Date Issued: February 25, 2020
File: ST-2019-002325
Type: Strata
Civil Resolution Tribunal
Indexed as: The Owners, Strata Plan K351 v. 0985028 B.C. Ltd., 2020 BCCRT 215
Between:
The Owners, Strata Plan K351
Applicant
0985028 B.C. LTD.
RESPONDENT
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REASONS FOR DECISION |
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Tribunal Member: |
Kathleen Mell |
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INTRODUCTION
1. The respondent, 0985028 B.C. Ltd., (owner), owns a commercial strata lot in the applicant strata corporation, The Owners, Strata Plan K351 (strata). This dispute is about whether the owner breached the strata’s bylaws by making too much noise.
2. The strata requests $1,300.00 for noise bylaw infractions occurring over the last two years. The strata also requests an order that the owner abide by the noise bylaws. The strata is represented by a strata council member.
3. The owner says it requires proof that it violated the bylaws. It submits that it is not making excessive noise. It says that it spent a large amount of money to control the sound coming from the strata lot but that the strata keeps changing the rules about the allowable level of noise. The owner questions which noise bylaw is enforceable. The owner is represented by BP who I infer is the principal.
JURISDICTION AND PROCEDURE
4. 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.
5. 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 “it 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.
6. 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.
7. 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
8. The issues in this dispute are:
a. Did the owner breach an enforceable bylaw?
b. If so, must the owner pay the fines?
c. Should the owner be ordered to stop breaching the bylaw?
EVIDENCE, FINDINGS AND ANALYSIS
9. In a civil dispute such as this, the applicant must prove its claim. It bears the burden of proof on a balance of probabilities.
10. While I have reviewed all of the material provided, I have only commented below on the evidence and submissions necessary for this decision. I note that there is a letter to a liquor inspector from 2010 which I was initially unable to open. I requested that the applicant resubmit the evidence and then gave the parties an opportunity to comment on it.
11. The applicant submits that it included this piece of evidence to show the history of the difficulty it had with a bar operating in the strata. The respondent submits that this evidence predates the time it owned the strata lot. I agree and find this piece of evidence irrelevant. This is especially so given my conclusion that the strata was attempting to enforce invalid bylaws when it fined the owner after 2015.
Did the owner breach an enforceable noise bylaw?
12. In July 2015 the bylaws were amended and took out a previous reference to an allowable noise decibel level. On December 1, 2015, the strata sent the owner a letter stating that he was in violation of bylaws 3.1(a), (b) i through ix and bylaw 3.1(c). Bylaw 3.1(a) says that an owner, tenant occupant of visitor must not use a strata lot in a way that causes a nuisance or hazard to another person.
13. Bylaw 3.3.1 (b) (i) states that the owner must not use a strata lot in a way that causes unreasonable noise and disturbance. Bylaw 3.3.1(b) (ii) addresses not only noise but anything that causes a vibration. I note that many of the complaints deal with the bass of the music causing things to vibrate in other strata lots. Bylaw 3.3.1 (iii) says that quiet hours are from 11 pm until 7 am.
14. Bylaw 3.3.1(b)(iv) states that any noise audible within two or more strata lots other than the one from which the disturbance originated, or which caused perceptible vibration of walls or objects within any strata lot, was deemed unreasonable if it occurred during quiet hours. Subsection (ix) also states that no person is allowed to operate stereophonic equipment during quiet hours that could be heard inside a neighbouring dwelling.
15. Bylaw 3.1(c) says that an owner must not use a strata lot in a way that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot.
16. The other bylaws address other examples of noises which would infringe the bylaws but since I find the bylaws are unenforceable, I will not duplicate each one here.
17. The strata began to levy fines on December 15, 2015. The strata continued to find violations of the same bylaws listed above in each of the subsequent bylaw infraction letters. It provided letters outlining the violations from January, February, March, April 2016. As well as January, February, March 2017, and December 2018. There were two additional letters in January and March 2019.
18. The strata says that it is only requesting payment of the fines for the last two years because the earlier fines are statute barred by the Limitation Act (LA). I note that bylaw fines are not subject to the LA. However, given my conclusion that fines should not have been imposed because the bylaws were improperly passed after the owner bought the strata, I need not consider the impact of the LA on this dispute.
19. The strata acknowledges that it passed the 2015 amendments to bylaws incorrectly and that it specifically did not get the needed commercial vote required by the Strata Property Act (SPA).
20. Under sections 126 and 128(1)(c) of the SPA, the only way to pass bylaw amendments applicable to the whole strata corporation, in a strata corporation with both residential and non-residential strata lots, is to hold separate votes for residential and non-residential owners. Section 128(1)(c) states in the case of a strata plan composed of both residential and nonresidential strata lots, the approval must be by both a resolution passed by a 3/4 vote of the residential strata lots and a resolution passed by a 3/4 vote of the nonresidential strata lots, or as otherwise provided in the bylaws for the nonresidential strata lots.
