Date Issued: May 18, 2021

File: ST-2020-005478

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Lee v. The Owners, Strata Plan EPS1290, 2021 BCCRT 533

Between:

JOANNA LEE, YOUNG OAK LEE, and EDUARDO WANG HE LEE

Applicants

And:

The Owners, Strata Plan EPS1290

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The applicants, Joanna Lee, Young Oak Lee, and Eduardo Wang He Lee, own strata lot 136 (unit 2007) in the respondent strata corporation, The Owners, Strata Plan EPS129 (strata). Although Young Oak Lee and Eduardo Wang He Lee are owners of unit 2007, they were not involved in the events leading to this dispute. So, I will refer to Joanna Lee as Ms. Lee.

2.      This dispute is primarily about noise complaints. Ms. Lee says that the strata has repeatedly and falsely accused her of violating the strata’s noise bylaw, which she considers harassment. She says that she has not breached the noise bylaw and that the strata did not comply with section 135 of the Strata Property Act (SPA) before imposing 2 $200 fines. She asks for an order removing these fines from the applicants’ strata lot account. She also says that she had to extend her schooling because of the constant complaints and claims $3,000 in extra tuition for this delay. Finally, Ms. Lee wants an order granting her unlimited access to the strata’s amenity room and meeting room (common rooms), despite a strata rule limiting residents’ use.

3.      The strata says that it has to investigate every noise complaint, so it has not harassed Ms. Lee. The strata says that it was justified in imposing fines against the applicants and complied with section 135 of the SPA. Finally, the strata says that it validly passed a rule governing the use of the common rooms. The strata asks me to dismiss the applicants’ claims.

4.      Ms. Lee represents all 3 applicants. A strata council member represents the strata.

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 by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

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 tribunal 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

9.      The issues in this dispute are:

a.    Did the strata act significantly unfairly in how it handled the noise complaints against Ms. Lee?

b.    Did the strata comply with section 135 of the SPA before imposing the 2 outstanding fines?

c.    Has the strata proven that Ms. Lee breached the noise bylaw in relation to the 2 outstanding fines?

d.    What remedy, if any, about the fines is appropriate?

e.    Did the strata act significantly unfairly by passing rules governing the use of the common rooms?

BACKGROUND

10.  In a civil claim such as this, the applicants must prove their case on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

11.  The strata consists of 212 strata lots in a high-rise tower. Unit 2007 is on the 18^th floor. The strata has a meeting room and an amenity room for residents’ use (together, the “common rooms”).

12.  The strata has filed several bylaw amendments in the Land Title Office. I find that the relevant bylaws to this dispute are bylaw 3(1)(a), which says that an owner must not cause a nuisance, and bylaw 3(1)(b), which says that an owner must not cause unreasonable noise. Bylaw 23 sets a $200 maximum fine for a bylaw contravention.

13.  Young Oak Lee and Eduardo Wang He Lee have owned unit 2007 since the strata was completed in 2014. Ms. Lee became a joint owner in 2018, although she lived there well before 2018. Ms. Lee is a professional violinist who is also a PhD candidate in performance violin at the University of British Columbia.

14.  The resident of unit 1907, which is immediately below unit 2007, has made many complaints about noise coming from 2007 over the years. Ms. Lee says that this resident, JD, has been harassing her for years. JD was a strata council member for 1 term, ending in 2018.

EVIDENCE AND ANALYSIS

Did the strata act significantly unfairly in how it handled the noise complaints against Ms. Lee?

15.   Ms. Lee says that the strata has harassed her by sending her constant letters accusing her of violating the strata’s noise bylaws. As I understand Ms. Lee’s submissions, her issue about the volume of letters is separate from her issue about the validity of the outstanding fines, which I address below. Ms. Lee says that the strata’s actions wasted considerable time and caused a deterioration of her mental and physical health. She says that she had to extend her schooling and claims $3,000 for extra tuition.

16.   The strata hired its current property manager around September 2018. There is little evidence about the strata’s behaviour before this time.

