Date Issued: October 10, 2023

File: ST-2022-008472

Type: Strata

Civil Resolution Tribunal

Indexed as: Kinzie v. The Owners, Strata Plan KAS2082, 2023 BCCRT 851

Between:

MICHAEL KINZIE

Applicant

And:

The Owners, Strata Plan KAS2082

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This dispute is about air conditioner noise in a townhouse strata complex.

2.      The applicant, Michael Kinzie, owns strata lot 9 (unit 6) in the respondent strata corporation, The Owners, Strata Plan KAS2082 (strata). Mr. Kinzie says his neighbour in adjacent strata lot 8 (unit 5) runs their air conditioner all night, disturbing his sleep.

3.      Mr. Kinzie wants the strata to either enforce its “quiet time” bylaw against his neighbour or otherwise mitigate the air conditioner’s noise. He also wants the air conditioner to be moved farther from his bedroom window when it is eventually replaced. Mr. Kinzie represents himself.

4.      The strata says its quiet time bylaw does not apply to air conditioners. Alternatively, the strata says it was permitted to find that the air conditioner noise was reasonable under its bylaws. It also says restricting air conditioner usage would be irresponsible and create potential liabilities. A council member represents the strata.

JURISDICTION AND PROCEDURE

5.      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.

6.      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. Based on the evidence and submissions provided, I am satisfied that I can fairly decide this dispute without an oral hearing.

7.      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.

8.      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.

Evidence issue

9.      I was initially unable to view Mr. Kinzie’s evidence in the CRT’s online portal. I asked CRT staff to re-upload the evidence and give the strata an opportunity to provide additional submissions in case it had also been unable to view Mr. Kinzie’s evidence. The strata declined to do so.

ISSUES

10.   The issues in this dispute are:

a.    Did the strata fail to enforce its noise bylaws in response to Mr. Kinzie’s complaint?

b.    What remedy, if any, is appropriate?

EVIDENCE AND ANALYSIS

11.   As the applicant in this civil proceeding, Mr. Kinzie must prove his claims on a balance of probabilities, meaning more likely than not. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

Background and noise complaint

12.   The strata is located in Vernon and was created in 1998. It includes 36 townhouse strata lots in 12 buildings. Mr. Kinzie bought unit 6 in April 2019. Unit 6 is at one end of a building with 4 strata lots in a row. It shares a wall with unit 5. Both strata lots have 2 levels with 3 bedrooms, including a main bedroom on the ground floor facing the common property backyard.

13.   Unit 5’s air conditioner is along the rear of unit 5. I accept Mr. Kinzie’s unchallenged assertion that unit 5’s air conditioner is 5.5 feet from his main bedroom window. Photos show a wooden dividing fence perpendicular to the strata lots, closer to the air conditioner.

14.   I accept the strata’s unchallenged assertion that all strata lots have air conditioners. I also agree with the strata’s observation that while strata lots on the ends of multi-unit buildings, like unit 6, can install air conditioners beside their strata lot, strata lots in the middle, like unit 5, must install air conditioners behind their strata lots.

15.   The only formal written noise complaint in evidence is from August 14, 2022. In that complaint, Mr. Kinzie said unit 5’s air conditioner cycled on and off at 15-20 minute intervals all night, interrupting his sleep. On August 17, the strata responded that a council member listened to the air conditioner in operation and found it was making normal noise. The strata said council did not consider the noise excessive.

16.   In an August 18 email, Mr. Kinzie requested a hearing and attached noise level measurements taken using an app called Decibel X. He said he took the measurements with the windows closed. The measurements indicated average noise levels of 34 dB(A), which is decibels weighted for human hearing. I note these levels are higher than those later obtained by a professional, which I discuss below.

17.   On August 19, strata council president CB attended unit 6. The strata CB did not observe excessive noise or vibrations. Mr. Kinzie says CB refused to listen to the noise from Mr. Kinzie’s main bedroom. However, in the Dispute Notice filed at the outset of this dispute, Mr. Kinzie said that at some point a strata council member visited his main bedroom to hear the air conditioning noise.

