Date Issued: March 31, 2020

File: ST-2019-008005

Type: Strata

Civil Resolution Tribunal

Indexed as: Yang v. The Owners, Strata Plan VR732, 2020 BCCRT 361

Between:

LI YANG

Applicant

And:

The Owners, Strata Plan VR732

Respondent

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This is a dispute about the application and enforcement of a nuisance and noise bylaw.

2.      The applicant Li Yang is the former owner of a strata lot (unit 406) in the respondent strata corporation The Owners, Strata Plan VR732 (strata).

3.      The applicant says that, since February 2016, the strata has harassed and brought unfounded allegations against her. At the same time, the applicant says the strata has failed to enforce her bylaw violation complaints against unit 415, located directly above her unit. Specifically, the applicant describes her complaints that:

a.    the owner of unit 415 uses her balcony as an office,

b.    ongoing noise from unit 415, and

c.    strata council members “snooping around” in the backyard.

4.      The applicant claims $5,000 for “pain and suffering” and asks for an order that the strata enforce the nuisance and noise bylaw against unit 415.

5.      The strata denies the allegations and asks that the dispute be dismissed.

6.      The applicant is self-represented. The strata is represented by council member WM.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

Standing

11.   The strata says many of the complaints were brought by the applicant’s spouse, KT, who it says lacks standing to bring a dispute before the tribunal.

12.   The strata says “all allegations in respect of [KT] should be dismissed as out of jurisdiction per s.121(e) and (f)” of the CRTA. Those CRTA sections give the tribunal jurisdiction over claims involving a decision, action or threatened action of a strata in relation to an owner or tenant.

13.   Under section 189.1 of the SPA, a strata corporation, owner or tenant may request that the tribunal resolve a dispute concerning any strata property matter within the tribunal’s jurisdiction.

14.   KT is not the applicant. The applicant owned unit 406. I find that the applicant’s claims are within the tribunal’s jurisdiction. To the extent that KT contributed to communications to the strata, I find that he did so on the applicant’s behalf. In my decision below, I have referred to KT’s correspondence as being from the applicant.

Alleged Harassment and Bias by Strata Council Members

15.    Section 10(1) of the CRTA says the tribunal must refuse to resolve a claim that it is outside its jurisdiction. Section 10(2) says claims that involve issues not within the tribunal’s jurisdiction may be amended to remove the issues that are outside the tribunal’s jurisdiction.

16.   For the following reasons, I find that owner’s claims about the strata council’s actions allegedly harassing her and showing favoritism toward the unit 415 owner are outside the tribunal’s jurisdiction, and I refuse to resolve them.

17.   The owner says that strata council members were biased, based on an alleged friendship between them and the unit 415 owner. These allegations that the council failed to act in the best interest of the owners arise under the SPA section 31.

18.   Section 31 sets out the standard that strata council members must meet in performing their duties. It says that each council member must act honestly and in good faith, with a view to the best interests of the strata, and exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances.

19.   In The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 267, the BC Supreme Court said that the duties of strata council members under the SPA section 31 are owed to the strata corporation, and not to individual owners. This means that a strata lot owner cannot be successful in a claim against a strata corporation for duties owed by its strata council members and that an owner cannot succeed in a claim against council members under section 31.

20.   Further, in Wong v. AA Property Management Ltd, 2013 BCSC 1551, the BC Supreme Court considered a claim brought by an owner against the property management company, individual council members, and the strata corporation. The owner alleged that the defendants had acted improperly in the management of the strata’s affairs. The court concluded that the only time a strata lot owner can sue an individual strata council member is for a breach of the conflict of interest disclosure requirement under section 32 of the SPA (at paragraph 36). Remedies for breaches of SPA section 32 are specifically excluded from the tribunal’s jurisdiction, as set out in CRTA section 122(1)(a). Thus, the tribunal does not have jurisdiction over claims brought by an owner against an individual strata council member.

