Date Issued: May 26, 2023
File: ST-2022-004062
Type: Strata
Civil Resolution Tribunal
Indexed as: Blain v. The Owners, Strata Plan VR 2690, 2023 BCCRT 440
Between:
CAMERON BLAIN and SHARON BUCHANAN
Applicants
And:
The Owners, Strata Plan VR 2690
Respondent
REASONS FOR DECISION |
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Tribunal Member: |
J. Garth Cambrey, Vice Chair |
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INTRODUCTION
1. This is a strata property dispute about noise allegedly created by structural components of a building.
2. The applicants, Cameron Blain and Sharon Buchanan, co-own strata lot 83 (SL83) in the respondent strata corporation, The Owners, Strata Plan VR 2690 (strata).
3. The applicants say that their neighbours immediately above them in strata lot 108 (SL108), replaced the flooring and underlay in SL108 with laminate flooring in the summer of 2020. They say that since then, they have experienced “extremely frequent” noise disturbances in SL83. The applicants also say the noises continued even after their SL108 neighbours replaced the laminate flooring in parts of SL108 with carpet. In submissions, the applicants say an expert report obtained by the strata proves the “core floor assembly” is the issue and not their neighbours’ behaviour. Finally, the applicants say the strata has taken too long to address their complaints, and failed to communicate its actions or respond to the applicants in a timely manner.
4. The applicants request orders that the strata require the owner of SL108 to obtain a building permit, professionally repair the floor, and have it inspected and passed as per the British Columbia Building Code (building code). The applicants also ask that the Civil Resolution Tribunal (CRT) examine how the strata handled this dispute with a view to preventing it from happening to another owner or tenant.
5. The strata says it properly managed the SL108 floor alterations and noise complaints. It says the applicants have the burden to prove structural defects exist in the floor and ceiling between SL83 and SL108 and they have not done so. The strata asks that the applicants claims be dismissed.
6. Mr. Blain represents the applicants. A strata council member represents the strata.
7. As explained below, I largely find in favour of the applicants.
JURISDICTION AND PROCEDURE
8. These are the CRT’s formal written reasons. 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.
9. 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.
10. 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.
11. 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 Matter - Request for CRT Investigation
12. As noted, the applicants ask that the CRT examine how the strata handled this dispute, including the length of time for it to do so, with a view to preventing it from happening to another owner or tenant. I find this request is effectively a request for advice, which does not form part of the CRT’s mandate, nor is it the CRT’s role. For this reason, I have not addressed the applicants’ investigation request in my decision.
ISSUES
13. The issues in this dispute are:
a. Does the strata have a duty to investigate alleged structural deficiencies and if so, has that duty been triggered?
b. What is an appropriate remedy, if any?
BACKGROUND
14. As applicants in a civil proceeding such as this, Mr. Blain and Ms. Buchannan must prove their claims on a balance of probabilities, meaning more likely than not. I have considered all the submissions and evidence provided by the parties, but refer only to information I find relevant to explain my decision.
15. The strata plan shows the strata was created in July 1990 under the Condominium Act (CA). It continues to exist under the SPA and includes 131 strata lots in a single 8-storey building. The applicants’ strata lot is located on the 7th floor of the building immediately below SL108, the neighbours’ 8th floor strata lot.
16. Land Title Office documents show the strata filed amended bylaws under both the CA and the SPA. There is no evidence it has ever repealed any of those bylaw amendments, but the current bylaws show that Standard Bylaw 3(4) about pets, was repealed. Based on Strata Property Regulation section 17.11, that addresses transitional matters about bylaws from the CA to the SPA, I find the bylaws in force for this dispute are the Standard Bylaws under the SPA, except Standard Bylaw 3(4), plus other filed bylaws that conflict with the Standard Bylaws but do not conflict with the SPA. I discuss bylaws relevant to this dispute below, as necessary.
