Friday, April 09, 1999

Condo owner wins counter-claim judgment against obnoxious next door neighbour who complained about noise from piano playing

Citation:

Chiang v. Yang

Date:

19990409

1999 BCPC 0029

File No:

97-35098

 

Registry:

Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

BETWEEN:

EDWARD MAN-CHING CHIANG

CLAIMANT

 

 

AND:

JENNY YANG

DEFENDANT

 

 

 
 
 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE C.J. BRUCE

 

 

 

 

 

 

 

 

Appearing in person:

E. Chiang

Appearing in person:

J. Yang

Place of Hearing:

Vancouver, B.C.

Dates of Hearing:

March 8 and 10, 1999

Date of Judgment:

April 9, 1999

 

Introduction

[1] The Claimant’s claim is for damages arising out of the disturbance caused to him by the noise emanating from the Defendant’s residence. The Claimant says the noise caused by the Defendant’s daughter while playing the piano has deprived him of the use and enjoyment of part of his residence and has caused him mental anguish, anxiety, and loss of sleep.

[2] The Defendant denies that the piano creates a noise audible in the Claimant’s residence and claims the matter has been thoroughly investigated by the police, the strata council, and the City of Vancouver By-law enforcement department. The Defendant has also filed a counter-claim for damages arising out of the Claimant’s interference with the sale of her residence and her daughter’s piano examinations. In addition, the Defendant’s counter-claim may be characterized as an action for damages in nuisance.

FACTS

[3] The parties lived side by side as neighbors in a condominium complex located at (No.) Prince Edward Street, Vancouver, BC, from 1989 until May 1997 when the Defendant rented her unit and left the premises. The Defendant purchased her unit (106) in 1986 and the Claimant rented unit 107 from his mother who purchased the property in 1989.

[4] In or about 1992 the Defendant’s daughter, then age seven, began to take piano lessons. The Defendant also purchased a piano to enable her daughter to practice at home. The Defendant’s daughter practiced every day for one half an hour. As she progressed, however, her practice time was increased to almost one hour each day. During the week the Defendant’s daughter practiced after school and on weekends her practice times could be later in the evening; however, never beyond 8:00 p.m.

[5] The Claimant testified that he began to have problems with the noise created by the piano playing almost immediately. He testified that the sound ‘thundered’ through the thin walls of the units and disturbed his sleep to the extent that he moved his bed into the sitting room because it was farther away from the Defendant’s suite. At first the Claimant contested the noise by repeatedly banging on the walls and letting the Defendant know the piano playing disturbed him through threats, insults, and the uttering of obscenities. The Claimant had a night job until 1994 and felt that he needed quiet in the day to sleep. After 1994 the Claimant says he slept any time of the day or night because he was recovering from a stroke.

[6] The relationship between the Defendant and the Claimant became progressively worse as a consequence of the Claimant’s complaints about the piano playing. After three or four years of banging on the walls, threatening, and verbally abusing the Defendant and her daughter, the Claimant made a formal complaint to the Vancouver Health Board. The Board is responsible for enforcing the City of Vancouver Noise By-law. The By-law enforcement officers visited the Claimant’s residence and listened to the sounds emanating from the Defendant’s unit. Not satisfied that the noise level exceeded the By-law restrictions, the enforcement officers took no action. Because the Claimant asserted the Defendant’s daughter was deliberately playing softly to "fool" the By-law enforcement officers, the City sent their officers to the site on several occasions to investigate the complaints. The officers were still unable to detect an infringement of the noise By-law and refused to take action. On July 5, 1996 Claudia Kurzac, an Environmental Health Officer employed by the City of Vancouver, wrote to the Defendant advising her of the complaint by the Claimant and reciting the terms of the By-law governing the circumstances.

