Date Issued: October 28, 2021

File: ST-2020-006699

Type: Strata

Civil Resolution Tribunal

Indexed as: Gool v. The Owners, Strata Plan BCS4368, 2021 BCCRT 1146

Between:

JOHN VAN GOOL

Applicant

And:

The Owners, Strata Plan BCS4368

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about whether a washer and dryer were operated in breach of strata bylaws. The applicant, John Van Gool, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS4368 (strata).

2.      Mr. Van Gool says an occupant below his strata lot continuously used their washer and dryer causing unreasonable noise, heat and humidity to enter his strata lot. He says the strata failed to address his complaints. He seeks $5,000 as compensation for loss of quiet enjoyment. He also seeks orders for the strata enforce its bylaws, restrict the use of washers and dryers to reasonable daytime hours, and inspect the washer and dryer. He also seeks an order for the unnamed occupant to restrict use of the washer and dryer to reasonable daytime hours only. The occupant is not a party to this dispute.

3.      The strata disagrees. It says it investigated Mr. Van Gool’s complaints twice and found nothing amiss.

4.      A lawyer, Priyan Samarakoone, represents Mr. Van Gool. A strata council member represents the strata.

5.      For the reasons that follow, I dismiss Mr. Van Gool’s claims.

JURISDICTION AND PROCEDURE

6.      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). CRTA section 2 says the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

7.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice and fairness.

8.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, even where the information would not be admissible in court. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Under CRTA section 123, 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.

The Strata’s Late Evidence Request

10.   The strata requested that I allow it to submit late evidence. I decline to do so. This is because the strata made its request well after the deadline to provide evidence and after this dispute was assigned to me for a decision. Further, as detailed below, I find Mr. Van Gool’s claims unproven on the evidence before me. I find that refusing the late evidence, in these circumstances, to be consistent with the CRT’s mandate as outlined under CRTA section 2. This includes providing dispute resolution services in an accessible, speedy, and economical manner.

ISSUES

11.   The issues in this dispute are as follows:

a.    Did the strata adequately investigate Mr. Van Gool’s noise, heat, and humidity complaints?

b.    Is another strata lot occupant causing unreasonable noise, heat, or humidity to enter Mr. Van Gool’s strata lot in breach of the bylaws?

c.    Are any remedies appropriate?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, the applicant Mr. Van Gool must prove his claims on a balance of probabilities. This means more likely than not. I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant to provide context for my decision. The strata did not provide evidence even though the CRT provided it the opportunity to do so. Instead, it relied on submissions.

13.   I begin with the undisputed background. The strata plan shows the strata was created in 2012. Mr. Van Gool resides in strata lot 53 and has owned it since March 2012. The strata repealed and replaced its bylaws in August 2017, save for a pet bylaw that does not apply. I discuss the applicable bylaws below.

14.   Mr. Van Gool says that in January 2019 the occupants in the strata lot below (unit 307) began using their washer and dryer excessively during the day and night, causing unreasonable noise. Mr. Van Gool complained to the strata. Its property manager and council members visited Mr. Van Gool’s strata lot on November 20, 2019 and February 12, 2020. As detailed in the strata’s September 1, 2020 letter to Mr. Van Gool, the visitors heard nothing even though Mr. Van Gool said he could hear the noise at the time.

15.   Starting on March 12, 2020, Mr. Samarakoone began contacting the strata’s property manager on Mr. Van Gool’s behalf. He advised that the unreasonable noise persisted. In late May and early June 2020, Mr. Samarakoone wrote a series of emails to the property manager to advise that unit 307’s washer and dryer were being used at night causing unreasonable noise and now high levels of heat and humidity as well.

16.   In August 2020, the strata council held a hearing and Mr. Samarakoone attended. In a September 1, 2020 letter, the strata said it had “reached out” to the owners of unit 307. It did not describe any reply. The strata said that it would take no further action without new evidence. Mr. Van Gool subsequently left his strata lot and stayed with a friend from January to May 2021. He says that after he returned on May 14, 2021, the unit 307’s occupants still used the washer and dryer regularly, but not at night.

 

Issue #1. Did the strata adequately investigate Mr. Van Gool’s noise, heat, and humidity complaints?

17.   SPA section 26 requires the strata to enforce the strata’s bylaws and rules through its council. 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 persuasive 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.

18.   The strata council 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 it: Chorney v. Strata Plan VIS 770, 2016 BCSC 148 at paragraph 52.

19.   Mr. Van Gool says the strata did not adequately address his complaints. So, I have considered the law around 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. Signficantly unfair conduct is conduct that is 1) oppressive in that it is burdensome, harsh, wrongful, lacking in probity or fair dealing, or done in bad faith, or 2) conduct that is unfairly prejudicial in that it is unjust or inequitable: Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173 at paragraph 88.

20.   In Kunzler, the Court of Appeal confirmed that an owner’s expectations should be considered as a relevant factor. I therefore use the test from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, as follows:

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

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

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

21.   I find that Mr. Van Gool’s expectation was that the strata would investigate his washer and dryer complaints and determine whether the noise, heat, or humidity generated contravened any bylaws and take appropriate steps to enforce them. I find this expectation was reasonable as the strata council is obligated to do these things under the SPA.