17. The applicants purchased SL83 in June 2007. There is no evidence the applicants made any noise complaints to the strata until the summer of 2020, when their neighbours installed laminate flooring in SL108. It is undisputed that the strata approved the laminate flooring installation along with replacement of underlay, and leveling of the sub-floor. I infer from the evidence that laminate flooring alterations were not made in the kitchen or hallway.
18. As a result of the applicants’ ongoing noise complaints, the strata ultimately retained BAP Acoustics (BAP) to conduct an impact sound insulation test on the floor-ceiling assembly between SL83 and SL108. BAP completed its testing on November 18, 2021 and issued a report dated November 25, 2021.
19. The BAP report explains that impact sound insulation of a floor-ceiling assembly is classified using the Impact Insulation Class (IIC) rating, which the BC Building Code recommends achieve a minimum rating of IIC 55 for bare floors. Since the IIC rating is determined by laboratory measurements, the rating is termed the Apparent Impact Insulation Class (AIIC) rating when measured outside of a laboratory. The testing occurred in the “open-plan living area” of SL108, which BAP reported was directly above an identical area in SL83. I find that the areas tested were the living rooms of both strata lots. The BAP report found the AIIC rating of the area tested was 34, which it determined was significantly below the recommended IIC 55 rating. As a result, BAP reported that it considered the noise complaints from the applicants were likely justified.
20. Based on the BAP report, the strata asked the SL108 owner to “mitigate the problem” or have the laminate flooring removed. The SL108 owner complied by removing the laminate flooring they had installed.
EVIDENCE AND ANALYSIS
Does the strata have a duty to investigate alleged structural deficiencies and if so, has that duty been triggered?
21. I find the strata has taken the position that the noise issue was about the laminate flooring installation, but that is not what the applicants argue. The applicants admit the current noise issue is not about their neighbours’ behaviour, but rather the structure of the building. In particular, the applicants’ concern is about entire floor-ceiling structure between the 2 strata lots. The applicants also submit they do not expect total silence and understand that buildings make noises. They also understand that people and objects occasionally and inadvertently make noises that reasonable soundproofing will not suppress. However, they feel they should not be subjected to the sounds of people reasonably enjoying their suite.
What bylaws apply?
22. I find the relevant bylaws applicable to this dispute are Standard Bylaws 2(1) and 8(d). I summarize them as follows:
a. Standard Bylaw 2(1) requires owner to repair and maintain their strata lot.
b. Standard Bylaw 8(d) requires the strata to repair and maintain parts of a strata lot that if those parts relate to the structure of the building.
23. I note SPA section 72(3) permits a strata to take responsibility for repair and maintenance of specified portions of a strata lot, which it has under Standard Bylaw 8(d).
24. The applicants say the strata is responsible to repair and maintain the common property in the ceiling space between the SL83 and SL108. However, I find there is no common property in the floor-ceiling. This is because SPA section 68 defines the boundary between 2 strata lots, unless otherwise identified on the strata plan, which it is not, 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....
25. Based on section 68, the ceiling space above SL83 is part of SL83 and SL108 divided by the midpoint in the structure. In other words, there is no common property between the 2 strata lots.
26. However, the strata is required under Standard Bylaw 8(d) to repair and maintain parts of a strata lot that relate to the structure of the building. The strata says the building has a wooden structure. The applicants do not dispute this. The BAP report says the “floor-ceiling structure is unknown but assumed to be standard wood frame construction”. Therefore, I infer the structural components of the ceiling space are wood joists and parts of the supporting walls located in the space. I find that any flooring or subflooring located on top of the joists, plywood for example, is not structural, but rather part of SL108.
The strata’s duty to investigate
27. Neither party referenced any court or CRT decisions that address the strata’s duty to investigate structural matters. However, I find my analysis in Barros-Harty v. The Owners, Strata Plan NW 962, 2022 BCCRT 569 applies to the circumstances here.
