Date Issued: November 30, 2020

File: ST-2020-000344

Type: Strata

Civil Resolution Tribunal

Indexed as: Floro v. The Owners, Strata Plan NW2847, 2020 BCCRT 1356

Between:

SUSAN FLORO and EDWARD MCCROSSAN

Applicants

And:

The Owners, Strata Plan NW2847 and ROBERT MUNROE

Respondents

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about noise between 2 vertically adjacent strata lots. The respondent, The Owners, Strata Plan NW2847 (strata), is a strata corporation. The applicants, Susan Floro and Edward McCrossan, own a strata lot in the strata. The respondent, Robert Munroe, owns the strata lot on the floor above the applicants.

2.      The applicants say the strata has failed to investigate their noise complaints. They also say the strata has treated them in a signficantly unfair manner. The applicants seek orders for the strata to 1) enforce the strata’s noise bylaws, 2) hire an acoustical engineer to assess the flooring in Mr. Munroe’s strata lot and recommend ways to reduce noise, 3) provide the applicants a copy of the acoustical engineer’s report, and 4) pay the applicants compensation for loss of use and enjoyment of their strata lot. The applicants also seek an order for Mr. Munroe to remediate the flooring in his strata lot based on an acoustical engineer’s recommendations. The applicants previously sought an order for Mr. Munroe to hire a plumber to fix toilet noise, but the parties agree this is no longer an issue.

3.      The strata disagrees and says it investigated the applicants’ noise complaints. It also says the applicants refused to provide the strata access to conduct noise testing. Mr. Munroe disagrees he breached any strata bylaws and says the noise from his unit is reasonable.

4.      The dispute is related to dispute ST-2020-001243. They share the same background facts. I have written 2 separate decisions for these disputes because the parties are different. My findings are based on the evidence before me in each separate dispute. The evidence is largely the same.

5.      The applicants and Mr. Munroe are self-represented. A strata council member represents the strata.

6.      For the reasons set out below, I find that the strata adequate investigated the applicants’ complaints and that the noise from Mr. Munroe’s strata lot is not a nuisance or breach of bylaws. My reasons follow.

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.

Late Evidence

11.   The strata provided late evidence in this dispute. The applicants did not object and had the opportunity to review it and provide submissions and evidence in response. Consistent with the CRT’s mandate that includes flexibility, I find there is no actual prejudice to the applicants in allowing the late evidence.

Claims about Bias

12.   The applicants allege that MM was biased against them and in a conflict of interest. MM was strata council president from October 2017 to September 2019. The strata says the applicants’ claims about bias are outside the CRT’s jurisdiction.

13.   I find that the allegations of bias arise under Strata Property Act (SPA) section 31 and that the applicants lack standing for such a claim. SPA 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 corporation, and exercise the care, diligence, and skill of a reasonably prudent person in comparable circumstances.

14.   The duties of strata council members under SPA section 31 are owed to the strata corporation and not individual owners. As such, the appropriate party for a claim of an alleged breach of these duties is generally the strata corporation and not an owner. See The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 267.

15.   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. See Wong v. AA Property Management Ltd, 2013 BCSC 1551. Remedies for breaches of section 32 are specifically excluded from the CRT’s jurisdiction, as set out in CRTA section 122(1)(a). Thus, the CRT does not have jurisdiction over claims brought by an owner against an individual strata council member.

16.   For those reasons, I find the applicants have no standing to bring claims about bias against the strata. I dismiss those claims. Under CRTA section 10(1), I refuse to resolve the applicants’ claims about disclosure of conflict of interest under SPA section 32.

ISSUES

17.   The issues in this dispute are as follows:

a.    Did the strata adequately investigate the applicants’ noise complaints?

b.    Was the noise a nuisance or a contravention of the strata’s bylaws, and if so, what are the appropriate remedies?

BACKGROUND, EVIDENCE AND ANALYSIS

18.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities. I have read all the parties’ evidence and submissions (including case law) but only refer to them as necessary to explain my decision.

19.   The strata consists of 67 strata lots in 2 low-rise buildings that provide apartment-style housing. The applicants own strata lot 40 and have lived there since February 2014. Mr. Munroe owns strata lot 52, which is directly above strata lot 40. He has lived there since March 2017.

20.   Mr. Munroe is partially paralyzed on one side. The applicants say this causes Mr. Munroe to move more noisily. The applicants also say a frequent guest, Anna Bouchal, is noisy.

