Date Issued: November 19, 2021

File: ST-2021-001652

Type: Strata

Civil Resolution Tribunal

Indexed as: Rahman v. The Owners, Strata Plan NW183, 2021 BCCRT 1226

Between:

SAFIUR RAHMAN

Applicant

And:

The Owners, Strata Plan NW183

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about noise and vibrations between strata lots. The applicant, Safiur Rahman, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan NW183 (strata). Mr. Rahman says the strata failed to investigate and address his noise complaints. He seeks orders for the strata to 1) enforce noise bylaws against a downstairs strata lot, 2) hire and pay for specialists to reduce noise and vibration transfer, 3) disclose what was discussed at a strata council hearing about the noise, 4) pay $4,4842.50 as compensation for 2 years and 7 months of loss of quiet enjoyment, and 5) reimburse him $157.50 for a soundproofing assessment fee.

2.      The strata disagrees. It says it responded reasonably and is currently obtaining quotes for work to address the noise and vibration transfer.

3.      Mr. Rahman represents himself. A strata council member represents the strata.

4.      For the reasons that follow, I find Mr. Rahman has proven part of his claims and I make the orders set out below.

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). 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.

6.      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.

7.      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.

8.      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

9.      The strata provided 8 items of late evidence. I find Mr. Rahman is not prejudiced by the late evidence as he had the opportunity to review it and provide evidence and submissions in response. I also find the evidence relevant to the issues in this dispute. For those reasons, and bearing in mind the CRT’s flexible mandate, I admit it.

ISSUE

10.   The issues in this dispute are as follows:

a.    Did the strata adequately investigate Mr. Rahman’s noise and vibration complaints?

b.    Is another strata lot occupant causing unreasonable noise or vibrations to enter Mr. Rahman’s strata lot in breach of the bylaws?

c.    If so, are any remedies appropriate?

d.    Must the strata disclose what the strata council discussed at the February 2021 hearing?

BACKGROUND, EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Mr. Rahman as applicant must prove his claims on a balance of probabilities. This means more likely than not. I have read all the parties’ submissions, including case law, but refer only to the evidence and argument that I find relevant to provide context for my decision.

 

12.   I begin with the undisputed background. The strata plan shows the strata was created in 1973. It provides residential housing through several low-rise buildings. Mr. Rahman owns and resides in strata lot 45. It is on the third, topmost floor of his building. Mr. Rahman’s complaints are about strata lot 77. It is located directly below strata lot 45 and consists of 2 floors. The building has a wood frame.

13.   The strata repealed and replaced its bylaws in April 2002. It registered these bylaws and subsequent amendments over the years. I will discuss the relevant bylaws below.

14.   Mr. Rahman says the strata failed to investigate his complaints starting from March 2019 onwards so I will start there. In March 2019, he emailed the property manager about thudding and hammering noises. In April 2019, he said the noise improved significantly. In November 2019, Mr. Rahman emailed the property manager about kids running up and down the stairs after 11:00 p.m., sometimes past 4:00 a.m., causing his floor to shake. The strata sent a warning letter to strata lot 77 that month.

15.   In March 2020, Mr. Rahman began working at home. In July 2020, Mr. Rahman said the noise continued to be an issue, though it was “sometimes worse, sometimes better”. In early November 2020, Mr. Rahman emailed that noise had worsened both recently and substantially so that it was “EXCRUCIATING” (emphasis in original). He said the noise consisted of banging, dropped objects, and kids shrieking, crying or moaning. The property manager sent strata lot 77’s owners and tenants a November 16, 2020 letter warning about fines for unreasonable noise and levied a fine in a November 27, 2020 letter.

16.   The occupant of strata lot 77, CV, exchanged emails with the property manager on December 4, 2020. CV wrote that they would stop banging doors “but crying and loud noise I can’t promise” because one of CV’s children had autism. It is undisputed that CV has 3 other children as well.

17.   The property manager advised Mr. Rahman about CV’s situation. In January 2021, Mr. Rahman began keeping a noise journal. It documents almost daily incidents of kids crying and screaming and adults speaking loudly. Its entries end on April 1, 2021. He also hired Hush City Soundproofing Inc. (Hush City) to perform an assessment and provide suggestions for soundproofing. Hush City did not measure the noise in strata lots 45 or 77. Mr. Rahman also requested a hearing before the strata council about the noise, which was held on February 17, 2021. Mr. Rahman filed his application for dispute resolution in late February 2021.

