“All 80-year-old unit owner Joshua Frankel wants is a good night’s sleep. Sleep deprivation is no trifling matter.”
With these words in January, Justice R. Lee Akazaki began his 4,400-word ruling on a dispute between Frankel and York Region Condominium Corporation 664 on Clark Ave. W. in Vaughan.
Frankel’s unit was located under the mechanical room, which houses the water pumps and other building equipment.
The focus of the dispute was the low-frequency tonal component of mechanical noise coming from the building’s hot water pumps. Based on an acoustic study by an engineering firm, the overall background noise, including the annoying tone, fell below government-regulated noise guidelines.
But the frequency of the sound waves at 160 Hz (hertz, or cycles per second) was appreciably louder than the background noise and could contribute to perceived annoyance. In other words, said the justice, “it stands out.”
In order to understand how annoying the sound can be, I Googled 160 Hz and listened to several samples of the sound. I can readily confirm how irritating it is.
After Frankel and the condominium corporation identified the source of the sound as two aging water pumps, they signed an agreement to have the building install two new high-end pumps at a cost of $87,290 plus HST. Frankel agreed to contribute $32,500 upon successful completion of the work even though their replacement was overdue and the pumps served the whole building.
Instead of replacing the pumps with the promised brand, the condo corporation breached the agreement and installed a set of pumps that were 37 per cent cheaper. Replacement with the cheaper pumps did not resolve the issue.
After Frankel refused to contribute his promised $32,500, the condo sued him in small claims court.
Frankel then applied to the Superior Court under two sections of the Condominium Act to force the condo to remedy the noise issue.
In his analysis in January, Justice Akazaki concluded that the annoying hum persisted because of the condo’s decision to breach the agreement and switch brands. As a result, he concluded that the condo oppressed Frankel within the meaning of the legislation.
Justice Akazaki ordered the condo to take measures within three months to lessen the 160 Hz tonal component of the mechanical background noise, and on completion of the work to have an environmental engineering firm certify the work was successfully done.
The court ordered the condominium to compensate Frankel by paying $32,500 in damages for the nuisance caused by the pump noise, plus court costs of $30,000 to reimburse him for part of his legal fees.
In the end, all the owners in the condo corporation will have to absorb those costs, plus the $55,000 spent on the cheaper pumps, the engineer’s fees, and their own legal fees.
A title search of the York Region condominium last week showed that Frankel no longer owns a unit in the building. I’m not surprised.
The case presents a useful lesson for condominium owners, boards and managers on taking resident complaints seriously and acting in good faith.
