Date Issued: August 18, 2022

File: ST-2021-005034

Type: Strata

Civil Resolution Tribunal

Indexed as: Radley v. The Owners, Strata Plan VR 2690, 2022 BCCRT 930

Between:

LAUREL RADLEY

Applicant

And:

The Owners, Strata Plan VR 2690

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell, Vice Chair

INTRODUCTION

1.      This dispute is about noise complaints in a strata corporation.

2.      The applicant, Laurel Radley, owns strata lot 124 (SL124) in the respondent strata corporation, The Owners, Strata Plan VR 2690 (strata).

3.      Ms. Radley has owned SL124 since 1993. She says that since December 2019, she has been disturbed throughout her living space by loud bass sounds from a neighbouring strata lot. Ms. Radley says the strata has not investigated her noise complaints or enforced its bylaws. She also says the strata treated her in an unfair and oppressive manner, including by allowing the strata manager to interrupt her with disparaging remarks at a council meeting, and by imposing “onerous and arbitrary” barriers on her ability to make noise complaints.

4.      As remedies in this dispute, Ms. Radley requests:

•         $1,000 in damages for the strata’s alleged failure to investigate her noise complaints and the loss of quiet enjoyment of SL124,

•         $1,000 in damages for the strata’s unfair treatment, and

•         orders that the strata investigate her bylaw complaints and remove barriers to the complaint process it imposed on her.

5.      The strata says it accepted Ms. Radley’s noise complaints, and responded to them reasonably by issuing “at least 2 excessive noise bylaw violations” to the neighbour, KC. The strata agrees that KC continues to be loud and sometimes disruptive, and that the strata manager’s comments were “unprofessional”. However, the strata says the noises primarily occur outside the strata’s quiet hours, and it is not the strata’s responsibility to “police” interpersonal conflict between owners.

6.      Ms. Radley is self-represented in this dispute. The strata is represented by a strata council member.

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 which 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 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.

11.   The parties provided evidence about other alleged conduct by KC, including feeding squirrels, parking, damaging a vehicle, and burning incense. Since these matters were not raised in the Dispute Notice, and no specific remedies are requested about them, I make no findings about them in this decision.

ISSUES

12.   The issues in this dispute are:

a.    Did the strata fail to enforce its noise bylaws?

b.    Did the strata treat Ms. Radley in a significantly unfair manner?

c.    What remedies are appropriate?

BACKGROUND

13.   In a civil claim like this one, Ms. Radley, as applicant, must prove her claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

14.   The strata was created in July 1990 under the former Condominium Act, and continues to exist under the Strata Property Act (SPA). The strata consists of 131 strata lots in a 9-storey building.

15.   The strata has filed various bylaw amendments at the Land Title Office. The parties agree that the bylaws relevant to this dispute are amendments filed in April 2002. Specifically, bylaws 8.1(b) and (c) state that an owner, tenant, occupant or visitor must not:

8.1(b) make, cause or produce any undue noise, smell, vibration or glare in or about any strata lot or common property or do anything which will interfere unreasonably with any other owner, tenant or occupant.

8.1(c) use any musical instrument, amplifier, sound reproduction equipment or other device within or about any strata lot, the common property or any limited common property such that it causes a disturbance or unreasonably interferes with the comfort of any other owner, tenant or occupant.

REASONS AND ANALYSIS

Did the strata fail to enforce its noise bylaws?

16.   Ms. Radley says the strata failed to investigate her noise complaints about KC, and failed to enforce its noise bylaws. The strata disagrees, and says it responded reasonably to Ms. Radley’s complaints. For the following reasons, I agree with Ms. Radley, and find the strata failed to meet its duty to enforce its bylaws.

17.   Under SPA section 26, the strata council has a duty to exercise the powers and perform the duties of the strata corporation. This includes a duty to enforce bylaws, such as the noise bylaws. When carrying out these duties, the strata council must act reasonably: see The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 237. The duty to reasonably enforce bylaws includes a duty to investigate alleged bylaw contraventions, such as noise complaints.

18.   The courts have held that a strata corporation may investigate bylaw contravention complaints as its council sees fit, so long as 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.

