Date Issued: June 26, 2020

File: ST-2019-009219

Type: Strata

Civil Resolution Tribunal

Indexed as: Auclair v. The Owners, Strata Plan NW1841, 2020 BCCRT 710

Between:

DUNCAN AUCLAIR

Applicant

And:

The Owners, Strata Plan NW1841

Respondent

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about enforcement of noise and ‘no rentals’ bylaws.

2.      The applicant Duncan Auclair owns unit 260 in the respondent strata corporation The Owners, Strata Plan NW1841 (strata).

3.      Mr. Auclair says the strata has failed to enforce its no rentals and noise bylaws against the owner of unit 377, who died in 2018. Unit 260, where Mr. Auclair lives with his spouse is located directly underneath unit 377. Mr. Auclair says that non-owners are now living in unit 377, causing excessive noise. Mr. Auclair seeks orders that the strata:

a.     enforce the noise bylaw,

b.    provide proof that the occupant of suite 377 is a family member of the registered owner,

c.    disclose strata bylaws and copies of correspondence between the owner and occupant of unit 377 and the strata, and

d.    disclose minutes of any strata council meeting where noise or problems involving unit 377 were discussed, pursuant to section 35 of the Strata Property Act (SPA).

4.      The strata denies Mr. Auclair’s claims and says it has enforced its bylaws.

5.      The strata says it has provided the documents that are the subject of Mr. Auclair’s disclosure requests. The strata asks me to dismiss the dispute.

6.      Mr. Auclair is self-represented. The strata is represented by strata council member BS.

JURISDICTION AND PROCEDURE

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

8.      The CRT 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 CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT 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 CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

Alleged Threatening Email

11.   In submissions, Mr. Auclair referred to having provided the CRT a “threatening” email, and responses, he had received from the strata.

12.   I have reviewed the evidence provided by Mr. Auclair and the strata. I make no finding about any alleged threatening email, because Mr. Auclair did not request any remedy arising from such a communication. Below, I address the remedies Mr. Auclair seeks in his Dispute Notice.

ISSUES

13.   The issues in this dispute are:

a.    Does the strata have a valid restriction on rentals?

b.    Has the strata taken reasonable steps to address Mr. Auclair’s noise complaints?

c.    If not, what is the appropriate remedy?

d.    Is Mr. Auclair entitled to proof that the unit 377 occupant is a family member of the registered owner?

e.    Must the strata provide disclosure of strata bylaws or copies of correspondence between the owner and occupant of unit 377 and the strata, and

f.     Must the strata disclose minutes of any strata council meeting where noise or problems involving unit 377 were discussed?

EVIDENCE AND ANALYSIS

14.   I have read all of the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.

15.   In a civil proceeding such as this, Mr. Auclair, as applicant, must prove his claims on a balance of probabilities.

Bylaws and Rules

16.   The applicable bylaws (Bylaws) are the Standard Bylaws under the SPA subject to a Bylaw 23 amendment filed at the Land Title Office (LTO) on October 5, 2011 and other amendments not relevant to this dispute.

17.   Bylaw 3 says that an owner, tenant, occupant or visitor must not use a strata lot in a way that causes unreasonable noise, a nuisance or hazard to another person, or unreasonably interferes with the rights of other persons to use and enjoy another strata lot.

18.   Under Bylaw 23, the strata may impose a fine on an owner or tenant to a maximum of $200 per bylaw contravention, or $50 per Rule contravention.

Background Facts

19.   Mr. Auclair lives in unit 260 with his spouse Christine Auclair.

20.   According to the strata plan, unit 377 and unit 260 are part of a 3-story wood-framed strata building, built in 1982.

21.   Between 2012 and 2015, the strata received letters from Ms. Auclair complaining of noise from suite 377. In turn, DH, the owner of suite 377, wrote back to say that her activities were not overly noisy and included cleaning and moving about her suite. DH noted that she also heard noises overnight but did not know their origin.

22.   On May 17, 2017, strata council met and noted that it had received a letter complaining about excessive noise and a “police situation” involving a suite. The minutes of the meeting do not identify the suite number.

23.   On June 26, 2018, strata council met. In the minutes, the council noted that it had received correspondence from an owner about noise transfer between floors. The strata council recorded that, due to the age of the building, a creaking noise is produced with even normal foot traffic. The strata council suggested that if owners wanted to replace the floor levelling compound throughout the building, they could do so by passing a resolution at an annual general meeting (AGM).

24.   In September 2018, DH passed away. In fall 2018, M moved into unit 377.

25.   On January 23, 2019 strata council met. The minutes record that council had received multiple noise complaints in the building. The minutes include a reminder from council for owners to be respectful to neighbouring units.

26.   On May 21, 2019, CH, executor of DH’s estate, wrote to strata council advising that her nephew, M, would be staying in suite 377, and that this was not a rental situation. Strata council wrote back that the change had been “noted”.

27.   On August 6, 2019, the strata wrote to DH about a complaint of noise on July 28 and 29, 2019.

28.   On August 28, 2019, strata council met. The minutes record that the strata council had been in contact with both owners regarding the noise complaint and had suggested an in-person meeting between them to attempt to resolve the issue. Because DH was already deceased by August 2019, I infer that the strata council meant that it had been in contact with DH’s executor, CH.

