Skip to content

Narrow screen resolution Wide screen resolution Auto adjust screen size Increase font size Decrease font size Default font size default color brick color green color
CAFCOR Forum
_GEN_GOTOBOTTOM Post Reply
TOPIC:
#18013
Wolodko v Zhang BC 2014 BCSC 512 classical PIANO complaints turfed between disputant OWNERS 2014/04/14 10:18  
Wolodko v Zhang BC 2014 BCSC 512 classical PIANO dispute between adjacent strata unit owners; evidence & litigation strategy fall short of "reasonably"triggering actionable nuisance

A US condo/HOA site has alerted to BC judgment striking down PIANO NUISANCE claim between 8th floor Vancouver strata owners. Rules nuisance trigger is not a complainant’s subjective trigger point but that of an objective “reasonable” victim – ie an objective standard of substantial interference under prevalant nuisance tort analysis.

Section 37 lists the complainants’ evidentiary shortfalls, some of which retroactively look avoidable. Judge deems the Plaintiffs' discontinuance of joint action originally also against Strata Corp, itself , took BY-LAW issues OFF THE JUDICIAL TABLE - even though at one point the Council had treated the music as a nuisance level.

Itemed on http://communityassociations.net/

Wolodko v Zhang BC 2014 BCSC 512 issued March 25/14 http://canlii.ca/t/g69fn

Not the silence of the tomb. Classical piano’s mere audibility /vibration might not trigger substantial enough civil nuisance.

Rules nuisance trigger is not a complainant’s subjective trigger point but that of an objective “reasonable” victim – ie an objective standard of substantial interference under prevalant nuisance tort analysis. (36)... There is no question that piano playing can constitute a nuisance. ... I also note that at one point the Council found that the piano playing had contravened the bylaws. However, these facts in concert with the plaintiffs’ numerous complaints are not sufficient to establish nuisance. The test, as stated above, is an objective one relative to the locality. In my view the evidence is not sufficient to find that a reasonable person would conclude that the described incidents of piano playing constitute a nuisance.”

Section 37 lists the complainants’ evidentiary and procedural shortfalls some of which retroactively look avoidable.

Judge notes absence of corroborating parallel complainants. Here the claim had been ‘loud” despite under-support by eventual acoustic test results of the 2 parties . Strata declined acoustical engineer but ultimately the litigant unit owners hired one – disruption results being eventually disagreed by plaintiffs.

Complainants logged dates, but noise isolation tests fall short of convincing lower court that such reach triggering nuisance disruption. Ex Director co-plaintiff had discontinued motions against strata corp with fines powers under BC strata law, in the course of which judge now holds that “ (1) ... but I took this as the plaintiffs having abandoned their assertion of a breach of the noise bylaws of the complex and their claim to relief arising from that finding.” and ( 32) ... As already mentioned by-law contravention is not before me.”
  The administrator has disabled public write access.
_GEN_GOTOTOP Post Reply
contact webmaster