Date Issued: June 12, 2023

Files: ST-2022-003746 and ST-TPC-2022-009281

Type: Strata

Civil Resolution Tribunal

Indexed as: McVittie v. The Owners, Strata Plan LMS 869, 2023 BCCRT 493

Between:

STEPHEN EDWIN MCVITTIE

Applicant

And:

The Owners, Strata Plan LMS 869

Respondent

And:

JAMES WRIGHT

Respondent BY THIRD PARTY CLAIM

 

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.      This dispute is about flooring-related noise in a strata corporation.

2.      The applicant, Stephen Edwin McVittie, co-owns strata lot 44 (unit 707) in the respondent strata corporation, The Owners, Strata Plan LMS 869 (strata). The strata filed a third party claim against James Wright. Mr. Wright owns unit 807, which is located directly above unit 707.

3.      Mr. McVittie and Mr. Wright are self-represented in this dispute. The strata is represented by a strata council member.

4.      Mr. McVittie says Mr. Wright has created ongoing noise every night, which is audible in unit 707 due to unit 807’s inadequate flooring and underlay. Mr. McVittie says the strata has failed to enforce its noise and flooring bylaws. As remedies, he requests $5,000 in damages for aggravation and lack of sleep, $5,000 for legal fees, and an order that the strata take steps to ensure that unit 807’s flooring underlay meets the BC Building Code and City of Vancouver standards.

5.      In its Dispute Response Form, the strata denies Mr. McVittie’s claim, and says there is no evidence establishing the alleged noise’s source. In its third party claim against Mr. Wright, the strata says that if Mr. McVittie proves that unit 807 is the source of the noise, Mr. Wright is responsible for any damages. The strata says it has attempted to enforce its bylaws by fining Mr. Wright.

6.      As remedy for the third party claim, the strata requests orders that Mr. Wright follow strata bylaws, change the flooring in Unit 807 to meet all bylaw 7.4 requirements, and provide proof he has done so.

7.      Mr. Wright denies the claim against him, and says unit 807 is not the source of the alleged noise.

 

JURISDICTION AND PROCEDURE

8.      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.

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 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.

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 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.

Limitation Period

12.   Mr. Wright says the strata’s third party claim against him is barred under the Limitation Act, because he says the strata has not fined him or sent him any bylaw violation notices since 2017.

13.   I find the third party claim is not statute-barred. Section 22(1) of the Limitation Act says that if a claim is started within the limitation period, a “related claim” such as a third party claim may be started even if the limitation period for that claim would otherwise have expired.

14.   Mr. McVittie’s claim against the strata is for enforcement of noise bylaws, which is an ongoing obligation under Strata Property Act (SPA) section 26. Because the obligation is ongoing, I find Mr. McVittie’s claim is not barred by any limitation period. So, I find the third party claim against Mr. Wright is permissible based on Limitation Act section 22(1).

Late Evidence

15.   Mr. McVittie provided late evidence in this dispute. The other parties had the opportunity to respond to the late evidence, so I find there is no procedural fairness breach in admitting it.

ISSUES

16.   The issues in this dispute are:

a.    Did the strata fail to enforce its noise and flooring bylaws, and if so, what remedies are appropriate?

b.    Is Mr. Wright liable for Mr. McVittie’s claims against the strata, and if so, what remedies are appropriate?

REASONS AND ANALYSIS

17.   In a civil claim like this one, Mr. McVittie, as applicant, must prove his claims on a balance of probabilities (meaning “more likely than not”). The strata must prove its third party claim to the same standard.

18.   I have read all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

19.   The strata was created in 1993, and consists of 190 strata lots in a 29-storey building.

20.   The strata filed consolidated bylaws with the Land Title Office in June 2021. I find these are the bylaws applicable to this dispute. I summarize the following relevant bylaws as follows:

Bylaw 4.1 – an owner, tenant, occupant or visitor must not use a strata lot in a way that causes a nuisance to another person, causes unreasonable noise, or unreasonably interferes with another person’s right to use a strata lot or common property.

Bylaw 7.4 – an owner installing hard surface flooring must use a “superior quality of sound reduction insulating barrier material” that will minimize noise transference to adjoining strata lots. If hard surface flooring is installed without complying with bylaw 7.4, and if another owner, tenant, or occupant complains to the strata council about increased noise coming from a strata lot with improperly installed flooring, the owner must comply with all requirements imposed by the strata council to reduce the increased noise transference.

Did the strata fail to enforce its bylaws?

21.   SPA section 26 requires the strata council to enforce bylaws. When carrying out this duty, the strata council must act reasonably: see The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraph 237.