29.   On October 1, 2019, Mr. Auclair wrote to M indicating that he had observed loud banging and thumping on the floor starting at 7:30 a.m. that day. Mr. Auclair also reported hearing noise on September 29. Mr. Auclair asked if M could put felt on the bottom of their dining room chair legs to lessen noise transmission. Mr. Auclair sent a copy of the letter to strata council.

30.   On October 3, 2019, Ms. Auclair wrote to the strata council complaining of noise from unit 377.

31.   Also on October 3, 2019 CH, DH’s executor, wrote to the strata property manger denying any unreasonable noise from unit 377. CH pointed out that there had not been noise complaints about unit 377 from any unit other than unit 260.

32.   During the rest of October 2019, Mr. Auclair wrote to strata council several times about complaints of noise coming from unit 377. These reports included complaints of noise at 3:20 a.m. and 1:30 a.m. on separate mornings, and repeated reports of heavy-footed walking, thumping of the floor and noise slamming.

33.   On October 27, 2019, the strata property manager received an email from CH reporting that unit 377 had been threatened by an occupant of the unit below, resulting in police being called.

34.   In early November 2019, BH, another relative of M, emailed the strata property manager to say that M would be recording encounters with the unit 260 occupants because he was fearful about the way they banged on his door.

35.   On November 12, 2019, Ms. Auclair again emailed strata council reporting noise from Monday November 11, including “heavy walking and pacing”.

36.   On November 13, 2019 the strata council president CB wrote back to Ms. Auclair offering to provide a hand-held recording device to record the noises, so that strata council would have evidence to rely on in taking bylaw enforcement steps. CB also offered to attend at unit 260 if the Auclairs informed him when noise was observed.

37.   On December 18, 2019, Mr. Auclair wrote to strata council again to report noise observed on Monday December 16 at 5:30 pm, and at 5:30 a.m.

38.   On December 20, 2019, Mr. Auclair wrote to the strata council against to say that he was woken at 10:00 pm the night before by walking and thumping above, only to be woken again by door slamming and thumping on the bedroom floor at 3:15 a.m., with noise continuing until 6 am.

39.   On December 30, 2019, Ms. Auclair wrote to the strata council complaining of noise between 7:25 and 9:00 a.m. on December 29, 2019. Ms. Auclair reported “banging on the wall/floor”, after which her partner yelled “stop”, and then Ms. Auclair banged on the wall and went up to unit 377. Ms. Auclair said no one answered the door.

40.   On December 30, 2019, Ms. Auclair again wrote to strata council with a complaint of “door banging” and “excessive heavy walking and banging on the floor” starting at 5:40 pm that day.

41.   In January 2020, Ms. Auclair emailed strata council the following additional noise complaints:

a.    thumping and creaking at 6 am and 4:30 pm, occupants of unit 377 moving around with shoes on inside and closing doors heavily.

b.    noise from unit 377 from 5 pm onward, including heavy walking and door closing. Ms. Auclair wrote that she banged on the walls and that the unit 377 occupants banged back.

c.    noise occurring on January 14, 2020, from 5 pm until 10:15 pm, and then again at 4:30 am, including banging and thumping noises.

42.   On February 24, 2020, the strata council wrote to Ms. Auclair acknowledging her attendance at the February 17, 2020 strata council meeting. The strata council wrote that it would take the following steps to address the reported noise from unit 377:

a.    determine the rightful owner of unit 377 and determine who is legally allowed to be a resident/tenant/occupant,

b.    if appropriate paperwork was not provided, notify unit 377 that fines were an appropriate remedy,

c.    notify the unit owner, though it is not clear if the strata meant DH’s executor, of the Bylaw infringements regarding noise and provide them 14 days to respond.

d.    if no response was received, fines would be imposed. If a response would received, the council would consider it.

Does the strata have a valid restriction on rentals?

43.   Based on my review of the Bylaws, I find that the strata does not have a valid Bylaw restricting rentals.

44.   The strata ratified a set of rules (Rules) on September 18, 2008. One of the Rules reads: “Rentals are not allowed at 1440 Garden Place.”

45.   Under the SPA section 125(1) rules may govern the use, safety and condition of common property and common assets only. Section 141(2) of the SPA provides that a strata may only restrict the rental of a strata lot by bylaw. Rules cannot govern a strata lot.

46.   Accordingly, I find that there is no valid restriction on rentals in the strata.

Noise Bylaw Enforcement

47.   Mr. Auclair says the noise from unit 377 is unreasonable and interferes with his quiet enjoyment of his strata lot.

48.   The strata says that Mr. Auclair’s spouse has made noise complaints directed at unit 377 going back to 2009. The strata has offered to investigate further if Mr. Auclair will inform it when the noise is occurring, so that a strata council member might attend to observe and has also offered the loan of an audio recorder. The strata says it has informed both CH and M’s uncle of the noise bylaw issues. The strata say its buildings are wood-framed and over 30 years old, so everyday noises tend to transmit through walls and floors.