[7] The Claimant continued in his efforts to have the By-law enforcement officers appreciate the extent to which the music had disturbed his life by continually requesting their attendance for the purpose of listening to the piano playing and raising the issue with the Defendant. On August 14, 1996 Virginia Jorgensen, an Environmental Health Officer employed by the City of Vancouver, sent a letter to the Claimant advising him they would take no further action on his complaints:

This letter confirms the inspections conducted by several environmental health officers in response to your complaints relating to noise entering your suite from piano playing next door.

As has been discussed with you several times, most recently on Monday, August 12, 1996, the sound noted coming into your unit from the piano has not been clearly audible. The intent of the City of Vancouver Noise By-law is not to prohibit people from undertaking normal everyday activities. It is not unreasonable for a child to practice playing the piano for 30 minutes during the day.

We cannot take any further action on your behalf at this time. If you are disturbed during the evening hours, you may contact the Vancouver Police Department.

[8] Undeterred by the City’s refusal to act on his complaints, the Claimant persisted in his demand that something be done. Finally, on or about October 22, 1996, the By-law enforcement officers attended at the Claimant’s residence to perform sound tests on the noise emanating from the Defendant’s unit due to the piano playing. To conduct the test, one officer played the piano in the Defendant’s unit while another officer measured the sound in the Claimant’s apartment. The test results indicated the noise from the piano was below the acceptable levels established by the By-law. The Vancouver Health Board recorded the test results in a letter to the Claimant dated November 12, 1996 from Alfred Guthrie, Noise Control Supervisor:

This is in response to your concern of continued noise problem being experienced from the playing of the piano in the above referenced suite next door to you.

I have reviewed our files and note the Department’s involvement to date. In addition, I have visited the premises on October 22, 1996, in order to review and assess the situation as it exists presently. From my observation, I have concluded the following:

1. The nature and source of the sound complained of could not be addressed under the Noise By-law, where it addresses the decibel levels for activities and quiet zones and in any case, did not reach or exceed the stated 45 dB(A) night-time level for a quiet area. (The levels recorded in your suite from the piano was [sic] 33-35 dB(A)).

2. As a result of the foregoing, the problem was looked at under a more general section which addresses the disturbance to the "peace and quiet" of the individual. This section (SEC. 4) did not provide much relief; however, since the noise from the piano was barely audible from your suite and is only played for a period of one half hour, according to the occupant of suite #107 and by your admission.

In my opinion, the problem can be best resolved by a compromise between yourself and the party occupying suite #107, Ms. Jenny Yang, or by appealing to the Strata Council of your building to come up with their own solution.

The Health Department will no longer pursue the issue unless the noise becomes louder than it is presently and is being played at unreasonable hours and for long periods.

We will be willing to respond if the noise develops to the point where it can be addressed by the By-law. At this point, we are of the opinion that it cannot.

[9] The Claimant estimates that during 1996 the By-law enforcement officers attended at the Defendant’s residence to deal with his noise complaint on at least 15 occasions.

[10] The Claimant did not enter into any discussions with the Defendant with a view to negotiating a compromise concerning the piano playing. The Claimant refused to discuss a time when it would be convenient for the Defendant’s daughter to practice. The Claimant maintained that no time was convenient because he may wish to sleep any time of the day or night. Further, the Claimant refused to advise the Defendant when he was going to rest, as he regarded such information as a private matter. The Claimant was also not satisfied with the measures taken by the Defendant to reduce the noise from the piano. At the Strata Council’s request, the Defendant had moved the piano to an outside wall away from the Claimant’s unit.

[11] Because he received no satisfaction from the Health Department, the Claimant began complaining about the noise to the Vancouver Police Department. The Claimant estimates that between the fall of 1996 and May 1997 he summoned the police at least fifty times to the Defendant’s residence. While the police attended at the Claimant’s request, they did not instruct the Defendant to discontinue the piano playing, and did not advise her that the noise was too loud. Finally, the police told the Claimant not to contact them again because there was nothing they could do to assist him. The Defendant testified that the police visits disturbed her and caused her great inconvenience. Sometimes the police came late in the evening and disrupted her daughter’s sleep.