21.   In a June 10, 2018 letter, Mr. McCrossan told the strata that Mr. Munroe sounded like he was using a cane or walker to walk and dragging a chair across the floor to carry things. He wrote that the noise was a nuisance. He sent the strata another complaint letter on June 26, 2018.

22.   The strata’s bylaws are registered in the Land Title Office. They were repealed and replaced at the end of October 2001 and have since been amended several times. The strata’s bylaws generally prohibit unreasonable noise. I have summarized the relevant portions, as amended.

23.   Bylaw 3(1) says an owner or visitor must not use a strata lot in a way that causes a nuisance, unreasonable noise, or unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot.

24.   Bylaw 3(7) says no noise shall be made in or about a strata lot or the common property that in the opinion of the strata council is a nuisance or unreasonably interferes with the use and enjoyment of any other strata lot by its owner.

25.   Mr. McCrossan subsequently wrote in a July 27, 2018 letter to the strata that Mr. Munroe had placed interlocking foam tiles near the entrance and on the kitchen floor of his strata lot. Mr. McCrossan wrote that there was no need for the strata to visit his strata lot for further investigation.

26.   Approximately a year later, Mr. Munroe emailed the strata’s property manager on July 6, 2019, about planned kitchen renovations. The renovations included new flooring. In a July 10, 2019 letter, the strata approved, subject to certain conditions. The strata wrote that Mr. Munroe could install laminate or vinyl plank flooring. However, Mr. Munroe also had to install an underlay with a rating of at least STC72 or IIC73. The underlay is used to reduce noise transfer and the rating provides an indication of its effectiveness. Mr. Munroe began renovations and signed the letter around mid-August 2019 to indicate acceptance of the strata’s conditions.

27.   Bylaw 3(7)(e) is relevant. It says no hard surface flooring will be allowed in any strata lots above the first floor, with the exception of strata lot foyers, kitchen, bathroom, utility areas and the dining area. All other areas of the strata lot (living room, bedroom, hallways and den) must be carpeted.

28.   Bylaw 3(7)(e) goes on to state that any strata lot owner who plans to change their flooring must seek written approval from the strata council. Where permission is given, the new flooring must use an underlay with a rating of at least STC72 or IIC73 and meet other reasonable requirements set by council.

29.   Bylaw 5(1) similarly states that an owner must obtain written approval from the strata before altering their strata lot flooring. Bylaw 5(2) provides that the strata may not unreasonably withhold its approval but may attach conditions.

30.   As discussed below, Mr. Munroe showed the strata council a data sheet for the underlay he planned to use. The copy provided to the CRT shows it met the required ratings of STC72 and IIC73.

31.   In July 2019 Mr. Munroe and Mr. McCrossan emailed each other about what flooring Mr. Munroe would use for the renovations. This became the major source of friction between them. Mr. Munroe said he wished to use vinyl plank flooring. Mr. McCrossan objected as he felt such flooring would transmit sound easily. Mr. McCrossan suggested vinyl sheet flooring instead. Mr. Munroe eventually decided on laminate plank flooring.

32.   Mr. McCrossan was dissatisfied with Mr. Munroe’s choice of flooring. In late July 2019 he emailed the strata’s property manager and asked the strata to talk to Mr. Munroe about the flooring. He also requested a hearing under SPA section 34.1.

33.   The strata held the hearing on August 27, 2019. Ms. Floro attended and asked the strata to investigate whether Mr. Munroe’s flooring complied with the strata bylaws. Ms. Floro also raised the issue of noise and how it negatively affected Mr. McCrossan in particular.

34.   In a September 6, 2019 letter, the strata council advised the applicants that they visited Mr. Munroe’s unit and he appeared to be doing renovations in compliance with bylaw 5. The strata said it would take no further action against Mr. Munroe

35.   Mr. Munroe ultimately completed installing the laminate plank flooring and underlay on November 1, 2019. He currently does not use the foam tiles. He explains this is because they curled over time and were a tripping hazard.

Issue #1. Did the strata adequately investigate the applicants’ noise complaints?

36.   SPA section 26 requires the strata, through strata council, to enforce the strata’s bylaws and rules. The strata corporation may investigate bylaw contravention complaints as it sees fit, so long as it 1) complies with the principles of procedural fairness and 2) does not act in a significantly unfair manner to any person who appears before its strata council: Chorney v. Strata Plan VIS 770, 2016 BCSC 148 at paragraph 52.