28. In Barros-Harty, the owners of a strata lot said they heard unreasonable noises, such as “creaking/popping plywood and/or ceiling joists” from the ceiling above their strata lot, which they said was the strata corporation’s responsibility to repair. I addressed the strata corporation’s duty to repair and maintain the structure and found that its bylaws required it to do so, as the strata’s bylaws do here. I found a strata corporation’s duty to repair and maintain a building’s structural components follows the same standard of reasonableness as it’s duty to repair and maintain common property as set out in The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363. I also found that 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 citing Guenther v. Owners, Strata Plan KAS431, 2011 BCSC 119 at paragraph 40.
29. Based on my analysis, I found a strata corporation’s duty to repair includes a duty to investigate the need for repair. I adopt that analysis here. The remaining question then, is whether the strata’s duty to investigate has been triggered in the circumstances of this dispute?
30. For the reasons that follow, I find it has.
Has the strata’s duty been triggered?
31. Contrary to the strata’s argument that the applicants must prove there are structural deficiencies in the floor-ceiling, I find the applicant must only prove there is a potential for structural repairs to exist in order to trigger the strata’s duty to investigate them. This requires more than basic assertions on the part of the applicants. The applicants put forward a number of arguments to support their claim that structural repairs exist that the strata must repair. I address them in turn.
Laminate Flooring and Carpet Installation
32. One argument put forward by the applicants is that the laminate flooring installation damaged the structure. The applicants say the flooring may not have been installed by qualified tradespeople, as the bylaws require, or that the sub-floor work completed may have exacerbated the floor-ceiling structure. They also say that the strata likely did not inspect or oversee the flooring installation. I find this argument is speculative at best. In any event, I do not see how this argument supports a finding that potential structural deficiencies exist such that the strata must investigate or repair them.
33. The applicants also say the strata approved the carpet installation to replace the laminate flooring without requesting the SL108 owner obtain necessary permits. They provided an email from the City of Vancouver, where the strata is located, about the permit process. The City email was in a response to an email from the applicant (likely anonymous) enquiring about requirements to remove floor coverings in a strata lot and replacing them with carpet. The City’s email states a permit may not be required to replace floor coverings, but would be required “if the work extends to replacing underlay and subfloor”, or if part of the “floor assembly” was replaced.
34. It is unclear what, if anything, the strata required the SL108 owner to do when they agreed to replace the laminate with carpet, or if the strata was involved or reviewed that work. I find the applicants’ concerns about the carpet installation do not indicate any potential structural deficiencies. In both circumstances, it is not proven that a permit was required, so I find the arrangements the strata made with the SL108 owner do not assist the applicants.
Noise Logs
35. At the strata’s request, the applicants submitted noise logs after the BAP report was completed in November 2021. The log entries are dated between January and April 2022. Many log entries relate to “cracking”, “cracking floorboards”, “creaking floorboards” and “squeaks”. Other entries relate to activities of the upstairs neighbours, which are not necessarily relevant to this dispute, but could be the source of some of the noises described by the applicants if the structural components require repair. The strata says “the noises are typical of the types of noises generated in a wood frame building and... should be expected”.
36. I place some weight on the noise logs. On one hand, they only relate to noises before the laminate flooring was replaced with carpet, which I find favours the strata. However, on the other hand, they do identify noises that do not strictly relate to the neighbours’ conduct and behaviour, indicating there could be structural issues with the floor-ceiling assembly, which favours the applicants.
Substandard Floor
37. Based on emails exchanged between the parties in April 2022, I find the strata admitted the laminate flooring installed in SL108 was “substandard”, although no explanation about what it meant by substandard was provided. The applicants appear to interpret the strata’s email to mean that the flooring installed in 2020 was contrary to the BC Building Code, but there is no reference to the BC Building Code in the strata’s email. I take it from the strata’s comment that it believed the laminate flooring was incorrectly installed.