Issue #1. Did the strata adequately investigate Mr. Rahman’s noise and vibration complaints?

18.   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.

19.   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.

20.   Mr. Rahman says the strata acted unfairly, 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.

21.   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?

22.   I find that Mr. Rahman’s expectation was that the strata would investigate his noise complaints, determine whether the noise or vibrations 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.

23.   I find that from March 2019 to July 2020 the strata did not act in a signficantly unfair manner. Mr. Rahman advised in April 2019 that the noises had improved so I find the strata reasonably decided not to investigate further at the time.

24.   Mr. Rahman then complained about noise again in a July 2, 2020 email. In a reply email, the property manager said the strata would send a warning letter to strata lot 77. However, there is no indication it did so. Mr. Rahman then complained about noise in November 2020. At that time, the strata immediately sent correspondence to strata lot 77, which I find was appropriate. So, I find from early July to early November 2020, the strata took no action, and failed to investigate Mr. Rahman’s noise complaints or enforce its bylaws. I find this was signficantly unfair to Mr. Rahman.

25.   I find the strata reasonably tried to address Mr. Rahman’s concerns after this. In November and December 2020, the strata fined strata lot 77, as discussed above. At some point after this, the strata’s representative also visited strata lot 45 to listen for noise. In a January 25, 2021 email, the strata asked Mr. Rahman to allow access for the strata’s representative to visit again, and for permission to have a company record sound levels in his strata lot. However, Mr. Rahman repeatedly denied entry for both purposes in February and March 2021 emails. The strata also held a hearing in February 2021 at Mr. Rahman’s request. So, I find the strata acted reasonably after early November 2020 onwards and Mr. Rahman unreasonably denied it access. Mr. Rahman eventually allowed the strata’s representative to enter in March 2021 but there is no indication he allowed a company to complete sound testing.

26.   There is no indication the strata imposed any further fines on strata lot 77’s account after December 2020. Despite this, I find the strata acted reasonably. As noted earlier, the emails indicate the strata decided to address the noise by first conducting sound testing. The parties also agree in this dispute that structural work is necessary so I find that fines alone would not stop the noise and vibration nuisance. I also find the strata acted reasonably because CV’s email indicates it may need to consider whether any reasonable accommodations are necessary under the Human Rights Code, though that issue is not directly before me.

27.   In summary, I find the strata unreasonably delayed enforcement of its bylaws by approximately 4 months, from early July to early November 2020. I will discuss the appropriate remedies below.

Issue #2. Is another strata lot occupant causing unreasonable noise or vibrations to enter Mr. Rahman’s strata lot in breach of the bylaws?

28.   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.

29.   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. 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.

30.   I find that it is essentially undisputed that from early November 2020, unreasonable noise entered Mr. Rahman’s strata lot from strata lot 77. The strata’s representative submitted that when he visited strata lot 45, “there are noises (voices) coming from the corner of his living room that you can hear as well as cabinet door closing”. He said he felt no vibrations but did not dispute that the noise was unreasonable. He said the strata was about to start construction on the floor between the strata lots. He also said the strata had ordered strata lot 77’s owners to 1) replace the laminate on the stairs and hallway with carpet and 2) install soft-close hinges on all main doors and cabinetry. I find that the strata’s submissions show it implicitly accepted that unreasonable noise entered Mr. Rahman’s strata lot.

31.   I also reach this conclusion in part because of CV’s December 4, 2020 emails. CV did not deny any allegations about the nature, severity, duration or frequency of the noise. Instead, CV acknowledged them by writing, “Believe me we are aware”. CV also said, “I can’t do anything” about the noise. I find CV essentially corroborates Mr. Rahman’s description of the noise and that it has not substantially improved.

32.   In the emails to the strata’s property manager, Mr. Rahman described the noise as continual, loud, and occurring late at night, well past midnight, to disrupt his sleep. Given this essentially undisputed account, the submissions of the strata, and CV’s evidence, I find the noise was objectively unreasonable and a nuisance under bylaw 4(1). On balance, I also find the noise from early July to early November 2020 was a nuisance. I find that a reasonable investigation would have likely proven a noise violation by the occupants of strata lot 77. This is because there is no indication strata lot 77’s occupants or situation were different at those times.

33.   I find the allegations about unreasonable vibrations unproven as there was little objective evidence on this point.

Issue #3. What are the appropriate remedies?

