Date Issued: November 18, 2020

File: ST-2020-003124

Type: Strata

Civil Resolution Tribunal

Indexed as: Athwal v. The Owners, LMS Strata Plan 2768, 2020 BCCRT 1300

Between:

PATWINDER ATHWAL

Applicant

And:

The Owners, Strata Plan LMS 2768

Respondent

And:

PATWINDER ATHWAL

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.    This dispute is about fines for violating noise bylaws, strata council membership and the strata corporation communication.

2.    The applicant and respondent by counterclaim, Patwinder Athwal, co-owns a residential strata lot in the respondent strata corporation, The Owners, Strata Plan LMS 2768 (strata). It is undisputed that the strata has levied fines against Mr. Athwal’s strata lot for breaching the strata’s noise bylaw. Mr. Athwal says there was no bylaw violation, that the strata did not give him a chance to respond, and that the fine is unfair. Mr. Athwal asks that the bylaw fines be reversed and the strata be ordered to stop fining him for noise bylaw contraventions.

3.    Mr. Athwal also says the strata council members and their family members make racist remarks, verbally harass his wife, and ignore their communications. Mr. Athwal asks that the strata be ordered to appoint a visible minority to strata council. He also asks that the strata’s property manager be ordered to respond to his correspondence.

4.    The strata says Mr. Athwal and his family have repeatedly contravened the strata’s noise bylaw and that it validly imposed $300 in fines. It says Mr. Athwal has not denied making noise but rather explained it away, and did not request a hearing. The strata says the Civil Resolution Tribunal (CRT) has no authority to make many of the orders Mr. Athwal requests.

5.    In its counterclaim the strata asks that Mr. Athwal be ordered to immediately refrain from making loud noise orundertaking any activity that causes unreasonable noise, to take all reasonable steps to reduce noise from his unit, including installing substantial underlay, and to obey Strata Bylaw 4.1 and the city noise bylaws. The strata claims $300 in unpaid noise-related fines.

6.    Mr. Athwal represents himself. The strata is represented by a strata council member.

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.

11. Mr. Athwal’s wife, Irisay Athwal, was originally a co-applicant in this dispute, and the strata originally named her as a respondent in its counterclaim. However, Ms. Athwal has withdrawn her claim against the strata and the strata has withdrawn its counterclaim against Ms. Athwal. I have amended the style of cause to reflect that Mr. Athwal is the remaining applicant and respondent by counterclaim.

PRELIMINARY MATTERS

12.   Mr. Athwal says that various council members have made racist remarks to him and his family, and that a strata council member’s family member has verbally harassed and photographed Mr. Athwals’ family member in the strata complex. Those strata council members, or their family members, are not named parties in this dispute. I have no authority to make orders against non-parties. Even if the strata council members were named in this dispute, I find I would have no authority to address Mr. Athwal’s claim of harassment, as explained below.

13.    Section 31 of the SPA sets out the standard of care for strata council members. It says that in exercising the powers and performing the duties of the strata corporation, each council member must act honestly and in good faith, with a view to the best interests of the strata corporation, and must exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances. In the circumstances of this dispute, I find that Mr. Athwal’s harassment allegations are a claim that the strata council members violated SPA section 31.

14.   In Wong v. AA Property Management Ltd., 2013 BCSC 1551, the BC Supreme Court considered an owner’s claim that strata council members had acted improperly in managing the strata’s affairs. The court concluded, at paragraph 36, 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 SPA section 32. Remedies for breaches of SPA section 32 are specifically excluded from the tribunal’s jurisdiction by CRTA section 122(1)(a).

15.   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 SPA section 31 are owed to the strata corporation, and not to individual strata lot owners. This means that a strata lot owner cannot sue a strata council member for a breach of SPA section 31.

16.   Wong and Sze Hang are binding court precedents, and the tribunal must apply them. Therefore, I dismiss Mr. Athwal’s claims of harassment against the strata council members under section 31.

 

ISSUES

17.   The remaining issues in this dispute are:

a.    Must Mr. Athwal pay the noise-related fines and, if so, how much?

b.    Must the strata stop imposing noise-related fines against Mr. Athwal?

c.    Must Mr. Athwal immediately stop making noise and take steps to reduce the noise from his strata lot?

d.    Must the strata appoint a visible minority to the strata council?

e.    Must the strata management company respond to Mr. Athwal’s correspondence?

EVIDENCE AND ANALYSIS

Background

18.   In a civil claim such as this one the applicant, Mr. Athwal, must prove his claims on a balance of probabilities. The strata must also prove their counterclaim on a balance of probabilities. I have reviewed all the evidence and submissions provided by both parties, but only refer to that necessary to explain my decision.