38. The only independent, objective evidence on noise transmission is the BAP report. I do not agree with the applicants’ arguments that the cause of the noise issue “has been empirically proven (by BAP Acoustics) to be structural and not related to behaviour”. On my review of the BAP report, there is no such statement, either express or implied. I find the BAP report simply confirms noise levels of the floor-ceiling assembly between SL83 and SL108 on November 18, 2021 were below BC Building Code recommendations. The report did not say there were any BC Building Code violations.
39. As noted earlier, the BAP report provided sound transmission readings based on an AIIC rating. In submissions, the applicants introduce information on an STC rating, noting it is an airborne noise rating rather than an impact noise rating. The BAP report did not address the STC rating and I find the applicants are not qualified to comment on sound transmissions.
40. Finally, the BAP report did not address potential or actual defects in the structural floor-ceiling assembly. Therefore, I find it cannot be relied upon for this purpose.
Recordings
41. The applicants also provided recordings of sound transmissions both before and after the laminate flooring was removed. They argue the noise disturbances were not affected by the floor covering change. Based on my review of the recordings I agree. It is clear that some of the same noises can be heard in recordings made before the laminate flooring was installed and recordings made after the carpet was installed. I conclude then, that replacing the laminate flooring with carpet did not eliminate the noise concerns, which suggests the laminate flooring was not the issue. I find this weighs in favour of the applicants.
Strata’s actions after the laminate flooring was replaced
42. Notably, the strata did not take any further action after the SL108 owner replaced the laminate flooring with carpet in about August 2022. I find this action was not reasonable given the noise logs and recordings support the applicants’ claims that the same noises continued after the floor coverings in SL108 was changed. The strata was aware of these things but yet it did no further investigation, such as re-test the sound transmission between SL83 and SL108 with the carpet in place.
Conclusion
43. I am not persuaded that the noises heard by the applicants from SL108 are “ordinary living noises” as the strata appears to suggest. Weighing all the evidence, I find the applicants have established that it is more likely than not there is a potential problem with the building’s structure, so I find the strata’s duty to investigate has been triggered.
Remedy
44. The applicants request an order that the strata ensure the SL108 owners take action with respect to the flooring. However, I find such an order would be premature because it is not established the flooring of SL108 is the issue. I do not find that ordering additional sound testing would be useful. I find the appropriate order in the circumstances of this dispute is for the strata to further investigate the floor-ceiling assembly between SL83 and SL108 by retaining a professional to determine if a structural issue is causing or contributing to the unreasonable noise in SL83. This must be completed within 90 days of this decision.
45. I also order the applicant to provide access to SL83 on 48 hours’ notice to allow the selected professional to inspect SL83, which might include opening the ceiling and walls. Access will likely also be necessary to SL108, which the strata can obtain through its bylaws and may include removal of carpeting and inspection of the sub-floor. The strata must repair both strata lots at its cost within 60 days following the inspection.
46. Finally, I order the strata to act on the recommendations of its professional.
47. The applicants are not exempted from paying their proportionate cost for the inspection and repair work.
CRT FEES AND EXPENSES
48. Under CRTA section 49 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 order the strata to reimburse the applicants $225 in CRT fees.
49. Neither party claimed dispute-related expenses so I order none.
50. Under section 189.4 of the SPA, the strata may not charge any dispute-related expenses against the applicants except that the applicants must pay their proportionate share of the ordered inspection and repair costs.
ORDERS
51. I order that the strata:
c. Within 30 days of the date of this decision, I order the strata to reimburse the applicants $225 for CRT fees.
d. Within 90 days of the date of this decision, I order the strata to further investigate the floor-ceiling assembly between SL83 and SL108 by retaining a professional to determine if there is a structural issue. The applicant must provide access to SL83 on 48 hours’ written notice to allow the selected professional to inspect SL83, which might include opening the ceiling and walls. The strata must act on the recommendations of the professional.
e. Within 60 days following the inspection, repair both strata lots at its cost.
52. I dismiss any remaining claims of the applicants.
53. The applicants are entitled to post judgement interest under the Court Order Interest Act, as applicable.
54. 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.
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J. Garth Cambrey, Vice Chair |