Date Issued: March 19, 2021

File: ST-2020-001186

Type: Strata

Civil Resolution Tribunal

Indexed as: Noohi v. The Owners, Strata Plan NWS 3425, 2021 BCCRT 306

Between:

BANAFSHEH NOOHI and KOBRA MEHRBAKHSH

Applicants

And:

The Owners, Strata Plan NWS 3425 and ANDREA VALDIRI

Respondents

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      This dispute is about noise between strata lots in a strata corporation.

2.      The applicants, Banafsheh Noohi and Kobra Mehrbakhsh rent strata lot 31 (unit 201) in the respondent strata corporation, The Owners, Strata Plan NWS 3425 (strata). Mrs. Mehrbakhsh is Ms. Noohi’s mother. The unit 201 owner is a family member who does not live in the strata complex and is not a party to this dispute.

3.      The respondent, Andrea Valdiri, purchased strata lot 49 (unit 301) in March 2018. Unit 301, which Ms. Valdiri still owns, is the strata lot directly above unit 201 in a wood frame building.

4.      The applicants say they have complained about noise coming from unit 301 since 2012. They say the noise experienced in unit 201 is “unnecessarily loud” because of “extreme renovations” done by the prior unit 301 owner. They say the strata’s enforcement efforts have been inadequate to date. They say Ms. Valdiri makes noise past midnight and as early as 4 am that regularly wakes them up.

5.      The applicants seek orders that Ms. Valdiri comply with the strata’s bylaws and stop making an “unreasonable amount of noise late at night or early in the morning”. They also ask for an order requiring the strata to “enforce its bylaws, including the remediation of the alterations made in unit 301 as well as ensuring adequate underlay is installed”.

6.      The respondents dispute the claims. Ms. Valdiri says the applicants are complaining about everyday noise and she is abiding by the bylaws. The strata says that it investigated the noise complaints and took enforcement action. It says it has done everything that could be expected of the strata short of carrying out work within the strata lots, which it says is an owners’ responsibility.

7.      The applicants are represented by Ms. Noohi, the primary applicant. Ms. Valdiri 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 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.

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.

Mediation Discussions

12.   On August 12, 2019, the parties engaged in a mediation. Ms. Noohi seeks to rely on certain discussions made in the course of the mediation. The strata says these discussions are privileged and inadmissible under CRTA section 42(2). CRTA section 42(2) says that the CRT is not bound by rules of evidence, but may not admit evidence that is inadmissible in a court because of a privilege under the law of evidence or otherwise.

13.   Based on the signed Agreement to Mediate, I find that all statements, negotiations, and settlements discussions made during the mediation were made on a without prejudice basis. I find the mediation discussions are covered by settlement privilege as discussed in Sable Offshore Energy Inc. v. Ameron International., 2013 SCC 37. I find privilege was not waived and therefore, the mediation discussions are not admissible under CRTA 42(2). So, I have not relied on the mediation discussions here.

ISSUES

14.   The issues in this dispute are:

a.    Did the strata fail to enforce its bylaws?

b.    Did Ms. Valdiri contravene the strata’s noise bylaw?

c.    What, if any, is the appropriate remedy?

EVIDENCE AND ANALYSIS

15.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities. I have read all the parties’ submissions but refer only to that which I find relevant to provide context to my decision.

Background

16.   The strata was created in 1990 under the Condominium Act and continues to exist under the Strata Property Act (SPA).

Bylaws

17.   On March 7, 2002, the strata filed a complete set of amended bylaws in the SPA, with some later amendments. I have summarized the relevant noise and strata lot renovation bylaws below.

18.   Bylaw 3.1 says that an owner must repair and maintain the owner’s strata lot except for repair and maintenance that is the responsibility of the strata corporation.

19.   Bylaw 4.1 says in part, that a resident or visitor must not use a strata lot, the common property or common assets in a way that creates a nuisance, unreasonable noise, or unreasonable interference with another person’s use and enjoyment of a strata lot.

20.   Bylaw 7.1 says an owner must have approval from the strata corporation before making or authorizing a strata lot alteration that involves the structure of a building, things attached to the building’s exterior, those parts of the strata lot which the strata corporation must insure, and other items not relevant here.