19.   The strata is a multi-unit residential strata complex created in 1997. Mr. Athwal is co-owner of strata lot 131 (SL 131), which is located on the fourth floor of building 2 in the complex. Mr. Athwal’s wife and young child live in the strata lot with him. They moved in around January 27, 2019.

20.   The strata filed an amended set of bylaws in the Land Title Office on August 7, 2001. The following bylaws are applicable:

•         Bylaw 4.1 says a resident or visitor must not cause a nuisance or hazard to another person, cause unreasonable noise, or unreasonably interfere with the rights of another’s use and enjoyment of their strata lot or common property,

•         Bylaw 27.1 says the strata may fine an owner $100 for each contravention of a bylaw,

•         Bylaw 27.2 says the strata must immediately levy a fine against a strata lot if it determines, in its discretion, that a resident is repeatedly contravening a bylaw,

•         Bylaw 28 says if an activity that contravenes a bylaw continues, uninterrupted, for more than 7 days, a fine may be imposed every 7 days.

21. The strata is managed by a strata management company.

22.   Based on correspondence between the parties, I find:

•         On August 19, 2019 the strata notified Mr. Athwal of a noise complaint against SL 131 of “running, jumping, dropping items”, sometimes between midnight and 3 am.

•         On August 26, 2019 Ms. Athwal emailed the strata manager that they had carpets on the floor, and a young child, who they took outside in the evening to avoid making noise. Ms. Athwal wrote that the child stomped on the floor in response to the downstairs neighbour banging on the ceiling. Ms. Athwal wrote “I think that before sending us this letter, maybe just talk to us. Maybe first investigate and confirm that the noise is reasonably loud…..”.

•         On September 23, 2019 the strata told Mr. Athwal that it had received another complaint of noise coming from SL 131 at various times between 10 pm and 3:30 am from September 6 and 20, 2019. The strata fined SL 131 $100, as the stratahad previously warned Mr,. Athwal about violating the noise bylaw.

•         On October 9, 2019 Ms. Athwal emailed that they disagreed with the fine and that the noise was not unreasonable. She wrote the noise was them walking and that they were not even home on some of the days noted. Mrs. Athwal wrote that she had not received any response from her first email. The strata manager responded that she would pass the information on to the strata council.

•         On February 10, 2020 the strata notified Mr. Athwal of another noise complaint, “kid jumping, running, stomping sounds, play toys, rolling toys, etc”, between December 11 and 15, 2019, for periods of 3 to 6 hours at a time in the middle of the night. The Athwals did not respond to the February 10, 2020 letter.

•         On March 18, 2020 the strata advised Mr. Athwal of another noise complaint about the same types of daily noise between March 2 and 14, 2020, at various times between 7 pm and 1 am. The strata levied another $100 fine against SL 131 as Mr. Athwal had been previously warned about violating the noise bylaw.

•         On March 24, 2020 the strata’s lawyer told Mr. Athwal that the strata council agreed with the complainant (Mr. X) that the noise coming from SL 131 was excessive because it mostly occurred between 11 pm and 6 am, and had an average level of 30 to 50 decibels, peaking at 90 decibels, which was extremely loud.

•         On April 15, 2020 Ms. Athwal said the only noise they made was walking on their floor. She said the strata ignored her previous fine disagreements and ignored their previous request for a meeting.

23.   The strata provided audio records and an affidavit from the owner of the strata lot directly below SL131 (Mr. X). Mr. X described sounds of heavy walking, and jumping, running and playing by a child. He said the noise was very loud and interfered with his sleep. I find Mr. X complained about the volume, frequency and time of the noise. Mr. X’s logs showed most of the noise occurring after 11 pm.

Must Mr. Athwal pay the fines?

24. Section 135 of the SPA states that a strata corporation is not entitled to impose a fine against an owner for a bylaw contravention unless it has first received a complaint, given the owner written particulars of the complaint and reasonable opportunity to answer the complaint, including a hearing if requested, and given the owner written notice of its decision. The strata must strictly follow these procedural requirements before assessing a fine (see Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449).

25. In Strata Plan VR 2000 v. Grabarczyk, 2006 BCSC 1960, appeal dismissed at 2007 BCCA 295, the court held that noise violations are not continuous or continuing contraventions when observed on different dates. Rather, they are distinct contraventions for which a fine may be imposed if section 135 SPA requirements are met in each instance. In Grabarczyk the court considered the same bylaw 27.2 and found that, despite the bylaw, repeated bylaw contraventions still require ongoing compliance with SPA section 135. In other words, the strata must still provide Mr. Athwal with written particulars of each noise complaint, and an opportunity to respond, before imposing a fine for that particular noise complaint. I find the strata did not do that here.