[12] Unable to secure the assistance of the Vancouver Police Department, the Claimant requested action from the Strata Council. The minutes of the Strata Council indicate that it was satisfied with the Health Department’s tests. Because the noise was within acceptable levels, and the piano playing was not conducted late at night or for long periods, there was no reason to take action against the Defendant. Further, the Strata Council canvassed the Defendant’s other neighbours and received no complaints about excessive noise due to the piano playing. The Strata Council also wrote to the Claimant and asked him to set a time that the piano playing would not disturb him. The Claimant refused to discuss the matter and took the position that there was no convenient time.

[13] The Defendant testified that the Claimant’s constant harassment about the piano playing frightened her and her daughter. The Claimant would regularly bang on the walls and the Defendant’s door, shout obscenities at them, and threaten them with bodily harm. The Defendant says that just prior to their move in May 1997 the Claimant threatened to chop her daughter’s fingers off because she would not stop playing the piano. The Defendant says the Claimant called her a hooker and her daughter a bastard and a piece of shit. The Claimant also disrupted her bible study meetings on Sundays by yelling obscenities and calling the group an orgy. The Claimant also hovered over them when leaving the unit; he stared at them until they left. The Claimant continually embarrassed the Defendant in front of guests because of his offensive remarks and aberrant behaviour.

[14] Apart from the constant intrusions by the Claimant, the Defendant says she spent many hours with the police, By-law enforcement officers, and members of the Strata Council attempting to address this problem. Over a two-year period the Defendant says she had to take at least one week off work to deal with the Claimant’s complaints and her daughter lost valuable practice time. In regard to the latter concern, the Defendant testified that her daughter’s piano examinations had to be postponed until after their move from the unit because of the constant interference by the Claimant. The Defendant’s daughter was required to take additional private lessons ($240.00) and pay an additional examination fee of $57.00 as a consequence of the Claimant’s actions. The Claimant testified that he never thought about whether his actions were reasonable or not and was not concerned that he may have harassed the Defendant or interfered with her daughter’s piano practice.

[15] As a consequence of the Claimant’s constant interference in their lives, the Defendant decided to sell her unit and move away. In December 1996 the Defendant engaged Kathryn Watkinson, an agent with Remax Realty (Westside), to sell her home. The unit was listed at $138,000. After six months the Defendant took her unit off the market because she was unable to sell it.

[16] The Defendant claims that she was unable to sell her unit because of interference by the Claimant. The Defendant says that when prospective purchasers came to see the unit the Claimant would open his door and scream that the agent was lying and that this was not a quiet building. The Defendant testified that on February 9, 1997 she was at home when her realtor brought a woman and her daughter to view the unit. Upon leaving the unit, the Defendant says the Claimant opened his door and shouted, "this woman is a criminal, this building is not a quiet building, and anyone who buys this place and live in this place will have very bad luck." The prospective purchasers then expressed reluctance to buy a unit next door to the Claimant. The Defendant testified that the Claimant behaved in this manner on many occasions thereby frustrating the sale of her unit. Finally, the Defendant was forced to rent out her unit to a friend who could tolerate the Claimant’s conduct. To corroborate her evidence the Defendant introduced a letter dated May 14, 1997 from Ms. Watkinson:

I have listed Jenny Yang’s apartment at (No.) Prince Edward Street for sale since December 8th 1996. On several occasions her neighbour Mr. Edward Chiang has disrupted showings of the apartment to potential buyers. On December 12th 1996 Mr. Chiang yelled at me in the hallway. He called me a liar for telling the buyers it was a quiet building and proceeded to run down the strata council. Prior to being verbally abused by Mr. Chiang the buyers had expressed interest in the apartment. After the encounter they said they did not want to live beside someone like that.

Similar incidents have occurred on several different occasions. Two times, the buyers may have been ready to write an offer but were put off by Mr. Chiang’s yelling and carrying on.

[17] The Defendant claims she incurred additional mortgage costs in carrying the unit after she moved into a new residence. Further, the market price of the unit dropped at least 5% between December 1996 and May 1997.

