Date Issued: October 5, 2023

File: ST-2022-006530

Type: Strata

Civil Resolution Tribunal

Indexed as: Rahman v. The Owners, Strata Plan NW 183, 2023 BCCRT 845

Between:

SAFIUR RAHMAN

Applicant

And:

The Owners, Strata Plan NW 183

Respondent

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

INTRODUCTION

1.      This is a strata property dispute about ongoing noise and vibration in a strata lot. It follows a previous Civil Resolution Tribunal (CRT) decision indexed as Rahman v. The Owners, Strata Plan NW183, 2021 BCCRT 1226 (Rahman 2021), and subsequent enforcement of that CRT decision through the BC Supreme Court (BCSC).

2.      At all relevant times, the applicant, Safiur Rahman, owned and lived in strata lot 45 (SL45) in the respondent strata corporation, The Owners, Strata Plan NW 183 (strata). Mr. Rahman is self-represented. A strata council member represents the strata.

3.      Mr. Rahman says the strata failed to complete work ordered by the CRT and BCSC to address noise and vibration issues between SL45 and a neighbouring strata lot partially below it, strata lot 77 (SL77). He says the strata did not hire professionals to complete the work as the orders required, and that it delayed the work while failing to enforce ongoing noise issues from SL77. Mr. Rahman also says that because of the strata’s misconduct and inaction, the noise and vibrations continued and that he was forced to hire a lawyer and incur legal expenses. In his original request for dispute resolution, Mr. Rahman sought orders that the strata take certain actions to investigate the noise and vibration issues and repair them, as well as pay him $5,000 as compensation for his legal expenses and the ongoing noise issues.

4.      In its Dispute Response, the strata took “no position” on Mr. Rahman’s claims and said the matter was already resolved in Rahman 2021 and that the CRT has no jurisdiction to enforce its own decisions.

5.      In a preliminary decision issued April 3, 2023 (preliminary decision), another CRT vice chair found Mr. Rahman’s claim for specific investigation and repair of the noise and vibration issues was res judicata (already decided) but allowed his damages claim to continue to the extent it involved new noise and vibration issues that arose after Rahman 2021. I discuss the preliminary decision below and note I am not bound by it.

6.      As explained below, I refuse to resolve some aspects of Mr. Rahman’s claim and dismiss the remaining aspects.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the 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.      Under CRTA section 10, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues. The CRT may also refuse to resolve a claim within its jurisdiction under CRTA section 11(1)(a)(i) if it considers the claim would be more appropriate for another legally binding process, or under section 11(1)(e) if it is satisfied on the basis of satisfactory evidence, that the claim is beyond the CRT’s jurisdiction.

Preliminary Issues

Former Owner

10.   Mr. Rahman says he sold SL45 after he started this dispute. The strata agrees. I find Mr. Rahman likely sold his strata lot in June 2023, based on his submissions. I note that in The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32, the Court found that the SPA definition of “owner” includes former owners. Further, in Downing v. Strata Plan VR2356, 2019 BCSC 1745, the BCSC said that the fact that an owner becomes a former owner does not, by itself, result in their no longer being an “owner” under the SPA or remove the CRT’s ability to decide a dispute. Given these decisions, I find that I have jurisdiction to consider this dispute even though Mr. Rahman no longer owns SL45.

Late Submissions

11.   Mr. Rahman objected to CRT staff allowing the strata to provide late submissions about this dispute. He alleges “not a single response from [the strata] was submitted on time”. CRT staff confirmed there was difficulty obtaining submissions from the strata because it did not immediately respond to emails and voice message reminders and that the CRT ultimately permitted the submissions late. I note that CRT rule 1.17(1) permits the CRT to extend “any time timeline for any step or phase of the tribunal process”. I find this rule applies to CRT staff as well as adjudicators. Rule 1.17(3) sets out a number of factors the CRT may consider about extension requests, which I find grants the CRT broad discretion to extend timelines. I find the strata’s extended timeline for late submissions is consistent with rules 1.17(1) and (3). I also find the approved extension is consistent with the CRT’s mandate to provide dispute resolution services that are accessible, informal, and flexible under CRTA section 2.

12.   While I acknowledge Mr. Rahman may have been frustrated by the process, I find no procedural fairness concerns arise as he was given the opportunity to respond to the strata’s late submissions and did so.

Additional Claim and Remedy - Fine

13.   In his submissions, Mr. Rahman alleges the strata fined him $200 in April 2023 for violating the strata’s noise bylaws and requests an order to cancel the fines imposed by the strata. He also provided numerous pieces of evidence about this claim. The strata objects to Mr. Rahman adding this claim and remedy in his submissions. I infer the reason for the strata’s objection is that the claim and remedy were not included in the Dispute Notice so considering them would be procedurally unfair. I agree with the strata for the following reasons.

14.   The purpose of a Dispute Notice is to define the issues and provide notice to the respondent of the claims against it. Procedural fairness requires that a party must be notified of claims against it and have a fair opportunity to respond. I also note the CRT rules permit an applicant to amend a Dispute Notice to add claims and remedies, but Mr. Rahman did not do that here. I therefore decline to address Mr. Rahman’s claim about an alleged fine imposed by the strata in April 2023.

ISSUES

15.   The issues in this dispute are:

a.    Should the CRT refuse to resolve or dismiss Mr. Rahman’s damages claim?

b.    If not, what is an appropriate remedy?

BACKGROUND, EVIDENCE AND ANALYSIS

16.   As applicant in a civil proceeding such as this, Mr. Rahman must prove his claims on a balance of probabilities, meaning more likely than not. I have considered all the parties’ submissions and evidence but refer only to information I find relevant to explain my decision.