26. I find the strata’s August 19, 2019 letter was a warning about an undated noise complaint. However, the September 23, 2019 fine was imposed for a September 2019 noise complaint. As the August 19, 2019 warning could not have been about a September 2019 noise complaint, I find the strata fined Mr. Athwal on September 23, 2019 without first advising him of the September 2019 noise complaint. I make the same conclusions about the March 24, 2020 fine for the March 2020 noise complaint.

27. Further, I find Ms. Athwal requested a hearing, on Mr. Athwal’s behalf, in her August 26, 2019 email by writing that the strata should talk to them and investigate the noise complaint. This is supported by Mrs. Athwal’s later emailed confirmation that they had requested, but not been granted, a hearing. SPA section 34.1(2) makes it mandatory for a strata council to hold a hearing within 4 weeks of a request.

28. As the strata failed to comply with SPA section 135 before imposing the September 2019 and February 2020 fines, I find the fines are invalid. I order the strata to remove those fines from Mr. Athwal’s strata lot account.

29. The strata says it has levied $300 in fines against Mr. Athwal, but has only provided evidence of a total of $200 in fines. As I have found that the strata’s September 19, 2019 and March 18, 2020 fines are invalid, Mr. Athwal is not responsible to pay those fines. The strata has not proven its claim for any additional fines. So, I dismiss the strata’s counterclaim for payment of $300 in fines.

Must the strata stop imposing fines?

30.   Mr. Athwal asks that the strata stop imposing fines against SL 131 until he can sell his strata lot. I find it irrelevant whether Mr. Athwal is taking steps to sell his unit or not as strata bylaws apply to all owners.

31.   Section 26 of the SPA requires the strata council to exercise the powers and perform the duties of the strata, including enforcing bylaws. The strata council is required to act reasonably when carrying out these duties, and this includes a duty to investigate alleged bylaw contraventions, such as noise complaints. As noted above, the strata must comply with SPA section 135 and provide Mr. Athwal with a warning letter and chance to respond to any future noise complaint about his strata lot.

32.   Once the strata has complied with the SPA, it is entitled to levy a fine for a noise, or any other bylaw, violation. While the strata has discretion whether to enforce its bylaws in certain circumstances that discretion is limited, particularly in circumstances where the strata owners have a reasonable expectation that the bylaws will be consistently enforced (see Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32).

33.    I find it would be contrary to SPA section 26 to order the strata not to impose fines against strata lot 131. I dismiss Mr. Athwal’s claim for this order.

Injunctive Relief

34.   The strata asks for injunctive relief, which is an order that someone stop doing something. The strata asks that Mr. Athwal be ordered to immediately stop making loud noises in SL 131, refrain from any activity that causes unreasonable noise in SL 131, take all reasonable steps to reduce noise transmission from SL 131, including installing substantial underlay under all surfaces, and to obey strata bylaw 4.1 and the city’s noise bylaw.

35.   Injunctions are extraordinary discretionary remedies that should only be used in the clearest of cases, keeping in mind the nature of the wrong, the availability of other remedies, and the relative effectiveness of other remedies (Interior Health Authority v. Statham, 2005 BCSC 1243). Under section 60 of the CRTA, a person who fails or refuses to comply with a tribunal’s order is liable, on application to the Supreme Court, to be punished for contempt as if in breach of an order or judgment of the Supreme Court. In my view, given the serious consequences, the CRT should reserve the extraordinary remedy of injunction orders to address repeated or serial wrongful conduct when other remedies have proven ineffective.

36.   The strata says an injunction is appropriate because the imposed fines have not deterred the noise. I disagree. Mr. X’s emailed complaints to the strata show that the noise was improving by the end of April 2020. By May 25, 2020 Mr. X wrote that the noise had significantly improved and was reduced to a level acceptably by Mr. X. This is supported by Mr. X’s noise logs which showed much fewer noise concerns, and none after 11 pm. This is also supported by Mr. Athwal’s statement that he and his wife changed their child’s schedule so he would not be staying up as late, and that he went to daycare as well. I find the Athwals have taken steps to manage the noise coming from their strata lot so I find the extraordinary remedy of an injunction is not required in these circumstances.

37.   I note that Mr. Athwal is already legally obliged, as an owner, to comply with the strata’s bylaws. He is also obliged to comply with the city’s noise bylaws. I find ordering him to comply with these bylaws is an unnecessary repetition of an existing legal obligation.

