Date Issued: September 14, 2021

File: ST-2021-000768

Type: Strata

Civil Resolution Tribunal

Indexed as:  Fontana v. The Owners, Strata Plan NW 501, 2021 BCCRT 996

Between:

MELANIE FONTANA

Applicant

And:

The Owners, Strata Plan NW 501

Respondent

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.    This dispute is about noise complaints and strata governance.

2.    The applicant, Melanie Fontana, owns and lives in strata lot 13 in the respondent strata corporation, The Owners, Strata Plan NW 501 (strata). Ms. Fontana says she has complained to the strata about barking in the apartment below hers (unit 104), but the strata has failed to enforce its noise and nuisance bylaws. She says she has had 3 strata council hearings about the matter but received no written decisions from the strata. Ms. Fontana asks for an order that the strata enforce its bylaws against unit 104, provide her with written decisions from her 3 hearings, and compensate her $4,000 for pain and suffering.

3.    Ms. Fontana also says the strata often sends out its meeting minutes late and asks for an order that the strata provide meeting minutes within 2 weeks, including specific content.

4.    The strata says it has addressed Ms. Fontana’s complaints and taken steps to enforce its bylaws against unit 104, whose occupants have now moved out of the building. The strata admits distributing its December 2020 council meeting minutes late but says it has distributed all other minutes on time. It says Ms. Fontana is not entitled to written decisions because she did not have any formal strata council hearings. I infer the strata asks that this dispute be dismissed.

5.    Ms. Fontana represents herself. The strata is represented by a strata council member.

6.    As explained below, I dismiss Ms. Fontana’s claim for damages, as she failed to prove the barking violates the strata’s noise and nuisance bylaws, or that the strata failed to investigate or enforce its bylaws. I order the strata to include its decisions, and vote counts, in future meeting minutes. I dismiss Ms. Fontana’s remaining claims.

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 the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

10. Under section 123 of the CRTA and the CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

11. As a preliminary matter, both parties submitted witness statements from strata resident MG, after the evidence deadline had passed. Both parties object to the other’s late evidence. I find neither party was prejudiced by the other’s late evidence as the parties had the opportunity to view the evidence and respond to it in their submissions. I find I can address each party’s submissions about credibility and reliability by weighing the statements, rather than rejecting them outright. Keeping in mind the CRT’s mandate, which includes flexibility, I accept the late evidence.

ISSUES

12. The issues in this dispute are:

a.    Does the evidence establish unreasonable noise?

b.    Has the strata failed to enforce its noise and nuisance bylaws?

c.    If so, what is an appropriate remedy?

d.    Must the strata provide Ms. Fontana with written decisions following the 3 strata council meetings she attended?

e.    Did the strata fail to provide accurate or timely strata council meeting minutes and, if so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

13. In a civil claim such as this one the applicant, Ms. Fontana, must prove her claims on a balance of probabilities (meaning “more likely than not”). I have reviewed the submissions and weighed the evidence provided by both parties, but only refer to that necessary to explain my decision.

14. The strata was created in 1976 and consists of 27 residential strata lots in a 3-floor apartment building. The owners of unit 104 had a dog named Ruby. They sold their strata lot and moved out around March 1, 2021. None of this is disputed.

15. I find the applicable bylaws are the amended set of bylaws registered on March 4, 2011. Bylaw 5(2) prohibits an owner from using their strata lot, or common property, in a way that (a) causes a nuisance to another person, (b) causes unreasonable noise, or (c) unreasonably interferes with another person’s use and enjoyment of the common property, common assets, or their own strata lot. Bylaw 5(4) allows strata residents to have 1 dog in a strata lot.

16. Based on Ms. Fontana’s correspondence with the strata council provided in evidence, I find she reported barking from unit 104 on:

•         February 9, 2020 from 1:30 until nearly 3 pm, continuously,

•         July 5, 2020 for 45 minutes in the afternoon, incessantly,

•         August 24, 2020 constantly from 2 pm to 3:19 pm,

•         October 14, 2020 for 2 minutes non-stop then non-stop between 2:15 pm and 2:40 pm,

•         November 26, 2020 from 11 am to 1:30 pm and again from 2:45 pm and 5 pm,

•         December 8, 2020 from 10:46 am to 1 pm,

•         December 27, 2020 from 3:40 pm to 4:15 pm,

•         January 1, 2021 from 2 pm to 2:40 pm,

•         January 2, 2021 for 7 minutes in the afternoon,

•         January 3, 2021 from 3:30 pm to 5 pm, and

•         January 14, 2021 from 1:15 pm to 1:46 pm.