17.   The strata plan shows the strata was created in December 1973 under the Strata Titles Act. It continues to exist under the Strata Property Act (SPA). The strata plan also confirms that SL77 is below only part of SL45. There is also a breezeway under SL45 next to SL77 the runs from what I infer is an inner courtyard area to area outside the building. All areas, including the breezeway, are common property.

Should the CRT refuse to resolve or dismiss Mr. Rahman’s damages claim?

18.   The relevant orders in Rahman 2021 included that the strata hire a qualified professional to install sound absorbing and sound blocking material in the cavity between SL45 and SL77, re-drywall the ceiling in the bathroom of SL77, and block openings within the cavity that transfer sound. The strata was to do this within 45 days of November 19, 2021. To permit the work, the CRT member also ordered the strata to arrange access to SL77.

19.   The Dispute Notice here was originally issued on October 24, 2022. As noted, it contained 2 claims. First, Mr. Rahman argued the strata did not hire professionals to complete the work as the orders required, and that it delayed the work while failing to enforce ongoing noise issues from SL77 (Claim 1). Second, Mr. Rahman argued that because of the strata’s misconduct and inaction, the noise and vibrations continued and that he was forced to hire a lawyer and incur legal expenses (Claim 2).

20.   The evidence before me includes a BCSC Order dated January 11, 2023 (January 2023 BCSC Order) which essentially gave the strata 30 days to hire a qualified professional to complete the work ordered by the CRT in Rahman 2021. Based on this, I find Mr. Rahman undisputedly took steps to enforce the CRT order issued in Rahman 2021. The BCSC order also added an order that the professional retained by the strata meet with Mr. Rahman to discuss the work. As noted below, the vice chair who issued the April 3, 2023 preliminary decision expressly references the January 2023 BCSC order in her decision, so I find it was before her.

21.   In the preliminary decision, the vice chair refused to resolve Claim 1 so that claim is not before me. She found Claim 2 could proceed on the basis it was related to ongoing unreasonable noise and vibrations Mr. Rahman became aware of in March 2022, which she notes was after Rahman 2021 had been decided. As a result, she ordered the October 24, 2022 Dispute Notice amended to remove Claim 1 and amend Claim 2 to remove references to the strata’s non-compliance with the order made in Rahman 2021. The CRT issued an amended Dispute Notice on April 20, 2023 to comply with the preliminary decision.

22.   Since the preliminary decision, I have had the benefit of reviewing further submissions and evidence received from the parties on Claim 2. The evidence includes a second BCSC Order dated April 12, 2023 (April 2023 BCSC Order), that varied the January 2023 BCSC Order to:

a.    Require the strata to hire a “qualified, third party (arms length) professional” to complete the work set out in Rahman 2021 within 30 days of date of the order,

b.    Require the professional to meet with Mr. Rahman to discuss the work before the work was undertaken and “a second time after the majority of the work is complete, but prior to or at the time of it’s completion”, and

c.    Add that the order be endorsed by Mr. Rahman and the strata’s legal counsel, who was to ensure the strata was given a copy.

23.   This confirms Mr. Rahman continued to enforce the Rahman 2021 order through the BCSC and implies the required work was not yet done by April 2023. I find from the overall submissions and evidence that a strata council member completed some of the ordered work by January 2022, but there is no evidence the completed work complied with the Rahman 2021 order. Specifically, as Mr. Rahman notes, the strata council member did not provide evidence they were a qualified professional. Further, there is no evidence any additional work was completed in compliance with either BCSC Order since January 2022. By its own admission, the strata says it has been unable to retain a contractor to do the work. I reject the strata’s argument that the court must have been mislead when making its orders, which I find is especially true of the April 2023 BCSC Order. Given the strata’s lawyer signed the April 2023 BCSC Order, I find it highly unlikely they would have permitted the court to be misled.

24.   I find Mr. Rahman’s claim for $5,000 in damages relates to 3 things: legal fees he paid to enforce the CRT and subsequent BCSC orders, legal fees he paid to attempt to negotiate an alternate resolution to the orders, and additional compensation for the ongoing noise issue. Mr. Rahman does not separate the damages amounts for each part of his claim.

25.   To the extend his claim is about legal fees he had to pay to enforce or negotiate the CRT or BCSC orders, I refuse to resolve it under CRTA section 10 for lack of jurisdiction. This is because the CRT has no jurisdiction to enforce its own orders, and only the BCSC has jurisdiction to award costs, including special costs, in its own proceedings.

26.   This leaves Mr. Rahman’s claim for additional compensation about the ongoing noise. While there is evidence of noise occurring after March 2022, such as video recordings and correspondence, it is extremely minimal. Mr. Rahman submitted 2 video recordings of approximately 2 minutes each. Both are alleged to identify intermittent “knocking noises” from SL77 in the mornings of June 19 and 21, 2023. While I did hear faint knocking noises when I reviewed the video recordings, I found it difficult to determine the actual noise level because I had to turn my volume to maximum to hear any noises. As for the correspondence about ongoing noise from SL77 after March 2022, I find it was essentially mentioned by Mr. Rahman as an afterthought following complaints about the strata not doing what it was ordered by the BCSC to do. Overall, I find Mr. Rahman has not proven a continuing noise nuisance and I dismiss this aspect of his claim.

CRT FEES AND EXPENSES

27.   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. Here, neither party was successful, so I make no order for CRT fees or dispute-related expenses.

DECISION AND ORDER

28.   I refuse to resolve aspects of Mr. Rahman’s damages claim under CRTA section 10 to the extent his claim relates to matters about enforcing or negotiating previous CRT and BCSC orders.

29.   I dismiss any remaining aspects of his damages claim about ongoing noise nuisance.