Date Issued: November 2, 2020

File: ST-2020-001486

Type: Strata

Civil Resolution Tribunal

Indexed as: Moojelsky v. The Owners, Strata Plan K 323, 2020 BCCRT 1239

Between:

CARRIE MOOJELSKY

Applicant

And:

The Owners, Strata Plan K 323

Respondent

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      This dispute is about noise transmission between strata lots in a multi-story residential building. The applicant, Carrie Moojelsky, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan K 323 (strata). Ms. Moojelsky says footstep noise from the strata lot above her (unit 309) is disturbing her. Ms. Moojelsky and the strata were involved in a previous CRT dispute in which a tribunal member found this noise was a nuisance and a violation of the bylaws. The tribunal member ordered the strata to hire a structural engineer to investigate the source of the noise. Ms. Moojelsky says the strata has not made the improvements recommended in the engineering report and the noise has continued.

2.      Ms. Moojelsky asks for an order requiring the strata to enforce its noise bylaws against unit 309. Ms. Moojelsky also asks for damages in the amount of $5,000 for continued loss of use and quiet enjoyment of her strata lot. She also asks for $10,000 in punitive damages. Ms. Moojelsky also requests an order requiring the strata to install premium high-quality underlay to all of the flooring in unit 309 to reduce footstep noise.

3.      The strata denies the claims. It says that has fully complied with the previous CRT decision and it has treated Ms. Moojelsky fairly.

4.      Ms. Moojelsky is self-represented. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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.

9.      This dispute relates to a previous CRT dispute, ST-2018-006828, decided on June 7, 2019 (2019 decision). Since that dispute was heard by the CRT and the decision published on the CRT’s website, I rely on the published decision, but not the evidence in the prior dispute.

ISSUES

10.   The issues in this dispute are:

a.    Has the strata treated Ms. Moojelsky significantly unfairly by not enforcing its bylaws? If so, what is the remedy?

b.    Has the strata treated Ms. Moojelsky significantly unfairly by not installing an underlay in unit 309? If so, what is the remedy?

BACKGROUND AND EVIDENCE

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

12.   In a civil proceeding such as this, the applicant owner must prove her claims on a balance of probabilities.

13.   The strata was created on August 26, 1980 and consists of 33 strata lots in a 3-storey residential building.

14.   On October 30, 2001, the strata amended all of its bylaws by filing an entire new set of bylaws at the Land Title Office. I find these bylaws apply to this dispute and the following bylaws are relevant:

a.    Bylaw 4 says the strata must repair and maintain common property (CP) and strata lots relating to the structure of the building.

b.    Bylaw 31(1) says an owner must not use a strata lot in a way that causes a nuisance, causes unreasonable noise or unreasonably interferes with the rights of other persons to enjoy their strata lot.

c.    Bylaw 36(1) says owners must not make noise that creates a nuisance or unreasonably interferes with other owners’ use and enjoyment of their strata lot. Quiet hours are in effect from 11:00 pm to 7:00 am.

15.   As discussed above, this dispute is related to a previous dispute, ST-2019-006828. In the 2019 decision, the tribunal member found that footstep noise coming from unit 309 was a nuisance and violated bylaws 31(1) and 36(1). The tribunal member ordered the strata to pay Ms. Moojelsky damages and to hire a qualified structural engineer to investigate the source of the noise in Ms. Moojelsky’s strata lot, and to identify the best way to eliminate or reduce the noise within 60 days. It is undisputed that the strata paid Ms. Moojelsky the damages ordered and hired a structural engineer to investigate the noise.

16.   The engineering firm completed its report on November 4, 2019 (report). The report says that the flooring in unit 309 consists of multiple flooring materials including laminate flooring, carpet and tiles. The report says that there is a foam underlay under the laminate flooring. The report notes that a foam underlayment can get crushed over time which reduces its effectiveness as a sound barrier. However, the report did not express an opinion about the condition of unit 309’s underlayment.

17.   The engineering firm tested noise transmission by walking and running in unit 309 while observing the resulting noise in Ms. Moojelsky’s strata lot. The report says that noise could be heard in Ms. Moojelsky’s strata lot during this test. The report noted that the noise transmission was similar through unit 309’s laminate flooring and carpet.

18.   The report says the engineering firm also performed the same test in units 308 and 208. The reports says the noise transmitted through these strata lots was similar to the noise transmitted between unit 309 and Ms. Moojelsky’s strata lot. The report says that, since the level of noise transmission was similar in other strata lots, the noise transmission into Ms. Moojelsky’s strata lot is not excessive. However, CB, a neighbor residing in unit 208, says that she was present during the engineering footstep study and she says the noises were more muffled in her strata lot than they were in Ms. Moojelsky’s lot strata during the tests. I am unable to determine with confidence whether CB’s observations or the report’s findings relating to the noise transmission during the test are more accurate because the engineering firm did not use sound measuring equipment to objectively measure the sound volume during their tests. In the absence of objective measurements, I am not satisfied that the engineering firm had a sufficient basis to determine whether the noise transmission was excessive. So, I put no weight on the engineering firm’s opinion that the noise transmission into Ms. Moojelsky’s strata lot is not excessive in my decision.

