear it. It might be audible but it may not bother you is what I'm trying to get at it.
Rod: Right.
Martin: Which brings me back to the time of the noise. During the night usually the background is less traffic outside, you don't have your radio on, etcetera. It might be cooler so you're A/C is not running. All these things are contributing to the fact that now I can hear my neighbours.
Rod: Sure. Sure. That's interesting because one of the things we discussed yesterday is the solution that is not a solution for the person subjected to the noises. Sometimes we'll say why don't you just turn a fan on then you won't hear it? Right? Of course that's very little comfort to the person complaining about the noise but the reality is that would in fact reduce the level of disruption.
Martin: Yeah, yeah. But purely on a science basis it's a good solution. It really is.
Rod: Right. Let me ask you, what's this picture?
Martin: I have two kids under 3 years old, and they each have a white noise machine in their rooms, because when one cries at night it doesn't wake the other one up because the sound level is higher in their rooms so they don't really hear the crying from the other one, so they're not woken up. It's exactly what it's doing. It's a good solution. It works. But people hate to be told over the phone, just by a white noise machine.
Rod: Yeah. What's this image? You picked this image.
Martin: Yeah. I'm super glad you asked because it's a photo I took of a condo noise dispute and I was visiting both the upper and the lower units. The day I visited the lower unit, part of it is I try to meet with the unit owner and get an idea of what it is that they're worried about.
Rod: I suddenly know what this picture's about. We know what it is. The whole crew.
Martin: It's a picture of a ceiling, and it is a picture of the person below hitting their ceiling with a broomstick handle to tell the person upstairs to shut up, basically. I had to crop this photo to get it to sit on the screen and to like zoom in a little so you could see it, but it's a much larger area of ceiling that is affected. It's pretty intense. So that person was actually quite sensitive, right, and that's okay.
Rod: So the next question that we want to tackle is, what's the standard to be applied because, people at home you've heard that and you'll hear it again, condo owners are entitled to some level of peaceful and quiet enjoyment of their units, but they're not entitled to absolute silence. If I you want absolute silence move to the boonies or buy an island. So what is the standard, the acceptable limit, that would be applied?
Martin: Just to elaborate on that idea that absolute silence and all of that, I think we should never ever use the word 'soundproof' because nothing is really soundproof. Like in your documents, and in your writing, in your emails, don't ever say hey how can we make this soundproof? Because you can't. Because I'll just show up with more loud speakers and more loud speakers and show you that it's not actually soundproof.
Rod: Right.
Martin: There are upper limits. Your ears will start to bleed, etcetera, but like practically speaking soundproof, that's not a good word. Anyways, I know you didn't say it but I just wanted to throw that out there.
Rod: Right. Okay.
Martin: People say soundproof all the time. Just don't say that. You want to say isolated, things like that. Reducing sound, but not soundproof.
Rod: Right, right, right.
Martin: Anyway, so I digress, but standards. So for noise between neighbours, which is the first category you talked about earlier, again it's airborne and impact noise. Starting with airborne, really we're talking about the current Ontario building code. I might say OBC during the call. That's what that is. The minimum is a sound transmission class, or STC, of 50 or greater. That is the minimum that is required to be provided between neighbours for it to be code in Ontario. What does that mean? The higher number, the better the isolation. So if you go up from here it's just going to get better and better and better. A lot of builders will tend to build to higher than this just to sell it as a premium product. But in reality, STC 50 is not that great. It's okay but it's not amazing. You're going to hear stuff from your neighbours at STC 50. This is the current code too, and I'm not like a code historian but I'm not sure when this came into effect, but we're dealing with obviously old buildings in Ontario and probably pre-date any sort of STC requirement.
Rod: But what does that mean though? It just means that you'd be able to at least rule out the efficiency of the material of the construction. You'd be able to say, it's not the condo. It's not the wall. It's not the ceiling. The noise doesn't go away so we still have the problem. But we're able to say the building is functioning as it ought to.