17.   Ms. Lee says that these complaints are almost all from JD. She says that JD has had a personal vendetta against her since at least 2016, when she alleges he used a “selfie stick” to spy on her and she called the police. She says that JD has used the bylaw enforcement process to harass her. She says that the strata participated in this harassment by sending her bylaw contravention letters about these complaints without investigating whether the complaints were valid.

18.   I note that Ms. Lee’s submissions include arguments about the strata’s response to her complaints about JD. However, Ms. Lee does not ask for any orders about this, so I find it unnecessary address with those submissions.

19.   The current property manager’s contravention letters are all on the same form letter. The letters give the time and brief description of each complaint. They also say that Ms. Lee is “in contravention” of the bylaws.

20.   Most of the contravention letters in evidence are from 2019 and 2020. There are 3 contravention letters in evidence from 2019, which each contain multiple allegations of unreasonable noise. The strata sent another letter on March 5, 2020, which repeated some old complaints and added 9 new complaints.

21.   The frequency of contravention letters intensified during the early days of the COVID-19 lockdown, apparently because the strata started sending individual letters for each noise complaint instead of periodic letters that listed several complaints. The property manager sent 4 contravention letters in April 2020, including 3 over an 8 day period. The property manager also a contravention letter in each of May, June, and August 2020.

22.   The noise complaints fall into 3 broad categories. Some complaints were about walking, thumping, or dropping items. Some complaints were about Ms. Lee’s 2 dogs barking. However, the majority of the complaints during the lockdown were about Ms. Lee playing the violin. Before the lockdown, Ms. Lee practiced in the common rooms and on campus. During the lockdown, she had to practice at home.

23.   Ms. Lee responded to each bylaw contravention letter via email. In general, she denied that the noise was unreasonable because it was the sort of noise that everyone experiences in strata living. She has also had strata council hearings on September 18, 2018 October 28, 2019, and June 24, 2020.

24.   According to the applicants’ strata lot account, the strata imposed 1 fine in 2019 and 3 fines in 2020, up to October 2, 2020. The strata reversed the 2019 fine after the October 2019 hearing and 2 of the 2020 fines after the June 24, 2020 hearing. The strata imposed another fine on October 16, 2020, according to a letter from the property manager. I discuss these outstanding fines in more detail below but note that the strata did not impose fines for the majority of the complaints.

25.   Ms. Lee says that it is harassment that the strata tells her about every single complaint against her. She says that sending the letters validates the complaints. She says that the strata failed to investigate the complaints before sending the contravention letters. Instead, she says that the strata assumed that the complaints were true without any proof. She says that this had a significant effect on her because it allowed JD to harass her. She says that the strata knew about her concerns about JD but continued sending the letters anyway. Ms. Lee says that the constant contravention letters, responding emails and hearings have taken time away from her schooling and caused unnecessary stress.

26.   Ms. Lee says that a previous CRT dispute concluded that strata council members had bullied owners. There are 2 previous CRT decisions involving the strata: Kierans et al v. The Owners, Strata Plan EPS 1290, 2019 BCCRT 1086 and The Owners, Strata Plan EPS1290 v. Gill, 2021 BCCRT 402. Ms. Lee does not specify which CRT dispute she refers to, but there is no suggestion in either dispute that the CRT found that the strata bullied the owner.

27.   The strata says that it has to investigate every complaint, and doing so is not harassment. The strata disagrees that it did no investigation before sending the contravention letters because it has its concierge confirm each noise complaint before sending a letter.

28.   In Chorney v. Strata Plan VIS 770, 2016 BCSC 148, the court said that a strata council can investigate bylaw contravention complaints as it sees fit, as long as it complies with principles of procedural fairness and does not act significantly unfairly. This means that the strata has considerable discretion in deciding how it responds to complaints.

29.   While Ms. Lee does not use these words, I find that her argument is that it is significantly unfair for the strata to send a letter for every complaint it receives about her. Sections 121(1)(e) and 123(2) give the CRT the power to make an order to prevent or remedy a significantly unfair action by the strata, including the strata council.

