Date Issued: May 12, 2022

File: ST-2021-004227

Type: Strata

Civil Resolution Tribunal

Indexed as: Barros-Harty v. The Owners, Strata Plan NW 962, 2022 BCCRT 569

Between:

JOEL BARROS-HARTY and ESTHER BARROS-HARTY

ApplicantS

And:

The Owners, Strata Plan NW 962

Respondent

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.      This strata property dispute is about noise allegedly created by structural components of a building.

2.      The applicants, Joel Barros-Harty and Esther Barros-Harty, co-own strata lot 46 (SL46) in the respondent strata corporation, The Owners, Strata Plan NW 962 (strata).

3.      The applicants say they hear unreasonable noise from the ceiling of SL46 contrary to what I infer is a strata bylaw. They attribute the cause of the noise to “creaking/popping plywood and/or ceiling joists”, which they say is the strata’s responsibility to repair. They seek an order that the strata repair the “common property causing excessive noise in violation of the [the strata’s bylaws]”.

4.      The strata disagrees with Mr. and Mrs. Barros-Harty and says it properly investigated their concerns and found them to be ordinary noises that should be expected from a 40 year old building. The strata asks that the applicants’ claims be dismissed.

5.      Mr. Barros-Harty represents the applicants. A strata council member represents the strata.

6.      As explained below, I dismiss the applicants’ claims and this dispute.

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). 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.

8.      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.

9.      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.

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.

Preliminary Issue – Late Evidence

11.   The applicants submitted evidence after the deadline given to them by CRT staff. The strata objected to the late evidence, but responded to it. Consistent with the CRT’s mandate that includes flexibility, I have allowed the evidence as I find there is no prejudice to the parties in doing so. In any event, I find the late evidence is not relevant and note my decision does not turn on it.

ISSUES

12.   The issues in this dispute are:

a.    Does the strata have a duty to investigate the alleged structural deficiencies and if so, has that duty been triggered?

b.    What is an appropriate remedy, if any?

BACKGROUND, REASONS AND ANALYSIS

13.   As applicant in a civil proceeding such as this, applicants must prove their claims on a balance of probabilities, meaning “more likely than not”. I have read all the submissions and evidence provided by the parties, but I refer only to information I find relevant to give context for my decision. I note the applicants provided several hours of recordings, both audio and video, including single recordings spanning several overnight hours. Due to their length, I did not listen to or view every recording in its entirely but did listen to or view some or all of each recording.

14.   The strata plan shows the strata was created in November 1977, so it is about 45 years old. It continues to exist under the Strata Property Act (SPA). The strata consists of 282 strata lots in 10 3-storey buildings. SL46 is located on the second floor of 1 building and has other strata lots above and below it, and to one side of it. The other 3 sides of SL46 front on the building’s exterior.

15.   Land Title Office (LTO) documents show the strata repealed and replaced all of its bylaws with a complete new set of bylaws that were filed with the LTO on January 7, 2019. A prior bylaw amendment filed in 2017 confirms the Standard Bylaws do not apply. I address relevant bylaws below as necessary.

16.   The applicants purchased SL46 in November 2020. In January 2021, they began to lodge complaints with the strata manager about noise coming from their ceiling. They provided the strata with a copy of a noise log and some audio recordings of the noise recorded at different times of the day. They also provided copies of video recordings of a decibel application on their cell phone, also at different times of the day. In February 2021, the applicants purchased a “datalogger”, which I understand is an electronic instrument that records noise and graphically displays the recorded noise levels at the times occurred. Information collected from the “datalogger” was also provided to the strata.

17.   Following a March 2, 2021 strata council hearing, the strata, at its cost, offered, and the applicants accepted, to retain an acoustical engineer to investigate the applicants’ noise complaints. The strata retained BAP Acoustics (BAP) to complete noise transmission tests between SL46 and the strata lot immediately above it. The testing was completed on March 17, 2021 and BAP issued its report on April 1, 2021 (BAP report).

18.   The applicants’ noise complaints continued, and they submitted additional recordings of the noises to the strata council . On April 24, 2021, 2 members of the strata council attended SL46 to witness the noise but on April 29, 2021, the strata manager advised the applicants the strata considered the noise to be “ordinary living noises” and that it would not be taking further action.