18.   The September 30, 2022 strata council meeting minutes indicate that the strata sent a “letter of complaint” to unit 5’s owner. There is no copy of that letter in evidence. The minutes say a family member of unit 5’s owner requested a hearing in response. It is not clear whether the strata held that hearing.

19.   On November 3, 2022, the strata gave Mr. Kinzie its final decision to take no further action on the complaint. The council’s reasons included that the air conditioner had been serviced that summer, its noise level was comparable to other units, and there had been no noise complaints from previous unit 6 owners. The council also said it felt that air conditioning noise did not fall under the strata’s “quiet time” noise bylaw and council “would not tell an owner when, or for how long, they can run their A/C.”

20.   In May 2023 when unit 5’s air conditioner started up again, Mr. Kinzie hired Sound Camel to provide objective noise measurements for this dispute. Sound Camel measured noise inside and outside Mr. Kinzie’s main bedroom with unit 5’s air conditioner on and off using a calibrated iPhone app. Inside Mr. Kinzie’s main bedroom with the window closed, the background noise was 29 dB(A). With the air conditioner on, the noise increased to 30 dB(A). Outside, the background noise was 38 dB(A) with the air conditioner off. With the air conditioner on, the nearest measurement to Mr. Kinzie’s bedroom window was 52 dB(A). The strata did not dispute the accuracy of Sound Camel’s measurements and I accept them. I give more weight to these measurements than Mr. Kinzie’s measurements because they were taken by a professional with a calibrated app. I return to the significance of these measurements below. Sound Camel did not provide any opinion about the noise.

21.   Also in May 2023, at the strata’s request, Applewood Heating & Air Conditioning Ltd. measured noise directly on top of unit 5’s air conditioner. Applewood found that the noise of 71.4 dB was lower than the manufacturer’s specifications and not any louder than expected. I accept that unchallenged conclusion, which is supported by a specification sheet. Applewood also said the air conditioner was installed in 2011, not 2005 as the parties previously understood.

Bylaws

22.   The strata’s bylaw 3(1) says in part that an owner must not use a strata lot or common property in a way that (a) causes a nuisance to another person, (b) causes unreasonable noise or disturbance, or (c) unreasonably interferes with another person’s right to use and enjoy common property or another strata lot. In the context of Mr. Kinzie’s noise complaints, I find these bylaws effectively mean the same thing, which is that unit 5’s air conditioner cannot make noise that an ordinary person would consider intolerable.

23.   Bylaw 3(3) says quiet hours are from 11 pm until 7 am each day. It says without limiting the general application of bylaw 3(1), any noise that is audible in another strata lot during quiet hours is considered unreasonable unless the strata council makes a contrary finding.

24.   Bylaw 3(4) provides a non-exhaustive list of factors that strata council may consider in determining whether noise is unreasonable. They include whether the noise:

a.      Was caused by an audio, video, gaming, amplification or other powered device, machine, tool, musical instrument or similar item.

b.      Was caused by a raised voice or unnecessary impact.

c.      Was recurring, sustained, or unnecessarily loud.

d.      Was audible in 2 or more strata lots other than the one it came from.

e.      Was caused by activities that breached other legal restrictions, strata bylaws or rules.

f.       Was inconsistent with the character of a reasonably quiet multi-family residential development.

g.      Was deliberately intended to disturb others.

h.      Occurred after previous complaints or warnings.

25.   Mr. Kinzie argues that bylaw 6.1(6)(c) also applies, but I disagree. Bylaw 6.1 is about alterations to strata lots and common property. While unit 5’s air conditioner did involve a common property alteration, I do not agree that the air conditioning noise causes an “adverse effect” on an adjacent strata lot under bylaw 6.1(6)(c). The noise affects Mr. Kinzie, not his strata lot. I find the applicable bylaws are the noise bylaws set out above.

Did the strata fail to enforce its noise bylaws in response to Mr. Kinzie’s complaint?

26.   Section 26 of the Strata Property Act (SPA) requires the strata council to exercise the powers and perform the duties of the strata, which include enforcing bylaws. The strata council is required to act reasonably when carrying out these duties, and this includes a duty to investigate alleged bylaw contraventions, such as noise complaints.