Martin: Yeah, because if there's a noise complainant it might be a behavioural thing from your neighbour. Fine. It might be the machine is in distress upstairs or it wasn't installed properly. Fine. We'll get to all that later. But it could be that it was just not built right.
Rod: Right.
Martin: So that's like one of the things to look at and that would be the standard is STC 50.
Rod: What about for impact noise? What's the standard?
Martin: For impact there is no standard in the code. So there's no requirement for impact noise which is pretty interesting. So you don't have to do anything and you can meet code. So if you're really cheap that's what you'll do. There are recommendations in the code for a what is called an impact, that should say IIC, I missed that typo. But it's impact insulation class, with an IIC 55, minimum but again it's a recommendation. So if you don't meet it no one's going to being suing you because you built it to code, technically. People are doing it more and more though because the rumour has it, for the last decade or something, that it is coming in a future revision of the code. They're going to change it from a recommendation to a requirement, which is honestly a good thing, because people are building for that anyways at this point.
Rod: Sure.
Martin: Yeah, so that's an important nuance, legally.
Rod: Let me nudge you along. What about mechanical noise? What's the standard?
Martin: For mechanical noise we're looking at ASHRAE guidelines, that's the American Society of Heating Refrigeration and Air Conditioning Engineers. It's used throughout the industry. Basically these guys came up with a design handbook that uses what they call noise criteria, or NC ratings. This is what's used by basically everybody, and it's a number, and the higher the number the higher the background noise level in the room. So it's not a decibel number. You can use decibel numbers but everyone's using this because it's a weird curve fitting thing and it just works better for mechanical sources, specifically, because it's not spoken word. It's like a different noise spectrum so NC fits better. Anyways, so depending on the room, so you have like your living room or your kitchen, you'll have a different NC level maximum target. So like NC 30 for a living room, bedroom or NC 35 for a kitchen. You're allowed louder in a kitchen because there's exhaust fans and stuff like that. Bathrooms also, 35. That's kind of it for condos just because there's not that many different room types in a condo. It's more so applicable also for offices and stuff like that.
Rod: So the basic guideline, let me ask you this, so once you go in and you measure it. You're in the kitchen and you're below whatever number your said, 35 or whatever it is, if the sound coming from the transformer next room is below that, the answer could be it kind of is what it is and we're meeting standard. We may send someone to try to fix it.
Martin: Yeah. That's totally right. You basically just summarized it. So if the number is below the NC we would basically have very little legs to stand on to stay this needs to be fixed. Now, like we said earlier though, it's a good thing we talked about noise perception. That person still could be annoyed. That is a totally thing. We can't change that. They are annoyed and they are sensitive to that.
Rod: Okay.
Martin: But, yeah.
Rod: Let me nudge you along because the two condo twins, I see them taking notes, and they are just ready to start their presentation. So what's this here that we've got? All sorts of fancy images. How to locate and test for, yeah, that's so the property manager calls me. There's a problem. Somebody keeps complaining about the noise. It's escalating. Everybody hates everybody in this community. Somebody's overly sensitive. The other ones are really noisy. So then I call you and then what tests can we sort of follow to try to help out and sort of resolve the situation?
Martin: I'll try to be really brief, but it's going to be hard, I'll do my best. Because there's basically a lot of things you could do depending on the situation. Like we show on screen here. Every situation is unique. So if it's a sound that's happening at a predictable time of day, and it makes sense for someone like me to go in and measure it, then we can do what we just spoke about and determine whether or not they're over any sort of guideline. That's a good starting point because then we can tell the person yeah, this is a pretty legitimate complaint, or actually you're below and so this would be a really tough case to win because what are we going to say? You're within spec.
Rod: Right.
