Date Issued: November 18, 2019

File: ST-2019-002430

Type: Strata

Civil Resolution Tribunal

Indexed as: Dale v. The Owners, Strata Plan NW 1188, 2019 BCCRT 1302

Between:

TAMIE DALE

Applicant

And:

The Owners, Strata Plan NW 1188

RESPONDENT

REASONS FOR DECISION
Tribunal Member:	Kathleen Mell

 

INTRODUCTION

1.      The applicant, Tamie Dale (owner), owns a strata lot in the respondent strata corporation, The Owners, Strata Plan NW 1188 (strata).

2.      The owner says that there is a pet cockatiel bird in the strata lot next to hers that is very loud. She says that the strata allows caged birds, but they must be quiet. She submits that the bird’s noise is a nuisance and unreasonably interferes with her use and enjoyment of her strata lot. The owner says the noise is contrary to the strata’s bylaws and that the strata failed to sufficiently investigate the noise complaints or enforce the bylaws.

3.      The owner requests the strata complete a proper investigation. The owner wants the strata to enforce the bylaws by fining her neighbour and also remove the bird from the strata lot. The owner also seeks $4,000.00 for the loss of use and enjoyment of her strata lot. The owner is self-represented.

4.      The strata says that it carried out a proper investigation and that the bird is not making an unreasonable or excessive amount of noise. It says that no bylaw was contravened. The strata is represented by the strata council president.

JURISDICTION AND PROCEDURE

5.      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.

6.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. In some respects, this dispute amounts to a “she said, it said” scenario with both sides calling into question the credibility of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

7.      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.

8.      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.

ISSUES

9.      The issues in this dispute are:

a.    Did the strata sufficiently investigate the owner’s noise complaints?

b.    If not, what further investigatory steps should be taken?

c.    Has there been a contravention of the bylaws and, if so, what remedies are appropriate?

EVIDENCE, FINDINGS AND ANALYSIS

10.   In a civil dispute such as this, the applicant must prove her claim. She bears the burden of proof on a balance of probabilities.

11.   While I have reviewed all of the material provided, I have only commented below on the evidence and submissions necessary for this decision.

12.   It is undisputed that the owner’s neighbours started keeping a cockatiel in their strata lot early in 2018. The neighbours are a mother and her adult daughter. The mother owns the strata lot and the pet bird belongs to the daughter. The owner says that in the summer of 2018 she began to hear noises that sounded like a bird was crying in distress.

13.   The owner says that the bird screams every day and often continuously for hours and that she can hear it from every room of her strata lot. The owner states that in September 2018 she talked to the mother about the noise. The owner claims that the mother admitted that the bird made noise that bothered her as well and that she sometimes left the building to get away from it. The mother denies that she ever said this.

14.   The owner says that after this conversation the neighbours started to blare their television and run their bathroom fan to cover the noise, which only made things worse.

15.   In a written statement, the daughter says that she adopted the bird in early 2018 and that the bird occasionally chirps during the day but that it is not noisy. She says that she covers it during the evening hours and then it is completely silent. She also says that initially she covered the bird from 10 p.m. to 9 a.m., but more recently she covers it from 9 p.m. to 9 a.m.

16.   In a written statement, the mother says that she works from at home and if the bird was making the amount of noise the owner alleges that she would not be able to do so.

17.   Both the mother and the daughter deny that they leave their television and fan on to cover the bird noise. The neighbours also say that the strata carried out an investigation which included going to their strata lot to observe the bird and that the building manager also listened outside their door when they were not aware to determine if the bird was making excessive noise.

18.   Further, the daughter says she carried out her own tests using a decibel reader app on her phone and that it never exceeded the sound standards for the municipality they live in.

The Noise Complaints

19.   The owner has provided an email that indicates on December 5, 2018 she emailed the property manager to advise of the noise and ask for advice. She says she then filed a formal complaint and again spoke to the property manager who told her that her complaint would be reviewed by the strata the following week. She states that on December 28, 2018 she again complained about the noise and asked for an update as to what happened at the strata meeting. The owner has submitted copies of the bylaw violation report and the email correspondence with the strata’s agent to support this.

20.   The owner then submitted two additional bylaw violation reports. The property manager told the owner on January 9, 2019 that her complaints would not be looked at until February 1, 2019 when a new management company was taking over. The owner then submitted six additional bylaw violation reports between January 16, 2019 and February 13, 2019. Again, the owner has submitted copies of the bylaw violation reports. On February 13, 2019, the strata agent told the owner a bylaw violation letter would be sent to the neighbours and that enforcement would be considered at the next strata meeting.

21.   The strata meeting minutes from February 21, 2019 state that the strata reviewed the bylaw contravention correspondence about noise coming from the owner’s neighbours’ strata lot. The minutes indicate that the noise was described as the constant sound of high-pitched bird-like noises. The minutes say that the strata determined that birds were permitted under the building bylaws and that no other complaints had been received about the bird. After consideration, the strata directed the community manager to retract the correspondence sent to the neighbours regarding the noise complaints.

