Date Issued: September 6, 2018 File: ST-2017-004943 Type: Strata Civil Resolution Tribunal Indexed as: Hanson v. Knight, 2018BCCRT499 BETWEEN: William Hanson APPLICANT AND: Kyle Knight RESPONDENT REASONS FOR DECISION Tribunal Member: Susan MacFarlane INTRODUCTION 1. The applicant and respondent are both owners in the same strata complex, The Owners, Strata Plan VIS 5739 (strata). The respondent owns a strata lot on the thirdfloor. The applicant’s strata lot is on the fourth floor, immediately above the respondent’s strata lot. 1
2. The applicant says the respondent interfered with the applicant’s enjoyment of his property betweensummer 2015 and fall 2016. The applicant says the respondent created excessive barbecue smoke that was a nuisance and damaged the applicant’s personal property. The applicant also says that the respondent harassed him byvideotapinghim and making unfoundedcalls to police. 3. At first the applicant made a claim against the strata. The applicant claimed the strata had failed to address the nuisance caused by the respondent in a timely manner. That claim was withdrawn. For the reasons that follow, I dismiss the remaining claims. 4. The applicant and the respondent are both self-represented. JURISDICTION AND PROCEDURE 5. These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claimsbrought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’smandate isto provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended. 6. The tribunal has discretion to decide the format of the hearing, includingbywriting, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissionsbecause I find that there are no significant issues of credibility or other reasons that might requirean oral hearing. 7. The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses andinform itself in any other way it considers appropriate. 2
8. Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may order a party to door stopdoingsomething, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate. ISSUES 9. The claim against the stratawas withdrawn. That claim is not before me in this decision. 10. There are 2issuesin this dispute: a. Is the applicant entitled to damages for nuisance or the loss of enjoyment of his strata lot? b. Is the applicant entitled to reimbursement of the costs of replacing his sofa? BACKGROUND AND EVIDENCE 11. This matter involves interpretation of the strata’s bylaw 3(1), which is identical to the Standard Bylaw of the same number: Use of property 3(1) An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that (a) causes a nuisance or hazard to another person, (b) […], (c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot 12. On June 28, 2015 theapplicant, with strata permission, pressure washed his balcony. The respondent was then a new owner of the strata lot below the applicant’s strata lot. The respondent complained that the washing sprayed many items on his balcony. The applicant says that the strata property manager told the respondent that those items were stored improperly, and he should remove them. 13. The applicant says that the respondent’s behaviour changed at that time. He began using his barbecue excessivelyat all hours. The respondent had alarge 3
terrace where he could move his barbecue away from the building. The applicant complains that the respondent chose to place his barbecuedirectly under the applicant’s balcony, so that smoke from the barbecueenteredthe applicant’s strata lot. 14. Both parties complain the other is interfering with their enjoyment of their property. The respondent provided an undated video. He narrates, saying that he is barbecuing a steak on his balcony at 2 am. He shows water dripping down on his balcony from above. His narration describes this water dripping as a frequent event. He saysit is the applicant deliberately trying to interfere with his enjoyment of his property. 15. The applicant says he suffered from the barbecue fumes. He says hehad to replace a sofadue to smoke damage. The applicant provided a receipt dated October 13, 2015 for $1,847.99for a sofa. 16. The strata held its annual general meeting (AGM) on April 25, 2016. The strata elected a new council at the AGM. The respondent became strata council president. 17. The strata did amend a bylawconcerninguse of the strata lot. The amendment saysbarbecues may only be usedbetween 10 am and 10 pm. The amended bylaw was filed on April 26, 2016, after being approved at the AGM. 18. In May 2016 the applicant filed a claim against the respondent in the Provincial Court of British Columbia (small claimscourt). The claimwas for $3,800, plus filing fees, for the cost of replacing the sofa. 19. On May 13, 2016 the respondent filed a response in small claims court and made a counterclaim. The respondent claims $5,000 for harassment. That claim is not before me. 20. On May 26, 2016 there was another incident. The respondent says he was barbecuing when the applicant started dumping water from above. The applicant says he was washing his balcony. The respondent started videotaping the incident 4
and complained to police that he was being harassed. Police came to the applicant’sstrata lot. 21. The applicant also complains that the respondent is using his position as strata council president to harass the applicant. 22. In e-mail dated June 7, 2016 to the strata and the strata’s lawyer, the applicant sets out the history of his interactions. He says that the strata is not enforcing bylaw 3(1). The applicant asks for a hearing before the strata council, as is his right under the SPA s. 34.1. 23. The applicant appeared before strata council on June 30, 2016. By letter dated July 7, 2016, strata council saidthat most of the issues raised by the applicant did not relate to bylaw infractions. As for the alleged contravention of bylaw 3(1), strata council said that they wouldgive the other party an opportunity to be heard before making any decision. 24. The respondent appeared at a hearing before strata council on July 20, 2016. He provided videotaped evidence showing his barbecue in operation. By letter dated July 21, 2016 the strata decided that there was no evidence that the respondent had breached any bylaws. 25. Late in 2016 the respondent moved out of his strata lot, which he began to rent to a tenant. Since the tenant moved in there has been no conflict with the applicant. 26. On January 18, 2017, ajudicial case conference was held in small claims court. The matter was not resolved, and a trial was scheduledfor December 2017. 27. On September 27, 2017, the applicant withdrew his claim in small claims court. The respondent’s counterclaim has not beenwithdrawn. 28. On January 5, 2018 the tribunal case manager wrote to the parties. She summarized the parties’ positions and the proceedings to that date. She said that the applicant had withdrawn his claim in small claimscourt. He was willing to 5
