Date Issued: November 20, 2020

File: ST-2020-003572

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Mervin v. The Owners, Strata Plan EPS5519, 2020 BCCRT 1312

Between:

CINDY MERVIN

Applicant

And:

The Owners, Strata Plan EPS5519, IVAN HARMATNY and AMY REBODOS

Respondents

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about noise from one strata lot impacting the strata lot below.

2.      The applicant Cindy Mervin jointly owns strata lot 28 (SL28) in the respondent strata corporation The Owners, Strata Plan EPS5519 (strata). The respondent Ivan Harmatny owns strata lot 36 (SL36) in the strata. The respondent Amy Rebodos lives with Mr. Harmatny in SL36, but is not an owner.

3.      SL36 is immediately above and covers the entire floor plan of SL28 and adjacent unit SL27 in a 3-storey building.

4.      Ms. Mervin says Mr. Harmatny and Ms. Rebodos cause unreasonable noise interfering with her quiet enjoyment of SL28. Ms. Mervin seeks an order to have Mr. Harmatny and Ms. Rebodos install wall-to-wall carpet and underlay to reduce the noise and vibration coming from SL36.

5.      The strata disagrees with Ms. Mervin’s claims and says it acted reasonably in enforcing its noise bylaw. The strata says the bylaws require area rugs in high traffic areas, but not the wall-to-wall carpeting Ms. Mervin seeks.

6.      Although both Mr. Harmatny and Ms. Rebodos were each served with the Dispute Notice, neither of them filed a Dispute Response. This means they are in default, under Civil Resolution Tribunal Act (CRTA) section 1(1).

7.      Ms. Mervin is self-represented. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

8.      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 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.

9.      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.

10.   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.

11.   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.

ISSUES

12.   The issues in this dispute are:

a.    Did Mr. Harmatny and Ms. Rebodos breach the strata’s bylaws regarding noise and flooring?

b.    If so, is Ms. Mervin entitled to an order requiring Mr. Harmatny and Ms. Rebodos to change the SL36 flooring?

EVIDENCE AND ANALYSIS

13.   In a civil claim such as this, Ms. Mervin, as applicant, bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and submissions to the extent necessary to explain my decision.

Bylaws

14.   The applicable bylaws are the Strata Property Act (SPA) standard bylaws, modified by amendments the strata filed at the Land Title Office (LTO) on January 14, 2019 (Bylaws).

15.   Bylaw 3(1) provides that an owner, tenant, occupant or visitor must not use a strata lot in a way that

(a) causes a nuisance or hazard to another person,

(b) causes unreasonable noise, or

(c) unreasonably interferes with the rights of other persons to use and enjoy another strata lot,

16.   Bylaw 3(5)(a)(iii) says that, for strata lots with hardwood, tile or other hard floor surfaces: where possible, area rugs should cover the travelled areas of the strata lot and the dining area, which I find includes any area under dining chairs.

17.   Bylaw 3(5)(b) provides that hardwood, tile or other hard floor surfaces installed after the initial construction of a residential strata lot must be installed with underlay meeting or exceeding the Sound Transfer Classification (STC) rating as well as an Impact Insulation Classification (IIC) rating set by the strata from time to time.

18.   Based on the evidence and submissions, I find that SL36 has builder-installed hardwood. For that reason, and because no one provided evidence that the strata has set an STC or IIC rating, I will not apply Bylaw 3(5)(b) to this dispute.

Rules

19.   Rule 2 provides that owners must be considerate of neighbouring strata lots and ensure noise levels are kept at a minimum. Rule 2 also sets quiet hours between 10:00 pm and 7:00 am.

20.   SPA section 125 permits strata council to make rules governing the use of common property and common assets. Rules may not govern the use of strata lots. Therefore, I find that Rule 2 does not apply to the noise that is the subject of this dispute, because it emanated from a strata lot.

Factual Background

21.   On June 12, 2019, the strata wrote to Mr. Harmatny about alleged noise bylaw violations between April 13, 2019 and June 3, 2019, contrary to Bylaw 3(1).

22.   On July 3, 2019, the strata again wrote to Mr. Harmatny about excessive noise reported between June 11, 2019 and June 17, 2019.

23.   On July 25, 2019, Mr. Harmatny emailed the strata to say that he and his family were respectful and were not doing anything overly noisy in their home.