38.   For all these reasons I dismiss the strata’s counterclaim for injunctive relief.

Must the strata manager respond to Mr. Athwal and his family?

39.   Mr. Athwal says the strata has not responded to their emails and telephone calls. For clarity, I find Mr. Athwal refers to the 3 emails in evidence, as well as 1 voicemail message Ms. Athwal left for the strata manager, about a harassment complaint. I find the strata manager did respond to Ms. Athwal’s October 9, 2019 email, although perhaps not in a substantive way.

40.   As noted above, I have no authority to make orders against non-parties. So I cannot order the strata manager to respond to Mr. Athwal’s correspondence. Although section 123 of the CRTA allows me to order the strata to respond to Mr. Athwal, or to instruct its property manager to respond, I decline to do so, for the reasons set out below.

41.   First, the strata is not obliged to respond to every item of correspondence from an owner (see Tenten v. The Owners, Strata Plan VR113, 2019 BCCRT 1427, which is not binding but I find persuasive).

42.   Second, Mr. Athwal asks that the strata, or property manager, be ordered to meet with him about the noise complaints. Given that I find the September 2019 and March 2020 fines are invalid, I find a hearing is no longer needed for those complaints. The third $100 fine is not part of Mr. Athwal’s dispute, and has not been proven in the strata’s counterclaim, so I cannot address whether Mr. Athwal is entitled to a hearing about that particular complaint.

43.   Third, the CRT generally does not make prospective orders, that is orders about things that might happen in the future. I see no reason to make a binding order about future correspondence here, given that I have found the strata’s noise-related fines invalid. I point out that, should the strata receive another noise complaint about SL 131, it must comply with SPA section 135 before fining Mr. Athwal for that particular noise complaint. Should Mr. Athwal want a hearing to respond to any future noise complaint, he should clearly and specifically ask for that in in his correspondence with the strata.

Strata Council Diversity

44.   Mr. Athwal asks that I order the strata to add a visible minority member to the strata council.

45.   I disagree with the strata that the CRT does not have jurisdiction to make orders about strata governance. Under section 123(2) of the CRTA, the CRT has the power to make an order directed at the strata, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights. I find section 123(2) allows the CRT to make orders about strata council, in limited circumstances. However, as stated by the BC Supreme Court in Lum v. Strata Plan VR519 (Owners of), 2001 BCSC 493, the court should only interfere with or override a strata’s democratic governance when absolutely necessary. I apply the same reasoning to the CRT’s interference with strata governance.

46.   Section 25 of the SPA says that a strata’s council members are elected by a vote of owners at annual or special general meetings. Bylaws 12 through 17 set out who is eligible for council membership and how members are voted in, removed, and replaced. Mr. Athwal does not argue that the strata bylaws are significantly unfair to visible minority owners. Nor does he say that the strata has failed to comply with the council member bylaws.

47.   I find Mr. Athwal has not proven that overriding the strata’s democratic process of electing council members is absolutely necessary. While Mr. Athwal says a minority council member may have responded to his correspondence and granted him a hearing, I find this to be speculative and unpersuasive. I also find Mr. Athwal’s assumption that a minority strata council member would better comply with their SPA section 31 standard of care, is also speculative. I dismiss his claim for a visible minority strata council member.

CRT FEES, EXPENSES AND INTEREST

48. 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 find Mr. Athwal was partially successful in his claims and so I find he is entitled to reimbursement of $112.50, or half his CRT fees. As the strata was unsuccessful in its counterclaim, I find it is not entitled to reimbursement of its CRT fees or any dispute-related expenses.

49. Even if I had found the strata was entitled to reimbursement of dispute-related expenses, I would not order reimbursement of the $1,050 claimed for 7 hours of administrative time to handle this dispute. This is because the strata provided no evidence of such expenses, and because, as set out in CRT rule 9.5, the CRT will not order reimbursement of legal fees except in extraordinary circumstances, which I find do not exist here. I find the same reasoning applies to hourly administrative expenses as to legal expenses.

50. Mr. Athwal does not claim reimbursement of any dispute-related expenses.

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

ORDERS

52. I order the strata to reimburse Mr. Athwal $112.50 in CRT fees within 30 days of the date of this order.

53. I also order the strata to immediately remove the September 2019 and February 2020 noise-related fines from Mr. Athwal’s strata lot account.

54. Mr. Athwal is entitled to post-judgment interest under the Court Order Interest Act.

55. I dismiss the remainder of Mr. Athwal’s claims.

56. I dismiss the strata’s counterclaim.

 

57. Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.