17. It is undisputed that Ms. Fontana attended the October 21, 2020, December 16, 2020 and January 20, 2021 strata council meetings to speak about her noise complaints.

18. In an October 27, 2020 letter, the strata notified the owners of unit 104 that Ms. Fontana complained about Ruby barking continuously over the course of recent months. The strata reproduced bylaw 5(2) and told the owners they had 14 days to ensure that they complied with the noise and nuisance bylaw. It said that, if the barking continued after November 12, 2020, the strata would have to look at fines. It is undisputed that the strata did not send any further letters to, or fine, the owners of unit 104.

Is the Barking Unreasonable Noise or Nuisance?

19. Ms. Fontana says Ruby barked uncontrollably and for hours at a time, interfering with her quiet use and enjoyment of her own apartment, her family visits, and her ability to read and sleep. The strata denies Ruby’s barking is unreasonable or a nuisance, under the strata bylaws.

20. Ms. Fontana says that the city animal control department told her that barking for more than 3 minutes within a 15-minute period is unreasonable and a city bylaw violation. There is no evidence before me setting out what the city’s animal control bylaws are. In any event, I find the strata’s bylaws and city bylaws have different purposes, are enforced differently, and may have different wording. So, even if Ruby barked for more than 3 minutes in a 15-minute period, that would not necessarily violate the strata’s noise and nuisance bylaws. That is because nuisance and noise must be determined in context, with regard to the surrounding circumstances.

21. In the strata context, nuisance is a substantial, non-trivial and unreasonable interference with an owner’s use and enjoyment of their property (see The Owners, Strata Plan LMS 1162 v. Triple P Enterprises Ltd., 2018 BCSC 1502). The test of whether noise is unreasonable is objective and is measured with reference to a reasonable person occupying the premises (see Sauve v. McKeage et al., 2006 BCSC 781). The test for nuisance depends on several factors, such as its nature, severity, duration, and frequency (see St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64).

22. Ms. Fontana provided 3 video clips which she says document Ruby’s “non-stop” barking. None of the videos were taken inside unit 204 and so I find they do not adequately convey the severity of Ruby’s barking as heard from inside Ms. Fontana’s apartment. Although Ms. Fontana says the clips show Ruby barking “non-stop”, I find Ruby barks intermittently in each clip, including in response to Ms. Fontana repeatedly telling Ruby to be quiet while standing at unit 104’s front door. Based on the clips I find it likely that Ruby barked intermittently during the periods Ms. Fontana described as “continuous or incessant” in her reports to the strata.

23. Although Ms. Fontana says she complained about Ruby’s barking for 7 years, the strata denies this and there is no evidence before me of strata complaints prior to February 2020. The evidence shows Ms. Fontana complained to the strata about 13 barking incidents on 11 different days over the course of 11 months, all in the late morning or afternoon which, I find is not significantly frequent in a strata that allows dogs. Although Ms. Fontana documented continuous barking for minutes to hours, I find it likely the barking was intermittent, which makes the duration less significant.

24. Ms. Fontana submitted a January 14, 2021 handwritten note, signed by SK. The note says SK was outside at 1:30 pm and heard Ruby barking non-stop.

 

25. In a May 12, 2021 typewritten statement, SK says he signed a blank piece of paper at Ms. Fontana’s request on January 14, 2021, which Ms. Fontana disputes. I find it unlikely that SK signed a blank piece of paper on January 14, 2021, given the location of his signature in the middle of the page directly under the statement itself. However, I give SK’s January 14, 2021 little weight because it provides no detail about how long SK heard Ruby barking, or how often. Further, I find any barking outside the building irrelevant to Ms. Fontana’s argument that Ruby’s barking interfered with her enjoyment of her own strata lot.

26. For the same reason, I give little weight to PM’s statement about hearing Ruby barking from the sidewalk as I find it not relevant to whether Ruby’s barking was unreasonable or a nuisance to Ms. Fontana in her apartment.