[18] The Claimant denies interfering with the sale of the Defendant’s unit. He says he encouraged her to move out so he would not hear the piano noise any more. The Claimant also denies harassing and threatening the Defendant. The Defendant does admit, however, that he watched the Defendant through the peephole in his door and accused the Defendant of consorting with married men in the hallway.

[19] The Defendant also called George Lee to corroborate her evidence. Mr. Lee babysat the Defendant’s daughter from 1985 onward and rented the Defendant’s unit after May 1997. Mr. Lee testified that whenever he came to the unit the Claimant would open his door and stare at him. When Mr. Lee left the unit the Claimant would also open the door and stare at him. Mr. Lee testified that on one occasion after he moved into the unit the Claimant came up to him and accused him of playing the piano in the suite. Mr. Lee invited the Claimant inside to look for a piano because there was none to be found.

[20] Finally, the Claimant introduced a report by Dr. Thomas dated June 26, 1997:

This is to certify that Mr. Edward Man Ching Chiang has been attending this medical office. He suffered from a number of medical conditions. This includes: hypertension, large anterior myocardial infarct, renal impairment, hyper-cholesterolemia, post-traumatic neurologic dysfunction of the left arm and leg, with flexion contracture of the left index finger, anxiety-depression, with insomnia. He is on a number of medications for the above medical conditions.

It would be beneficial for him to reduce mental stress, relax, and stay in a quiet, pleasant environment, in addition to regular, light exercise, and pharmacological therapy.

ARGUMENT

[21] The Claimant argues he has been seriously disturbed by the noise emanating from the Defendant’s suite over an extended period of time. Further, the Claimant says the noise has affected his health and has precluded the use of a large part of his suite. The Claimant relies upon Section 4 of the By-law passed by the City of Vancouver to regulate noise in residential areas. The Claimant says the Defendant has contravened this by-law and is therefore liable in damages for the harm caused.

[22] The Defendant says she has broken no laws in allowing her daughter to play the piano for short periods at reasonable hours. The Defendant maintains the Claimant has refused to compromise with regard to this dispute and has continually interfered with her life to the point where she was forced to leave her apartment. The Defendant says the constant threats and harassment also caused her severe emotional suffering and distress. In addition, the Claimant’s actions have caused her economic loss with regard to the market value of her suite.

DECISION

[23] The Claimant’s action potentially raises three causes of action for which a claim in damages may be made against the Defendant. First, the Claimant relies upon an alleged breach of Vancouver City By-law No. 6555 dealing with the regulation of Noise or Sound. Second, the Claimant sues for damages arising out of the intentional infliction of emotional distress or harm. Lastly, the Claimant raises a claim in nuisance with respect to the noise emanating from the Defendant’s premises.

[24] The Defendant’s counter-claim also raises a number of potential causes of action. The Defendant claims damages for the intentional infliction of emotional distress. The Defendant’s claim may also be addressed as one for nuisance. Finally, the Defendant maintains an action against the Claimant for damages arising out of the intentional infliction of economic loss.

[25] I will address each cause of action under a separate heading.

A. Breach of Vancouver By-law No. 6555

[26] The Claimant relies upon Sections 3 and 4 of the By-law:

[27] No person shall make or cause, or permit to be made or caused, any noise or sound in a street, park or similar public place which disturbs or tends to disturb unreasonably the quiet, peace, rest, enjoyment, comfort or convenience of persons in the neighbourhood or vicinity.

[28] Notwithstanding any other provision of this By-law the following are declared by Council to be noises or sounds which are, in its opinion, objectionable or liable to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public and are hereby prohibited, and no person being the owner or occupant of any premises shall make, cause, allow, or permit:

3. No person shall make or cause, or permit to be made or caused, any noise or sound in a street, park or similar public place which disturbs or tends to disturb unreasonably the quiet, peace, rest, enjoyment, comfort or convenience of persons in the neighbourhood or vicinity.