22.   On February 22, 2019, the owner complained directly to the property manager about the ongoing noise. On February 25, 2019, the property manager sent the owner a message that the strata had reviewed the owner’s complaints and determined that birds are permitted and that the noise was reasonable and did not breach the noise bylaws. A copy of that email is in evidence.

23.   The owner again complained on February 26, 2019 about noise the previous night at 10:40 p.m. and she submits that she requested a hearing to present evidence. She indicated that she had a recording of the noise. The owner says she waited 30 days for the strata to respond to her request for a hearing, but they never responded. I note that the email communication is in evidence and the owner did not actually request a hearing. Rather, she asked to be advised of the date of the next strata meeting because she wanted to discuss the matter and play the recording of the bird noises.

24.   The owner says that the strata council president did not want to deal with the owner’s noise complaints because there was a history of personal issues between them. The owner did not explain what she meant by this.

Relevant Bylaws

25.   The relevant bylaws were filed with the Land Title Office on December 6, 2001. Section 3(1) of the bylaws states that an owner must not use a strata lot in a way that causes a nuisance to another person, causes unreasonable noise or unreasonably interferes with the rights of other persons to use and enjoy their strata lot. Further, section 3(3) of the bylaws says that an owner may keep up to two quiet, caged birds. Section 3(12)(a) of the bylaws say that an owner must not use a strata lot for any purpose that involves noise in or about the strata lot or common property between the hours of 10:30 p.m. and 7:00 a.m. Section 3(12)(b) says that an owner may not cause or produce undue noise in or about any strata lot or do anything that would interfere unreasonably with any other owner, tenant or occupant.

26.   Subsequent amendments were filed including in February 2003 which dealt with dogs and cats but did not refer birds. Therefore, I find the bylaws from 2001 are the relevant bylaws applicable to this dispute.

Did the strata sufficiently investigate the owner’s noise complaints?

27.   The strata council president says that although she was out of the country on vacation for the February 2019 strata council meeting, she took part via conference call. She disagrees that she ever said that she did not want to deal with the noise complaint, but she did indicate to council that she would not be back until April 16, 2019.

28.   The strata council president also says that while she was out of town the property manager was supposed to follow proper procedures for handling the complaint. She notes that the strata was in the process of changing management companies and this was part of the reason for the delay in dealing with the owner’s complaints. She submits that the strata dealt with the owner’s December 2018 and January 2019 complaints and one after the new management company took over in February 2019. She says that the strata did not know the extent of the complaints until the owner filed this dispute with the tribunal and that since then it has been investigating.

29.   Finally, the strata council president says that on June 4, 2019 she, the resident manager, and the neighbour stood at the front door of the neighbour’s strata lot and recorded the noise the bird was making. An email between the resident manager and the management company says that they were there for at least 45 minutes. She says that the bird was chirping but submits the bird was not making excessive or unreasonable noise.

30.   I have watched the video and note that it is only half a minute long and the bird can be clearly heard chirping. It is unclear from the video footage where the observers are standing and why the video was cut off so quickly. The caption attached to the video indicates that the door was open and it does appear that at the end of the video somebody enters the strata lot and says something aimed at either the bird or a person inside the strata lot. Given the lack of information surrounding this testing sample and the shortness of the video, I place no weight on this evidence as representing the actual sounds that the bird makes during an average day or night.

31.   The strata also provided the resident manager’s log from between June 10 and 24, 2019 which says that she checked at various time of the day and heard no noise. I first note that this is long after the dates the owner reported the noise and that there is no indication as to how long the resident manager stood outside the door and no verifiable recordings. I also place little weight on this evidence.

32.   Under section 26 of the Strata Property Act (SPA), the strata council has a duty to exercise the powers and perform the duties of the strata corporation, including the enforcement of bylaws and rules. When carrying out these duties, such as bylaw enforcement, the strata council must act reasonably. This includes a duty to investigate alleged bylaw violations, such as noise complaints.

33.   I note that in Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32, the British Columbia Supreme Court held that a strata council has discretion whether to enforce its bylaws in certain circumstances but that such discretion is limited, particularly in circumstances where the strata owners have a reasonable expectation that the bylaw will be consistently enforced. Here, the owner had a reasonable expectation that her complaints would be investigated, and the bylaws enforced.

34.   The strata has not provided evidence that it performed an investigation after the owner made her first complaint in December 2018. The evidence provided shows that the strata only began to investigate after the owner filed her application with the tribunal. The strata council’s minutes indicate that it determined that birds were allowed in strata lots but did not investigate how much noise this specific bird was making. The strata did not attempt to attend the neighbour’s strata lot when the owner said that the noise was occurring. It also does not appear that the strata gave the owner an opportunity to present her audio evidence of the amount of noise the bird was making.

35.   Further, the strata did not make enquiries of residents of other neighbouring strata lots to validate or contradict the owner’s complaints. As noted below, the owner has provided a statement from another neighbour stating that the bird is making an unreasonable amount of noise. Taking the step of speaking to the other neighbours would take little effort and greatly assist the strata in determining if the owner’s complaints are valid.