21.   Following this tribunal’s decision in Ferreria v. The Owners, Strata Plan EPS867, 2020 BCCRT 239, I apply the binding court decisions in Wong and Sze Hang. I find the tribunal has no jurisdiction to decide the owner’s section 31 claims set out above. I therefore refuse to resolve those claims.

 

Human Rights Issue

22.   The applicant says that she did not want to attend a September 10, 2019 strata council meeting because she felt she had been called names at an earlier strata council appearance.

23.   This allegation is the subject of a British Columbia Human Rights Tribunal proceeding brought by the applicant. While this tribunal has the jurisdiction to apply the Human Rights Code, I find it unnecessary for me to decide whether the applicant was called names at the strata meeting: see The Owners, Strata Plan LMS 2900 v. Hardy, 2016 BCCRT 1. The claim before me is about bylaw application and enforcement. I find this is separate from the issue of whether strata council members treated the applicant in a discriminatory manner.

Former Owner

24.    SPA section 189.1(1) says that an owner or tenant may request that the tribunal resolve a dispute over any strata property matter over which the tribunal has jurisdiction. In previous decisions the tribunal has considered whether it has jurisdiction over disputes from former strata lot owners or tenants that sold their strata lots or moved out before filing their dispute. See, for example, the Vice Chair’s decision in Gill v. The Owners, Strata Plan EPS 4403, 2020 BCCRT 228, which concerns a former tenant.

25.   The applicant is a former owner of a strata lot. On September 30, 2019, the applicant submitted her application for dispute resolution to the tribunal. The Dispute Notice issued on October 11, 2019. In December 2019, the applicant sold unit 406.

26.   The parties did not raise the tribunal’s jurisdiction as an issue.

27.   Given the above, I find the applicant owned her strata lot when she filed her application for dispute resolution. She was therefore entitled at the time to request the tribunal to resolve this dispute under SPA section 189.1. I find the tribunal has jurisdiction to hear the applicant’s claim, even though she is a former owner.

 

Limitation Act Issue

28.   The Limitation Act provides a basic limitation period of 2 years within which to start a claim. A person is said to have discovered their claim on the first day when they knew or ought to have known that the loss or damage has occurred and was caused or contributed to by an act or omission by the party against whom a claim may be made.

29.   The applicant submitted her application for dispute resolution on September 30, 2019 and the Dispute Notice issued on October 11, 2019. The applicant filed correspondence going back to 2016. I reviewed the extensive correspondence that was filed in evidence. I accept that it establishes a history of conflict between the parties.

30.   I find that the applicant had discovered her claim regarding the noise complaint by January 8, 2018, by which point she had brought her September 30, 2017 noise complaint and would have realized it remained an unresolved issue according to strata council minutes. I find the applicant’s claim is in time with respect to noise complaints that were made in 2017 and still unresolved as of January 8, 2018. Given the limitation issue, I address the claim about noise complaints from incidents observed in 2017, but not before.

Mootness

31.   An issue is said to be moot where, after a dispute is started, events occur which affect the parties’ relationship so that no “present live controversy” exists affecting their rights: see Binnersley v. BCSPCA, 2016 BCCA 259 and Mitha et al v. The Owners, Strata Plan VR 2192, 2019 BCCRT 1259 at paragraphs 33-35.

32.   In this dispute, the applicant moved out of the strata. I find that this event eliminated the live controversy between her and the strata regarding ongoing bylaw enforcement. As a result, I find the former owner’s claimed remedy of ongoing bylaw enforcement is moot. I dismiss the applicant’s claim for ongoing bylaw enforcement.

33.   By contrast, the claimed remedy of damages remains a live issue. I say this because the applicant alleges that she endured unreasonable noise while still an owner, due to the strata’s failure to properly investigate and address her noise complaints. I find that the claim for damages is not moot.

ISSUES

34.   The issues in this dispute are:

a.    Did the strata properly investigate the applicant’s complaint about noise from unit 415 and, relatedly, did unit 415’s owner breach the noise bylaw?

b.    What remedy is appropriate?