21.   I note that SPA section 149(1)(d) says the strata must insure fixtures built in a strata lot, as long as the fixtures were installed by the owner developer as part of the original construction of the strata lot. Section 9.1 of the Strata Property Regulations defines “fixtures” as items attached to a building, including floor and wall coverings and other items. An owner must therefore obtain strata approval under bylaw 7.1 to alter the original flooring installed by the owner developer.

22.   Bylaw 7.2(a) says the strata must not unreasonably withhold its approval but may require as one of its conditions that the owner agree in writing to take responsibility for any expense and indemnify the strata for any future cost in connection with the alteration. Bylaw 7.2(b) says the owner must provide a detailed plan and written description of the intended alteration. Bylaw 7.2(c) says an owner who received written approval from the strata council for the installation of hardwood, laminate or ceramic tile flooring, must provide proof they installed the underlay specified by the council in its approval. It also says the strata reserves the right to require installation of an area rug or carpeted runner if the council receives a complaint of unreasonable noise caused by traffic on the approved flooring.

Noise Complaints and Strata Lot Renovations

23.   The applicants say they have been disrupted by unreasonable noise from unit 301 since 2012. Ms. Noohi intermittently complained to the strata about the tenant in unit 301 over the years. The strata took some enforcement action against the tenant who moved out in early 2018. Ms. Valdiri then purchased unit 301 in March 2018.

24.   It is undisputed that a former owner replaced the strata lot flooring without council approval, contrary to bylaw 7.1. The submitted photographs show tile in the kitchen and wood floors throughout the rest of the unit 301. There is no clear evidence about when this alteration took place or the nature of the original flooring installed by the owner developer.

25.   After purchasing unit 301, Ms. Valdiri performed some additional renovations. She attached new kitchen tiles on top of the existing tiles, refinished the wood floors, and partially removed a kitchen wall. I discuss these renovations more when addressing the bylaw enforcement issue below.

26.   In April 2018, Ms. Noohi complained to the strata about noise from unit 301 mostly happening very late at night and very early in the morning, often well before 5:30 a.m.

27.   On different mornings in April 2018 strata council members went into unit 201 and listened to the noises from unit 301 above. The council members’ emails describe hearing a low frequency “boom boom”, thumps, vacuuming, echoing voices, and other noises from unit 301. One council member described the noise as “noisier than I personally could live with on an ongoing basis”. A council member also described the noise transfer between units as “too much between them”. The council notified Ms. Valdiri about the noise complaints and started enforcement action for alleged breaches of bylaw 4.1. The council also asked Ms. Valdiri to put down rugs or carpet runners, which she undisputedly did not do.

28.   In May 2018, Ms. Valdiri responded to the complaints and explained that she had been painting, cleaning, and moving furniture and would stop. She said that she and her husband woke at 4:30 a.m. to get ready for work or the gym and agreed to make some changes to their routine by preparing the night before. She said due to an occupant’s mobility problem carpet runners were not an option. There are no additional details about the mobility problem in the parties’ communications or in the submissions for this dispute.

29.   Ms. Noohi continued to send the strata emails with complaints about noise from unit 301, mostly happening late at night or very early in the morning. She complained the noise was regularly interrupting their sleep, and ability to function in the day. The strata concluded that Ms. Valdiri breached bylaw 4.1 and notified her in writing that it was imposing fines. I find it not clear whether the fines were actually imposed as there are no accounting records before me.

30.   As part of its response to the noise complaints, the council hired an engineer, Mark Gaudet, from BAP Acoustics Ltd. (BAP) to test the 301-floor and 201-ceiling assembly for impact sound insulation. Impact sound insulation is measured by a laboratory test metric, Impact Insulation Claim (IIC), or if onsite, an Apparent Impact Insulation Claim (AIIC) metric. The June 25, 2018 BAP report states the units’ impact sound transmission, as tested with a tapping machine, rated 41 AIIC. Mr. Gaudet wrote the strata that the BC Building Code recommends a higher IIC rating of 55. He also told it that high-quality underlay under hard floors will typically only result in a range of AIIC of 45 to 50, depending on the floor assembly. He stated that carpeted wood-joist floors typically yield insulation above IIC 70.

