Date Issued: December 3, 2018

File: ST-2018-003026

Type: Strata

Civil Resolution Tribunal

Indexed as: Connell v. The Owners, Strata Plan BCS 3438, 2018 BCCRT 784

Between:

Janice Connell

Applicant

And:

The Owners, Strata Plan BCS 3438

Respondent

INTRODUCTION

1.      The applicant, Janice Connell (owner) is the owner of a strata lot (suite 2801) in the respondent strata corporation, The Owners, Strata Plan BCS 3438 (strata). This dispute is about odours the owner says are entering her strata lot from suite 2701 on the floor below. The applicant contends, and the strata disagrees, that the strata has failed to address these odours.

2.      The applicant is self-represented. The respondent is represented by a member of the strata council.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to 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.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5.      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 and inform itself in any other way it considers appropriate.

6.      Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make order a party to do or stop doing something, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.      The issues in this dispute are:

a.    whether I should order the strata to issue warnings or fines to unit 2701;

b.    whether I should order the strata to ensure that smells no longer come into the owner’s ventilation system and suite 2801; and

c.    whether the owner should be reimbursed $1,000 for money she spent attempting to address to odour issue.

BACKGROUND, EVIDENCE, AND ANALYSIS

8.      The parties provided detailed submissions setting out their respective positions. I have reviewed all of the documents provided by the parties, whether or not they are mentioned below.

9.      The owner purchased suite 2801 in the strata in July of 2017, and a family member moved into the unit. In October of 2017, the family member started to notice odours in the unit.

10.   The owner says that “ethnic” cooking smells enter her unit at all hours of the day and night through a variety of means, including the electrical outlets and lights, the bathroom fan, pipes and open windows. The owner says that the family member who lives in her suite is not able to enjoy it and has experienced a variety of physical symptoms that he attributes to the odours. The applicant says that the building’s caretaker and visitors to the suite have also smelled the odours.

11.   The owner says that her family member cannot use the balcony if the other residents are cooking, which she suspects they may be doing in their bathrooms as well as their kitchen. She says that her hydro bill has increased as a result of having to leave the windows open to let the smells out. The owner has taken steps such as installing insulation around electrical outlets, pipes and fans, having the unit inspected, placing a camera inside the wall, and purchasing an air purifier, but she submits that the odours persist. The owner questions whether the smells are the result of commercial or illegal activity occurring in the building.

12.   The owner believes that these smells are coming from suite 2701, directly below hers. She made a complaint to the strata and submits that the strata has not investigated the matter properly.

13.   The applicant says that the strata should act on behalf of all owners, that it has failed to make sure that smells from the other residents do not enter her unit. The owner requests that I order the strata to ensure that the smells stop coming into her unit, and to issue warnings or fines to the other owners or occupants. She also requested reimbursement of $1,000, representing expenses she has incurred trying to address the odour issue.

14.   The strata says it has investigated the owner’s complaints, and that there is no evidence that its bylaws have been breached. According to the strata, the results of an inspection conducted by a contractor in suite 2701 show that the ventilation system was functioning appropriately. Further, the strata says it obtained information from the occupants of suite 2701 that suggests that, at the time of some of the owner’s complaints, no cooking was taking place in their unit. These residents reported that they are careful to use the ventilation fan hood when cooking, and do not use strong smelling foods such as durian.

15.   The strata also says that there is no evidence that it has failed to maintain or repair common property. It points out that it is not able to cause an occupant to stop using their kitchen or cooking. The strata also questions whether there would be a human rights issue around asking an occupant to stop cooking “ethnic” foods. In any event, the strata’s position is that the evidence does not establish that the smells the owner complains of are coming from suite 2701. The strata asks that I dismiss the owner’s claims.

16.    In response to the strata’s submissions, the applicant states that the odours may be coming from a unit other than suite 2701. It is not clear whether the owner has filed a new complaint with the strata regarding another possible source of the odours. The claim before me is that the odours are coming from suite 2701, and I will confine my analysis to that issue. I also note that no owners or residents, from suite 2701 or otherwise, are parties to this dispute.

17.   The applicable bylaws are the version adopted and registered by the strata in 2010. Although several amendments have been filed since then, I find that the amended bylaws do not apply to these circumstances.

18.   Bylaw 8 states that the strata must repair and maintain common assets of the strata corporation, common property (CP), and limited common property (LCP).

19.   Bylaw 3, Use of Property, provides that an owner, tenant, occupant or visitor must not use a strata lot, the CP or common assets in a way that a) causes a nuisance or hazard to another person; b) unreasonably interferes with the rights of other persons to use and enjoy the CP, common assets or another strata lot; or f) is in contravention of any rule, order or bylaw of City of Port Moody applicable to the strata lot or that will result in any unusual or objectionable odour to emanate from the strata lot, or that is inconsistent with the intent of these bylaws. In addition, bylaw 33, Disturbance of Others, sets out that no owner shall operate a barbeque in a manner which interferes with another owner’s enjoyment of his strata lot.