19.   In its Dispute Response Form, the strata says investigation was unnecessary, since the strata found Ms. Radley had reported “credible bylaw violations” and the strata issued 2 violation notices to KC.

20.   The evidence before me shows that the strata sent KC a bylaw contravention warning letter on September 23, 2020, and sent a second letter imposing a $50 fine on October 8, 2020 for breaches of bylaw 8.1(b) and (c). The strata admits in the Dispute Response Form that Ms. Radley continued to complain about noise from KC after October 8, 2020. The evidence shows that Ms. Radley made these complaints in writing. The strata’s Dispute Response Form says the strata agrees that KC “is loud and can be disruptive”.

21.   Despite its admission that KC’s noise continued after it imposed the October 8, 2020 fine, the strata does not say, and there is no evidence before me, that the strata took any further action to enforce its noise bylaws against KC after that date. There is correspondence among council members and the strata manager about Ms. Radley’s complaints, as well as noise complaints about KC from another owner. However, the evidence shows that the strata imposed no further fines against KC, did not investigate the noise, and did not investigate potential noise mitigation. The strata put notices about noise in its council minutes, and may have posted a notice about noise in the building. However, there is no evidence that these steps improved the noise problem from KC.

22.   The strata only imposed a single, $50 fine on KC, despite its acknowledgement of loud and disruptive noise from KC’s strata lot. Bylaw 12(1) allows for a maximum fine of $200, but the strata has not explained why it never imposed a higher fine. Also, each noise incident on a separate occasion is a new bylaw violation, which can lead to a new fine. Despite the evidence showing Ms. Radley complained about unreasonable noise from KC on many separate occasions, including after October 8, 2020, the strata never sent further warning letters or imposed another fine.

23.   In addition to the strata admitting that KC was loud and disruptive after October 8, 2020, I find that Ms. Radley provided the strata with evidence documenting unreasonable noise on particular dates, including decibel readings. Also, as mentioned above, the evidence shows that another neighbour, L, also complained about unreasonable noise from KC.

24.   Based on all of this evidence, and the fact that the strata only imposed a single $50 fine which did not end the KC’s bylaw contraventions, I find the strata failed to adequately enforce its noise bylaws.

25.   The strata says noise is a “fact of life” in a wood frame building, and it is typical to hear noises from television, radios, stereos, and conversations. That may be true, but I find there is a distinction between these kinds of typical noises in shared buildings, and disruptive and unreasonable noise that would breach strata bylaws.

26.   As stated above, bylaw 8.1(b) prohibits an owner or occupant from making any “undue noise”, or doing anything that unreasonably interferes with any other owner or occupant. Also, bylaw 8.1(c) says an owner or occupant must not use any amplifier, sound reproduction equipment, or other device in a strata lot that causes a disturbance or unreasonably interferes with the comfort of any other owner, tenant, or occupant. I note that Ms. Radley’s complaints document noise allegedly from KC’s stereo system, and KC’s emails also refer to television noise.

27.   The strata’s noise bylaws are consistent with case law on nuisance from the BC Supreme Court. For example, in Campbell et al v. Blainey et al, 2005 BCSC 250, the court said in paragraph 55 that a nuisance occurs when one person’s use of property unreasonably inflicts inconvenience and discomfort on another. In The Owners, Strata Plan LMS 1162 v Triple P Enterprises Ltd., 2018 BCSC 1502, the court defined nuisance in the strata setting as a substantial, non-trivial, and unreasonable interference with use and enjoyment of property (paragraph 33).

28.   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.

29.   As stated above, the strata has admitted that KC’s noise is loud and disruptive. The strata does not deny that KC’s stereo or television make the noises that Ms. Radley complaints of. This indicates that KC breached bylaws 8.1(b) and (c) repeatedly, as reported by Ms. Radley. While the strata now asserts that the noise was reasonable for a wood-frame building, there is no evidence that the strata ever objectively investigated the actual noise levels in Ms. Radley’s strata lot, or took any other investigative action to establish whether the noises Ms. Radley complained of after October 8, 2020 were bylaw breaches.