POSITIONS OF THE PARTIES

35.   The applicant alleges the strata has failed properly to address her nuisance/noise bylaw complaints about unit 415.

36.   The strata says it has dealt with the applicant’s complaints as required under the SPA section 135. The strata says the strata council’s decisions not to fine the unit 415 owner were made in good faith.

BYLAWS

37.   The applicable Bylaws were filed at the Land Title Office (LTO) on December 8, 2009 subject to certain amendments that do not apply to this dispute. The relevant Bylaw excerpts are as follows.

a.    Bylaw 3.1 says that an owner, tenant, occupant or visitor must not use a strata lot in a way that causes unreasonable noise or a nuisance to another person.

b.    Bylaw 20.4 states that a council may not delegate its powers to determine, based on the facts of a particular case, whether a person has contravened a bylaw or rule, whether a person should be fined, the amount of the fine, or whether a person should be denied access to a recreational facility.

c.    Bylaw 23.1 says the strata may fine an owner $200 for each bylaw contravention.

d.    Bylaw 23.2 says the strata may impose a fine on an owner for a continuing contravention of a bylaw every 7 days.

BACKGROUND

38.    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 like this one, the applicant must prove their claims on a balance of probabilities.

39.   The strata consists of 167 units, including 122 wood frame townhouses. In one of the townhouse structures, unit 406 is a ground floor unit, with unit 415 situated directly above it.

40.   In January 2010, SK purchased unit 415.

41.   In December 2015, the applicant purchased unit 406. The applicant conducted some approved renovations on unit 406 after she moved in.

42.   I find the evidence proves that, from at least 2016 until the applicant sold unit 406 in December 2019, SK and the applicant had a high-conflict relationship where complaints to the strata were regularly traded between them.

43.   On July 19, 2017, the strata wrote to the applicant reporting that it had received a complaint about “various loud noises” emitting from her unit. The strata offered an opportunity for response under the SPA section 135.

44.   On August 10, 2017, the applicant wrote to the strata to complaint of an unsafe “plant and other sharp object” hanging from the unit 415 balcony.

45.   On August 17, 2017, the applicant wrote to the strata complaining that SK from unit 415 was using her balcony as an office for her client calls.

46.   On August 25, 2017, the strata wrote to the applicants acknowledging receipt of August 10 and 17 letters form them about noise and planter concerns about unit 415. The strata also returned a USB drive due that the applicants had earlier submitted as evidence regarding noise complaints about unit 415, due to potential IT threats.

47.   On August 25, 2017, the strata wrote to SK about the complaint regarding her plant/object and the concern that she was taking business calls from her patio daily. The strata asked that SK be mindful of any noise transfer occurring due to these calls and asked that she keep disruption to a minimum. In this letter, the strata did formally warn SK that it might consider fining her.

48.   On September 26, 2017, SK emailed the strata to respond to a complaint letter dated August 25, 2017. SK noted that her patio conversations were in a “normal voice” and that her neighbour below was a smoker. SK also reiterated her complaint about barbeque smoke from unit 406.

49.   On September 30, 2017, the applicant wrote to the strata reporting noise complaints from unit 415. The complaints may be summarized as follows:

a.    loud telephone conversations on the unit 415 balcony

b.    dragging furniture in early morning hours (as early as 3:15 a.m.), frequently

c.    water running in bath tub of unit 415 at 2:00 a.m. daily

d.    walking

e.    objects dropped on the floor

f.     one report of the smell of pot smoke

50.   On October 11, 2017, the strata wrote back to the applicant acknowledging her September 30, 2017 letter. The strata wrote that it would obtain direction from strata council and respond shortly.

51.   The parties did not file the strata’s correspondence from 2018. However, the 2018 strata council minutes show that the strata council continued to consider the noise complaints in January, April, and May 2018. Reference to the noise complaints in those minutes are often so general that I cannot determine what steps the strata was taking at the time. It is uncontested, and I find, that the strata did not ultimately impose fines against the unit 415 owner for the September 30, 2017 noise complaints.