Martin: So that's a good starting point. It's important when you do that though to also come in with your sound level meter and measure the background sound. Like you're going to want to make sure that you're acoustician measures the background sound level. That means the sound level that's happening while the source is off. So that's tricky because you need access to things or you need to do it while someone's away next door. It's a coordination issue really. But a background is important because you can see, okay, the other way may be below. This is where it gets a little bit grey but it may be below that 35 NC limit, let's say. But the background is like 25 and whenever the sound happens it jumps up to 35, right? So that 10 DB difference is really jarring to that person and they'll significantly notice it when it happens. So even though that transient sound might not be above NC 35, it can still bother them, and there'd still be some kind of argument to be made that they're bothered because the background is low and you're making the noise jump up in their room and it startles them. Stuff like that. So then we can get into an argument, basically.
Rod: Right, right, right.
Martin: But otherwise, just to quickly keep going, the other things you can try to do to either point the finger at or rule out, is to test the actual assemblies. It's not too expensive to do this. It's like a $2,000.00 gig for an acoustician-ish.
Rod: Right.
Martin: Now don't take my word for it but it's roughly what it goes for. So you basically, you can bring a loud speaker in and make a loud noise on one side of the wall, measure and then go next door, measure on that side of the wall. You can do some math to get basically what is an ASTC, which means it was measured in the field versus STC, which was measured in a lab.
Rod: Sure. Sorry to interrupt, but this is all still airborne. Sometimes, and maybe you're going to talk about that, sometimes what we hear is a recommendation is like some kind of a tapping test of some kind. That's still to test the assembly to make sure that the floor is properly insulated. So tell us maybe more about that. I keep pushing you forward because we're going to run out of time.
Martin: No, no, no. That's okay. Please do because I'll go on forever. Like the middle photo is a tapping machine and it's testing for impact noise. So basically it's a little box. There are five little hammers underneath, they're weights, and they're dropped in sequence. So it goes dat, dat, dat, dat, dat, dat, dat, and then you measure that noise downstairs and you can measure the AIIC and then you can make recommendations based off of that. Whether or not it meets the recommendation for code, or whether or not you should probably rip the floor up and put an underlayment down, and put the floor back on. Anyways, jumping the gun here.
Rod: Sure.
Martin: But that's what that is. These tests are all done with ASTM standards. So regardless of the acoustician you hire, they should be using the same standards and you should be getting the same result. There's no point in getting two acousticians to run the same test just to see. They're going to get the same answer. Unless they totally botch it but they're all following the same guidelines, the same test procedures.
Rod: Sure.
Martin: It's pretty robust.
Rod: Martin, these tests are all about testing the assembly, the infrastructure to see whether or not it's performing as it should. What about if we want to determine whether or not the noise coming from above is in fact disruptive? Sometimes I hear, as a suggestion, well unit B, vacate the unit. We're going to be recording for 24 hours. We're not going to tell unit A that we're doing this. What's the point of these tests and are they useful? How does that work?
Martin: They are and they are not. It kind of comes back to what I was saying earlier where it would give us an indication if the sound is going over some sort of limits. It would also tell us how low does the background go. Like the longer the sample, the better. So if you leave the meter in for a couple of days we can start to maybe see trends or peaks or values in the data. Then start to help with interpretation of like when does it happen, how often, how much over the background when it does happen. The thing is that sound could be the person's refrigerator kicking on. It could be the person from the unit below and really we're interested in the person in the unit beside. Usually there's a neighbour in all four directions. The sound level meter is not discriminating between those four directions. It's just measuring what the level is. Even if you're doing attended monitoring, that means someone like an acoustician is there with meter taking notes. That's expensive because we're just sitting there next to it and taking notes of what happens at what time. Even then, though, if you're sitting in a room and a sound happens it's hard to tell where it came from. Which direction it came from and so it's really difficult then to use that as kind of like evidence to say here's how much noise that person made, because if I was on the other side I would say, how do you know?
Rod: Mmhmm.
Martin: You'd have to have almost a sound level meter in that person's room and then you would correlate the two sounds and say, yeah they are the same sound. They happened at the same time. This one's lower. This one's higher but it did come from there. Who's to say it wasn't an ambulance going by outside?