27. In his May 12, 2021 statement SK said he only hears Ruby barking outside, or when he is close to unit 104. SK also says he lives next door to unit 104 and that the barking does not bother him. I find this statement weighs against a finding of nuisance or unreasonable noise.

28. Ms. Fontana submitted a May 24, 2021 letter she admits she wrote, about MG who lives in apartment 201. The letter says MG heard Ruby barking many times for a lengthy period from 2019 to 2021. The letter is signed by both Ms. Fontana and MG but provides no details about the frequency, intensity, or duration of Ruby’s barking, the dates it occurred, when and where MG heard the barking or whether it bothered her.

29. The strata submitted a June 8, 2021 handwritten letter from MG to the strata, saying that she had not read the letter presented to her by Ms. Fontana and did not understand its implications when she signed it. Based on this statement, I give no weight to the May 24, 2021 letter with MG’s signature. Given the lack of detail in the May 24, 2021 MG letter, I would have given it very little weight in any event.

 

30. I accept that Ruby’s barking bothered Ms. Fontana. However, I find the objective evidence does not support that a reasonable person occupying unit 204, in a strata where the bylaws allow a dog, would find Ruby’s intermittent daytime barking intolerable. I do not accept that Ruby’s barking interfered with Ms. Fontana’s sleep, given that it occurred in the afternoon. Further, Ms. Fontana has provided no witness statements from her family or friends to document that their visits were interrupted by Ruby’s barking, as she alleges. I give no to little weight to the witness statements provided by Ms. Fontana. On balance, I find Ms. Fontana has not proved that Ruby’s barking was unreasonable noise, or a nuisance, under the strata’s bylaws.

Did the strata fail to adequately enforce the bylaws?

31. Under section 26 of the Strata Property Act (SPA), a strata corporation must 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). Although I found Ms. Fontana failed to prove Ruby’s barking was unreasonable noise or a nuisance, I find Ms. Fontana’s noise complaints are not trivial. So, I find the strata had a duty to investigate the complaints and enforce its bylaws.

32. A strata may investigate bylaw contravention complaints as it sees fit, provided it complies with the principles of procedural unfairness and is not significantly unfair to any person appearing before the council (see Chorney v. Strata Plan VIS 770, 2016 BCSC 148). The standard of care that applies to a strata council is not perfection, but rather “reasonable action and fair regard for the interests of all concerned” (see Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74 at paragraph 61). Section 27(2) of the SPA states that the owners may not interfere with council’s discretion to determine, based on the facts of a particular case, whether a person has breached a bylaw, whether a person should be fined, or the amount of the fine.

33. Ms. Fontana says the strata ignored her complaints and discriminated against her. Essentially, I find Ms. Fontana claims the strata has treated her significantly unfairly by failing to investigate and enforce its noise and nuisance bylaws.

34. Section 123(2) of the CRTA gives the CRT the power to make an order directed at the strata, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights. Significantly unfair conduct must be more than mere prejudice or trifling unfairness (see Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44). Significantly unfair means conduct that is oppressive or unfairly prejudicial. “Oppressive” is conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith, while “prejudicial” means conduct that is just and equitable (see Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, affirmed in 2003 BCCA 126). In considering an owner’s reasonable expectations the courts have applied the following test from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44:

a.    What was the applicants’ expectation?

b.    Was the expectation objectively reasonable?

c.    Did the strata violate that expectation with a significantly unfair action or decision?

35. In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the BC Court of Appeal confirmed that an owner’s reasonable expectations continue to be relevant to determining whether the strata’s actions were significantly unfair.

36. Ms. Fontana says she expected the strata to give an owner a warning letter if a bylaw is broken, followed by a fine 2 weeks later if the contravention continues, with ongoing fines until the bylaw is obeyed, and a lien placed on the property if necessary, to ensure compliance with the bylaws. As explained below, I find these expectations are not objectively reasonable.

37. First, noise complaints are not allegations of continued contraventions but rather repeated contraventions, when the noise occurs on different dates (see Strata Plan VR 2000 v. Grabarczyk, 2006 BCSC 1960). So, the strata must investigate each noise complaint individually and cannot treat them as one continued contravention. Second, section 135 of the SPA requires the strata to provide an owner with a bylaw violation notice and the reasonable opportunity to respond to each noise complaint before imposing a fine which, I find, would take more than 2 weeks. Third, section 116 of the SPA only allows a strata to place a lien on a strata lot for unpaid strata fees and special assessments, not for unpaid fines and not as punishment for contravening bylaws.