30.   The strata also says and many of the noises occurred outside “quiet hours”. Bylaws 8.1(b) and (c) do not refer to quiet hours, or set time limits on noise. The timing of noise will, to some extent, affect whether noise is objectively unreasonable and disruptive. However, the strata produced no evidence that it has a bylaw or rule about quiet times. I therefore find it was unreasonable for the strata to cite quiet hours as a reason not to investigate further, or enforce its noise bylaws.

 

31.    The strata also argues that strata occupants are “often loud and disruptive”, that the strata cannot investigate every noise complaint or mediate interpersonal disputes. While a strata does not necessarily have to investigate every single complaint, the evidence shows that Ms. Radley complained in writing many times, over a 10-month period between July 2020 and May 2021. She documented specific noise incidents in detail, including dates, times, and at times decibel levels. I therefore find the strata’s refusal to investigate or take further enforcement action was unreasonable, and a breach of its duties under SPA section 26.

32.   The strata’s correspondence and evidence repeatedly characterized Ms. Radley’s noise complaints as an interpersonal issue between her and KC. I disagree. There may have been personal animosity, but there was also a series of alleged bylaw complaints, and noise levels the strata admits were loud and disruptive. Bylaw complaints may have an interpersonal component, but as previously discussed, the strata has a statutory duty to enforce its bylaws. The strata cannot avoid that duty by characterizing alleged breaches as interpersonal conflicts. The strata also argues that its volunteer council could not manage these complaints. To the extent that the volunteer council cannot manage its duties, it should seek outside assistance to meet its statutory duty.

33.   For all these reasons, I find the strata breached its duty under SPA section 26 to adequately enforce its noise bylaws. I discuss remedies at the end of this decision.

Did the strata treat Ms. Radley in a significantly unfair manner?

34.   Under CRTA section 123(2), the CRT can make orders to remedy a strata’s significantly unfair actions or decisions. 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.

35.   In Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44, the court applied a “reasonable expectations” test when considering whether a discretionary action of council was significantly unfair. The test asks: What was the applicant’s expectation? Was that expectation objectively reasonable? Did the section violate that expectation with a significantly unfair action or decision?

36.   Ms. Radley argues that the strata treated her significantly unfairly by failing to investigate her noise complaints and enforce its noise bylaws, by putting barriers in the way of her ability to make bylaw complaints, and by allowing its strata manager to make disparaging and dismissive remarks about her complaints in a council hearing.

37.   For the following reasons, I agree with Ms. Radley, and find the strata treated her significantly unfairly.

38.   As set out above, I find the strata failed to investigate Ms. Radley’s bylaw complaints and adequately enforce its noise bylaws. I find that as an owner, Ms. Radley had a reasonable expectation that the strata would meet its SPA section 26 duty to enforce bylaws. I therefore find the strata’s failure to do so was significantly unfair to Ms. Radley, particularly given the impact the noise had on her use and enjoyment of her strata lot.

39.   I also find the correspondence in evidence suggests the strata put barriers in place to deter Ms. Radley from making further bylaw complaints.

40.   Under the SPA, including SPA section 135, an owner is entitled to complain to the strata about alleged bylaw violations. Ms. Radley began emailing complaints about KC’s noise to the strata in July 2020. Based on the evidence before me, the strata did not tell her to make her complaints in a different format, mention a complaint form, or provide Ms. Radley with a complaint form, until May 5, 2021. At that time, the strata manager, SB, emailed her the complaint form, and requested that she resubmit complaints made from April 21, 2021 onwards using the form. Ms. Radley objected to this, and said it was onerous because she did not have a printer or scanner, and did not want to go to the public library to access these devices due to the risk of COVID exposure.

41.   On May 6, 2021 SB emailed that there were “no exceptions” to using the complaint form. Ms. Radley asked when the new complaint policy had come into effect, and how it was communicated to residents. SB replied, “I don’t have time for this, use the form”.

42.   I note that during these interactions, SB was acting in his capacity as the strata’s agent, and was therefore acting on behalf of the strata.

43.   It is open to a strata corporation to require owners to submit bylaw complaints using a form. However, there is no evidence before me that the strata required anyone else to use such a form, or had a policy about it. SB’s email stating “no exceptions” seems arbitrary, and SB never responded to any of Ms. Radley’s reasonable inquiries about the nature and specifics of the policy.