49.   The strata’s noise bylaw does not include quiet hours. Many of the noisy incidents being reported were during daytime hours and describe activities such as walking. I acknowledge that some of the noise was reportedly observed between 1 am – 4:30 am, which is unreasonable in terms of timing. However, Mr. Auclair did not prove that noise was occurring at those times, such as through an audio or video recording.

50.   The strata submits that without independent evidence to corroborate Mr. Auclair’s interpretation of the noise as unreasonable, it could not fine the unit 377 owner. The strata points out that Ms. Auclair previously complained against DH as well.

51.   The strata offered the Auclairs the use of a handheld recorder to record the noises so that it could assess whether the noise bylaw was violated. Mr. Auclair did not provide audio or video recordings of unreasonable noise coming from unit 377.

52.   The strata provided two videos, which record someone yelling at M or using profanity to address him. I find that neither video records unreasonable noise coming from unit 377.

53.   As well, the strata offered to have a member of strata council attend when the noise was occurring. Mr. Auclair did not contact them to listen to the noise. Instead, either he or his spouse tried to speak with the unit 377 occupant directly.

54.   In Cherry et al v. Section 2 of the Owners, Strata Plan BCS 1165, 2018 BCCRT 705, tenants brought an action against the residential section for failing to enforce the noise bylaws against the unit above them, who they claimed were continually “stomping". The applicants kept detailed notes of the dates and times they heard the alleged noise coming from the unit above. They reported the noise through emails and ultimately, a registered letter to the section and the landlord's agent.

55.   In Cherry, the caretaker attended at the applicants’ unit to hear the alleged noise as it was occurring. The caretaker determined the noise was not excessive. In 2017, the tenants of the unit above moved out but the applicants continued to complain of the same noise, even though the unit above was occupied by someone new. The CRT determined that the applicants failed to prove the Section did not act on their noise complaints. Although the decision Cherry is not binding on me, I find the analysis helpful and relevant.

56.   In this dispute, the strata has offered to attend at Mr. Auclair’s unit, and to loan a recording device, and has provided correspondence to unit 377. CH, who as executor I accept was in the shoes of the deceased registered owner, wrote back saying that the reported noises were caused by normal living activities, and not unreasonable.

57.   I find that Mr. Auclair has failed to prove on a balance of probabilities that the strata failed to take reasonable action to enforce its Bylaws: Cherry, paragraphs 25-26. Given the conflicting reports between Mr. Auclair and CH, independent evidence such as an audio or video recording or an observation by strata council would be required to demonstrate that the strata fell below this reasonableness standard. I also say this because the assessment of what constitutes unreasonable noise is challenging in an aged, wood-framed building.

58.   I find that the strata took appropriate steps to address Mr. Auclair’s noise complaints, as far as it could do so without Mr. Auclair’s further cooperation in the investigation. I dismiss Mr. Auclair’s claim to require the strata to enforce the noise bylaw by imposing a fine on unit 377’s owner or occupant.

59.   Nothing in this decision prevents Mr. Auclair from obtaining recordings of future noise coming from unit 377 or having a strata council member attend to observe noise. Mr. Auclair could then present the material to strata council for consideration.

Is Mr. Auclair entitled to proof that the unit 377 occupant is a family member of the registered owner?

60.   I have found that the strata does not have a valid Bylaw or rule prohibiting rentals.

61.   Therefore, I find it is not necessary to consider whether M is exempt from a rental restriction bylaw by virtue of being a family member of the current unit 377 owner. Neither party provided evidence proving who currently owns unit 377, though the strata submitted DH remains the registered owner.

62.   I dismiss Mr. Auclair’s claim for proof that the occupant of unit 377 is the registered owner’s family member as defined in section 8.1 of the Strata Property Regulation.

Document Production

63.   Mr. Auclair sought disclosure of the strata bylaws, correspondence between the owner and occupant of unit 377 and the strata, and disclosure of any strata council meeting minutes where noise issues or problems involving unit 277 were discussed.

64.   The strata submits that it has addressed these disclosure requests. Mr. Auclair did not provide submissions on this issue. The CRT provided copies of the strata’s bylaws as part of this dispute, so I find that part of the disclosure claim is resolved.

65.   Section 35(2)(k) of the SPA requires a strata corporation to retain copies of correspondence sent or received by the strata corporation and council. Strata Property Regulation 4.1 provides that such correspondence must be retained for a period of 2 years.

66.   Section 36 of the SPA states that a strata must make the records and documents described in section 35, other than bylaws and rules, available for inspection and provide copies of them to an owner within 2 weeks of a request. According to section 36(4), a strata may charge a fee for a copy of a record or document provided under this section.

67.   Because Ms. Auclair made no submissions on this issue, I find that any outstanding requests have been resolved through the document production in this dispute. If I am wrong, Mr. Auclair may make a request to the strata under section 35.

CRT FEES, EXPENSES

68.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. The strata was the successful party but did not pay any CRT fees or claim dispute-related expenses. I make no order for either.

ORDER

69.    I dismiss Mr. Auclair’s claims and this dispute.