38. While I do not find Ms. Fontana’s stated expectations objectively reasonable, I find it is objectively reasonable for Ms. Fontana to expect the strata to investigate her noise complaints and to enforce the strata’s bylaws.

39. The strata says that it spoke with the city police department, the city animal control department, and other tenants about Ruby’s barking, but provided no supporting evidence that it took these steps. These steps are not included in the strata council meeting minutes or the statement of the strata council president, DS. The witness statements provided by the strata are all dated after Ms. Fontana applied to the CRT for dispute resolution and so I find they do not prove the strata investigated Ms. Fontana’s dog barking complaints.

40. However, based on correspondence between the parties, I find DS listened for barking in the hallway and that the strata agreed to “keep an ear out” for barking in February 2020, suggested Ms. Fontana use bark reducing devices and document Ruby’s barking in October 2020 and sent unit 104 a warning letter on October 27, 2020. In January 2021 DS spoke to Ruby’s owner and learned he had purchased another shock collar to control Ruby’s barking.

41. I agree with Ms. Fontana that every owner is subject to the SPA and the strata’s bylaws, whether they are selling their strata lot or not. However, given Ms. Fontana’s undisputed statement that unit 104 was listed for sale on January 19, 2021, I find the strata acted reasonably in given Ruby’s owner a chance to control her barking with a shock collar, until they moved out. As noted, the strata has discretion to decide whether to issue warning letters or fines to owners, or to take no action, following its investigation of bylaw contravention complaints. I do not find the strata unreasonably exercised its discretion in these circumstances, particularly as I found Ms. Fontana failed to prove that Ruby’s barking violated the strata’s bylaws.

42. Even if I had found the strata failed to reasonably enforce its bylaws, there would be no point in ordering it to investigate Ruby’s barking now, given Ruby no longer lives in unit 104.

43. I dismiss Ms. Fontana’s claim that the strata failed to enforce its bylaws.

Is Ms. Fontana entitled to damages for pain and suffering?

44. I find Ms. Fontana is not entitled to her claimed $4,000 for pain and suffering, because I found the strata did not fail to enforce its bylaws.

45. To the extent that Ms. Fontana argues her pain and suffering is also due to being bullied and snubbed by other residents in her building, I find that issue is not properly before me because those residents are not named parties in this dispute.

46. To the extent that Ms. Fontana argues she has been bullied by the strata council, I find the CRT has no jurisdiction to decide claims of bullying or harassment by strata council members, even if they were named parties to this dispute. That is because these allegations fall within the strata council’s duty of care set out in section 31 of the SPA. Remedies for breaches of SPA section 31 are found in SPA section 32, which is specifically outside the CRT’s jurisdiction (see CRTA, section 122(1)(a)).

47. I dismiss Ms. Fontana’s $4,000 claim for pain and suffering.

Must the strata provide written decisions to Ms. Fontana?

48. The strata says Ms. Fontana did not request any formal strata council hearing and that, if she did, the strata council advised Ms. Fontana of its plans to address her noise complaints either through the strata council meeting minutes, or verbally at the meetings. Ms. Fontana says the meeting minutes do not include the strata’s decisions.

49. Section 34.1 of the SPA, and bylaw 18, allow an owner to request a strata council hearing, in writing, with the reason for the request. If the purpose of the hearing is to request a decision, the strata must provide a written decision within 1 week of the hearing. Section 4.01 of the Strata Property Regulation (Regulation) defines a “hearing” as an opportunity to be heard in person at a council meeting.

50. It is undisputed that Ms. Fontana attended the October 21, 2020, December 16, 2020 and January 20, 2021 strata council meetings. The parties agree that, at each meeting, Ms. Fontana read her noise complaint letters to the council. So, I find Ms. Fontana’s presence at the strata council meetings falls within the definition of “hearing” in the Regulation. However, the strata is only required to provide a written decision if that is the purpose of the hearing.