44.   On its own, I find that requiring Ms. Radley to retroactively resubmit complaints using a particular form is not significantly unfair. However, I find that combined with SB’s subsequent comments about her complaints at a council hearing, SB’s conduct in dealing with Ms. Radley’s complaints was significantly unfair.

45.   According to Ms. Radley’s notes from the June 22, 2021 council hearing, SB constantly interrupted her, berated her, and said her complaints were “bogus”. The notes say that SB also said that “bogus” meant he did not like her attitude.

46.   In this CRT dispute, the strata does not deny that SB made these comments. Rather, in its Dispute Response Form, strata’s representative wrote that he agreed the conversation was “unprofessional”. He said he “attempted to acknowledge Laurel’s concerns and limit [SB’s] conversation as intensity was escalating”.

47.   Again, SB was acting as the strata’s agent during the hearing, and therefore speaking on behalf of the strata. I find that characterizing uninvestigated complaints as meritless was significantly unfair. I find Ms. Radley had a reasonable expectation that the council would hear her complaints at the hearing, and not disparage her or her concerns by using the term “bogus”. If the council was concerned about the length of the hearing, it could have set a time limit.

48.   For these reasons, I conclude that the strata treated Ms. Radley significantly unfairly.

Remedies

49.   Ms. Radley requests $1,000 in damages for the strata’s failure to enforce its bylaws, and $1,000 in damages for significant unfairness.

50.   In Tollasepp v. The Owners, Strata Plan NW 2225, 2020 BCCRT 481, a CRT member ordered a strata corporation to pay an owner $1,500 in damages for failing to investigate noise bylaw complaints. The member cited other CRT strata nuisance cases, and noted that a strata corporation may be liable for damages when it takes insufficient steps to investigate complaints and enforce its bylaws (paragraph 69).

51.   While Tollasepp is not binding on me, I find its reasoning persuasive and adopt it. I note that Ms. Radley documented the impact of KC’s noise in her written submission to the strata council. I find the strata is liable for damages for its failure to adequately enforce its noise bylaws.

52.   I do not order a separate amount of damages for significant unfairness. The primary result of the significant unfairness is that the strata did not address KC’s noise, which is the same harm addressed in Ms. Radley’s first claim.

53.   For these reasons, and following the reasoning in Tollasepp, I order the strata to pay Ms. Radley a total of $1,500.00 in damages.

54.   I find Ms. Radley is entitled to prejudgment interest on the $1,500.00, under the Court Order Interest Act (COIA). I find it is appropriate to calculate the interest from November 1, 2020, as the strata admits that KC’s noise continued after its October 2020 bylaw enforcement action. This equals $12.10.

55.   Ms. Radley also requests an order that the strata investigate her bylaw complaints, and an order that the strata remove barriers to making bylaw complaints.

 

56.   I do not order the strata to investigate Ms. Radley’s bylaw complaints. I find this would be unproductive, since the strata already admits that KC’s noise is loud and disruptive, and the strata is already required by the SPA to enforce its bylaws. This includes an ongoing duty to adequately investigate noise complaints. If Ms. Radley continues to make noise complaints and the strata fails to take adequate steps to investigate the complaints and enforce its bylaws, the strata may be liable for further damages.

57.   I also do not order the strata to remove barriers to complaints, as I find that order would be vague and likely unenforceable. However, if the strata wants owners to make future bylaw complaints using a specific form, it should circulate the form and instructions to all owners, and consider adopting an appropriate rule or bylaw.

CRT FEES AND EXPENSES

58.   As Ms. Radley was successful in this dispute, under the CRTA and the CRT’s rules I find she is entitled to reimbursement of $225.00 in CRT fees. Neither party claimed dispute-related expenses, so I order no reimbursement.

59.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to Ms. Radley.

ORDERS

60.   I order that within 30 days of this decision, the strata must pay Ms. Radley $1,737.10, broken down as follows:

a.    $1,500.00 in damages,

b.    $12.10 in prejudgment interest under the COIA, and

c.    $225.00 for CRT fees.

61.   Ms. Radley is entitled to postjudgment interest under the COIA, as applicable.

62.   Under CRTA section 57, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under CRTA section 58, 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.