Rod: Sure.
Martin: Some sound level meters have triggers and they can record short snippets and you could listen to them later and see, okay, that's an ambulance but if it's like shouting, you don't know where it's coming from.
Rod: Right. What about measuring? Sometimes we ask you guys to measure, not the decibel, not the noise, but like almost a frequency. Sometimes the debate then becomes it's this frequency. Is that like to help us locate maybe what's the source?
Martin: Yeah, so we'll end on that, just to keep going forward. But that's basically the last point of this slide is what you're referring to is like a mechanical noise issue, usually. So it will be like someone can hear a tone in their unit or they're not too sure and you can measure with a very high resolution. You'll see spikes in the data at specific frequencies. Then you can say those are the spikes that are bothering the person, presumably, and then you go into the mechanical room, wherever it is, assuming it's nearby, but then there are probably like 20 pieces of equipment all running at the same time, right? So which one is it? Because if you just measure in the middle of the room you're going to get all of those at the same time then you're going to see the spikes with all the other spikes and then it's like basically useless. You use an accelerometer. I don't know if people can see that but the picture on the right, there's like an engine or a pump or something and on top of it there's a little cylinder with a blue line. That's an accelerometer. You basically stick it to a piece of equipment and then now you're measuring the vibration of that equipment. Not really the sound but the vibration it's making. You're trying to find a piece of equipment that will have that same spikey vibration signature as the sound you measured downstairs. Then it could be that it's more than one piece of equipment, by the way, that's where it gets hard. But then you can find what machine is causing the issue and then you can actually zoom in on just that machine and solve the problem.
Rod: Right. Right, right, right. Or the reverse would be if somebody claims that it's the air conditioning on the roof that's doing that noise, and then you go and you measure it and it's not at all the same frequency, you'd be able to say there may be noise but that's not it.
Martin: Yeah, yeah. Absolutely. It's really like an investigation. Like a proper investigation. There's no handbook. You have to go in with just knowledge and your Sherlock Holmes hat on, as I like to say, and just ask questions and try to solve it.
Rod: Right, right, right. What about solutions now? What are the solutions?
Martin: Yeah.
Rod: So you've identified a sound. You're able to say that it's above or below whatever, then what?
Martin: I kind of split these up. We had a laundry list but I split these up into source, propagation and receiver which is what we had in the first image earlier in this webinar. We had the speaker, the propagation path and then the receiver. Just looking at those individually. We can look at the source and reduce noise at the source. This is really only feasible for like mechanical noise issues. We're talking about spring isolators for pieces of equipment that are bolted to a structure. You want to isolate them from the structure. We talk about replacing noisy or distressed equipment with quieter and newer equipment or balanced equipment. Moving equipment away, if that's an option. Most of the time it's not but it's nice when it is. Because you can't really tell the neighbour to turn down his volume. That becomes a political thing. I'm an engineer. That's not really a solution. Then you can do something about the propagation. So this is actually a better solution category for noise between neighbours because then you can, okay, they're noisy. I can't do anything about it but we can put something in between us, upgrade that to lessen the impact on me. So we're talking about better wall insulation, adding drywall to that wall or floating a layer of drywall, isolating a ceiling, adding floor underlayment to the floor if there isn't one. That's tricky because a person who is bothered is the person on the lower unit, remember, but to add a floor underlayment requires to rip out all the flooring in the upper unit. So it's a pretty trick scenario. The person creating the problem is the one who has to suffer twice. Maybe that's correct. I don't know. Anyways, then there's the last one is reducing noise at the reception point. We're reducing the perception of noise. I want to be really clear that's why I italicized it. We talked about it briefly earlier. It's just like masking the noise. Elevating the background noise somehow to try to make it less impactful for the person listening.
Rod: And my favourite solution, sometimes there's just no solution.
Martin: Yeah.
Rod: That's too bad for you.