52.   On January 22, 2019, the applicants wrote to the strata complaining of a “squelch noise” at 4:00 a.m. on January 21, 2019.

53.   On January 27, 2019 the applicants wrote to the strata to complaint of noise from unit 415, which included objects being dropped and furniture dragged across the floor of unit 415 at 6:10 a.m. that day.

54.   On March 8, 2019, the strata wrote to SK about further noise complaints it received regarding a squelch noise and a nuisance observed in January 2019. The letter complies with the SPA section 135.

55.   The applicant reported that on July 30, 2019, the unit 415 resident was using her balcony for a phone call, at 9:15 at night, and using profanity in the conversation.

56.   On August 11, 2019, applicant’s husband KT wrote to strata council requesting an appearance at September 10, 2019 strata council meeting.

57.   On August 27, 2019, the applicant wrote to the property manger RLG and reported noise from an object being moved across the floor of unit 415, on August 26, 2019 at 5:10 a.m.

58.   On September 10, 2019, KT attended a strata council meeting on behalf of the applicant.

59.   At the hearing, KT recorded his appearance. I have listened to the recording. During the appearance KT played some recordings of noise that was reported coming from unit 415.

60.   The applicant referred to having a USB driving containing more than 100 .wav files with recordings of noise from unit 415. I find that some of those recordings were of noise issues observed in 2017. I have reviewed those audio files the applicant provided in evidence. I find that some of these audio files were on the USB that the applicant tried to submit to the strata at least twice, but which was returned or refused, due to the possibility of a security threat.

61.   In many instances, the quality of the recordings is poor. In the recording that the applicant played at a strata council meeting, I cannot tell who is speaking or what they are saying. Someone on the recording occasionally uses profanity.

62.   In a few of the recordings filed in evidence here, a person who I find is SK can be heard yelling on her phone and using repeated profanity on 3 separate occasions. In one instance, after about 6 minutes of recording, KT can be heard interrupting SK, using profanity himself, and saying that he does not “have to listen” to her all the time.

63.   On September 19, 2019, the strata wrote to SK asking for her response to a complaint of excessive noise, including one occurrence at 11:00 p.m., and a “notable incident” on July 30, 2019 where profanity could be heard in a neighbouring unit. The letter complies with section 135 of the SPA.

64.   Based on the evidence before me, it appears that the strata did not decide what to do about this most recent noise complaint because applicant submitted her application for dispute resolution with the tribunal on September 30, 2019.

65.   In December 2019 the applicant sold unit 406.

Statement of Strata Manager DB

66.   The strata provided a statement from DB the strata manager. DB’s statement includes the following relevant observations:

a.    DB reviewed the strata’s records regarding the noise complaints made by the applicant’s unit against unit 415, for a 4-year time period from January 2016 to December 2019.

b.    Over that time period, the only complaints about unit 415 serious enough to trigger sending a formal noise violation infraction letter were from the applicant.

c.    In terms of the rest of the strata, the only noise fines levied during that 4-year period were 2-$200 fines against a single unit not involved in this dispute.

Statement of Strata Council President WM

67.   The strata also provided a statement from strata council president WM. I summarize WM’s evidence as follows:

a.    WM denies that any strata council members were “snooping around” as the applicant alleges. WM says members of strata corporation are obliged to perform certain routine inspections of the building and property for maintenance and bylaw enforcement purposes.

b.    WM says strata council did not download the audio files from the applicant’s USB drive due to security concerns.

Did the strata properly investigate and act upon the noise and nuisance complaints against unit 415 under the SPA?

68.   Section 26 of the SPA says that the strata council must exercise the power and perform the duties of the strata corporation, including bylaw enforcement.