36.   I note that even after the strata began its investigation in June 2019 the evidence does not show that the investigation was sufficient. There is a half-minute video and a written log by the resident manager.

37.   For all of these reasons, I find the strata failed to reasonably investigate or address the owner’s noise complaints.

What further investigatory steps should be taken?

38.   The strata must properly investigate the owner’s ongoing complaints and if it finds a bylaw violation has occurred, it must enforce its bylaws. I find the strata must arrange for further investigation into the level and frequency of the bird noise, including arranging for a professional noise testing firm to properly assess the owner’s complaints.

39.   If unreasonable noise amounting to a nuisance is discovered, the strata must take steps to enforce the bylaws, so long as the noise continues. The strata’s goal must be to have the bylaw violations stop which may include assessing fines, but which could ultimately lead to remedying the contravention by having the offending bird removed.

40.   Nothing in this decision prevents the owner from making noise complaints to the strata in future, and in that event, it would be in the owner’s best interest to do so at the time the noise is occurring. However, regardless of the possibility of the owner making future noise complaints, I find the strata must arrange to conduct an appropriate investigation, which includes arranging and paying for the professional noise testing to determine the duration, timing, and decibel level of the noise the bird is making. Enforcement of any bylaw contraventions would follow such a finding.

Has there been a contravention of the bylaws and, if so, what remedies are appropriate?

41.   As mentioned, the owner submitted a witness statement from a friend who lives in the same building which states that the bird appears in distress and its tweets are repeated like an alarm. She also says that the bird appears to be more active when the suite is vacant. The witness provided no evidence to support this assertion.

42.   The owner’s boyfriend also provided a statement saying that when he was at the owner’s strata lot he noticed that the bird was sometimes very loud and that the noise goes on for an hour or two. He also suggested that it appeared worse when the neighbours were not home. Again, it is unclear how this witness knew that the neighbours were not home. He said that the owner had been complaining about the noise for some time.

43.   I find that this statement indicates that the bird is making noise, but it does not establish how loud the noise is. I accept that the bird is making noise.

44.   The owner has provided audio samples she says shows the level of noise the bird makes. The audio clips are all very short and do not establish what time the noise occurred or how long the bird made the noise. I also note that the clips contain the sound of a bird chirping. None of them sound like the bird is in distress or anything approaching a scream as opposed to a chirp. Further, in some clips it sounds like the volume is turned up very high as the background noise is also amplified. I am unable to determine from the evidence provided that the bird is making an excessive or unreasonable amount of noise.

45.   I find that there is insufficient evidence to establish that the bird is making enough noise to violate the bylaws. As noted above, I find that a proper investigation needs to be carried out and bylaw contraventions established before the strata can take enforcement proceedings. At this time, the evidence is insufficient to make a finding that there was a contravention. Therefore, I find it is premature to order any bylaw enforcement remedies requested by the owner, such as fines or removal of the bird.

46.   Given my finding that bylaw contraventions have not been established, I also find the owner’s claim for damages have not been proven. The owner claims $4,000.00 in damages caused by the strata council’s delays and failure to carry out its duty to investigate the noise complaints and enforce the bylaws. She refers to Torok v. Amstutz et al, 2019 BCCRT 386, Moojelsky v. The Owners, Strata Plan K 323 et al, 2019 BCCRT 698 and Suzuki v. Munroe, 2009 BCSC 1403 in support of her position she is entitled to compensation for her loss of use and enjoyment of her strata lot.

47.   The owner says that the noise has been going on for a year and that the strata has ignored her complaints. I disagree with the owner’s version of what occurred and find that the owner first made a complaint to the strata in December 2018 and the focus of her evidence is that the strata did not investigate until she filed her application with the tribunal in March 2019.

48.   I also note that the cases the owner refers to all found that the there was an unreasonable or excessive amount of noise which interfered with the applicant’s use and enjoyment of their property. This has not been proven in this dispute. Therefore, I find that the owner is not entitled to compensation as she has not proved that she has sustained a loss of use and enjoyment of her property due to the unreasonable or excessive amount of noise that the bird is making.

TRIBUNAL FEES AND EXPENSES

49.   Under section 49 of the Act, and the tribunal’s rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. Here, the owner did not pay any tribunal fees and has not claimed any expenses. Therefore, I make no order about fees and expenses.

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

DECISION AND ORDERS

51.   I order that within 60 days the strata must arrange for a qualified professional to perform noise testing in the owner’s strata lot at its cost without providing advance notice to the neighbours. However, the owner must also pay her proportionate share for the testing cost. The strata must provide the owner with a copy of the testing results and make a determination based on the report whether the neighbours have contravened the bylaws, and if so, take appropriate steps to enforce the bylaws.

52.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia (BCSC), 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 123.1 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 a BCSC order.

53.   Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia (BCPC). However, the principal amount or the value of the personal property must be within the BCPC’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the CRTA, the owner can enforce this final decision by filing a validated copy of the attached order in the BCPC. The order can only be filed if, among other things, the time for an appeal under section 123.1 of the CRTA 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 a BCPC order.