37.   A strata corporation will meet its obligations under SPA section 26 for noise complaints so long as it acts reasonably. See, for example, the non-binding but applicable decisions of LeBlanc v. The Owners, Strata Plan LMS 600, 2020 BCCRT 783, Jamal v. Rushton, 2020 BCCRT 585, and Chau v. The Owners, Strata Plan NW 155, 2020 BCCRT 1161.

38.   The applicants say the strata failed to adequately investigate their noise complaints and base their claim in significant unfairness. SPA section 164 sets out the BC Supreme Court’s authority to remedy significantly unfair actions. The CRT has jurisdiction over significantly unfair actions under CRTA section 123(2), which has the same legal test as cases under SPA section 164. See The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164. The test comes from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. The applicants must establish the following:

a.    What is or was the expectation of the affected owner(s)?

b.    Was that expectation on the part of the owner(s) objectively reasonable?

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

39.   The courts have interpreted “significantly unfair” to mean conduct that is oppressive or unfairly prejudicial. Oppressive conduct has been interpreted as conduct that is burdensome, harsh, wrongful, lacking in fair dealing or done in bad faith. Prejudicial conduct means conduct that is unjust and inequitable. See Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, aff’d 2003 BCCA 126.

40.   In Kunzler v. The Owners, Strata Plan EPS 1433, 2020 BCSC 576, the court determined that the reasonable expectations portion of the test may not be appropriate in all circumstances, but that it may be appropriate when a strata council is exercising its discretionary authority. I find that the strata council’s methods of investigation involve exercising discretionary authority and will therefore consider the reasonableness of the applicants’ expectations.

41.   I find the applicants’ expectations are outlined in their July 27, 2019 email and the August 27, 2019 hearing notes. These show that the applicants were most concerned about Mr. Munroe’s choice of flooring.

42.   In the July 2019 email, Mr. McCrossan asked the strata to talk to Mr. Munroe about his choice of flooring. He cited bylaws 5 and 3(7)(e), which are about flooring and the strata’s approval of it. The August 2019 hearing notes show that the applicants asked the strata if Mr. Munroe had obtained permission to change his flooring and other questions about the flooring. They also asked if Mr. Munroe had extended the flooring to areas prohibited under bylaw 3(7)(e).

43.   I find that applicants’ secondary concern was noise from the renovations. The August 27, 2019 hearing notes say that over the past 3 weeks, “the noise level has increased dramatically”. They noted sounds of banging, hammering, ripping, and things being dropped until as late at 8:00 p.m.

44.   Based on SPA section 26 and the above-noted evidence, I find the applicants had a reasonable expectation that the strata would reasonably investigate their noise complaints about the flooring and renovation noise, make a decision about whether bylaw 5 or 3(7)(e) or other related bylaws had been breached, inform the applicants about the decision, and take action to enforce bylaws if necessary.

45.   I find the strata generally met these expectations and fulfilled its duty to investigate complaints and enforce bylaws. As part of its investigation, the strata performed informal noise testing on August 28, 2019. It sent 3 council members to Mr. Munroe’s unit. One of them was MM.

46.   In her written statement, MM says the following. She saw that Mr. Munroe had not yet removed the original flooring. Mr. Munroe advised that he was not making any changes to the carpeted area. The council members also asked him and another guest to walk across the strata lot. MM found it difficult to hear him. MM also reviewed the label of the purchased underlay and found it complied with the strata’s bylaw requirements. The strata submits, and I accept, that MM also saw that Mr. Munroe was still using foam tiles on the floor at the time.

47.   MM also says she lives three doors down the hall from Mr. Munroe. I accept her statement that she observed Mr. Munroe’s doing renovation work only from 9:00 a.m. to 6:00 p.m., as required by the strata in its July 10, 2019 letter.

48.   The strata then decided no flooring or noise-related bylaws were breached. It advised the applicants of this in their September 6, 2019 letter. While I acknowledge the letter lacks detail, I find it reasonably clear from its wording that the strata found no flooring or noise-related bylaws were breached.

49.   The applicants say the strata should have conducted a listening test within their unit. I disagree that this was necessary. The July 2019 email and August 2019 hearing notes emphasized that the flooring and renovation noise were the issues. Mr. Munroe advised at the time he was postponing installation of the flooring. MM’s evidence is that the renovations that did occur were within time limits set by the strata. In those circumstances, I find a listening test would have served little purpose. A listening test might have been useful later, but when the applicants next complained about noise in October 2019, it was about Mr. Munroe’s toilet only.

50.   The applicants also say that the strata should have taken greater measures as noise was an ongoing issue since April 2017. I disagree, as the evidence indicates the applicants first complained about noise to the strata in June 2018. They then advised the strata that the noise issue was largely in late July 2018.

