Monday, 25 November 2013

Landlords: Proving that noise disturbs the tenants so you can evict

How do you know when loud is too loud?  In short, you know it when you hear it.  Does this help you, the landlord, when trying to explain to the Landlord and Tenant Board that the tenant you have served with an N5 (Notice of Termination for Substantial Interference with Reasonable Enjoyment) has indeed bothered other people?

Proving that certain noises are indeed bothering other tenants is the easy part of an application.  Call the complaining tenants as witnesses to testify that they hear "noise", be it music from the stereo, yelling, shouting, screaming, fighting, or even a very loud television, and have them state that they are bothered by the noise and you have established that these particular tenants are indeed bothered.

Unfortunately, that some tenants are bothered, disturbed, and even annoyed, is not actually enough to terminate a tenancy and evict a person.  Just because they hear a stereo, television, foot-steps, a crying baby, an occasional joyous yelp when the Senators score (or I guess that could be a joyous yelp when the Leaf's are scored against!) does not mean that there are grounds to evict the tenant making the noise from his apartment.

When thinking about noise complaints it is important to consider the legal test that the Landlord and Tenant Board is required to apply.  It is set out in section 64 of the Residential Tenancies Act and it provides as follows:

A landlord may give a tenant notice of termination of the tenancy if the conduct of th etenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposess by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

So, what does this mean in simpler language?  What it does NOT mean is that not just any noise is grounds for eviction.  Music, talking on the phone, television sounds, banging pots, the patter of feet on the floor, a baby crying, and the occasional shouts that someone is home, may not meet the legal test for eviction. 

Note that the legal test states that the conduct must "substantially interfere with ...".  In my experience, this means that the law presumes and allows that tenants, may indeed make noise that disturbs others as well as hear noise that is disturbing to them.  The idea that tenants in a building are entitled to absolute silence is simply not a position that is supported by the law.

So what does "substantially interfere" mean?  Of course, the definition of the word "substantially" should help.  Looking up the word in Black's Law Dictionary (Abridged 6th Edition), gives us this definition:  Essentially; without material qualification; in the main; in substance; materially; in a substantial manner. About, acutally, competently, and essentially

Does this definition help?  Probably not all that much, except that we can understand the phrase "substantially interferes" to mean something significant, that isn't fleeting or minor in nature.  In a way, we are sort of left with "I know it when I hear it".

What factors should go into assessing the quality and substance of noise?  Certainly, it seems to me that "context and frequency" is important.  Are you going to argue that hearing celebration noises for a short while at New Years (midnight) or when Team Canada wins gold that these sounds of jubilation warrant a Notice of Termination?  However, if there is a celebration every night, and the noise is not so much celebration as it is drunken shouting then perhaps the noise is indeed "substantially interfering". 

Aside from context, I think the nature of the building also informs what will be considered substantial interference.  If a tenant chooses to live in an apartment building that is wood frame, no insulation between the floors with beautiful hardwood flooring; then that tenant shouldn't expect the same level of quiet as one would expect in concrete construction.  The nature of the building construction does inform what can reasonably be expected in that building.

The next factor to consider, in deciding whether the noise being complained of, is "substantially interfering" is to consider the character of the person who is making the complaint.   Certainly, there are many noises that "substantially interfere with" reasonable enjoyment of some tenants but which sound would not interfere with the reasonable enjoyment of most other tenants.   Do you, the landlord, measure the impact of the noise as it relates to the person complaining?  Or, do you measure the impact of the noise as against the "model" tenant as determined from an objective perspective?

This last question I think, often figures unconciously into the consideration of what is substantial interference.  Adjudicators will often ask themselves if "they" were subjected to this noise would it be a substantial interference.  When an adjudicator thinks of themselves, and thinks about whether it would bother them, they are thinking about themselves as being representative of a typical and ordinary tenant.   In short, my experience is that the noise being complained about has to "substantially interfere" with the reasonable enjoyment of the ordinary tenant or the "reasonable person".  If the complaining tenant is being hyper-sensitive or intolerant of noise then you can expect to see in an adjudicator's reasons (dismissing your application) references to the reality of apartment living and the natural sounds that one has to expect (and tolerate) when living in an apartment complex.

The nature and quality of noise is so very hard to describe.  Unless you are there to hear it there is very little that one can say that communicates the impact of sound to a third party.  To that end, it is worthwhile, when trying to prove repeated noise problems to have a number of people try to "hear" the noise--especially noise by-law officers.  A broad consensus among a number of people about how loud something is, is much more likely to be accepted by an adjudicator as a basis for terminating a tenancy than the evidence of a single person that is contested by the accused tenant.

Michael K. E. Thiele
Ottawa Lawyer

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Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.