30.   In Reid v. Strata Plan LMS 2503, 2003 BCCA 126, the BC 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, unjust or inequitable. In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the BC Court of Appeal confirmed that the reasonable expectations of an owner may also be relevant to determining whether the strata’s actions were significantly unfair. When an owner’s reasonable expectations are relevant, as I find they are here, I must determine whether the strata violated those expectations with a significantly unfair action or decision: see Dollan v. The Owners, Strata Plan BCS 1589, 2012 44.

31.   So, was it significantly unfair to notify Ms. Lee about all of JD’s complaints? It is true that the contravention letters all say that Ms. Lee has contravened the strata’s bylaws. On their face, they suggest that the strata had determined that Ms. Lee had contravened the bylaws before hearing from her. I find that this language reasonably caused Ms. Lee to feel that she had to respond in detail to each letter to avoid a fine. In other words, I find that Ms. Lee expected that the strata would investigate the complaints, including by asking her about the complaints, before concluding that she had violated the noise bylaw. I find that this was a reasonable expectation.

32.   However, I find that when taken in context, the strata’s clear intent in sending the letters was to notify Ms. Lee about a complaint in order to give her an opportunity to respond. I say this because for most of the letters, the strata decided to take no action after it received Ms. Lee’s response. This shows that the strata had not prejudged the issue. Instead, I find that by sending the letters, the strata intended to invite a response as part of its investigation.

33.   For example, on April 28, 2020, the property manager sent Ms. Lee a letter about a complaint for “walking in high heels for 10 minutes”. Ms. Lee responded that this was a trivial complaint and even if true did not justify the strata’s intervention. The strata did not take any enforcement action related to this complaint. This indicates that the strata accepted her explanation. So, I find that in practice the strata kept an open mind on the complaints and considered Ms. Lee’s perspective. I therefore find that the strata did not violate Ms. Lee’s expectation of a reasonable investigation.

34.   I find no other persuasive evidence that the strata acted significantly unfairly. There is no evidence that the strata treated Ms. Lee any differently than any other resident. While Ms. Lee asserts that the strata acted in bad faith, I find no compelling evidence of this. In particular, I do not agree that the strata put undue weight on JD’s complaints because he was a former strata council member. I rely primarily on the fact that the strata took enforcement action on a small proportion of JD’s complaints. Also, while I accept that Ms. Lee had to spend time responding to the complaints, I find that this is part of living in a strata setting, where disputes between residents are common. So, I find that it was not unduly burdensome or harsh of the strata to inform Ms. Lee of the complaints against her. I dismiss her claim for $3,000 in increased tuition.

Did the strata comply with section 135 of the SPA before imposing the fines?

35.   As mentioned above, the strata has cancelled all but 2 fines it has imposed on Ms. Lee for breaching the noise bylaw. I note that in its submissions, the strata says that Ms. Lee only has 1 outstanding fine, based on a complaint that Ms. Lee played the violin loudly on March 29, 2020. Having reviewed the applicants’ strata lot account and the property manager’s letters, I agree with Ms. Lee that there are 2 outstanding fines. The second was based on a complaint that Ms. Lee’s dogs were barking on August 10, 2020. There is no evidence that the strata has cancelled this fine.

36.   Ms. Lee says that the strata did not comply with section 135 of the SPA before imposing the fines because it failed to hold hearings that she requested. Section 135 sets out the procedural requirements the strata must follow before it imposes a fine. The requirements are strict and the strata has no leeway in following section 135. See Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449 and The Owners, Strata Plan NW 307 v. Desaulniers, 2019 BCCA 343.

37.   Section 135 of the SPA says that the strata cannot impose a fine unless it has:

a.    Received a complaint,

b.    Given the owner the details of the complaint, in writing, and

c.    Given the owner a reasonable opportunity to answer the complaint, including a hearing if requested.

38.   Under section 34.1 of the SPA, if an owner requests a hearing, the strata must hold it within 4 weeks and provide a written decision within 1 week of the hearing.

39.   With respect to the first fine, the property manager sent Ms. Lee a letter on April 23, 2020, about a March 29, 2020 complaint. The letter said that the complaint was at 9:37 pm for “loud music noise”. The property manager said that Ms. Lee would have 20 days to either respond in writing or request a hearing.