27.   SPA section 135 requires the strata to give an owner or tenant who is the subject of a complaint an opportunity to be heard before the strata levies a fine. This section is for the benefit of the subject of a complaint, not the person who made the complaint. Aside from section 135, the SPA sets out no procedural requirements a strata council must follow when investigating a complaint. The courts have said a strata council may investigate bylaw contravention complaints as it sees fit, provided it complies with the principles of procedural unfairness and is not significantly unfair to any person appearing before it (see Chorney v. Strata Plan VIS 770, 2016 BCSC 148).

28.   As stated in its November 3, 2022 letter and in its Dispute Response filed at the outset of this proceeding, the strata council’s position is that air conditioner usage does not fall under the “quiet time” noise bylaw. The strata says the “quiet time” bylaw applies to situations like noisy parties or conversations, loud music, barking dogs, lawn mowers and construction. It says air conditioning is different because it is essential to ensure a liveable and safe residence, particularly during extreme heat conditions.

29.   I find the strata’s position that the noise bylaws do not apply to air conditioning noise is not supported by a plain reading of the bylaws. There is no language in the bylaws that explicitly excludes air conditioning noise. To the contrary, bylaw 3(4)(a) identifies that the strata council may consider whether the noise comes from a powered device or machine, which I find on its face includes an air conditioner. Further, the general prohibition of objectively intolerable noise in bylaw 3(1) includes any kind of noise arising from the use of a strata lot or common property.

30.   Mr. Kinzie relies on Tollasepp v. The Owners, Strata Plan NW 2225, 2020 BCCRT 481. In that decision, the strata corporation had a bylaw that said determination of whether a noise is unreasonable was up to the strata council’s opinion. I found that while the bylaw provided discretion, it did not insulate the strata council's decisions from scrutiny, particularly where its investigation was inadequate. I find the same reasoning applies here. Although the strata council here has discretion to make a contrary finding that noise is not unreasonable, that discretion is not boundless.

31.   The strata council here made a blanket contrary finding that unit 5’s air conditioner noise was reasonable. It did so, according to the limited evidence before me, without investigating whether it was necessary for unit 5 to operate the air conditioner all night, or on which nights that occurred. The strata only verified that the air conditioner was operating normally and not making unusual noise. The strata, in effect, says that if an air conditioner is maintained and does not make unusual noise, its use cannot contravene the noise bylaws, regardless of context such as its location, frequency of use, time of use, and outdoor temperature. While this approach is appealing in its simplicity, it is inconsistent with the bylaws, which prohibit objectively intolerable noise and require the strata to undertake a contextual evaluation.

32.   As noted in Mr. Kinzie’s August 14 complaint, unit 5’s air conditioner was running at 5 am even though it was, according to him, 11 degrees outside. There is no evidence the strata discussed with unit 5’s residents whether the thermostat could be programmed to a higher temperature overnight or whether windows could be opened in the evening rather than using the air conditioner on cooler nights.

33.   Given all the above, I find the strata did not properly exercise its discretion when it made a blanket finding that noise from a well-maintained air conditioner will never be unreasonable without undertaking a contextual evaluation of the circumstances of the noise complaint.

34.   That said, on the evidence before me, I am unable to conclude that unit 5’s air conditioner use was unreasonable or contravened the strata’s noise bylaws. Only a few of the factors set out in bylaw 3(4) suggest the noise was unreasonable. The noise was caused by a machine, and can be characterized as both recurring and sustained, since it undisputedly happened on multiple nights, throughout the night. However, it was not “unnecessarily loud” because the evidence shows that the air conditioner was properly maintained and not louder than other air conditioners. It was not caused by a raised voice or unnecessary impact. It is not inconsistent with the character of a reasonably quiet multi-family residential development, particularly where every strata lot has an air conditioner. There is no evidence the air conditioner was deliberately used to disturb Mr. Kinzie. There is no evidence that unit 5’s residents have disregarded any warnings about the air conditioner’s use. There were no complaints from other strata lots, and the noise was not caused by an activity that breached any other laws, rules or bylaws.