22.   The SPA does not set out any specific procedures for addressing bylaw complaints. In Chorney v. Strata Plan VIS 770, 2016 BCSC 148, the BC Supreme Court said the SPA gives a strata corporation discretion about how to respond to bylaw complaints, as long as it complies with principles of procedural fairness and does not act in a significantly unfair way. In Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74, the court said that a strata corporation is not held to a standard of perfection, but instead “reasonable action and fair regard for the interests of all concerned”.

23.   Based on the evidence before me, I find the strata did take reasonable steps to enforce its bylaws. The evidence shows that over a period of years, the strata sent numerous warning letters about noise bylaw complaints to Mr. Wright and his tenants. It also fined Mr. Wright, and later fined his tenants directly.

24.   Also, in 2016, due to noise complaints from Mr. McVittie, the strata hired acoustical specialists BKL Consultants Ltd. (BKL) to test and report on the sound transmission between units 707 and 807. BKL’s September 23, 2016 report contains the following information:

•         BLK performed an impact sound transmission test.

•         Unit 807 has vinyl/laminate plank flooring, over a 6.5” concrete slab, with a mechanical duct in the centre of the slab. Unit 707 has a drywall ceiling.

•         The apparent impact insulation class (AIIC) test result was 52.

•         The 2012 BC Building Code, adopted in the Vancouver Building Bylaw, includes a “recommended criterion” that bare floors should have an impact isolation class (IIC) of 55. So, the floor/ceiling assembly between units 707 and 807 does not meet the recommended criterion.

25.   BKL’s report includes no recommendations about how to reduce sound transmission.

26.   After receiving BKL’s report, the strata initially directed Mr. Wright to take action to reduce the noise transfer to meet an IIC rating of 55. The strata also fined Mr. Wright for violating bylaw 7.4.

27.   I first consider bylaw 4.1, and then bylaw 7.4.

Bylaw 4.1

28.   The parties agree that Mr. Wright did not change unit 807’s flooring. However, Mr. Wright provided evidence that he or his tenants placed area rugs throughout the strata lot, and he removed all sliding glass closet doors. He also provided emails from his tenants stating that unit 807 was unoccupied at several of the times at which Mr. McVittie said there was unreasonable noise. Mr. Wright says he asked his tenants to log their activities, to establish that unit 807 was not the source of unreasonable noise.

29.   After Mr. McVittie continued to make noise complaints, 4 members of the strata council conducted a non-expert sound test. According to statements in evidence from each of the 4 council members, on December 7, 2022 2 council members went to unit 707 with Mr. McVittie, and 2 others made noises in various locations outside unit 707, on the 7^th and 8^th floors. The noises included dropping keys and banging the floor with a screw driver handle. They documented the time of each noise, and the council members in unit 707 asked Mr. McVittie to indicate where he thought the noise was coming from.

30.   Council president GG provided a table of the results. This table shows there were 25 separate noises created during the test. Eleven of these noises were created inside unit 807, and the remaining 13 were created in units 801, 806, and 701. Of the 13 noises created outside unit 807, Mr. McVittie incorrectly identified 7 as coming from inside unit 807.

31.   The strata says these test results shows that unit 807 is not the source of the ongoing unreasonable noise of which Mr. McVittie complaints.

32.   The council members are not experts in acoustics or sound transmission. So, I do not accept their statements and results table as expert evidence under the CRT’s rules. However, I find the test results are persuasive non-expert evidence. The test method is clear, and Mr. McVittie did not dispute the results or provide contrary evidence, although it was open to him to do so. So, I find the December 2022 testing establishes that unit 807 is not necessarily the source of the ongoing noises of which Mr. McVittie complains.

33.   I also note that in emails dated April 29, 2022 and May 9, 2022, the strata had already instructed Mr. McVittie to contact the building security guard when noises were happening, so the guard could attend unit 807 and provide information about what was occurring. Mr. McVittie refused to do this. He replied that it was not the security guard’s responsibility to enforce bylaws. In another email, he said noise bylaw enforcement does not require a witness.

34.   I find it was reasonable for the strata to ask Mr. McVittie to contact the security guard to investigate noise complaints at the time they occurred. Mr. McVittie has provided no evidence other than his own statements about the nature and source of the alleged noise. I find that by making the security guard available, and holding the informal noise test on December 22, 2022, the strata met its duty to investigate Mr. McVittie’s noise complaints.

35.   I also note that Mr. McVittie provided no evidence contradicting the email correspondence from Mr. Wright’s various tenants, who stated that unit 807 was unoccupied during some of the alleged noise incidents. Since the tenants’ emails are detailed and uncontradicted by other evidence, I accept them as accurate.

36.   Even if unit 807 is a source of noise, bylaw 4.1 only prohibits unreasonable noise. Some amount of noise is to be expected in a shared building. 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).