34.   The CRT has previously awarded damages to an owner based on the strata’s failure to meet its statutory duty to enforce its bylaws. See, for example, the non-binding decision of Chu v. Sefat, 2021 BCCRT 723. In Chu, the CRT Member reviewed other CRT decisions and noted they ranged from $500 for limited instances of balcony noise to $5,000 for nearly 3 years of droning and living noise.

 

35.   I have found the strata failed to investigate noise from early July to early November 2020. Having reviewed the decisions cited in Chu, I find $1,000 in damages is appropriate. I reach this conclusion in part because Mr. Rahman’s evidence is that the noise duration and severity were lower during this time than what he experienced after early November 2020.

36.   I decline to order the strata to reimburse Mr. Rahman $157.50 for the Hush City assessment. Mr. Rahman paid for this on January 12, 2021. I find that by then, the strata was investigating his complaints in earnest and was willing to do sound testing, which it tried to arrange for in late January 2021.

37.   This leaves what to do about the ongoing noise. The strata says its plans is to install sound absorbing and sound blocking material in the cavity between strata lots 45 and 77, re-drywall the ceiling in the bathroom area in strata lot 77, and block openings within the cavity that transfer sound. The strata says this work should have been done by the end of July or mid August 2021. However, aside from some photos of the floor interior, it provided no evidence to show this work ever started or finished. There is no correspondence with a contractor about the work. The strata also provided no evidence to confirm that it had actually requested strata lot 77’s owners or occupants to replace their flooring or hinges, as mentioned above.

38.   Given the above, I order that, if it has not already done so, within 45 days of the date of this decision, the strata must, at its cost, hire a qualified professional to install sound absorbing and sound blocking material in the cavity between strata lots 45 and 77, re-drywall the ceiling in bathroom area in strata lot 77, and block openings within the cavity that transfer sound.

39.   To permit the work, I order the strata to arrange the necessary access to strata lot 77, and I order Mr. Rahman to permit access into strata lot 45 upon 48 hours’ written notice from the strata.

 

40.   I considered making orders about the laminate and hinges in strata lot 77 but I find this to be premature as there is a lack of evidence about whether this is necessary or if it has already been done. I also decline to order the strata to enforce its noise bylaws. The strata must already do so. If the strata does not, then Mr. Rahman may apply again to the CRT for further remedies.

Issue #4. Must the strata disclose what was discussed by the strata council at the February 2021 hearing?

41.   Mr. Rahman requested an order for the strata to disclose what was discussed by council members at the February 2021 hearing. I decline to order this. The strata is already obligated to keep minutes of such meetings under SPA section 35(1)(a). To the extent that Mr. Rahman requests more details, I find the bylaws and the SPA do not require any specific details.

42.   In submissions Mr. Rahman also asked the strata to provide documents about the planned soundproofing work and bylaw enforcement. Mr. Rahman says he is requesting documents under SPA sections 35 and 36. SPA section 36 says that upon receiving a request, the strata must provide copies of the documents listed under SPA section 35. However, there is no evidence that Mr. Rahman made such a request to the strata, apart from his submissions in this dispute. I find the strata did not breach SPA section 36, so I decline to order this as well.

CRT FEES, EXPENSES, AND INTEREST

43.   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.

44.   I find Mr. Rahman has been partially successful. I therefore order the strata to partially reimburse Mr. Rahman for half his CRT fees. This equals $112.50. Mr. Rahman did not claim for any specific dispute-related expenses, so I order none.

45.   The Court Order Interest Act applies to the CRT. Mr. Rahman is entitled to prejudgment interest on the damages award of $1,000 from November 4, 2020, the approximate end of the period significant unfairness, to the date of this decision. This equals $4.68

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

ORDERS

47.   I order that, if it has not already done so, within 45 days of the date of this order, the strata must, at its cost, hire a qualified professional to install sound absorbing and sound blocking material in the cavity between strata lots 45 and 77, re-drywall the ceiling in the bathroom area in strata lot 77, and block openings within the cavity that transfer sound.

48.   To permit the work, I order the strata to arrange the necessary access to strata lot 77, and I order Mr. Rahman to permit access into strata lot 45 upon 48 hours’ written notice from the strata.

49.   I order that within 30 days of the date of this order, the strata must pay Mr. Rahman a total of $1,117.18, broken down as follows:

a.    $1,000 in damages,

b.    $4.68 in prejudgment interest under the Court Order Interest Act, and

c.    $112.50 in CRT fees.

50.   Mr. Rahman is entitled to post-judgment interest under the Court Order Interest Act.

51.   I dismiss Mr. Rahman’s remaining claims.

 

52.   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.