The Supreme Court has established that the home must be for every Canadian his ultimate refuge

Article locked Published on by Me Robert Soucy

Topic(s): Legal

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

The Supreme Court has established that the home must be for every Canadian his ultimate refuge

The landlord is seeking the termination of the lease and the eviction of the tenant on the grounds that the tenant disturbs the peaceful enjoyment of the premises. The tenant strongly contests the request however, on the grounds that it is rather she who is the victim of noise and harassment so that she would leave her dwelling. The parties are bound by a lease renewed until June 30, 2022.

The facts
The tenant’s dwelling is located in a duplex building, with a third dwelling in the basement, adjoining another identical building with the same configuration. The landlord who also owns the building is 89 years old and his wife is 90 years old. They have lived on the ground floor for many years. The tenant occupies the dwelling, a 5 1/2 room upstairs for five years now, her dwelling is located directly above the housing of the landlord and his wife. In the basement there is another housing that was rented in another time.

The landlord’s complaint
The landlord complains that the tenant is “living in the fast lane and doing weird things.” Frequent noise disturbs the landlord’s and his wife’s sleep and prevents them from enjoying their home. He testifies that the noise began about a year after the arrival of the tenant. The tenant complained that she heard the landlord dragging his feet while walking. The landlord admits to having suffered a stroke and that he is no longer very young. He admits that his building does not have the best soundproofing but he does not understand why the tenant is complaining. He watches TV until 10:30 or 11 p.m. in the evening. His wife goes to bed earlier. However, about 30 minutes after going to bed for the night, he hears “bang” “bang” above his head, several times a week. Noises that annoy him, disturb his sleep and stress him greatly.

Recently, during a Montreal Canadiens game that won a playoff game, he shouted his joy. He went to bed for the night after turning off his TV. About 30 minutes later, the tenant stirred things on the floor to prevent him from falling asleep. He is convinced that the tenant is acting intentionally, on purpose. In summary, the tenant prevents him from sleeping at night and in the morning he has to go to his daughter, who does not live very far away, to sleep or rest during the day. The landlord claims he wants peace to enjoy the few years he has left to live.

The tenant’s wife and daughter testified and corroborated the landlord’s version of events. Josée, the landlord’s daughter, helps her parents and wants them to be able to live in their house as long as possible. It was she who prepared the formal notice sent to the tenant. She says her parents have changed a lot, they are stressed and they come to her house every day to rest. Josée admits that her parents have developed poorer hearing over time. She has to speak loudly for them to understand. Her mother has had knee surgery and she needs support to walk. Josée recounts the event that occurred on Mother’s Day last May. Around 3:00 p.m., she heard a “bang” “bang”. She is convinced that the tenant is acting out of revenge when she is disturbed. On another occasion, while hiding to smoke in her parents’ bathroom, she turned on the ventilation. The tenant called her parents to ask them to turn off the fan. Josée believes that the tenant is intolerant to noise, and this at a high level. She also testifies that it is difficult to keep seniors at home. As for her parents, they are doing well and can continue to live there. However, the health of her parents deteriorates, because they do not sleep well, her mother often cries. They are demolished and they have lost their ‘joie de vivre.’ Josée testifies that the tenant is responsible for the decline in her parents’ mental health and that the tenant acts out of revenge and with malicious intent.

The landlord’s wife testifies
She says she hears noises like “boum.” She often hears an electric sweeper. In the evening at bedtime, she hears noises, this happens every time the tenant gets angry and takes revenge. For instance, when she eats at the table, she moves a chair and this is where the tenant begins to fight back or if she closes the door of the refrigerator. Shortly after her husband goes to bed at night. The wife is woken up by a “boum” “boum” around 11:30 p.m. to midnight and sometimes at 2:00 a.m. in the morning. Since she cannot sleep well during the night, the next day she goes to her daughter’s house to sleep.

Defence of the tenant
The tenant states that it is absurd to say that she makes noise all the time. She lives alone and claims to hear noise coming from the ground floor. According to her, at night the landlord and his wife are standing and making noise. She has the impression that they are doing a “race”; going back and forth just to provoke her to react. The landlord and his wife turn on all three television sets and leave their homes for the whole day. The landlord is harassing her to leave her dwelling and he is doing everything he can to that end. She admits to having an inquisitive personality and asserts her rights for heating, unsanitary conditions and noise.

The Court’s decision
According to the administrative judge, the landlord and his wife are people of few words who testified honestly; their explanations are simple. Josée’s testimony is reliable and very convincing. She remembers specific events without exaggeration where she witnessed reactions from the tenant.

According to the Court, Josée’s remark, that says that the tenant is highly intolerant to noise made a real impact. Obviously, the tenant is greatly disturbed by the daily activities of the landlord and his wife:
“However, these activities are not exceptional. Seeing the landlord and his wife at the hearing, it is impossible for them to start running into their dwelling. There is also completely normal noise, such as snoring, while the tenant notes hearing snoring at 6:30 a.m.”.1

Does the disturbance of enjoyment exceed the limits of tolerance?
When the noise becomes unbearable and a reasonable person deems it intolerable, the noise then becomes a disturbance of enjoyment or even a nuisance. The Court concluded:
“The situation described exceeds, by its magnitude and duration, the normal inconveniences of the neighbourhood.
As for the gravity, the evidence is preponderant of a real and serious prejudice to the landlord. Both he and his wife are actually affected by the perverse effects of lack of sleep caused by noise; they are anxious and fearful.
Consequently, the Court concluded that the disturbance caused by the tenant exceeded the threshold of normality owed to the neighbours, since it was both recurrent and serious.”2

The Court favoured the landlord’s right to enjoy his immovable property rather than the right of the tenant to remain in her leased premises. The Supreme Court of Canada has already established that “the home must be the ultimate refuge for every Canadian.”3

The Court therefore terminated the lease to allow the landlord and his wife to enjoy their home serenely.

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