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Mishibinijima v. Simcoe Condominium Corporation No. 60 et al. - 2023 ONCAT 139 - 2023-10-02

Corporation:

MSCC 60

Date:

Mon Oct 02 2023 04:00:00 GMT+0000 (Coordinated Universal Time)

Under:

CAT Decisions - Motion Order
Noise
Procedural Issue with Governing Documents

Summary:

In the case of Mishibinijima v. Simcoe Condominium Corporation No. 60 et al. (2023 ONCAT 139), the applicant, alleged that unreasonable noise and vibration from the unit located above his were interfering with his quiet enjoyment. The key issues in this motion order were the timeliness of the application and the delivery of the Notice of Case to one of the respondents, who was the owner of the upper unit.

The tribunal found that the application was filed within the two-year time limit required by the Condominium Act, 1998. The disputes regarding noise and other nuisances give rise to ongoing obligations, and each new incident resets the two-year limit. Therefore, the application was deemed timely.

As for the issue of the Notice of Case, the tribunal determined that the applicant did not deliver the Notice as required by the Tribunal's Rules. However, since the applicant had already engaged in mediation with the owner of the upper unit to address the late notice, and no substantial prejudice resulted from the late notice, the case was allowed to proceed.

Verdict:

The Condominium Authority Tribunal found that the applicant's noise complaint application was timely filed within the two-year limit and allowed it to proceed, despite issues with the delivery of the Notice of Case to one of the respondents. The tribunal considered the ongoing nature of the dispute and concluded that the application met the statutory time requirements, and allowed the case to proceed due to mediation and no substantial prejudice.

Takeaways:

Key Takeaways from the Mishibinijima v. Simcoe Condominium Corporation No. 60 et al. (2023 ONCAT 139) Decision:

Application Timeliness: The case involved a dispute related to unreasonable noise and vibration in a condominium unit. The critical question was whether the application was filed within the two-year time limit, as required by the Condominium Act, 1998. The tribunal found that the application was timely because it was submitted within two years of the last incident of noise, which occurred in December 2022.

Ongoing Statutory Obligation: Section 117(2) of the Condominium Act, 1998, establishes an ongoing statutory obligation regarding unreasonable noise and other nuisances. Each new incident of noise or nuisance restarts the two-year time limit for filing an application with the tribunal.

Extension of Time: If an application is not filed within the two-year deadline, the tribunal has the discretion to extend the deadline for up to one additional year if it is satisfied that the delay was incurred in good faith and will not result in substantial prejudice to any affected parties. In this case, the tribunal did not need to consider an extension of time since the application was filed within the required timeframe.

Notice of Case: When filing a case with the tribunal, the applicant is responsible for delivering a Notice of Case to the respondents. The manner in which this notice is delivered is subject to specific rules outlined in the Tribunal's Rules of Practice.

Consequences of Incorrect Notice Delivery: In this case, the applicant failed to deliver the Notice of Case to one of the respondents, Cynthia Norman, as required by the rules. While the respondent did not receive proper notice, the tribunal allowed the case to proceed due to the absence of substantial prejudice to the affected party, and a mediation-adjudication process was used to address any potential prejudice caused by the late notice.

These takeaways highlight the importance of adhering to statutory deadlines and procedural requirements in condominium-related disputes. The decision underscores the principle that the tribunal will consider the specific circumstances and the impact on all parties when addressing procedural issues.

Recommendations: 

Noise Awareness Campaign: Launch a noise awareness campaign within the condominium community to educate residents about the potential impact of their activities on neighbors. This campaign can include distributing informational pamphlets, organizing community meetings or workshops, and using digital channels to share tips on reducing noise disruptions. By raising awareness, residents can become more considerate of their neighbors' comfort.

Quiet Hours and Noise Policies: Clearly define and enforce "quiet hours" during which excessive noise should be minimized. These hours should align with local noise bylaws and regulations. Ensure that the condominium association's noise policies are well-communicated to all residents. Regularly review and update these policies to address specific concerns and adapt to changing community needs.

Mediation and Conflict Resolution: Establish a mediation or conflict resolution process specifically designed for noise-related disputes. Trained mediators can help neighbors find mutually acceptable solutions and compromises. This approach can prevent issues from escalating to legal disputes or formal complaints, fostering a more harmonious living environment.

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