40.   Ms. Lee emailed the strata on May 11, 2020. She said she had to practice her violin several hours each day and had nowhere else to practice except home because of the lockdown. She could no longer use the common rooms or practice rooms at UBC. She did not deny playing at 9:30 pm on March 29, 2020. She said that everyone in the strata must deal with noise and distractions from time to time, especially during the lockdown. She said she was “more than happy to go to a hearing to address this if that needs to happen”. She went on to say that “out of the sanctity of honouring the lockdown” this would have to happen after the quarantine was over.

41.   It is undisputed that the strata did not respond to this email and did not hold a hearing. The strata sent a letter imposing a fine on June 12, 2020. Ms. Lee responded on June 15, 2020, complaining about the lack of a hearing.

42.   The question is whether Ms. Lee’s statement was a hearing request. By using the words, “if that needs to happen”, Ms. Lee likely intended to tell the strata that she would want a hearing if it was considering taking any enforcement action, like a fine. However, on its face, I find that it was not a clear request.

43.   Section 34.1 of the SPA says that the strata must hold a hearing if there is an “application in writing stating the reason for the request”. I find that this suggests that an owner’s request for a hearing must be clear, not conditional or ambiguous. I find that Ms. Lee’s May 11, 2020 email did not include a clear request for a hearing. I therefore find that it did not trigger an obligation that the strata hold a hearing before imposing a fine.

44.   Therefore, I find that the strata complied with section 135 of the SPA before imposing the first fine.

45.   Ms. Lee also argues that the strata is not allowed to fine her more than once in 1 week. She says that the strata had fined her for 2 bylaw contraventions within a week of each other. However, while the bylaws allow the strata to impose a fine every 7 days for continuing bylaw contraventions, I find that nothing prevents the strata from imposing 2 fines for 2 separate bylaw contraventions within a week of each other.

46.   Turning to the second fine, the property manager wrote to Ms. Lee about the second fine on August 10, 2020. This complaint was that Ms. Lee’s dogs had been “barking non stop for many hours”. The letter was in the same form as the April 23, 2020 letter.

47.   Ms. Lee responded on August 30, 2020. She denied that her dogs were barking because when she arrived home, they were not barking. She also said that the concierge on duty treated her unfairly by telling her that she had been out too long. She did not request a hearing. The strata imposed a fine on October 16, 2020.

48.   It is unclear why Ms. Lee says that the strata did not comply with section 135 of the SPA in relation to the second fine. I find no issue with the strata’s process for the second fine.

Has the strata proven that Ms. Lee breached the noise bylaw in relation to the 2 outstanding fines?

49.   Ms. Lee makes 2 related arguments about why the 2 fines should be cancelled on their merits. First, she denies that either her violin or her dogs made unreasonable noise. Second, she says that the strata never met its “burden of proof” that she breached the noise bylaw.

50.   The strata relied on bylaws 3(1)(a) and (b) to impose the 2 fines. In the context of noise complaints, I find that these 2 bylaws amount to the same thing. If the noise coming from unit 2007 was unreasonable, it was also a nuisance. In previous decisions, the CRT has applied the common law of nuisance to noise complaints between strata lots. I agree that this is the appropriate approach.

51.   In the strata context, a nuisance is an unreasonable interference with an owner’s use and enjoyment of their property: The Owners, Strata Plan LMS 1162 v. Triple P Enterprises Ltd., 2018 BCSC 1502. Whether or not an interference, such as noise, is unreasonable depends on several factors, such as its nature, severity, duration, and frequency. The interference must also be so substantial that it is intolerable to an ordinary person, viewed objectively: St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64. 

52.   This means that often a resident’s subjective complaints are not enough to prove that noise is unreasonable. I find that, in general, a strata corporation must have some objective evidence that noise is unreasonable to enforce a noise bylaw. This reflects previous CRT cases that have generally required residents making complaints about noise to provide objective evidence that the noise was unreasonable. See, for example, Moojesky v. The Owners, Strata Plan K 323 et al, 2019 BCCRT 698 and Chan v. The Owners, Strata Plan BCS2583, 2021 BCCRT 456. I see no reason why the strata should not be held to the same standard before imposing fines.

