Date Issued: September 6, 2019

File: ST-2019-002051

Type: Strata

Civil Resolution Tribunal

Indexed as: Wu v. The Owners, Strata Plan BCS 3237, 2019 BCCRT 1061

Between:

JIA WU

Applicant

And:

The Owners, Strata Plan BCS 3237

Respondent

INTRODUCTION

1.      The applicant, JIA WU (owner), owns a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS 3237 (strata).

2.      The owner says the strata fined her inappropriately 3 times due to a neighbour’s complaints about the owner’s dog barking. The owner says the strata’s bylaws permit dogs, and the dog’s barking did not violate the strata’s noise bylaw. She also says the neighbour who complained about the dog deliberately provoked it, which caused it to bark.

3.      The owner seeks a refund of $300 she paid in bylaw violation fines, plus a reversal of another $200 in fines charged to her but not yet paid.

4.      The strata says the fines should stand. It says it received several noise complaints about the owner’s dog barking, and imposed the fines under its bylaws and in accordance with section 135 of the Strata Property Act (SPA).

5.      The owner is self-represented in this dispute. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The tribunal must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the tribunal’s process has ended.

7.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

8.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The tribunal may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

9.      Under section 123 of the CRTA and the tribunal rules, in resolving this dispute the tribunal may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUE

10.   Is the owner responsible to pay $500 in bylaw violation fines for noise nuisance due to their dog’s barking?

EVIDENCE AND ANALYSIS

11.   I have read all of the evidence provided but refer only to evidence I find relevant to provide context for my decision. In a civil proceeding such as this, the applicant must prove their claims on a balance of probabilities.

12.   The strata repealed and replaced all of its bylaws in 2010. Those bylaws, which were filed at the Land Title Office on March 9, 2010, are the bylaws applicable to this dispute. The strata later filed some specific bylaw amendments, but these are not relevant to this dispute.

Did the owner’s dog’s barking violate the strata’s noise bylaw?

13.   The parties agree that the strata’s pet bylaws permit the owner to keep up to 2 dogs in her strata lot. However, bylaw 5(8) says that a pet owner must not permit the pet to cause a nuisance to any resident or permit the pet to disturb any other owner, tenant, or occupant due to barking, howling, or other noise.

14.   The owner says her dog’s barking is “transient defensive barking”, which occurred during “work hours” from 9:00 am to 6:00 pm. The owner says the strata council’s decision to impose a fine for the barking “effectively discriminates against a basic behaviour of dogs.”

15.   There is no common law principle or statutory rule prohibiting discrimination against dogs. Provincial and federal human rights legislation applies only to humans.

16.   The owner argues that since the strata permits dogs, it must permit their behaviours, including barking. I do not agree. While occasional barking would not likely be considered a nuisance or disturbance, as prohibited under bylaw 5(8), I find that the evidence before me establishes that the owner’s dog engaged in ongoing and repeated barking. Based on the evidence, which includes audio recordings, I find the dog’s barking was a violation of bylaw 5(8).

17.   The owner has not suggested that the strata violated section 135 of the SPA, which says that before imposing a bylaw violation fine, the strata must have received a complaint about the contravention, given the owner written particulars and a reasonable opportunity to answer the complaint, including a hearing if requested.

18.   Based on the correspondence in evidence, I agree with the strata that it followed the requirements of section 135. The strata provided copies of the written complaints it received about the barking, and copies of its letters to the owner, which set out the relevant bylaws and the required warnings. In particular, the correspondence shows that the owner received a written warning before each fine was imposed. The first fine, for $100, was imposed on February 27, 2018. Following a written complaint from another owner, the strata imposed a second fine of $200 on July 25, 2018. A third $200 fine was imposed on October 3, 2018, following another complaint. The strata sent appropriate warning letters before each fine was imposed.

19.   The owner says her dog barked after being “provoked” by a neighbour, who knocked on her door. However, the strata provided copies of written complaints from owners of at least 3 strata lots. I find that this indicates that the dog’s barking was not isolated to any single incident of provocation.

20.   In one email, owners CA and DA wrote on December 27, 2017 that the dog had been barking and howling a good part of the time, for approximately the past year. On June 11, 2018, owners RP and SP wrote that the dog barked incessantly if left alone, and had been barking for 2.5 hours that day. The email said the dog barking prevented the quiet enjoyment of their home. Finally, on June 25, 2018, CK wrote that she was tired of the barking dog, which barked “incessantly” the minute it heard a noise in the hall.

21.   Based on these written complaints, and the audio recordings, I find that the dog’s barking violated bylaw 5(8). While I accept the owner’s assertion that she has taken steps to try and minimize the barking, that does not mean she is exempt from bylaw 5(8). The owner submitted that she knew from video surveillance that her dog sleeps most of the time she is away and did not bark constantly throughout the day, but she did not provide this evidence.

22.   The owner provided a letter from other owners, KP and DO, which said they were not disturbed by the dog’s barking, and that it only barked for about 20 seconds when they entered the corridor from the elevator. While I accept that evidence, I do not find that it proves that the dog did not disturb the other owners who complained.

23.   The owner also says that her upstairs neighbours were very noisy, which disturbed her and the dog. She says the strata has enforced bylaws unequally. She says the strata only imposed $200 monthly fines on the owner of the strata lot upstairs, which was not proportional to the degree of harm, but then aggressively pursued the complaints about her dog.

24.   As there is no evidence before me about the specific amount the upstairs owners were fined, and the circumstances of that alleged bylaw infraction, I find the owner has not proved her claim that the strata acted unequally in enforcing its bylaws.

25.   For all these reasons, I dismiss the owner’s claims. It appears that the owner has not yet paid $200 of the $500 total fines, but as the strata filed no counterclaim I make no order for payment.

TRIBUNAL FEES AND EXPENSES

26.   The applicant was unsuccessful in this dispute. In accordance with the CRTA and the tribunal’s rules I find she is not entitled to reimbursement of tribunal fees or dispute-related expenses.

27.   The strata corporation must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the owner.

ORDER

28.   I dismiss the owner’s claim and this dispute.