4. Notwithstanding any other provision of this By-law the following are declared by Council to be noises or sounds which are, in its opinion, objectionable or liable to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public and are hereby prohibited, and no person being the owner or occupant of any premises shall make, cause, allow, or permit:

(a) the noise from a gathering of two or more persons at any time, where one or more human voice is raised beyond the level of ordinary conversation, or

(b) the sound of a radio, television, player or other sound playback device, public address system, or any other music or voice amplification equipment, musical instrument, whether recorded or live, whether amplified or not, provided that the sound does not emanate from a commercial premises, or

(c) the sound of a barking dog or the cry of an animal or bird,

which can be easily heard by an individual or member of the public who is not on the same premises, notwithstanding that such noise or sound might not constitute a breach of any other provision of this by-law.

[29] Apart from whether proof of a violation of the Noise By-law creates a cause of action at common law, I am not satisfied that the Claimant has established a breach of Sections 3 and 4. To constitute a breach of Section 4 of the By-law, the piano music must be "easily heard" from within the Claimant’s suite. While the Claimant testified the noise was deafening, I find a more reliable assessment of the noise level is the results of the tests conducted by the By-law enforcement officers. These individuals are objective third parties who had no interest in the outcome of the dispute. After fifteen visits to the Defendant’s premises, and the electronic measurement of the decibels achieved by the piano playing, the By-law enforcement officers concluded the music was "barely audible" from the Claimant’s suite. As a consequence, I find Section 4 of the By-law cannot provide a remedy for the Claimant.

B. Nuisance

[30] In general, nuisance in law amounts to an unreasonable interference with the use and enjoyment of land by its occupier. Further, provided the harm may be characterized as nuisance, it is immaterial whether the intrusion resulted from intentional, negligent or non-faulty conduct. In compensating victims of nuisance, the law precludes one occupier from using their property unreasonably so as to injure a neighbour.

[31] The leading authority on nuisance is Royal Anne Hotel Co. Ltd. v. Ashcroft et al (1979), 8 C.C.L.T. 179 (B.C.C.A.). In that decision, McIntyre J.A. (as he then was) sets out some general principles at p.p. 184-186:

As has been said in Street on Torts, at p. 212: ‘The essence of the tort of nuisance is interference with the enjoyment of land.’ That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land; in negligence one must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertaken for lawful purposes. The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if, for example, effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree…

The test then is, has the defendant’s use of this land interfered with the use and enjoyment of the plaintiff’s land and is that interference unreasonable? Where, as in the case at Bar, actual physical damage occurs it is not difficult to decide that the interference is in fact unreasonable. Greater difficulty will be found where interference results in lesser or no physical injury but may give offence by reason of smells, noise, vibration or other intangible causes. No finding is required regarding the exercise of care by the defendant and, while its conduct may frequently be such that a finding of negligence could be made, it is not necessary and the existence of due care will afford no defense if the other ingredients are present. …

[32] The law of nuisance attempts to reconcile competing uses of land. It endeavors to balance the rights of one occupier of land to use his property for lawful purposes with another occupier’s right to the quiet use and enjoyment of his land. In respecting the rights of each party, the law only intervenes when the invasion of the other’s use of land is unreasonable.

[33] What constitutes an unreasonable invasion of another’s land or premises is determined by considering all of the relevant circumstances. For example, noise that constitutes a nuisance in a quiet neighbourhood may well be reasonable in an industrial location. Other relevant factors would include the nature of the act complained of, the nature of the injury suffered, the frequency of the occurrence, and its duration. It is also important to consider the social utility of the alleged nuisance and the value of the interests sought to be protected.

[34] In all cases, however, the invasion must be substantial and serious to result in a finding of nuisance. As articulated by McIntyre J.A. in Royal Anne Hotel Co. Ltd. v. Ashcroft et al, supra:

It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear according to the accepted concepts of the day that it should be an actionable wrong. It has been said … that Canadian Judges have adopted the words of Knight Bruce V.C. in Walter v. Selfe (1851), 4 De G.& Sm. 315, 64 E.R. 849 at 852, affirmed on other grounds 19 L.T.O.S. 308, to the effect that actionability will result from an interference with:

… the ordinary comfort physically of human experience, not merely according to elegant or dainty modes and habits of living, but according to plain and sober notions.