37.   The test of whether a potential nuisance 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.

38.   As previously stated, Mr. McVittie bears the burden of proving his claims in this dispute. He cannot succeed by simply asserting there was unreasonable noise, without other proof. He provided no evidence about the specific times the noise occurred, its duration, or its frequency. He also provided no evidence about the noise’s volume, such as decibel readings. He did not provide expert evidence, or statements from witnesses who observed the noise.

39.   For all these reasons, I find the strata’s bylaw enforcement efforts about Mr. McVittie’s noise allegations were reasonable, and met its duty under SPA section 26. I also find Mr. McVittie has not proven any violation of bylaw 4.1.

Bylaw 7.4

40.   I also find Mr. McVittie has not proven a breach of bylaw 7.4. As summarized above, bylaw 7.4 says an owner installing hard surface flooring must use a “superior quality of sound reduction insulating barrier material” that will minimize noise transference to adjoining strata lots.

41.   This bylaw is likely too vague to be enforceable in any circumstance. Specifically, the term “superior quality of sound reduction insulating barrier material” is unclear and undefined. Since there is no defined minimum standard, it is impossible to say what material is “superior”.

42.   In any event, there is no specific evidence before me indicating what insulating barrier material was used, so I cannot make a finding about whether it is “superior” or whether a different material would minimize sound transfer better. I note that the parties agree that the current flooring in unit 807 was installed at an unknown time, before Mr. Wright bought the strata lot in 2010. The parties also agree there is no record of any alteration agreement.

43.   Finally, the wording of bylaw 7.4 does not require the strata to demand flooring upgrades or replacement. Rather, it gives the strata discretion to do so. In this case, the strata directed Mr. McVittie to take steps to reduce noise transfer, and there is undisputed evidence that he installed rugs and removed closet doors. Under bylaw 7.4, the strata is not required to do more, particularly since as explained above, Mr. McVittie has not proven that unit 807 is the source of unreasonable noise.

44.   Mr. McVittie provided a copy of a June 13, 2016 email from BC, a principal or employee of Metrotown Floors, to the strata manager. From the email, it seems BC inspected unit 807’s flooring and underlay on behalf of the strata. BC wrote that they saw the underlay under the laminate flooring, and “underlayment has the sound rating”. BC also said the laminate flooring was not installed on a flat substrate, because the installer did not level it before installation. BC wrote, “This creates spacing between slab and floor and also hollow sounding all around the spacing areas.”

45.   I place very limited weight on this email. BC’s qualifications are not in evidence, so I do not accept the email as expert evidence under the CRT’s rules. Also, it is not clear how BC assessed the floor, whether the entire substrate is not level, how this alleged un-level substrate affects noise transfer, and to what extent. I find that while BC’s email raises the possibility of a problem with unit 807’s flooring, it does not prove the problem exists, and does not prove that it increases sound transfer into unit 707. Again, this is particularly true given the result of the strata council’s December 2022 sound test, showing that Mr. McVittie mis-attributed the source of many of the noises.

46.   Finally, I will address BKL’s September 2016 report. That report said the impact sound transmission between units 707 and 807 did not meet the “recommended criterion” in the 2012 Building Code and Vancouver’s city bylaws. However, this is only a recommended guideline, and not a mandatory requirement. Also, there is nothing in the SPA or strata bylaws requiring that flooring installed at an unknown time before 2010 must comply with the current Building Code or municipal bylaws.

47.   Since I have found it unproven that unit 807 is the source of unreasonable noise contrary to strata bylaws, it is not necessary for the strata or Mr. Wright to modify unit 807’s flooring. I note that it is open to Mr. McVittie to modify the ceiling in unit 707, subject to any bylaws requiring strata permission for strata lot renovations.

48.   For these reasons, I dismiss Mr. McVittie’s claims against the strata. Since the strata is not liable under the primary claim, I dismiss the strata’s third party claim against Mr. Wright.

CRT FEES AND EXPENSES

49.   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. The strata is the successful party in the primary claim, and Mr. Wright was successful in the third party claim. The strata paid a $125 fee to file the third party claim. Given Mr. McVittie’s claims for damages, I find it was reasonable for the strata to file the third party claim. I order Mr. McVittie to reimburse the strata $125 for CRT fees.

50.   Mr. McVittie claimed reimbursement for Land Title Office document fees. However, since he was unsuccessful in this dispute, I order no reimbursement.

51.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. McVittie or Mr. Wright.

ORDER

52.   I order that within 30 days of this decision, Mr. McVittie must reimburse the strata $125 for CRT fees.

53.   I dismiss Mr. McVittie’s claims, and the strata’s third party claim.

54.   The strata is entitled to postjudgment interest under the Court Order Interest Act, as applicable.

55.   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.