53.   Here, the strata has provided very little evidence to support its decision to impose the 2 fines. There is no evidence about who made the complaints and the property manager’s letters provide little detail. The initial complaints are not in evidence and there is no statement from the resident who made the complaints. There is no objective evidence about how loud the noise was in other strata lots.

54.   The only objective evidence is indirect evidence from the strata’s concierge. On July 15, 2020, the strata’s concierge texted Ms. Lee to ask when she was coming home because her dogs were barking. The parties also seem to agree that the concierge knocked on Ms. Lee’s door when she was playing violin on March 29, 2020, and Ms. Lee did not hear the knocking. However, there is no evidence about how loud the concierge thought the noise was.

55.   The strata blames Ms. Lee for the lack of objective evidence. This is because in January 2019, after a series of noise complaints from JD in unit 1907, the strata tried to organize an informal noise test with strata council members in both unit 2007 and unit 1907. Ms. Lee refused access to unit 2007 for this purpose because she thought the noise testing should be done by an objective professional.

56.   I agree with the strata that Ms. Lee’s refusal to cooperate with this informal noise test was unreasonable. I do not agree with Ms. Lee that she was justified in refusing access to her strata lot based on her perception that the strata council would be biased against her. I do not find this suspicion supported by the evidence. I find that having strata council members observe allegedly unreasonable noise is a reasonable first step in the investigation process, even though it may not be conclusive on its own. Ms. Lee cannot dictate how the strata investigates complaints. I note that the CRT relied, in part, on a strata council member’s reports as objective evidence of unreasonable noise in Moojesky.

57.   I find that it would be unfair to penalize the strata for the lack of objective evidence when Ms. Lee frustrated the strata’s investigation. For this reason, I dismiss Ms. Lee’s claim to have the fines cancelled.

Did the strata act significantly unfairly by making rules governing the use of the common rooms?

58.   As mentioned above, the strata has common rooms for residents to use. In August 2019, the strata council adopted rules governing the use of the common rooms. Among other things, the rules limited each strata lot from using each of the common rooms more than 5 times per month. Before this, Ms. Lee regularly used the common rooms to practice violin. Ms. Lee believes that the strata targeted her with the new rules. She wants an order giving her unrestricted use of the common rooms.

59.   Section 125(1) of the SPA says that the strata can make rules governing the use of common property. Section 125(6) of the SPA says that a rule stops having effect at the first annual general meeting (AGM) after the rule’s adoption unless it is ratified by a majority vote at that AGM or a special general meeting (SGM) held before the AGM.

60.   The strata held an SGM on January 23, 2020, which included resolutions to ratify the common room rules. Ms. Lee proposed an amendment to the rule about the meeting room to allow the strata council to give permission to use the meeting room more than 5 times per month. The owners voted to accept this amendment. The resolutions about the common rooms both passed.

61.   The strata says that it passed rules about the common rooms in response to complaints that the same people were always using them.

62.   Again, Ms. Lee does not use the language of significant unfairness in her submissions, but I find that this is the appropriate way to assess her arguments about the common rooms. I say this because she does not say that the strata improperly adopted or ratified the rules. I find that the strata’s process of adopting and ratifying the rules complied with section 125 of the SPA.

63.   I find that the strata’s adoption of the rule restricting use of the common rooms was not significantly unfair. There is no evidence that the rule change was directed against Ms. Lee specifically. I find that the strata has a legitimate interest in setting limits on individual residents’ use of the common rooms to make sure that all residents have reasonable opportunities to use the amenities. I find that the exception in the meeting room rule allowing the strata council to give Ms. Lee access more than 5 times makes the rule minimally restrictive.

64.   Therefore, I find that the strata’s adoption and ratification of the common room rules was not significantly unfair. Ms. Lee has identified no other reason why she should get unrestricted access to the common rooms. I dismiss Ms. Lee’s claim about access to the common rooms.

TRIBUNAL FEES AND EXPENSES

65.  Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. The applicants were unsuccessful, so I dismiss their claim for CRT fees and dispute-related expenses. The strata did not claim any dispute-related expenses or pay any CRT fees.

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

DECISION AND ORDER

67.   I dismiss the applicants’ claims, and this dispute.