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Your Son's Piano Practice it Too Loud!

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a dispute between neighbors.
In today’s case (Wolodko v. Zhang) the parties lived in adjoining strata units.  The Plaintiffs sued the Defendants seeking an injunction arguing the Defendant’s son’s piano playing was a nuisance.
In dismissing the lawsuit and ordering that the Plaintiffs pay the Defendants costs Mr. Justice Masuhara provided the following reasons:
[36]         The plaintiffs have noted numerous instances when they say that the piano playing has interfered with the enjoyment of their unit.  Mr. Zhang does not contest these occurrences.  There is no question that piano playing can constitute a nuisance.  There also appears to be sensitivity to musical instrument playing within this specific complex as evidenced by the bylaw and I recognize that the subject location is a residential high rise strata.  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. 
[37]         In the circumstances here where:
(a)            there are only the complaints of Mr. and Mrs. Wolodko in respect to the piano noise;
(b)            there is an absence of complaints regarding the Zhang unit from others in the complex, which can be contrasted with another piano-noise complaint problem in the complex arising from unit #904 in 2009, where there were several complaints of noise throughout the complex and from people residing on different floors (7th to 10th) and which complaints led to fines being imposed;
(c)            there are no recordings of the complained of piano playing;
(d)            there is the absence of any objective measures or readings of the piano noise; and
(e)            the plaintiffs refused to permit members of the Council to come to their unit to listen for themselves to determine if there had been a contravention of the noise bylaws. 
the case of nuisance, objectively, cannot be said to have been made out.  A further difficulty here for the plaintiffs is the fact that they consented to the dismissal of their action against the strata, which related to alleged infractions of the noise bylaws. 
[38]         The plaintiffs’ action is dismissed.  The defendant is awarded costs on Scale B.

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