Martin: Well sometimes there's just no real cost benefit. If they're over by 2 decibels, yeah okay they're over the guideline, but if it costs $30,000.00 to bring it down by those 2 points and we're putting people up in hotels, is it worth it? Are they going to perceive a difference after? Like probably not. So it's really an important aspect of it.
Rod: Right, right, right. Wonderful. Oh my goodness. That was fast and furious. I'm going to turn to the legal side of the presentation but stick around if you have time, Martin, and I don't know if you have access to the chat but maybe some people may have some comments or questions. So I'll leave that to you to decide if you feel that you're able to add to the discussion. But let's turn to the legal question. There's a question that we won't be able to, well there's a ton of questions that we won't be able to answer, but let's first start, I'm not too sure which one of the two condo twins is the one tackling this one, but let's turn to what are the obligations of the corporation vis a vis noise disruption?
Graeme: I'm happy to talk about this. Basically the corporation is not able to take a sort of very hands off laissez faire, this is a really you problem approach to the owners. That's because of several provisions in the Condominium Act which directly impact this decision. They're all listed here but I'll go through them. The most on the nose one is section 117(2) and what that sections does is it specifically prohibits unreasonable noise nuisance from being allowed to continue. What that means is that if the condominium becomes aware that there is an unreasonable noise nuisance taking place, it has to take steps to investigate and deal with it. Keep in mind there the operative words are 'unreasonable noise nuisance'. That doesn't mean that the corporation has to stop any old noise that gets reported. Likewise, section 17 of the Condominium Act gives the corporation the duty to control, manage and administer the common elements. So what that means is if we're dealing with a case of let's say the mechanical room, or the elevator or something else seems to be causing a problem, this is something that only the corporation can deal with and that the corporation must deal with. Section 119 of the Act specifically states, which I always thought was funny that there's a section of the Act that says you have to do what this Act says, but section 119 of the Act specifically says that everyone in the corporation has the duty to comply with the Condominium Act and the condo's governing documents and the corporation is responsible for enforcing those. Then lastly, this one's a little less on the nose but still relevant here, is the oppression remedy. The oppression remedy is what we use when an owner's being treated in an unfairly prejudicial way or their interests are being unfairly disregarded. Effectively the kind of clear example, although as we'll see when we talk about the case law maybe not always that clear, is that if someone is experiencing unreasonable noise or nuisance, and the problem is not being dealt with and they are being ignored, then they could have a shot at arguing successfully that they are being oppressed by the condominium.
Rod: Right. Right, right, right. What's interesting is that while we're talking, Graeme, a couple of people ask us what is considered unreasonable, and I'm going to answer that question. We have yet to figure out what reasonable means under the Act so unreasonable is what the other one that we haven't defined means. Let's move on here because there's a couple of cases that I want to cover and I know we have about 15 minutes or so left. I'm not sure who's tackling this but let's start with neighbour to neighbour noise complaints.