[35] Further, it is not by the subjective standards of the overly sensitive person that the court measures an unreasonable invasion. The test is an objective one applying the standards of an ordinary reasonable person. This proposition is clearly articulated by Veale J. in Halsey v. Esso Petroleum Co. Ltd., [1961] 2 All E.R. 145 (Q.B.D.) at p.p. 151-152:

The standard in respect of discomfort and inconvenience from noise and smell that I have to apply is that of the ordinary reasonable and responsible person who lives in this particular area of Fulham. This is not necessarily the same as the standard which the plaintiff chooses to set up for himself. It is the standard of the ordinary man …

[36] An objective test for nuisance was adopted by Cohen J. in Kenny v. Schuster Real Estate Co. [1990], B.C.J. No. 1420 (B.C.S.C.). The objective standard was also applied by Melnick J. in Popoff v. Krafczyk [1990] B.C.J. No. 1935 (B.C.S.C.):

In Hourston v. Brown-Holder Biscuits Limited (1936), 10 M.P.R. 54, Mr. Justice Harrison of the Supreme Court of New Brunswick, at p. 547, quoted from the 8th edition of Salmond on Torts (p.239) as follows:

In every case it is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience, but whether the average man who resides in that locality would take the same view of the matter. The law of nuisance does not guarantee for any man a higher immunity from discomfort or inconvenience than that which prevails generally in the locality in which he lives.

[37] The objective standard is given surprising clarity in a passage from Salmon on Torts Vol. 17 p. 56 quoted with approval by Proudfoot J. (as she then was) in The Owners, Strata Plan NW87 v. Karamanian [1989], B.C.J. No. 629 (B.C.S.C.):

The question in every case is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience, but whether the reasonable man who resides in that locality would take the same view of the matter. The reasonable man connotes a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equitable. He is not necessarily the same as the average man – a term which implies an amalgamation of counter-balancing extremes.

[38] Thus a person is required to put up with some inconvenience but not to the point where the invasion becomes demonstrably harmful by objective standards: per Mr. Justice Selbie in Raith v. Coles, [1984] B.C.J. No. 772 (B.C.S.C.).

[39] Finally, the fact the disputants reside in a condominium governed by legislation and a Strata Council gives rise to additional factors to consider when assessing whether actionable nuisance arises. In this type of communal living the residents are required to exhibit more cooperation and respect for others to ensure each occupier is able to enjoy their property to the fullest extent. As discussed by Proudfoot J. in Strata Plan NW87 v. Karamanian, supra:

While the courts are reluctant to interfere with how persons live in their own homes, there are some activities which may not be done particularly when the home is regulated by the Condominium Act and by-laws of a Strata Council. This is the communal type of living which often requires a tremendous amount of co-operation and consideration from each other, for all residents to enjoy the lifestyle to its maximum.

[40] Turning to the nuisance alleged by the Claimant, I am unable to find an actionable wrong committed by the Defendant in allowing her daughter to play the piano in her suite. Making every allowance for the quiet nature of the neighbourhood, and the type of communal living mandated by condominiums, there is no evidence the noise emanating from the Defendant’s unit was substantial or unreasonable. At most, the sound was barely audible from the Claimant’s apartment. Further, the piano was not played for lengthy periods or during the late evening and early morning when the Claimant was most likely to be disturbed. While the Defendant moved the piano to the outside wall in an attempt to reduce the noise, the Claimant remained dissatisfied with her efforts. The Defendant also proposed a practice schedule that would be most convenient to the Claimant. The Claimant refused to cooperate in any fashion to resolve the dispute. None of the other sixty-six owners in the condominium complained of the noise.