19.   The engineering report says the installation of a premium high-quality underlayment under unit 309’s flooring would reduce sound transmission but it would not completely eliminate the noise. Further, the report says a new underlay may not provide the amount of sound dampening desired. The report also says the installation of an additional layer of drywall ceiling in Ms. Moojelsky’s strata lot could help but it would only provide a minimal improvement. The report also says that the floor assemblies could be modified to reduce noise but this would be difficult and expensive. The report also says this would require an acoustical engineer.

20.   Ms. Moojelsky claims that the noise nuisance is continuing. She says the footstep noise has not stopped and she has been exposed to daily noise from unit 309. She claims that she is regularly awakened by noise and disturbed throughout the day.

21.   Ms. Moojelsky complained of footstep noise on November 28, 2019; December 17, 2019; January 22, 2020 and February 5, 2020. Ms. Moojelsky provided logs of numerous noise complaints. Ms. Moojelsky requested a hearing on January 29, 2020 which was held on February 5, 2020. The strata issued a decision on February 11, 2020 denying Ms. Moojelsky’s request to soundproof the floor of unit 309.

22.   The strata sent a notice of a bylaw violation to the owners of unit 309 on February 14, 2020. The strata says unit 309’s owners responded and said that they are tiptoeing in their strata lot to avoid making noise. TM, an owner of unit 309, says they are very careful to avoid making any noise. TM also says that Ms. Moojelsky started banging loudly on her ceiling if they made any noise.

23.   The strata argues that it has fully complied with the 2019 decision and the engineering report shows that noise transmitted into Ms. Moojelsky’s strata lot is not excessive and repairs are not guaranteed to eliminate the noise.

REASONING AND ANALYSIS

24.   Ms. Moojelsky argues that the strata must take action to enforce its bylaws to prevent noise from unit 309. She argues that the 2019 decision has already decided that the footstep noise from unit 309 is a nuisance and a violation of strata bylaws. The strata says that the engineering report shows that the noise from unit 309 is not excessive and therefore not a nuisance.

Is the noise from unit 309 a nuisance and a violation of the bylaws?

25.   When an issue has already been decided in a previous dispute, the legal doctrine of issue estoppel can prevent parties from re-arguing the same issue again. In Erschbamer v. Wallster, 2013 BCCA 76 (CanLII), the British Columbia Court of Appeals says the requirements for issue estoppel are (1) that the same question has been previously decided; (2) that the previous decision was final; and, (3) that the previous decision involved the same parties. I find that the issue of whether footstep noise from unit 309 constitutes a noise nuisance in violation of the bylaws was decided in the previous dispute. I find that the 2019 decision was a final decision. Further, I find that the 2019 decision and the current dispute involve the same parties since all of the parties in this dispute were also parties to the ST-2019-006828 dispute. I find that all of the requirements of issue estoppel apply. So, I find that the 2019 decision has already established that unit 309’s footstep noise is a nuisance and I will apply that finding in this dispute.

26.   Based on Ms. Moojelsky’s multiple complaints, which are supported by her noise logs, I am satisfied that unit 309’s footstep noise has continued.

Has the strata treated Ms. Moojelsky significantly unfairly by not enforcing its bylaws?

27.   Section 26 of the SPA says that a strata corporation must enforce its bylaws and rules, subject to some limited discretion, such as when the effect of the breach is trivial (see The Owners, Strata Plan LMS 3259 v. Sze Hang Holdings Inc., 2016 BCSC 32). The strata council has some discretion over whether to enforce its bylaws in certain circumstances, but that discretion is limited, particularly in circumstances where the strata owners have a reasonable expectation that the bylaw will be consistently enforced. A strata corporation need not enforce a bylaw, even if there is a clear breach, where the effect of the breach on other owners is trifling (see Ranchod v. The Owners, Strata Plan KAS 2112, 2019 BCCRT 1001).

28.   A strata may investigate bylaw contravention complaints as it sees fit, provided it complies with the principles of procedural fairness and is not significantly unfair to any person appearing before the council (see Chorney v. Strata Plan VIS 770, 2016 BCSC 148). The standard of care that applies to a strata council is not perfection, but rather “reasonable action and fair regard for the interests of all concerned” (see Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74 at paragraph 61) Further, section 27(2) of the SPA states that the owners may not interfere with council’s discretion to determine, based on the facts of a particular case, whether a person has breached a bylaw, whether a person should be fined, or the amount of the fine.

