The Court has had another opportunity to rule in the never-ending saga of Dyke v. Metropolitan Toronto Condominium Corporation No. 972. The owner brought a motion for contempt and other relief. The main question on the contempt motion was whether the condominium and its board of directors or agents disregarded, intentionally violated, or otherwise flouted the previous court order that required the condominium to take reasonable steps to ensure that the owner would have quiet enjoyment of her unit.
In the previous decision the judge stated:
…it stands to reason that the Applicant [owner] is entitled to live underneath a residential apartment unit, and not underneath a professional dance studio. That level of quiet enjoyment is certainly within the Applicant’s reasonable expectation.
While the dance studio was no longer operated out of the unit above the owner, the owner argued that the condominium was too slow in complying with the order, that the steps they took were cumbersome and did not resolve the noises, and that noise continues to be an issue with the new occupants of the unit.
The judge dismissed the owner’s motion as the owner had not established that the condominium’s conduct has been contemptuous. There was no evidence that the condominium was too slow implementing the order or that the steps taken were improper; such a determination would be left to the judge hearing the owner’s separate action for damages. With respect to the ongoing noise issues, the judge stated:
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 Metro Condo.
The owner acknowledged that the noises she objected to resulted from “ordinary residential usage” such as vacuuming, moving chairs, or walking while wearing shoes on the portions of the unit that are not carpeted.
An owner does not have a right to absolute quiet in her unit. The other occupants are entitled to make ordinary residential use of their units without fear of complaints from an owner and/or enforcement efforts by the condominium.
As to costs, the condominium sought close to $100,000.00 on a substantial indemnity basis for the 1-day motion ($66,000.00 on a partial indemnity basis). The condominium’s lawyer acknowledged that the amount sought was high, but argued the other owners should not have to bear the costs. The owner argued that there was no reason to award costs on a substantial indemnity basis because her conduct did not warrant such. She also submitted that she simply could not afford the costs sought by the condominium since she was in poor health, not working, and was involved in complex litigation with the condominium because of the dance studio previously occupying the unit above her.
The judge awarded the condominium $20,000.00 in costs. The award was about 20% of the costs that the condominium sought, which means the other innocent unit owners will be responsible for the remaining $80,000.00 (unless the lawyer decides to reduce the amount he charges the condominium).