51. I agree with the strata that Ms. Fontana did not request, in writing, a formal hearing for a strata council decision. However, I find it clear that Ms. Fontana wanted the strata council to decide whether, and how, to enforce bylaw 5(2) against Ruby’s owners. That is because, in the letters Ms. Fontana undisputedly read at each of the strata council meetings she attended, she asked the strata to address the barking, either by speaking with Ruby’s owner, or fining him. I find asking the strata to do something necessarily includes a request that the strata tell her whether it will, or will not, enforce the bylaw in the manner asked. Further, in her January 20, 2021 letter Ms. Fontana clearly asks the strata to tell her what steps it is taking to enforce the bylaws. So, I find Ms. Fontana impliedly or expressly requested a decision from the strata council at each of her 3 hearings on October 21 and December 16, 2021 and January 20, 2021.

52. I find the strata failed to comply with SPA section 34.1 by undisputedly not providing Ms. Fontana with a written decision within 1 week of each hearing.

53. I decline to order the strata to now give Ms. Fontana a written record of its decisions following those hearings as I find it would serve no purpose. I find it is clear from the strata’s October 21, 2020 minutes that the strata decided to send a letter to unit 104 about Ruby’s barking. Further, the letter in evidence clearly shows it did so. I also accept the strata’s submission that it decided to further investigate Ruby’s barking at the December 16, 2020 meeting and that DS did so by speaking to Ruby’s owner in January 2021. I also accept DS’ statement that the strata decided at the January 2021 meeting that Ruby’s owner had taken steps to control Ruby’s barking until they moved out. So, I find Ms. Fontana has been advised of the strata’s decisions by way of this dispute, despite not receiving written decisions from the strata.

Did the strata fail to provide adequate and timely meeting minutes?

54. Section 35 of the SPA requires the strata to take minutes at every general meeting and every strata council meeting. Subsection (1) says the minutes must contain the results of any votes taken at the meeting. Bylaw 21 says strata council decisions must be made by a majority vote of council members present and that the results of all votes must be recorded in the meeting minutes. The SPA and the bylaws are otherwise silent on required content or format of meeting minutes.

55. Our courts have considered the degree of detail required in strata council meeting minutes. Minutes must contain records of decisions taken by council. They may, or may not, report in detail the discussions leading to those decisions (see Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610 at paragraph 8). The purpose of minutes is to inform the members of decisions made and money spent on their behalf (see Yang v. Re/Max Commercial Realty Associates (482258 BC Ltd.), 2016 BCSC 2147, at paragraph 133).

56. I find no requirement for the strata’s meeting minutes to include “Correspondence, New Business and Old Business”, as argued by Ms. Fontana. Neither is there any requirement that the minutes be “sealed” so they cannot be amended in the future, should inaccuracies come to light. I decline to order the strata to take these steps.

57. I find the strata’s minutes for September, November and December 2020, and January 2021, do not include any decisions, or votes, about Ms. Fontana’s noise complaints. I further find the October 21, 2020 minutes contain the council’s decision to send a letter, but not the results of any vote taken on that decision. I find the strata’s bylaws require that council decisions on whether, and how, to address each received complaint must be recorded in the meeting minutes, to properly inform all owners of strata business. So, I order the strata to include its decisions, and vote results, in its minutes for all strata council meetings from the date of this decision forward.

 

58. Bylaw 22 requires the strata to inform the owners of the minutes within 2 weeks of the meeting, whether or not the minutes have been approved. The strata admits it did not provide the owners with the December 2020 council meeting minutes within the required time period, due to illness. However, it is undisputed that the strata distributed the minutes on January 21, 2021, so I find no remedy is required. Although Ms. Fontana says the strata is “often” late with the meeting minutes, she has provided no details or supporting evidence. So, I decline to order the strata to deliver minutes within 2 weeks of meetings.

CRT FEES and EXPENSES

59. 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 Ms. Fontana was only partially successful in this dispute and so find she is only entitled to reimbursement of $112.50, which is half her paid CRT fees. Neither party claimed any dispute-related expenses.

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

ORDERS

61. I order that the strata:

a.    Reimburse Ms. Fontana $112.50 in CRT fees, within 14 days of this order, and

b.    Include its decisions and vote results in its minutes for all strata council meetings from the date of this decision forward.

62. Ms. Fontana is entitled to post-judgment interest under the Court Order Interest Act.

63. I dismiss Ms. Fontana’s remaining claims.

 

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.