21. I asked the parties to make submissions about which bylaws are enforceable. The strata agreed that later amendments were passed incorrectly and says only the “original” 2008 bylaws are enforceable which state that an owner, tenant, occupant or visitor must not use a strata lot in a way that at any time causes unreasonable noise and that quiet hours are from 11 a.m. to 7 p.m.
22. The owner says that its strata lot contains a brewery, bar, and restaurant. The owner bought the commercial strata lot in 2013. The owner’s commercial strata lot is the only one in the strata. It notes that a bar has been operating out of this location for 40 years. It submits that this began before the residential strata lots were built.
23. The owner states that every noise bylaw amendment since it bought the property was improperly passed because it is the only commercial owner and it has never had an opportunity to vote. The owner also says it does not know if this was true of the previous commercial owner.
24. Based on the submissions from both parties, I find that the 2015 amendments are unenforceable. The amendments were not properly passed because the resolution was not passed by a ¾ vote of the nonresidential strata lot owners. I again note that the strata does not dispute this.
25. However, the strata says that the fines should still be upheld because they contain the crux of the bylaw from 2008, which it submits is valid, saying that no owner can cause unreasonable noise and that quiet hours are from 11 a.m. to 7 p.m. I again note that the strata has not shown that the 2008 bylaws were correctly passed. It has also not elaborated on what is an unreasonable amount of noise and how this can be determined.
26. The owner says that he has tried to abide by the noise bylaw but that the strata kept changing what the acceptable noise standards were. In December 2015, the owner provided the strata with a letter of assurance saying it would abide by the City of Vancouver’s bylaw about appropriate levels of noise and that the sound pressure was now set to a lower volume and that they were locked into the operating system. The owner said he was unable to change them and only the certified programmer had the password. I note that the strata is not located in Vancouver but its bylaws were used because they specified a decibel range.
27. In 2016 the owner made changes to the interior of the strata lot to allow for a micro-brewery. The noise complaints escalated after this and the strata believes that extending the room and making alterations to the ceiling allowed more noise to enter other strata lots.
28. The owner responded to some of the complaints on January 23, 2017 and said that it could not be in violation of the bylaw because of the noise suppression devices it had installed. It noted that other strata lots had house parties in the building and the noise could be coming from them.
29. The owner says that it did not receive enough information about the complaints against it. The owner says it tried to comply with the bylaws but that the strata kept changing the rules on what was permissible. He asks that the strata provide some measurable standard as to what violates the bylaw.
30. The courts have determined that the Strata Property Act (SPA) permits a strata corporation to deal with matters of bylaw complaint violations as it sees fit, provided it complies with the principles of procedural fairness and its actions are not significantly unfair to any person who appears before it. (See Chorney v. Strata Plan VIS 770, 2016 BCSC 148)
31. The requirements of section 135 of the SPA are essentially the principles of procedural fairness contemplated in Chorney. This includes the right to know the details of the complaint, the right to answer the complaint, and the right to a decision. I find the strata did not follow the requirements of section 135 when it addressed complaints about the noise. The strata provided the owner with letters of complaint and made findings that they established violations, but these were based on unenforceable bylaws.
32. Because the strata was enforcing invalid bylaws, its violation letters did not properly indicate to the owner the specific complaints against him which could be valid complaints. As noted, some of the complaints go to bass levels causing vibrations. These are aspects of the unenforceable bylaws. Further, the owner was led to believe that unreasonable levels of noise no longer had anything to do with measurable decibel levels, but just whether it was audible. This test is also contained in the invalid amendments.
34. The strata says that the owner is also in breach of the bylaw that says that the owner, tenant, occupier, or visitor must not use the strata lot in a way that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot.
35. The letters from the strata to the owner focus on whether the owner was making an unreasonable amount of noise and determined he was under the improperly passed bylaws. Because I have found that the strata has not shown that the owner was making an unreasonable amount of noise, I also find that the strata has not shown that the owner unreasonably interfered with the rights of others to use their strata lots by making an unreasonable amount of noise.
36. Therefore, I find the strata did not follow proper procedure in imposing fines because it was attempting to impose fines under the 2015 unenforceable bylaws. It also did not establish that the owner breached an enforceable bylaw. Accordingly, the owner is not required to pay the fines.
Should the owner be ordered to stop breaching the noise bylaw?
37. Because I have found that the strata has not proved that the owner has breached an enforceable noise bylaw, I decline to make an order that he stop breaching noise bylaws in the future.
TRIBUNAL FEES AND INTEREST
38. 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. As the strata was unsuccessful in this dispute, it is not entitled to have its tribunal fees reimbursed.
39. The strata must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the applicant owner.
ORDER
40. I dismiss the strata’s claims and this dispute.
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Kathleen Mell, Tribunal Member |