24.   On November 13, 2019, the strata wrote to Mr. Harmatny about excessive noise on October 25 and 26, 2019, assessing a fine of $50 against his strata lot for continued violation of Bylaw 3.

25.   On December 2, 2019, strata council met and, in its minutes, reminded all owners of the noise restrictions and flooring requirements in Bylaw 3(5)(a).

26.   On December 10, 2019, strata council asked Mr. Harmatny if he had considered putting carpet down in the main living areas and hallways SL36. Mr. Harmatny responded writing that he would not be “decorating” his home for his downstairs neighbours and that he liked hardwood floors. Mr. Harmatny wrote that there was a problem with the building, not with him as home owner.

27.   The same day, Ms. Rebodos wrote to strata council to say that SL36 already had a carpet runner in the main hallway and kitchen area, and large areas rugs in the bedrooms and main living areas. Ms. Rebodos noted that SL36’s front foyer was above SL28’s bedroom.

28.   In submissions, the strata says that, since the Dispute Notice was filed, it inspected SL36 and found felt pads on the bar stools and dining chairs and area rugs in the “living room, hallway, etc”.

29.   Based on photographs taken inside SL36, which Ms. Mervin filed in evidence, I find that SL36 does not have carpeting or rugs in the foyer area or much of the hallway, which appears to be bare hardwood with a small mat at the door. The photographs do not show a carpet runner in the hallway, and the strata did not file photographic evidence of its inspection. I therefore find that there is insufficient area rug placement in SL36, which I will discuss further below.

30.   On January 5, 2020, Ms. Mervin wrote to the strata to say that there was no carpet under the chairs or felt installed on the SL36 dining chairs or bar stools, causing “awful noise” in SL28 when the chairs were pulled or pushed.

31.   Based on Ms. Mervin’s observations of chairs being moved, I find that Mr. Harmatny and Ms. Rebodos moved chairs around in SL36 in areas not covered by area rugs, or where they had not placed felt on the bottom of their chairs.

32.   As well, Ms. Mervin complained of “stomping” from SL26 at 1:11 a.m. on January 30, 2020, and 4:44 a.m. on January 31, 2020. I find that loud noise at these times is unreasonable, even where quiet hours are not defined in the Bylaws.

33.   On January 8, 2020, the strata wrote to Mr. Harmatny about excessive noise observed on December 24 and 25, 2019, and in the common hallway on December 20, 2019. The strata asked Mr. Harmatny to provide proof that carpets had been installed in the high traffic areas in SL36, as required by the Bylaws.

34.   On January 29, 2020, the strata wrote to Mr. Hamatny about noise observed between January 6 and 15, 2020, assessing a $50 fine against SL36. The strata again asked Mr. Harmatny to provide proof that carpets had been installed in the high traffic areas in SL36.

35.   On February 3, 2020, the strata wrote to Mr. Harmatny about noise violations on January 23, 30 and 31, 2020. The strata assessed a $150 fine against his strata lot ($50 per occurrence) and again requested proof that he had installed carpets in high traffic areas.

36.   On February 11, 2020, the strata wrote to Mr. Harmatny about noise violations on February 4, 2020. Again, the strata imposed a $50 fine and requested proof of the installation of carpets.

37.   In the minutes of its February 24 and April 20, 2020 strata council meeting, council reminded owners about Bylaw 3(5)(a) and asked owners to wear slippers, close doors softly and be aware of heavy footfall and quiet hours.

38.   The strata also received reports of SL36 noise from Ms. Mervin, observed from April-July inclusive 2019 and February and March 2020. On at least one of these occasions, the noise was also observed by another strata lot owner.

Did Mr. Harmatny and Ms. Rebodos breach the strata’s Bylaws?

39.   The Bylaws require that owners or occupants not use a strata lot in a way that causes unreasonable noise or a nuisance to another strata lot owner.

40.   The test of whether noise is unreasonable or a nuisance is objective and based on a standard of reasonableness, after considering all the surrounding circumstances. There is no requirement that a noise reach a certain decibel range to be considered unreasonable: see the non-binding but persuasive decisions in Torok v. Amstutz et al, 2019 BCCRT 386 at paragraph 47 and Moojelsky v. The Owners, Strata Plan K 323 et al, 2019 BCCRT 698 at paragraph 48.