Graeme: So I'll take care of these ones too. I think there's, when we post the slides, there'll be an updated slide show with more details on these cases. But in any event, I'll talk about two cases that talk about the issue of neighbour to neighbour noise. One of them I think is more clear cut than the other and we'll start with that one. That's this first case, TSCC 1791 v Franklin. That case is pretty much a tale as old as time. For years there was an owner who was the subject of many complaints at the condo because people were experiencing loud noises, mostly music and loud television and banging at night coming from his unit. The complainant, one in particular, took very meticulous notes and detailed recordings of whenever this occurred and eventually the condominium, after attempting with Mr. Franklin on numerous occasions to get the matter dealt with, Mr. Franklin kind of refusing to take any steps, the condominium took him to the Condominium Authority Tribunal, or the CAT. Mr. Franklin's argument was that essentially, I'm in my unit sometimes and I can hear noise coming from other places so it's probably not me that's causing the noise. I can still hear noise, therefore it's not me. The Condominium Authority Tribunal didn't buy that argument and when presented with his evidence versus the very detailed and meticulous evidence of the complaints that had been going on for years, the Condominium Authority Tribunal found that the Mr. Franklin was breaching the rules and was causing a nuisance, and he was required actually to pay about almost $4,000.00 in legal fees after getting an order that he comply. One important detail of this case is that the condominium actually obtained an expert's report from someone like Mr. Villeneuve here, with respect to the sound coming from the unit, and they tried to have Mr. Franklin pay for that. The Tribunal did not award that though because it found that the condominium waited years to get that report so it was difficult for them, with a straight face, to say that they got that in order to enforce the governing documents. So I think the lessons here are threefold. Number one, if you're the condominium, if you're a manager or a director and you become aware of one of these problems, take steps to investigate proactively. Because that was what kind of bit them on the rear end here. If you are the subject of complaints about noise, take steps to try and reduce the noise. If you're listening to your TV loudly, trying to argue and obscure the fact that it's coming from your unit, isn't going to get you any wins. Just try and reasonably accommodate the requests that you're getting. If you're experiencing noise, point number three, like the complainant in this case did, it is very useful and very helpful to take detailed notes with respect to when the noise occurs, what type of noise it is and how loud it is.
Rod: You've got to move on to the next case, buddy, because David is about to play some Oscar music to quiet you down.
Graeme: Okay, well before I get yanked off the stage, the next one is a quick one. But just to illustrate, I think, the problem of how complicated noise issues can be. This is one where owner below is being tormented by the noise from his upstairs neighbour. It keeps him up at night. It's been going on for years. He's been complaining about it a lot. The condominium's gone and talked to the upstairs neighbour and done what it can to deal with the problem but nothing seems to be happening. So he starts an oppression case at the Court and the Court finds, ultimately, that yes, what's happening to you is a nuisance and that's really too bad but we are not going to make an order that the condominium has to go in and change the flooring above. The reasoning behind that is because the noise was coming from medical equipment that was vital to the health of a child who lived upstairs who was quadriplegic and had numerous health issues going on. So we're talking about a pump, a heart monitor, an in-house nurse who was there nightly. So I think the main point of this case is to show that it may actually be in some circumstances that a nuisance is occurring but, as we've talked about before, there may not be a practical solution. Now, this case is being appealed so we'll have to see how that unfolds, but I think that's all I've got for you for now.
Rod: Okay. David, you're going to talk about noise that comes from common elements.
Graeme: Those are the slides I was talking about. Never mind. They are here.
David: Oh. I think you don't have my slides then, Rod.
Graeme: Keep going. There it is.
David: There we are. Got 'em. Okay. Martin and I remember this one. Mohamoud decision. A couple of years ago. This is where I learned all about ASHRAE guidelines and all of this fun stuff. We'll try to speak it in a generic fashion. This dealt with a unit owner who lived on the top floor of a building. She felt that she perceived some noise coming from the rooftop air ventilation systems, that were not there originally when she bought, and were moved and put on top of her unit at some point in time. A variety of different reports were prepared over the years. Some were able to source noise to the X area or Y area and everyone had all sorts of different opinions. At the end of the day an oppression remedy was brought, alleging that the condo had not done sufficient work to source and remedy the issue. It was over 6 years long and coupled with an allegation of a failure to repair and maintain the common elements. The Court held that on these facts that the condo had acted reasonably enough. That the delays, or their inability to remedy, was not oppressive because there were some questions about where you can actually source the noise to. Is this owner particularly sensitive to a particular type of noise and the Court basically said the condo's not an insurer. You can't fix every problem. The caution that I'll put on this is that this is a very fact specific case and as we've seen there's a variety of different, similar types of cases that may or may not be held to a different result. So we can move to the next case.