31.   None of the parties dispute Mr. Gaudet’s qualifications or findings about the impact sound transmission and there is no contrary report. I find Mr. Gaudet’s uncontested conclusions are persuasive because they based on onsite testing data that is included and thoroughly explained in the report. They are also consistent with council members’ accounts witnessing the sounds. So, I put significant weight on them. I find the impact sound insulation between unit 301 and unit 201 is likely quite poor and below the Building Code’s recommendation.

32.   In October 2018, the strata demanded that Ms. Valdiri “cease and desist” making unreasonable noise outside the hours of 8 p.m. and 8 a.m. Further, it directed Ms. Valdiri to put down thick area rugs or carpet runners to prevent noise from disturbing other occupants. In the Dispute Response, Ms. Valdiri says she laid down area rugs and sent pictures to the strata. There are no pictures of area rugs in the evidence, so I am not satisfied this was done.

33.   Ms. Noohi continued to send fairly regular emails to the strata about noises from unit 301 in 2019 and 2020 interrupting her and her parents’ sleep. Most complaints were about noises made very early in the morning, such as between 4 a.m. and 5:30 a.m. The nature of the noises were activities like walking, moving, dropping items, and slamming the patio door.

34.   As there are no records of any further enforcement action after 2018, I find the strata did not take any enforcement action in response to Ms. Noohi’s complaints in 2019 and 2020. As mentioned, the parties had a mediation in August 2019 to attempt to resolve the noise issue. However, Ms. Noohi continued to make ongoing noise complaints after the mediation. I find no evidence that the strata responded to these noise complaints by investigating or notifying Ms. Valdiri of the further complaints.

35.   The strata did however, continue to explore potential solutions to the poor soundproofing between strata lots and hired BAP to provide recommendations. In September 2019 BAP considered soundproofing the ceilings in unit 201 or adding resilient underlay to the wood floors in unit 301. BAP estimated that the ceiling upgrade would improve the IIC rating by 10-20 points, bringing it in line with the recommended 55 IIC rating, and would create a perceived 50% to 75% reduction in footfall and dragged/dropped objects. BAP estimated that adding resilient underlay, if not already present, would improve the IIC rating by 3 to 5 points and create a perceived 20% to 30% reduction in footfall and dragged/dropped objects. For reasons that are not explained, there was no other option presented, such as carpeting.

Did the strata fail to enforce its bylaws?

36.   Section 26 of the SPA requires the strata council to exercise the powers and perform the duties of the strata corporation. The council is required to act reasonably when carrying out its duties, and this includes a duty to investigate alleged bylaw contraventions, such as noise complaints.

37.   A strata corporation must also enforce its bylaws, 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). I find the regular noise complaints disrupting sleep were not trivial, and I find the strata was required to enforce its noise bylaws.

38.   I find the strata conducted a reasonable investigation of Ms. Noohi’s noise complaints in 2018 by hiring BAP to assess the floor and by having council members attend unit 201 to listen to the sound. Once it determined the unreasonable noise, I find the strata was required take enforcement action to attempt to stop the bylaw contravention. I am not satisfied that the strata sufficiently enforced its bylaws by doing so.

39.   As noted, there is no evidence that the strata informed Ms. Valdiri that Ms. Noohi continued to complain of her activities after the mediation, that it further investigated the complaints, or that it assessed the effect of any noise reduction efforts Ms. Valdiri undertook or confirmed that she took any. Because of this, I find the strata failed to meaningfully enforce its noise bylaws in response to Ms. Noohi’s ongoing complaints.

40.   The strata says it is in the process of winding-up the strata corporation. However, there is no resolution of the ownership under SPA section 272 to cancel the strata plan or court order winding up the strata corporation under SPA section 284. The strata is required to enforce its bylaws on an ongoing basis even if it has started the process to potentially wind up in the future.

41.   The applicants say the strata also failed to enforce an indemnity agreement to require Ms. Valdiri to restore her strata lot. I disagree. There is no indemnity agreement in evidence for the previous owner’s floor alterations. The only indemnity agreement before me is related to Ms. Valdiri removing a wall. Specifically, the submitted records show the strata retroactively approved Ms. Valdiri partially removing a non-structural wall and had her sign an indemnity agreement for the wall and some electrical work. I find the indemnity agreement does not apply to the flooring. Apart from speculation, there is also no evidence that the partial removal of a non-structural wall impacted sound transference. I am not satisfied without evidence that the wall must be restored to remedy the noise issue. So, I find the strata was not required to enforce the indemnity agreement to remedy the unreasonable noise complaints. I discuss the strata’s authority to require strata lot alterations to remedy a bylaw contravention below.