[41] In my view the Claimant is asking the court to guarantee him a greater level of peace and tranquility than that which prevails generally in the neighborhood in which he lives. The Claimant’s expectations go far beyond the standards of a reasonable man living in the same locality. The Claimant must recognize that a certain amount of compromise is necessary if one wishes to continue living in our society. I thus dismiss the Claimant’s action based upon nuisance.

[42] On the other hand, I am satisfied that the Defendant has made out a claim in nuisance against the Claimant. For several years the Claimant has continually banged on the walls of his apartment in protest of the piano playing. He has repeatedly screamed obscenities and threats at the Defendant and her daughter. I also accept the Defendant’s evidence that the Claimant has continually watched and besetted the Defendant and her daughter from his open door and threatened them with bodily harm. Moreover, the Claimant ensured the Defendant’s use and enjoyment of her property was further disturbed by the constant police attendances at her residence and the numerous calls made by City By-law enforcement officers. All of the Claimant’s actions are within the definition of nuisance. The Claimant’s conduct created an unreasonable interference with the use and enjoyment of the Defendant’s property and a remedy follows as a consequence of his actions: St. Pierre v. Ontario (Minister of Transportation and Communications) (1987) 75 N.R. 291 (S.C.C.) and Poole et al v. The Toronto Harbour Commissioners [1958] O.W.N. 77(Ont. H.C.).

[43] Although the Claimant denies the misconduct alleged by the Defendant, I accept the Defendant’s evidence wherever it conflicts with that of the Claimant. The Defendant gave evidence in a straight forward, credible manner. Her evidence is more consistent with the probabilities of the case and is partially corroborated by Mr. Lee’s evidence and the correspondence from Ms. Wilkinson. On the other hand, the Claimant’s testimony lacked credibility. He attempted to minimize his conduct and exaggerated the severity of the Defendant’s actions. It is difficult, if not impossible, to accept that a person who took such drastic action to deal with barely audible piano noise would behave in the quiet, dignified fashion asserted by the Claimant. I find the Claimant was enraged by the Defendant’s refusal to curtail her daughter’s piano playing and, further, that he voiced his complaint in a loud, intrusive, and offensive manner until the Defendant was forced to move from her home.

[44] The Claimant’s continual and oppressive interference with the Defendant’s use and enjoyment of her property was both substantial and unreasonable by any objective standard. His conduct was not merely annoying; it amounted to a serious breach of acceptable standards particularly given the nature of the communal living enjoyed by the residents in the condominium complex where they lived. The impact of his conduct on the Defendant was palpable.

[45] On the question of damages for actionable nuisance, Cohen J. cites with approval the following passage from Fridman, Q.C., "The Law of Torts in Canada, Vol. I" (Toronto: Carswell, 1989) in Kenny v. Schuster Real Estate Co., supra:

It has been said that no proof of damage is required where the nuisance consists of the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, or anything that discomposes or injuriously affects the senses or the nerves.

No actual financial or physical damage need be proved as the damage in such cases consists in the annoyance and discomfort caused to the occupier of the premises. However, a number of decisions have concerned the possibility of a claim for financial loss resulting from such interference. Plaintiffs have argued that their property has lessened in value, in terms of saleability on the market, because the smoke, noise, dust, fumes, etc, made the plaintiff’s property not as desirable as it might have been without such interference.

If the plaintiff is to seek a remedy, it must be shown, in the first instance, that the plaintiff believed that what the defendant was doing would result in such diminution of the value of the plaintiff’s property. In other words, there must be a causal connection between the defendant’s conduct and the alleged drop in value. Second, it must be proved that here was some diminution in value. One way to establish this, perhaps the best or truest way, is to show that attempts were made to sell the property and failed, or could only succeed if the price were significantly reduced from would otherwise be a reasonable market price.