19.   Further noise recordings were provided to the strata by the applicants that included recordings of decibel readings on a cell phone, but the strata has taken no further action. None of this is disputed.

Does the strata have a duty to investigate alleged structural deficiencies and if so, has that duty been triggered?

20.   In the Dispute Notice, the applicants describe their claim as follows (reproduced as written), and was not amended during the tribunal decision process:

This claim is regarding excessive noise in violation of bylaw no. 7332.
The noise emanates from the ceiling and appears to be caused by creaking/popping plywood and/or ceiling joists; it has measured 70+ dBA during quiet hours (11pm-7am) and regularly we are woken during the night and early hours of the morning. Activity of the upstairs neighbors cannot be avoided and thus repairs or modifications should be done to the common property (my emphasis added).

21.   I find from this description and the applicants’ overall submissions, that this dispute is not about the applicants’ upstairs neighbours’ behaviour or conduct such that the strata has failed to enforce its noise bylaws against the neighbours. Rather, I find the applicants’ claim is about noise the applicants believe is coming from the structural components in the ceiling of SL46, either as a result of neighbours’ activity or not.

22.   Based on photographs provided in evidence that show the area above the ceiling in SL46, I find the structural components are the wooden joists and support walls in the ceiling space. Therefore, even though the applicants’ submissions and evidence raised some allegations of noise being created by their upstairs neighbours as the dispute progressed, I have not addressed those issues because they were not identified in the Dispute Notice, so I find they are not before me to decide in this dispute. I also note the requested remedy for the strata to “repair common property” supports my interpretation of the applicants’ claim.

23.   Finally, I note that both parties citied other CRT decisions in support of their positions. I reviewed the decisions cited and find they do not assist either party because they all relate to a strata corporation’s enforcement of noise or nuisance bylaws against another owner. As that is not the issue here, I have not included an analysis of the parties’ cited decisions.

What bylaws apply?

24.   The applicants’ reference to bylaw 7332 is unclear as the strata does not have a bylaw 7332. Further, the strata does not have a bylaw that establishes “quiet hours”. Given my interpretation of the applicant’s claim, I find the only bylaws that might apply in this dispute are bylaws 11(1)(b) and (d)(i). I summarize them as follows:

a.    Bylaw 11(1)(b) requires the strata to repair and maintain common property.

b.    Bylaw 11(1)(d)(i) requires the strata to repair and maintain parts of a strata lot that if those parts relate to the structure of the building.

25.   In addition to bylaw 11(1)(b), I note SPA section 72. Section 71(1) also requires the strata to repair and maintain common property. Section 72(3) permits a strata to take responsibility for repair and maintenance of specified portions of a strata lot, which it has under bylaw 11(1)(d)(i).

26.   The applicants say the strata is responsible to repair and maintain the common property in the ceiling space between the SL46 and the upstairs strata lot. However, I find there is no common property that relates to the structural components (wooden joists) in the SL46 ceiling. This is because SPA section 68 defines the boundary between 2 strata lots (which is not otherwise identified on the strata plan) as:

…midway between the surface of the structural portion of the… floor or ceiling that faces the strata lot and the surface of the structural portion of the… floor or ceiling that faces the other strata lot….

27.   Based on section 68, the ceiling space above SL46 is part of SL46 and the strata lot above. There is no common property between the 2 strata lots.

28.   As mentioned, under bylaw 11(1)(d)(i) the strata is required to repair and maintain parts of a strata lot that relate to the structure of the building. In this dispute, I find the structural components of the ceiling space are the wood joists and supporting walls. I do not find the sheathing above the joists (likely plywood) is structural, but rather I find it is part of the strata lot above SL46.

The strata’s duty to investigate

29.   I agree with the strata that the BAP report concluded that airborne sound insulation performance of the tested ceiling space above SL46, which includes the floor joists, meets and exceeds the requirements of the National Building Code in force at the time of construction. I also agree with the strata that there is no evidence the BAP report is wrong. However, although the areas tested only meet the current BC Building Code minimum sound control recommendations at 1 of 2 areas, I find I do not have make a determination about the BAP report.