withdraw hisclaim at the tribunal if the respondent withdrew his counterclaim in small claims court. 29. Further correspondence between the tribunal and the parties clarified that the tribunal is a separate entity from small claims court, and the respondent’s counterclaim does not exist at the tribunal. Since the parties did not agree to unconditionally withdraw the claim at the tribunal, this matter comes before me for a decision. POSITION OF THE PARTIES 30. The applicant argues that he has suffered loss of enjoyment of hisstrata lot. He says he had tokeep his balcony door closed year-roundto keep smoke out. He also says that the respondent made false claims to police about him. 31. The applicant also says that the respondent caused a nuisance, which limited the applicant’s ability to enjoy his strata lot and damagedtheapplicant’s furniture. He claims damages for replacement of his sofa. 32. The applicant asksthat I order the respondent to pay him $5,000. The applicant is also seeking reimbursement of $225 fortribunal fees. 33. The respondent says he couldn’t see any smoke damage to the sofa, and he was never asked to pay cleaning bills to remove smoke odours. He says there was no need to buy a new sofa. He says the applicant was just trying to replace a sofa that was too large for the space with a smaller one. 34. The respondent argues that he was entitled to use his barbecue as he did. He complied with the new bylaw prohibiting barbecue use between 10 am and 10 pm. He claims the applicant has been unreasonable and has harassed him when he has been using his barbecue. 35. The respondent asks that I dismiss the applicant’s claim. 6
ANALYSIS Loss of Enjoymentand Nuisance 36. This is a dispute between neighbours in a strata. The claim against the strata has been withdrawn and the strata is not aparty. 37. The parties aresubject to strata bylaws that govern how they use their property. Bylaw 3(1) says that an owner must not use a strata lot in a way that causes a nuisance or that interferes with a person’s enjoyment of another strata lot. 38. The BC Supreme Court in Andrushko v. The Owners Strata Plan KAS 1041 McIntosh Grove, 2015 BCSC 2445, considered an identical strata bylaw. Andrushkodealt with claims of nuisance related to second-hand smoke in a strata complex. Andrushkoapplied the 2-part test from the Supreme Court of Canada’s decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13. The test asks whether the interference with the owner’s use or enjoyment of land is bothsubstantial andunreasonable. A substantial interferencewith property must be more than trivial. The question of reasonableness considers all the circumstances. In Andrushkothe plaintiff failed to show that he had suffered any substantial interference or damage. The claim was dismissed. 39. This test was also applied by the BC Supreme Court in Gichuru v. York, 2011 BCSC 342, aff’d 2013 BCCA 203. In Gichuru, the court saidthat in a nuisance claim the plaintiff bears the burden of proving that there has been substantial and unreasonable interference with the use and enjoyment of land. The court in Gichuruwent on to say that proving substantial interference generally requires more evidence than subjective complaint. The court will need objective evidence that the interference wentbeyond what ordinary neighbours usually tolerate. 40. In this case, the strata council heard both parties and decided that there had been no violation of thebylaws. Neither party here challenges that decision, or says why it might bewrong. I see no reason to disagree with the strata’s decision. 7
41. Further, bylaw 3(1) is rooted in the common law of nuisance, and I have considered the applicable tests at common law. I find that the applicant has failed to provide enough objective evidence. He has not proven, on a balance of probabilities, that the barbecue smoke was a nuisance that interfered with his enjoyment of his propertyby goingbeyond what is reasonably tolerable between neighbours. Reimbursement for Smoke Damage 42. For the reasons above, I findthat the applicant has not proven hisclaim. Further, I find that the applicant has not established, on a balance of probabilities, that the sofa was damaged, or that it needed to be replaced. 43. I find that the applicant is not entitled to be reimbursed for the sofa. DECISION AND ORDERS 44. I order thatthe applicant’s claim be dismissed. 45. Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. The respondent has not paidtribunal fees and has not claimed dispute-related expenses. I make no order for tribunal fees or expenses. 46. Under section 57 of the Act, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia, a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia. 47. Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia. However, the principal amount or the value of the personal property must be within the Provincial Court of 8
British Columbia’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the Act, the Applicant can enforce this final decision by filing inthe Provincial Court of British Columbia a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia. Susan MacFarlane, Tribunal Member 9
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