69.   Section 129 of the SPA says that the strata can enforce a bylaw by imposing a fine (section 130), remedying a contravention by doing what is “reasonably necessary” (section 133) or denying access to a recreational facility (section 134). Before enforcing a bylaw, the strata may give a warning or time to comply (section 129(2)). The strata is not required to impose a fine for every bylaw violation.

70.   Section 135 of the SPA sets out a procedure for investigating a complaint, which includes providing the subject owner or tenant the opportunity to be heard, before any fine is levied. This protection is for the benefit of the owner or tenant that is the subject of the complaint, not the person making the complaint. Notably, there is otherwise no particular complaint procedure set out in the SPA and a strata council is permitted to deal with complaints of bylaw violations as the council sees fit, so long as it complies with the principles of procedural fairness and is not “significantly unfair” to any person who appears before the council (Chorney v. Strata Plan VIS 770, 2016 BCSC 148 (CanLII)).

71.   I am empowered under section 123(2) of the Act to make orders related to findings of significant unfairness: see Torok v. Amstutz et al 2019 BCCRT 386. As discussed further below, I find the strata’s approach has been significantly unfair to the applicant.

72.    In The Owners, Strata Plan BCS 1721 v. Watson, 2017 BCSC 763 (CanLII), the court restated the test for determining significant unfairness as set out in Dollan v. Strata Plan BCS 1589, 2012 BCCA 44 (CanLII). While that test was considered under section 164 of the SPA, as referenced above I find it would equally apply to an analysis under section 123(2). In Watson the court stated:

The test under s. 164 of the [SPA] also involves objective assessment. [The Dollan decision] requires several questions to be answered in that regard:

a.  What is or was the expectation of the affected owner or tenant?

b.  Was that expectation on the part of the owner or tenant objectively reasonable?

c.  If so, was that expectation violated by an action that was significantly unfair?

73.    I find the applicant had a reasonable expectation that the strata would investigate her noise complaint, including reviewing the audio evidence, and that the strata would address the noise bylaw violation the recordings revealed.

74.    I find that the in strata’s investigation obligation extended to listening to her audio recordings of the alleged noise. Procedural fairness dictates that the evidence should have been reviewed. I find that the strata council failed to consider the relevant evidence, and therefore failed to investigate the noise bylaw violation as required by the SPA.  Strata council could have taken scanned the USB drive, or requested the evidence in some other format, to protect against computer system risks.

75.   In a strata setting, nuisance is defined as an unreasonable continuing or repeated interference with a person’s enjoyment and use of their strata lot (see The Owners, Strata Plan LMS 3539 v. Ng, 2016 BCSC 2462). This conduct, as well as unreasonable noise of any kind or duration, is also prohibited under bylaw 3.1.

76.   I find the evidence establishes that the unit 415 owner used her patio frequently for phone calls. The patio is limited common property (LCP) designated for her exclusive use, so the bylaws cannot ban her from speaking in that area. The applicant found the calls increasingly irritating, saying that she should not have to overhear the applicant’s personal calls at all hours. Given the proximity of the strata units, I find that some of the time the unit 415 owner was using her LCP patio in a permissible way.

77.   However, an owner can cause a nuisance or unreasonable noise if they use their LCP area in a disruptive manner. The audio recordings prove that on 3 occasions SK used her patio to have phone conversations that were unreasonably loud and included yelling and profanity.  I find that these uses infringed on applicant’s ability to enjoy her unit and were violations of Bylaw 3.1.

78.   While the strata was responsive to the applicant’s complaint letters, it then failed to enforce the bylaws against the unit 415 owner even when presented with audio evidence proving an unreasonable level of noise on the unit 415. Instead, the strata returned the audio evidence without reviewing it. At least once, the strata wrote to the owner saying that the dispute was “between owners” and the strata council declined to become involved. While promoting resolution between owners may be helpful in some instances, the strata must conduct a fair investigation and enforce its bylaws in a consistent way.