29.   The CRT has jurisdiction to determine claims of significant unfairness because the language in section 164 of the SPA is similar to the language of section 123(2) of the CRTA (formerly section 48.1(2)), which gives the tribunal authority to issue such orders. (See The Owners, Strata Plan LMS 1721 v. Watson, 2018 BCSC 164 at paragraph 119.)

30.   The courts and the tribunal have considered the meaning of “significantly unfair” in a number of contexts, equating it to oppressive or unfairly prejudicial conduct. In Reid v. Strata Plan LMS 2503, 2003 BCCA 128, the British Columbia Court of Appeal interpreted a significantly unfair action as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith and/or unjust or inequitable.

31.   The British Columbia Court of Appeal has also considered the language of section 164 of the SPA in Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. The test established in Dollan was restated in The Owners, Strata Plan BCS 1721 v. Watson, 2017 BCSC 763 at paragraph 28:

The test under s. 164 of the Strata Property Act also involves objective assessment. [Dollan] 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?

32.   I find Ms. Moojelsky had an expectation that the strata would investigate her noise complaints to determine whether the owners of unit 309 were continuing to contravene the strata’s bylaws. I find that expectation was objectively reasonable given the strata’s duty to investigate complaints of possible bylaw contraventions.

33.   However, I find this claim to be premature. After the engineering study was completed, Ms. Moojelsky’s first complained of noise on November 28, 2019. The strata provided a hearing on this issue on February 5, 2020 and it sent a notice of bylaw violation to the owners of unit 309 on February 14, 2020. Ms. Moojelsky filed this dispute on February 25, 2020, only 11 days after the strata sent its bylaw violation notice. Section 135 of the SPA says a strata corporation cannot impose a fine against an owner until an owner has a reasonable opportunity to respond to the notice of bylaw violation or request a hearing. I find that the strata did not treat Ms. Moojelsky significantly unfairly by providing the unit 309 owners an opportunity to respond to the bylaw violation notice and consider the owners’ response before enforcing the bylaws, in compliance with section 135 of the SPA.

34.   For the above reasons, I dismiss Ms. Moojelsky’s claim that she was treated significantly unfairly because the strata was not enforcing its bylaws.

Has the strata treated Ms. Moojelsky significantly unfairly by not installing an underlay in unit 309?

35.   Ms. Moojelsky also asks for an order requiring the strata to install premium high-quality underlay to all of the flooring in unit 309. However, to prove that she was treated significantly unfairly, Ms. Moojelsky must prove that the strata was responsible for maintaining unit 309’s floor. For the reasons that follow, I find that the strata does not have that responsibility.

36.   Section 72 of the SPA says that strata corporations are responsible for maintaining CP. However, the strata are only responsible for the maintenance of strata lots to the extent required by their bylaws. Bylaw 4 says the strata is only responsible for maintaining certain parts of strata lots including the structure of a building, exteriors, and other features such as doors, balconies, and fences.

37.   Section 1 of the SPA defines CP as that part of the land and buildings shown on a strata plan that is not part of a strata lot. The strata plan does not show any CP in the area between ceilings and floors of the strata lots. I have also considered the recent CRT decision in Hooper v. The Owners, Strata Plan LMS 1121, 2020 BCCRT 504 which held that the flooring in a strata lot is not CP and the strata lot owner has the sole responsibility to maintain it. Although this decision is not binding on me, I find the reasoning persuasive and apply it here. Based on the boundaries described in SPA section 68(1), I find that unit 309’s flooring underlay is part of that strata lot, and is not CP.

38.   Even though the underlay is not CP, bylaw 4 requires the strata to provide structural repairs in strata lots. However, I am not satisfied that the flooring underlay is a structural component of the building. There is no evidence before me that the flooring underlay contributes to the structural integrity of the building. In the CRT dispute of Battersby v. The Owners, Strata Plan NW 1868, 2020 BCCRT 257, a similar matter was considered. In Battersby, the tribunal member found that the joist area between the ceiling and the floor was structural and the strata was required to maintain that area. However, the flooring and underlay was not considered structural and the strata owner was responsible for maintaining those components. I find the reasoning in Battersby persuasive, and although nonbinding, I apply it here. Based on the above reasons, I find that unit 309’s underlay is not a structural component of the building and, as such, the strata does not have a responsibility to maintain it.

39.   Since the strata does not have a responsibility to maintain the flooring underlay in unit 309, I find that the strata did not act unfairly by refusing to install a new underlay.

40.   Since I find that the strata has not significantly treated Ms. Moojelsky significantly unfairly, I deny Ms. Moojelsky’s request for damages for continued loss of use and quiet enjoyment of her strata lot and punitive damages.

CRT FEES AND EXPENSES

41.    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. I see no reason in this case not to follow that general rule. Since Ms. Moojelsky was not successful in her dispute, I dismiss her request for reimbursement of her CRT fees. Since neither party requested reimbursement of dispute-related expenses, none are ordered.

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

ORDER

43.  I dismiss Ms. Moojelsky’s claims and this dispute.