30.   As I have mentioned, this is a dispute about alleged structural deficiencies or put another way, potential structural repairs. The strata says the BAP report does not identify a defect for which the strata is responsible to repair. Again I agree, but this was not the intent of the BAP report. The intent of the BAP report was clearly to address sound transmission between SL46 and the strata lot above. There is no reference to investigation of the structural components of the ceiling space in the report.

31.   I find the real issue here is the strata’s duty to repair and maintain the structural wooden joists and support walls as required under bylaw 11(1)(d)(i).

32.   A strata corporation's obligation to repair and maintain is measured against a test of what is reasonable in all of the circumstances; see The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363. Although Hall was about a strata corporation’s duty to repair common property, I find the analysis applies equally to the strata’s duty to repair a building’s structural components within a strata lot under a bylaw which is the case here.

33.   What is reasonable in the circumstances depends on the likelihood of the need to repair, the cost of further investigation, and the gravity of the harm sought to be avoided or mitigated by investigating and remedying any discovered problems: see Guenther v. Owners, Strata Plan KAS431, 2011 BCSC 119 at paragraph 40.

34.   Based on the court’s findings in Hall and Guenther, I find that the strata’s duty to repair includes a duty to investigate the need for the repair based on a standard of reasonableness. The remaining question then is has the strata’s duty to investigate been triggered in the circumstances of this dispute?

35.   For the reasons that follow, I find it has not.

Has the strata’s duty been triggered?

36.   I have reviewed the 88-page complaint log from January 16 through December 24, 2021 provided in evidence by the applicants. I did not verify the number of entries, but the applicants say there are over 4,600. Many relate to “creaking, popping” sounds. Other entries relate to actives of the upstairs neighbours, which are not necessarily relevant to this dispute, but could be the cause some of the noises described by the applicants if the wood joists or walls require repair.

37.   I have also listened to the applicants’ recordings and watched the videos of the cell phone decibel readings that also contain audio. The strata did not object to, or contradict any, of the applicants’ evidence other than to say the noises were “ordinary living noises”. I put no weight on the applicants’ “datalogger” evidence as the instrument was not fully explained and the information tracked and provided in evidence was difficult to read.

38.   I do not agree with all of the applicants’ complaints, such as the level of noise during daytime when their television was on. I would also describe the applicants’ “creaking, popping” sounds as a tapping, or light hammering sound, noting they usually occurred in short bursts. Of particular note is that these sounds occur in the late hours of the evening and early hours of the morning (1 am to 4 am) as noted by the applicants, and which the strata did not dispute. It is likely the neighbours were not active during the times of these recordings.

39.   On the overall evidence, I am not persuaded that these sounds are “ordinary living noises” as the strata suggests. However, neither am I persuaded the applicants have proven their claim about potential structural defects. While the applicants submit they spoke to an engineer who suggested the joists be inspected for deficiencies or repairs, they did not provide information to support their assertion that structural defects exist, or are even likely. Without more information, I cannot conclude the strata has failed to meet its duty to investigate the applicants’ claim. If the applicants had provided an expert report about deficient joists or walls, or photographs showing structural areas in obvious need of repair, I might have reached a different conclusion.

40.   I find the applicants’ request for repair is premature because the overall condition of the building’s structure in the ceiling above SL46 is unknown. The applicants have not established there is a potential problem with the building’s structure, so I find the strata’s duty to investigate has not been triggered. I dismiss the applicants’ claims and this dispute.

CRT FEES AND EXPENSES

41.   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. Each party paid CRT fees. The applicants paid $125 in CRT fees, and the strata paid $100. I find the strata was successful, so I order the applicants pay it $100 for CRT fees.

42.   Given the applicants were not successful, I make no order for their claimed dispute-related expenses for their purchase of the “datalogger”.

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

ORDERS

44.   I dismiss the applicants’ claims and this dispute.

45.   Within 30 days of the date of this decision, I order the applicants to pay the strata $100 for CRT fees.

46.   The strata is entitled to post judgment interest under the Court Order Interest Act, as applicable.

47.   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.