79.   While I agree that these owners were trading complaints as part of long-term high conflict interaction, that does not absolve the strata of its SPA obligation to enforce the bylaws where warranted. The strata should at least have issued a SPA-compliant warning to SK, noting its ability to fine her. Without that step, followed by a fine if the warning was ineffective, the applicant was not afforded enforcement that may have stopped further incidents of unreasonable noise.

80.   I find that the strata failed to properly investigate the applicant’s noise complaint against the unit 415 owner.  I find that a reasonable investigation would have proven a noise bylaw violation by the unit 415 owner.

Is the applicant entitled to the claimed $5,000 in damages for pain and suffering?

81.   The applicant seeks $5,000 in damages for “pain and suffering.” I find that her claim is for damages for the ongoing noise from unit 415.

82.   For the following reasons, I find the applicant is entitled to $500 in damages. I have adopted the tribunal vice-chair’s analysis in Bahmutsky v. Petkau 2020 BCCRT 244, which I find applicable though it is non-binding.

83.    In Ng, the BCSC said that in cases of nuisance, a remedy should be made without undue delay once the respondent is aware of the nuisance.  I find this rationale equally applicable to the noise complaint here. In that case, the court found that a strata lot owner had brought to the strata’s attention facts that required investigation, and failure to conduct that investigation amounted to an omission to use reasonable care to discover the facts.

84.   A tribunal vice chair applied the reasoning in Ng in Chen v. The Owners, Strata Plan NW 2265, 2017 BCCRT 113. In Chen, a strata lot owner complained to the strata about noise from a common property hot tub pump. The vice chair found the strata failed to properly investigate and remedy the noise nuisance caused by the pump for 2.5 years, which was significantly unfair to the owner. The vice chair awarded the owner $4,000 in damages for loss of enjoyment of her strata lot.

85.   The tribunal applied Ng in a case of floor noise in a strata, in Torok v. Amstutz et al, 2019 BCCRT 386. In Torok, the tribunal awarded damages to an owner, based on a finding that the strata had failed to investigate or remedy her complaints of floor noise from an upstairs strata lot.

86.   While Chen and Torok are not binding precedents, they establish that the strata may be liable for damages where it takes insufficient steps to investigate nuisance complaints and enforce its bylaws. In this case, I find the strata has failed to properly investigate the noise from unit 415 and enforce its noise bylaw, which was significantly unfair to the applicant.

87.    Applying the test for significant unfairness set out in Dollan, I find the applicant had an objectively reasonable expectation that the strata would enforce its bylaws. This duty is set out in SPA section 26.

88.   I find the strata did not meet its statutory duty to enforce its bylaws, which was significantly unfair to the owner.  

89.   Based on Chen and Torok, discussed above, I find that the sum of $500 in damages is reasonable, given the occasional but unpredictable and unreasonable noise from unit 415. In assessing these damages, I have considered that only 3 incidents of unreasonable noise were proven.

TRIBUNAL FEES, EXPENSES AND INTEREST

90.   Under section 49 of the CRTA, 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. I see no reason in this case not to follow that general rule. The applicant was only partly successful, given the $500 damages awarded relative to the $5,000 damages claimed. I therefore order the strata to reimburse the applicant for 25% of the $225 tribunal fee, being $56.25. The applicant did not claim dispute-related expenses.

91.   I find the applicant is also entitled to pre-judgement interest on the $500, under the Court Order Interest Act (COIA), from September 10, 2019 which was the date of the strata council hearing. The interest equals $5.45.

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

ORDERS

93.   I order that within 30 days of this decision, the strata pay the applicant a total of $561.70, broken down as:

a.    $500 in damages,

b.    $5.45 in interest under the COIA, and

c.    $56.25 in tribunal fees.

94.    The applicant is also entitled to post-judgement interest under the COIA.

95.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing a validated copy of the attached order in the Supreme Court of British Columbia (BCSC). Once filed, a tribunal order has the same force and effect as a BCSC order.

96.   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 applicant can enforce this final decision by filing a validated copy of the attached order in the BCPC. Once filed, a tribunal order has the same force and effect as a BCPC order.