Did Ms. Valdiri breach the strata’s bylaws?

42.   The applicants say that part of the noise issue was about activities done outside of expected times, like laundry, vacuuming, and renovations early in the morning or late at night. However, they say the “majority of the noise is from regular morning activities, which cannot be avoided, but end up being unnecessarily loud” due the prior owner’s renovations.

43.   Ms. Valdiri and the strata do not dispute that noises from unit 301 can be heard in unit 201. They attribute the noise to normal activities in a poorly soundproofed wood frame building. It seems the respondents’ position is the noises then do not breach bylaw 4.1.

44.   The strata relies on the non-binding CRT decision, LeBlanc v. The Owners, Strata Plan LMS 600, 2020 BCCRT 783. In LeBlanc a Vice Chair concluded that some amount of noise is to be expected in a wood frame building and the daily living noises were not unreasonable. However, in LeBlanc, the applicant did not provide evidence to support their assertion about the noise, nor to identify its source. Here all the parties agree noises can be heard from unit 301, which is also supported by independent evidence.

45.   In A.P. v. The Owners, Strata Plan ABC, 2017 BCCRT 94, a CRT Vice Chair held that the test for whether noise is unreasonable is objective rather than what the owner experiences. Though not binding on me, I agree that the test is an objective one. Whether the noise from unit 301 breached bylaw 4.1 must be assessed by applying the facts to a reasonableness standard.

46.   Ms. Valdiri does not specifically deny making the noises described in the submitted email complaints, though I find she had the opportunity to do so. I find she likely made late night or early morning noise on a fairly regular basis as described in the emails. Considering the evidence of poor soundproofing, I find the applicants likely experienced impact noises from unit 301 and that the noises regularly disrupted their sleep.

47.   While I accept that some normal daily living noise in a wood frame building should be expected during the daytime, I find it is not objectively acceptable in the middle of the night or before 5:30 a.m. as I find was often the case here. I find the applicants are not reasonably expected to live in a home where they cannot sleep because of noise from the strata lot above. I find the late night and early morning noises that disrupted sleep constitute unreasonable noise. I find the applicants have proven on a balance of probabilities that Ms. Valdiri acted contrary to bylaw 4.1 by making unreasonable noise.

48.   As discussed in the next section, Ms. Valdiri says she took several steps to mitigate the noise issue after the parties’ mediation in August 2019. By this time, the strata had stopped investigating Ms. Noohi’s noise complaints. The applicants did not provide any independent witness evidence of noise after mediation and there are no audio recordings. So, while I am satisfied that Ms. Valdiri breached bylaw 4.1 at times in the past years, I am not satisfied that the unreasonable noise continued after the mediation.

49.   Apart from the noise bylaw, the applicants argue that Ms. Valdiri breached bylaw 7.2 by not providing proof of underlay. While I agree Ms. Valdiri did not provide proof of underly, I find she did not breach bylaw 7.2. Bylaw 7.2 applies where the owner received council’s written approval to install the hard flooring and must then provide proof they installed the underlay specified by council. There was no council approval here, and the original flooring was already replaced by the prior owner when Ms. Valdiri bought unit 301. I find bylaw 7.2 does not apply to Ms. Valdiri.

What, if any, is the appropriate remedy?

50.   The applicants request an order that Ms. Valdiri comply with the bylaws, including by remediating the alterations made by the previous owner. They also request an order that Ms. Valdiri stop making an unreasonable amount of noise late at night or early in the morning. Further, they ask for an order that the strata enforce its bylaws, including requiring confirmation of the flooring underlay.

51.   Ms. Valdiri says she complied with everything required of her by the strata and did not act “negligently”. She says she is doing her best to abide by the bylaws and is being mindful of noise levels between 8 p.m. and 8 a.m. Ms. Valdiri also says she changed her routines, behaviours, appliances, reorganized her strata lot and is living quietly. I note the photographs in evidence show she put down interlocking exercise mats over all the wood floors in unit 301. Ms. Valdiri does not say exactly when she put down the mats and I have no information on their effectiveness.