22.   For the reasons that follow, I find the strata adequately investigated Mr. Van Gool’s noise complaints. As noted above, Mr. Van Gool first complained about noise in January 2019, then visited Mr. Van Gool’s strata lot in November 2019 and February 2020. I considered whether the strata unreasonably delayed its investigation. However, Mr. Van Gool provided no evidence of correspondence with the strata before March 2020. So, I am unable to determine if the delay was the strata’s fault or by mutual agreement. I find the strata acted appropriately by visiting the strata lot on 2 occasions. As noted above, the visitors did not hear anything at the time. Given this, I find the strata acted reasonably in ceasing noise investigations after February 2020.

23.   I find, however, that the strata failed to investigate Mr. Van Gool’s heat and humidity complaints. As noted above, Mr. Samarakoone emailed the strata about these issues in late May and early June 2020, after the strata’s 2 visits. Mr. Samarakoone advised that unit 307’s occupants had replaced their original washer and dryer. He also noted that Mr. Van Gool had medically compromised lungs. I find this to be the case, as Mr. Van Gool provided a July 6, 2020 note from his physician, CB. CB wrote that that excessive humidity was life threatening to Mr. Van Gool and he had been to the hospital emergency department several times because of excessive humidity from unit 307. Despite this, there is no indication the strata acted on these complaints. The strata did not mention the heat and humidity complaints in its September 1, 2020 letter.

24.   In summary, I find the strata failed to adequately investigate Mr. Van Gool’s heat and humidity complaints. I find it acted in a signficantly unfair manner to him. But, for the reasons discussed below, I find no remedy is necessary.

Issue #2. Is another strata lot occupant causing unreasonable noise, heat, or humidity to enter Mr. Van Gool’s strata lot in breach of the bylaws?

25.   Bylaw 4(1) prohibits a resident or visitor for using a strata lot in a way that causes a nuisance or hazard to another person, causes unreasonable noise, or unreasonably interferes with the rights of other persons to use and enjoy another strata lot. 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 for nuisance depends on several factors, such as its nature, severity, duration, and frequency. See St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64.

26.   In February 2021, Mr. Samarakoone hired a house inspector provide a report on the noise, heat, and humidity issues in this dispute. I find the report is expert evidence under CRT rule 8.3. This is because the author, KH, stated their qualifications as a certified house inspector and there is no indication he acted as Mr. Van Gool’s advocate. The strata also did not object to KH’s report.

27.   I will first address the heat and humidity findings in the report. The inspector wrote that during the investigation the washer and dryer in unit 307 were on for approximately 25 minutes. He measured the temperature and relative humidity in Mr. Van Gool’s strata lot, unit 307, and the hallways outside both strata lots. The inspector found that the heat and humidity in Mr. Van Gool’s strata lot was normal and there were no indications of any heat or humidity transfer from unit 307 to Mr. Van Gool’s strata lot. I find the inspector’s report is the best evidence about the heat and humidity complaints. Given its findings and conclusion, I find it unproven that unit 307’s washer and dryer generated unreasonable heat and humidity in breach of the bylaws.

28.   This leaves Mr. Van Gool’s noise complaints. 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.

29.   The inspector KH reported that while the washer and dryer were on, he noticed a humming vibration noise coming from below Mr. Van Gool’s desk area. This is directly above unit 307’s washer and dryer. The inspector wrote that the noise would likely be more noticeable during the evening when the environment was quieter. Mr. Van Gool also provided audio recordings from March and June 2020. He says he recorded them from inside his strata lot. In most of the recordings I heard a mechanical humming sound that I find is consistent with a washer or dryer.

30.   I find from the evidence that the washer and dryer can be heard from Mr. Van Gool’s strata lot. However, I find it unproven that the sound was substantial, non-trivial or unreasonable interference. This is because the inspector did not measure the noise or comment on whether it reached unreasonable levels. The inspector was also only present for a limited time period. I therefore find the report provided limited evidence about the noise’s nature, severity, duration, or frequency. Similarly, I find the recordings are unpersuasive. There is no evidence about the method of recording or what audio levels were used. I find that I am unable to determine how objectively loud the recorded noises were. I note the CRT Vice Chair reached similar conclusions about audio recordings in Ruthe v. The Owners, Strata Plan BCS 1023, 2020 BCCRT 605 at paragraph 51. While not binding, I find the reasoning in Ruthe persuasive on this issue.

31.   In the absence of other evidence, such as a noise journal, witness statements about the sound, an acoustic engineer’s report, or sound measurements in decibels, I find it unproven that the sound was objectively unreasonable.

32.   This leaves the issue of whether any remedies are appropriate. I have found the strata failed to investigate the heat and humidity complaints. But as I have found the washer and dryer did not breach the bylaws, I decline to order any remedies.

CRT FEES AND EXPENSES

33.   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. The strata did not pay any CRT fees or claim for any dispute-related expenses. So, I order none. I dismiss Mr. Van Gool’s claims for reimbursement.

34.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Van Gool.

ORDER

35.   I dismiss the Mr. Van Gool’s claims and this dispute.