The Wong versus TSCC 1918. This was a very recent one that went the totally opposite way. This was an owner whose unit was directly next to a garbage chute and was experiencing a lot of noise because of the mechanical, the way in which the chute was built and the condo did some investigations. Determined there were some potential fixes but basically made a cost benefit analysis and said no, we're not going to do this, I think there was a $20,000.00 or so option, because kind of what we addressed before. We don't really know what the results will be and if it will be worth it. Then after 7 years of knowledge of the noise they kind of threw up their hands and said there's not much more we can do. The owner sought an oppression remedy. The condo took the position, which I think was a difficult strategic decision that in hindsight may or may not have been the best thing to do, is what I'll say, that it could no longer work to address the noise unless the law suit was dropped. The Court did not look favourably on that point in particular. So again, kind of the facts of how we go about responding to these complaints is very important. But here the Court held the condo's actions were inexcusable, where damages of $30,000.00 to reflect the interference with the use and enjoyment of this owner's unit, and for what was kind of summarized as a reprisal against the owner for you sued us, we're not going to do anything in the meantime.
So the next slide talks about some takeaways but Graeme addressed some of these. I'm just going to quickly go through that. Again, we need to always look at reasonableness and what does that mean and what's reasonable to who. It's always contextual. An owner in an condominium community cannot expect absolute quiet. There are certain nuisances that just come with living in a community with other people. That's just expected. But you've got to look also at where you're situated. What was reasonably expected. If you bought one unit without a big fan above your head and then the fan appeared, does that change things? Maybe not. But the standard is always for the corporation repairing and maintaining, it is of reasonableness not of perfection, they're not an insurer. That's what our Courts have told us. The condo should certainly take these complaints seriously. If litigation starts, continue to assess and evolve, and try and resolve if possible, and don't just wait for the Court to slap you on the wrist and then tell you to do your job afterwards. These sorts of investigations will necessarily require experts. It took many, many explanations from Martin to me for me to understand what the ASHREA guidelines are and how decibels work and then you have lawyers trying to cross-examine witnesses on the basis of their experts. But experts are extremely, extremely helpful in these circumstances and that's what I've got.
Rod: Yeah. Wow. I see from the questions in the chat, this is the first time we have so many substantive questions, I find and it's because it's so common. Noise disruption in a condo is so common and there's so many moving parts. I see people asking, what if it's kids running down the hallways? Do we have to tolerate that? What about the fact that the prior owner for 8 years was living by the garage door, didn't complain about it and now there's a new owner and they can't stomach that. Or it's the transformer. Same is true with the transformer. The guy before didn't have an issue with that. Or maybe they just didn't complain about it. I don't know. There's so many moving parts and layers in every case to try to figure out what's the proper approach. Ultimately I think the question is, does the corporation have to do something about it? Well clearly if the noise comes from common elements, the obligation to act is more present and more prevalent then it's more obvious. But if the noise is between two neighbours, can we at one point, the corporation say, that's really a dispute between neighbours. We've demonstrated the walls function properly or the floor assembly functions properly so there's only so much we can do. How many times do I have to send a letter out to someone to say, please turn your TV on? At what point do we, corporation, do we have an obligation to go to the CAT? Do we have an obligation to go to Court? There's some cases out there, by the way, that did stand for that proposition that a condo corp that simply decided not to intervene when in fact there was a breach to their rules or governing documents. That kind of bit the corporation in the rear end. But sometimes, especially now that the CAT took over jurisdiction over these disputes, sometimes maybe it's up to the neighbour to bring the next neighbour to the CAT and get it adjudicated. In fact, one of the cases that Graeme spoke about, that's the one with the medical equipment, interestingly enough the dispute was between the owner below and the corporation. The owner below was suing the corporation saying you're not doing anything about it. The missing elephant in the room was the unit above. Why would you not commence a claim against the unit above? Why wouldn't you bring those people to the table? Anyways.
Graeme: I think the Court actually mentioned that.