52.   The strata says it is not responsible to pay for work done within a strata lot to improve the soundproofing. I agree the strata is not normally responsible for the costs of such work under the SPA or its bylaws. Strata lot repairs and maintenance are the responsibility of a strata lot owner under bylaw 3.1. However, SPA section 133(1) permits a strata corporation do what is reasonably necessary to remedy a contravention of its bylaws including doing work on a strata lot. Under SPA section 133(2) it may require that reasonable costs of remedying the contravention be paid by the person who may be fined for a contravention of the bylaws.

53.   It follows that Ms. Valdiri may be required to pay to remediate her strata lot’s flooring if the noise transference is so great that her regular activities cause unreasonable noise to the strata lot below. This is true even where Ms. Valdiri did not act negligently with respect to the strata lot alterations.

54.   However, I find it would be premature to order Ms. Valdiri to alter her strata lot given there is no independent evidence on what impact, if any, Ms. Valdiri’s noise reduction efforts might have had on the sound transference between strata lots. If effective, Ms. Valdiri’s activities may no longer cause unreasonable noise. In other words, a strata lot alteration may not be required to prevent a future bylaw contravention.

55.   Further, I find it would be inappropriate to order the requested remedy to redo the wood floors with resilient underlay if it will not resolve the noise issue. The strata did not assess air-born noise and as noted, the BAP report estimates that the AIIC rating will fall under the Building Code’s IIC 55 recommendation even with resilient underlay.

56.   Given the strata had an ongoing responsibility to enforce its bylaws and stopped investigating Ms. Noohi’s noise complaints, I conclude that the strata must further investigate the noise issue in unit 201. I order the strata to hire a sound engineer, or other qualified professional, to assess and report in writing on the air-born and structure-born noise in unit 201 coming from unit 301 with Ms. Valdiri’s mitigation efforts in place. The strata must request that the written report provide recommendations on any remediation required in unit 301 to meet the minimum Building Code recommendations for noise levels.

57.   The strata must provide the professional’s written report to Ms. Valdiri and the applicants within 7 days of receiving it.

58.   The applicants and Ms. Valdiri are of course, required to cooperate with the strata’s investigation and allow reasonable access to their strata lots to allow the professional to perform their work.

59.   If the strata determines there is unreasonable noise transference into unit 201, based on the professional report or otherwise, it is empowered to undertake reasonable remedial measures to enforce the bylaws as set out in SPA section 129. For example, the strata has the power to require Ms. Valdiri to upgrade unit 301’s flooring where the nature of the flooring is such that the strata cannot properly enforce the noise bylaw. Under section 133, the strata may perform the remedial work to unit 301 itself if the work is reasonably necessary to remedy the noise contravention and require Ms. Valdiri to pay the reasonable associated costs. Before imposing any fine or remedying the contravention the strata would still need to follow the requirements set out in SPA section 135. Nothing in this decision should be read to remove the SPA’s procedural fairness obligations.

60.   Ms. Valdiri is already required to comply with the bylaws by not making unreasonable noise and the strata is already required to enforce its bylaws. So, I make no further orders.

CRT FEES AND EXPENSES

61.   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 the applicants were primarily successful in this dispute. Considering my findings and orders against the strata, I find it is appropriate that the strata reimburse the applicants’ paid CRT fees of $225. None of the parties claimed dispute-related expenses.

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

ORDERS

63.   I order that:

a.    Within 45 days of this order, the strata must hire a sound engineer, or other qualified professional, to assess and report in writing on the air-born and structure-born noise in unit 201 coming from unit 301 with Ms. Valdiri’s mitigation efforts in place. The strata must request that the written report provide recommendations on any remediation required in unit 301 to meet the minimum Building Code recommendations for noise levels.

b.    The strata must provide the professional’s written report to Ms. Valdiri and the applicants within 7 days of receiving it.

c.    Within 30 days of this decision, the strata must pay the applicants $225 in CRT fees.

d.    The applicants’ remaining claims are dismissed.

64.   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.