35.   In Suzuki v. Munroe, 2009 BCSC 1403, BC Supreme Court considered a nuisance claim about an air conditioner in a non-strata context. The court found the noise from the air conditioner, which was installed outside about 18 feet from the plaintiff’s main bedroom window, was a nuisance. The air conditioner’s noise was around 40 to 50 dB(A), measured at the property line between the 2 houses. The court referred to the World Health Organization’s Guidelines for Community Noise as a source of objective noise standards. Mr. Kinzie also refers to those WHO guidelines. The WHO guidelines say that noise in bedrooms at night should not exceed 30 dB(A), which is what Sound Camel measured in Mr. Kinzie’s bedroom when the air conditioner was on. So, although I accept that Mr. Kinzie finds the noise disturbs his sleep, I do not find that it is objectively disturbing according to the WHO guidelines. In Tollasepp, I found that air conditioner noise during quiet hours was unreasonable where the noise recordings indicated sustained noise in the applicant’s strata lot as high as 55 dB, compared to a background level in the mid-30s dB. That is significantly greater than the 1 dB(A) difference here.

36.   Mr. Kinzie argues that low-frequency noise, which the air conditioner undisputedly produces, is perceived as more annoying than mid-frequency noise. He relies on excerpts from various objective sources that support that general principle. For example, the WHO’s guidelines say that low-frequency noise can disturb rest and sleep even at “low” sound pressure levels. However, I find these sources do not establish that unit 5’s air conditioner noise is objectively intolerable. There is no expert opinion evidence to that effect.

37.   The court in Suzuki also noted that municipal bylaws are a source of objective standards of the community’s noise tolerance. Mr. Kinzie refers to North Okanagan Regional District bylaws that say in a “Quiet Zone”, nighttime noise cannot exceed 45 dB(A) at the point of reception. I accept that the air conditioning noise at Mr. Kinzie’s window, around 52 dB(A), exceeds this threshold. However, the strata says these bylaws govern rural residences and properties outside of Vernon. I agree. I note that Vernon’s “good neighbour” bylaws exclude noise from air conditioners when in good operating order. So, I find that local bylaws do not establish that the community does not tolerate normal air conditioning noise.

38.   In Suzuki, the court observed that one of the factors to be considered in deciding whether a nuisance exists is the social utility of the activity complained of. The court said that the Munroes’ desire for enhanced comfort should not come at the expense of significantly reduced comfort for the Suzukis, nor should the Suzukis be required to close their windows and acquire an air conditioner. The strata says today, the social utility or necessity of air conditioning is greater than it was when Suzuki was decided, given global temperature increases and increasing heat waves. I agree. I also note that summer temperatures are higher in the Okanagan than in the Lower Mainland, where the Suzukis lived.

39.   I accept that Mr. Kinzie would prefer to open his bedroom window at night when the temperature permits. However, Mr. Kinzie can freely use his air conditioner without risk of disturbing his neighbours because his strata lot is an end unit. In the context of this dispute, I find closing windows on hot nights when neighbours are using their air conditioner is part of the “give and take” of living in a strata community.

40.   I find Mr. Kinzie has not shown that the 1 dB(A) noise increase from the air conditioner with his main bedroom window closed is objectively intolerable. I am not satisfied that unit 5’s air conditioner use contravenes the strata’s bylaws. This means I dismiss Mr. Kinzie’s claim about bylaw enforcement and decline to grant his requested remedies.

41.   That said, the strata’s obligation to enforce its bylaws is ongoing. This decision does not mean that the strata can ignore future air conditioning noise complaints from Mr. Kinzie. Rather than taking a blanket approach, the strata must consider any new information Mr. Kinzie provides with future complaints.

CRT FEES AND EXPENSES

42.   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 was successful but did not pay CRT fees. The strata claims reimbursement of the May 5, 2023 Applewood invoice for inspecting unit 5’s air conditioner. However, the invoice is addressed to an individual in unit 5. The strata’s name does not appear on the invoice and there is no evidence that the strata paid the invoice or reimbursed the individual for the expense. So, I dismiss the strata’s claim for reimbursement of the invoice. Because Mr. Kinzie was unsuccessful, I dismiss his claim for reimbursement of the Sound Camel invoice.

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

ORDER

44.   I dismiss Mr. Kinzie’s claims and this dispute.