[46] I am satisfied the Defendant is entitled to damages for both interference with the use and enjoyment of her property caused by the Claimant’s nuisance and for the loss of value to the unit caused by his actions. In this regard, I find the value of the Defendant’s unit was decreased due to the Claimant’s conduct. The Defendant listed her property for sale with Remax Realty for six months and was unable to sell it. Whenever the Defendant’s real estate agent brought prospective purchasers to the unit the Claimant would recreate for these people the type of conduct that had so effectively precluded the Defendant from exercising her right to the quiet use and enjoyment of the property. No one was prepared to make an offer on the Defendant’s property when faced with the prospect of living next door to the Claimant. The Defendant testified that the value of her unit had decreased by 5% of its market price of $138,000. I find this to be a reasonable estimate of the loss and therefore award $6900 under this head of damages.

[47] Further, I find the Defendant is entitled to non-pecuniary damages for the annoyance, interference, inconvenience, and discomfort caused by the nuisance. In awarding such damages the court is charged with the responsibility of determining ‘reasonable compensation’ based on general principles: per Cohen J. in Kenny v. Schuster Real Estate Co., supra. For several years the Claimant caused a gross interference with the Defendant’s enjoyment of her unit. The Defendant attempted to resolve the conflict but the Claimant would not bend in his determination to eliminate the piano music altogether. The Defendant reasonably concluded that her only choice was to sell the unit and move away from the source of the conflict. In doing so the Defendant was forced to leave a home that she had shared with her daughter for many years. The Defendant’s daughter had to leave behind friends and a familiar neighborhood. I consider a fair and reasonable award for non-pecuniary damages to be $3000.

C. Intentional Infliction of Emotional Stress

[48] The Claimant and the Defendant have both pleaded that their respective conduct has caused each other severe emotional and mental stress. This tort has three elements that must be proven to establish a claim for damages:

1. There must be evidence of outrageous or flagrant and extreme conduct;

2. The conduct must be calculated to produce mental stress or anxiety; and

3. The conduct must produce actual harm in the sense of a provable illness.

[49] See, Rahemtulla v. Vanfed Credit Union, [1984] 3 W.W.R. 296 (S.C.C.), Abramzik v. Brenner et al, (1967), 65 D.L.R. (2d) 651 (S.C.C.), Clarke v. Canada, [1994] 3 F.C. 323, and Smith v. Alwarid [1996] Y.J. No. 139 (Yukon S.C.).

[50] While I am satisfied the Claimant has failed to establish any of the elements of this tort, the lack of evidence establishing a provable and visible illness due to the piano playing is most apparent. The medical report submitted by Dr. Ho clearly indicates the Claimant suffers from a number of physical and mental ailments; however there is no evidence that the piano playing by the Defendant’s daughter caused any of these illnesses or conditions. Further, the Claimant acknowledged that he did not know whether the music had caused any of his numerous ailments.

[51] Addressing the Defendant’s claim for damages under this heading, it is apparent the first element of the tort has been established. What is more troubling for me is the Claimant’s state of mind and whether his actions were calculated to cause the Defendant harm or whether he was reckless in that regard. It is unnecessary to answer this question, however, as the Defendant has also failed to establish that she suffered a visible and provable illness as a result of the Claimant’s actions.

D. Intentional Infliction of Economic Loss

[52] It is unnecessary to address the final cause of action raised by the Defendant’s counter-claim. Damages under this heading have already been awarded under the claim in nuisance.

SUMMARY

[53] The Defendant is entitled to judgement for $9,900, interest pursuant to the Court Order Interest Act on $6,900 from May 15, 1997 until the date of this Order, and costs including filing and service fees, and reasonable disbursements expended at trial allowed under the Small Claims Act and Rules. The Registrar shall determine the costs.

[54] The Claimant’s action is dismissed.

[55] The Claimant shall pay the judgement within 45 days. The Claimant may also apply for a payment hearing if he is unable to pay the full amount of the judgement within this period. Further, the Defendant may take the steps allowed by the Small Claims Act and Rules to enforce the judgement.

 

 

____________________________

The Honourable C.J. Bruce, P.C.J.