20.   Bylaws 24 and 25 provide for the enforcement of bylaws and rules, and the imposition of fines. These would be subject to the requirements of section 135, Complaint, right to answer and notice of decision of the Strata Property Act (SPA).

ANALYSIS

Request that the Strata Issue Warnings and Fines to Suite 2701

21.   It is clear that the strata’s bylaws address the issue of nuisance in the specific context of odours (including cooking-related odours) travelling from one strata lot to another. It is also clear that the strata has the power to enforce these bylaws through the imposition of fines. The owner requests that warnings or fines be issued by the strata to suite 2701.

22.   The parties have presented contrasting evidence about whether, or to what extent, others have been able to detect the odour of cooking in the owner’s suite. I accept that the owner and her family member have noticed odours in their suite which they find to be unpleasant. I do not find it necessary to comment on the precise nature or the odours, or whether they relate to “ethnic” foods. The issue before me is whether these odours are attributable to suite 2701.

23.   Upon receiving the owner’s complaint, the strata investigated the matter. It spoke to the occupants of suite 2701 who, as noted above, report that they use the hood vent fan while cooking and do not use strong-smelling foods.

24.   A February 21, 2018 report obtained by the owner investigated possible points of entry for the odour. It is not clear whether any odour was present at the time of inspection, and the inspector could not identify a specific source. The inspector offered a number of possibilities, including malfunctioning or inadequate fans, for the odours. None of the possible sources mention a particular neighbouring unit.

25.   The strata arranged for the ventilation system in unit 2701 to be tested on June 13, 2018. The ventilation systems in both the kitchen and bathrooms of 2701 were tested and found to be functioning. According to the inspection report, smoke introduced in the interior of the unit was observed exiting the vent on the exterior of the building.

26.   The owner questions whether the occupants of suite 2701 were asked specifically about whether they cook in their bathrooms. While not clear from the available evidence, I do not find this to be determinative of the matter. The testing conducted by the strata showed that the ventilation in suite 2701 is functioning appropriately. Further, the reported odours did not necessarily coincide with the times the occupants of suite 2701 were cooking.  

27.   Although the exact source of the reported odours remains unclear following the investigations conducted by the strata and the owner, I am not satisfied that the evidence establishes that the odours the owner complains of are emanating from suite 2701. As such, I decline to order that the strata issue warnings and/or fines to the owners or occupants of that unit.

Request that the Strata Stop the Odours from Entering Suite 2801

28.   Having determined that the source of the odours is not suite 2701, I turn to the owner’s request that I order the strata to ensure that the odours stop entering her unit.

29.   As discussed above, a strata has an obligation to investigate complaints and to enforce its bylaws. The strata also has an obligation to repair and maintain CP. I decline to make a prospective order requiring the bylaws regarding smell-related nuisance to be enforced, as doing so would duplicate the existing obligation in the SPA. I also decline to order the strata to undertake repair and maintenance of CP, given that there is no evidence this dispute involves CP.

30.   Should the odours persist and the owner makes a further complaint, the strata must conduct an appropriate, reasonable investigation and, if necessary, take steps to enforce its bylaws or repair CP. The fact that the strata has investigated this complaint does not prevent a new complaint from being made, or prevent the strata from conducting further investigations into other possible sources of the odours if there is reason to believe other possible sources exist.

Request for Reimbursement of $1,000

31.   The owner requests reimbursement for $1,000, representing a number of expenses she says she incurred in investigating and mitigating the odours. She says that, had the strata followed the bylaws, there would have been no need for her to have made these expenditures.

32.   As discussed above, I have determined that the owner has not established her claim that the odours were emanating from unit 2701. As such, I find that she is not entitled to the reimbursement she seeks.

TRIBUNAL FEES AND EXPENSES

33.   Under the tribunal rules, the successful party generally is entitled to the recovery of their fees. As the applicant was not successful, I find that she is not entitled to reimbursement of tribunal fees. As there is no indication that the respondent paid tribunal fees, I will make no order in this regard.

34.   The strata claims reimbursement for the cost of obtaining the June 13, 2018 inspection report, which it says was necessary to the conduct of the tribunal dispute resolution process. I do not find that this is a dispute-related expense, but rather a substantive expense. As the respondent did not file a counterclaim, I decline to make a finding on this amount.

35.   The strata also seeks an order that the owner reimburse it for legal expenses. I decline to make this order. As noted in the tribunal’s rules, the tribunal generally does not award reimbursement of legal expenses, except in extraordinary circumstances. The strata’s position is that the owner unreasonably maintained her claim and caused the strata to incur legal costs. While the strata may disagree with the owner’s approach, I do not find that the circumstances in this case were extraordinary.  

36.   The strata corporation must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the owner, unless the tribunal orders otherwise.

ORDER

37.   I order that the owner’s dispute is dismissed.