41.   A nuisance can be created even when the activity complained of is otherwise lawful: Suzuki v. Munroe, 2009 BCSC 1403. In Suzuki, the court also cited St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, at para. 77. In that decision, the Supreme Court of Canada wrote that nuisance is defined as unreasonable interference with the use of land. The Court added that whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance. The interference must be intolerable to an ordinary person: see Lucas v. The Owners Strata Plan 200, 2020 BCCRT 238 at paragraphs 31 and 32.

42.   I find that Mr. Harmatny and Ms. Rebodos created unreasonable noise and nuisance to Ms. Mervin, in breach of Bylaw 3(1) because:

a.    Ms. Mervin documented several ongoing incidences of noise from SL36 waking her from her sleep, in the middle of the night, or where the noise continued for a long period of time,

b.    Mr. Harmatny and Ms. Rebodos provided a brief, non-specific response to these concerns, and did not file any Dispute Response, and

c.    At least once the noise was also observed by another strata lot owner.

43.   I also find that Mr. Harmatny and Ms. Rebodos breached Bylaw 3(5)(a)(iii) because they failed to place area rugs in travelled areas of SL36, in the front foyer and hallway, or under their dining chairs.

44.   Mr. Harmatny and Ms. Rebodos also failed to confirm that they have area rugs in other travelled areas of SL36, except the living room and bedrooms, when the strata repeatedly asked them to do so.

Did the strata fail to enforce its Bylaws?

45.   Ms. Mervin did not argue that the strata’s actions were significantly unfair. She expressed frustration that the strata declined to take further steps regarding her noise complaints. From this, I infer a submission that the strata failed to adequately enforce its Bylaws.

46.   SPA section 26 requires the strata council to exercise the powers and perform the duties of the strata, which include enforcing bylaws. The strata council is required to act reasonably when carrying out these duties, and this includes a duty to investigate alleged bylaw violations, such as noise complaints.

47.   While I find that the strata reasonably took several enforcement steps, I find it was unreasonable for it to delay an inspection of SL36 until after a Dispute Notice was filed, and to stop short of requiring Mr. Harmatny to install additional area rugs in SL36, given Bylaw 3(5)(a)(iii).

Is Ms. Mervin entitled to her claimed remedy of requiring wall-to-wall carpet installation in SL36?

48.   I have found that the noise from SL36 causes ongoing and unreasonable interference with Ms. Mervin’s use of SL28.

49.   However, I find that Ms. Mervin is not entitled to require SL36 to install wall-to-wall carpeting if area rugs will abate the noise. The Bylaws require area rugs in travelled areas of SL36, but I find that I have jurisdiction to order noise abatement steps beyond area rugs under CRTA section 123(1). Having said that, I find that Mr. Hamatny must install and use sufficient area rugs and underlay to abate the unreasonable noise. If unreasonable noise continues and Ms. Mervin complains to the strata, the strata is obligated to continue enforcing the Bylaws, which may extend to requiring additional noise abatement measures.

50.   I order that, within 60 days of this decision, Mr. Harmatny, as SL36 owner:

a.    place area rugs with underlay in all travelled areas of SL36, including the hallway, dining area and front foyer areas, at his cost,

b.    use the area rugs and underlay in SL36 travelled areas on an ongoing basis, and

c.    permit the strata to verify these carpet and underlay additions, and that he has complied with the order to install them in SL36 travelled areas, by having a strata council member attend and access SL36 at a mutually convenient time on or before January 15, 2021.

CRT FEES and EXPENSES

51.   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. I therefore order Mr. Harmatny and the strata to reimburse Ms. Mervin $112.50 each for her $225 in CRT fees. Ms. Mervin did not claim dispute-related expenses.

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

ORDERS

53.    I order that, within 60 days of this decision, Mr. Harmatny, as SL36 owner:

a.    place area rugs with underlay in all travelled areas of SL36, including the hallway, dining area and front foyer areas, at his cost,

b.    allow the strata to verify the area rug and underlay additions, by having a strata council member attend and access SL36 at a mutually convenient time before January 15, 2020, and

c.    pay Ms. Mervin $112.50, which is 50% of her CRT fees.

54.   I order that the strata, within 60 days of this decision:

a.    pay Ms. Mervin $112.50, which is 50% of her CRT fees, and

b.    provide Ms. Mervin with written confirmation that there is now area carpet and underlay in the travelled areas of SL36.

55.   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.