51.   The applicants also say that they were treated unfairly because the strata failed to enforce pet bylaws prohibiting aquariums. I find this issue is not properly before me. The applicants only requested remedies about noise in their application for dispute resolution. In any event, I find it has no relevance to whether the strata’s investigation into the noise and flooring complaints was reasonable.

52.   I dismiss the applicants’ claims against the strata for significant unfairness.

Issue #2. Was the noise a nuisance or a contravention of the strata’s bylaws?

53.   The applicants say the noise coming from Mr. Munroe’s unit is a nuisance. This includes noise from before, during, and after renovations were completed.

54.   In common law, a claim for nuisance is an interference with the owner’s use or enjoyment of land that is both substantial and unreasonable: Antrim Truck Centre Ltd. Ontario (Transportation), 2013 SCC 13 at paragraph 19. It does not matter whether the interference results from intentional, negligent or non-faulty conduct so long as the harm can be characterized as a nuisance. A nuisance can be created even when the activity complained of is otherwise lawful: Suzuki v. Munroe, 2009 BCSC 1403.

55.   In The Owners, Strata Plan LMS 1162 v Triple P Enterprises Ltd., 2018 BCSC 1502 at paragraph 33, the court defined nuisance in a stratified property as a substantial, non-trivial, and unreasonable interference with use and enjoyment of property. The court further explained that in determining whether a claimed nuisance is unreasonable, the focus of analysis is primarily on the effect of the alleged nuisance on the plaintiff, but the decision-maker must also weigh the conflicting interests and consider all relevant circumstances.

56.   Bylaws 3(1) and 3(7), mentioned above, use the word “nuisance” and refer to the standard of unreasonable interference. As such, I find that the noise complained of must be an unreasonable interference to be a bylaw contravention.

57.   In this case, I am not satisfied that Mr. Munroe breached the noise bylaws or is liable in nuisance for unreasonable noise. As noted above, Mr. Munroe used interlocking foam tiles starting in July 2018. At some point he stopped using the tile. However, there is limited evidence that noise was a persistent issue before renovations began in July 2019.

58.   After renovations started, Mr. McCrossan kept a noise journal containing entries dated from August 2019 to January 2020. The main complaints are about clumping sounds, as well as banging and clanging. I find from the entries that the noise during the renovations was about the same as noise after renovations were completed in early November 2019.

59.   I accept that noise negatively affects Mr. McCrossan He described serious psychological effects from the noise, including increased medication use. He also wore earplugs and earmuffs indoors. He often left his strata lot to find relief from the noise at various locations, including a café and gym. However, there is no indication that the sounds affect Ms. Floro to any substantial degree. Her August 27, 2019 hearing notes describe severe effects on Mr. McCrossan but none for herself.

60.   I find the described noises are largely consistent with the sounds of everyday living. While some described sounds appear related to renovations, mostly they are the sounds of Mr. Munroe or his guest moving in his strata lot. The sounds do not, on their face, appear unreasonable.

61.   I acknowledge that everyday living sounds could still be a nuisance. However, I am not satisfied that the sounds are unreasonable. As stated in Sauve v. McKeage et al., 2006 BCSC 781 at paragraph 22, the test for nuisance is an objective one, measured with reference to a reasonable person occupying the premises. There is limited evidence that the sounds are an unreasonable. There are no statements from third parties or complaints from other neighbors. I have also found that the sound affects the applicants differently.

62.   I note that in February 2020, the strata voted to hire an acoustical engineer to assess noise in applicants’ strata lot. In a February 12, 2020 email, the applicants refused to provide access for the testing. The strata says the applicants eventually allowed access for the testing, but this was well after the parties had finished providing evidence and submissions in this dispute. The strata advised that the report was not yet available and neither party has said when it will be. I have therefore decided this dispute on the evidence before me.

63.   Based on that evidence, I am not satisfied that Mr. Munroe is creating unreasonable noise. I am therefore not satisfied that he is liable in nuisance or breached the strata’s noise bylaws. I dismiss the applicants’ claims for nuisance.

CRT FEES AND EXPENSES

64.   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.

65.   As the applicants were unsuccessful, I find they are not entitled to any reimbursement. The strata and Mr. Munroe did not pay any CRT fees or claim any dispute-related expenses, so I order none.

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

ORDERS

67.   I refuse to resolve the applicants’ claims about conflict of interest.

68.   I dismiss the applicants’ remaining claims and this dispute.