Rod: Yeah, yeah, for sure. I just did a quick search on our CondoAdviser blog and we've blogged on noise so many times, it's incredible. There was even the case way, way back when of the dance studio in the unit above. The Dyke case. That was another interesting case. Anyways, we're running out of time, as usual. I think we could have another full session about what does the corporation do. What are the steps the corporation take, practically speaking, to get to the bottom of something? But that will be for a different day. Maybe we'll have to reinvite Martin. So folks, there's 3 minutes to go and so what I'm going to do, as I usually do, I'm going to go around the table. I'm going to thank everybody. I'm going to, and this is a warning for Martin because he doesn't know what's coming, I'm going to ask you for a piece of advice or parting words or some takeaway. I'm not going to start with Martin because I just need for him to start coming up with that. We kind of ran out of time for the last minute preparation because we were having some technical difficulties. So I'm going to start with the two condo twins and I'm going to ask them what is the takeaway. David, you can't just repeat what's on the scree now. So what's the takeaway?
David: I already did a lot of takeaways but I think the takeaway, with a lot of legal issues or issues in condos, is there are legal issues and then there are kind of sub-issues that fall into that. So if your lawyer can't answer your question for you, there are people out there whose job it is to measure these things, figure it out and help you fit those answers within legal responsibilities and duties.
Rod: Right. Absolutely. Graeme, the second condo twin. What's the takeaway?
Graeme: At the risk of sounding kumbaya, I think a lot of money and a lot of stress and a lot of energy can be saved if when approaching issues like this, rather than digging your heels in and getting ready for a fight, just try to approach it as though is there a way we can solve this problem peacefully? It won't always be possible but my advice would be try to go into them, at least initially, with that mindset.
Rod: Right. Yeah, that makes perfect sense and, in fact, Graeme is usually the first one that I call when we have a noise dispute. He goes in first and then when he's unable to fix it then we punt it to David and he's the one that gets other people to fix it for you.
David: Unless kumbaya by default. I think that works for our group very well.
Rod: That's right. So, Martin, parting words or pieces of advice?
Martin: I think I'll leave everyone with a piece of advice. I think it's something that we didn't mention so far but I think is important. I think it's the very start of a nuisance. The person who is affected by the noise, write down, keep a log, keep a log of what it is. When did you hear it? What was it like? Date, time, how long did it go on for and just keep a log, pages and pages, because that's really helpful for somebody like me who is trying to look at this later and determine: (a) should I visit your unit? When should I visit your unit? Is there a pattern? Like what is the likely culprit. A log is really good information to me and if we're coming in and there is no such log then the person's just going by memory. It's kind of wishy-washy. I would say writing things down as a person who is maybe getting ready to contact someone like a lawyer or an engineer. That's really important.
Rod: And that log is going to be super useful to David as well. That's all part of the evidence. You need to know exactly what took place, how often and you need to be able to demonstrate the disruption. Okay, so we're running out of time as usual. I think what I'm kind of gathering from this is I'm going to need another session and maybe, Martin, we're going to invite you to maybe the condo's director's group because that usually gives us more time to be able to sort of go and roll up our sleeves and try to work different problems and different test cases. So maybe if I'm able to bamboozle you again we'll do that. So, folks, our next webinar is December 7th. We haven't figured out yet what we're going to cover. It may be that we're going to repeat the Christmas special, or the holiday special, which is a jeopardy game where I invite all sorts of lawyers, condo lawyers, from across the Province and they sort of face each other off, and we ask them questions and David and Graeme heckles them. I kind of like the way we did it a couple of years ago. We may do that but if you have a topic that you'd like us to cover send it our way. We're happy to consider it. You'll need to register again. To register for our webinars you need to go to the CondoAdviser website, click on webinars and then there's going to be a link to register. We're looking forward to seeing you at our next webinar. So it's 6:00. We're going to sign off. Thank you so much, Martin. Martin Villeneuve with Englobe. He's an expert in that field and he's the guy you want in your corner, and of course, the two twins from Gowling WLG. So thank you very much, everybody, and wishing you a great month of November. Great Remembrance Day coming around the corner. Take the time to remember those who made it possible for us to be here today in the society we live in. Thanks so much. Take care, everybody.