Date Issued: October 25, 2023

File: ST-2022-009991

Type: Strata

Civil Resolution Tribunal

Indexed as: TM v. The Owners, Strata Plan XXX, 2023 BCCRT 915

Between:

TM

ApplicanT

And:

The Owners, Strata Plan XXX

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      The applicant, TM, owns and lives in strata lot 103 (which the parties refer to as unit 207) in the respondent strata corporation, The Owners, Strata Plan XXX (strata). TM says the occupants of strata lot 115 (unit 307) directly above unit 207 have been making unreasonable noise and causing a nuisance since approximately June 2022. She says the strata has failed to adequately enforce its bylaws, which is significantly unfair to her. In her Dispute Notice filed at the start of this proceeding, TM claimed $3,500 in damages from the strata, though in submissions, she says this is not enough based on the continuing noise. TM is self-represented.

2.      The strata says it addressed TM’s noise complaints in accordance with its duty to enforce its bylaws. The strata says that in any event, TM has not proven her claimed damages, and asks that the Civil Resolution Tribunal (CRT) dismiss this dispute. The strata is represented by its lawyer, Casey Goodrich.

3.      Parties in CRT proceedings are generally named, consistent with an ‘open court’ principle that allows for transparency. However, the evidence in this dispute includes allegations of violence, threats of self-harm, and harm to a child. On my own initiative, I have anonymized the parties’ names in the public version of this decision to protect personal information under section 86 of the Civil Resolution Tribunal Act (CRTA).

JURISDICTION AND PROCEDURE

4.      These are the CRT’s formal written reasons. The CRT has jurisdiction over strata property claims under CRTA section 121. 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.

5.      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.

6.      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.

7.      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.

8.      I asked CRT staff to upload further evidence of the strata’s filed bylaws and bylaw amendments. Staff offered the parties the opportunity to comment on this further evidence only. TM made submissions on matters unrelated to the further evidence. Given the description of TM’s submissions CRT staff provided, I decided it was unnecessary for me to review them to decide this dispute, and so I did not ask CRT staff to share them with the strata.

ISSUES

9.      The issues in this dispute are:

a.    Did the strata act significantly unfairly towards TM by failing to adequately enforce the applicable bylaws?

b.    If so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

 

10.   In a civil proceeding like this one, the applicant, TM, must prove her claims on a balance of probabilities (meaning more likely than not). I have read all the parties’ submissions and evidence but refer only to the evidence and argument I find is necessary to explain my decision.

Background

11.   The strata was created in 1976 under the Strata Titles Act and continues under the Strata Property Act (SPA). It is made up of townhouse and apartment-style strata lots in 30 buildings. Units 207 and 307 are apartment-style strata lots in building 3.

12.   The strata repealed and replaced its bylaws in 2008. The strata filed further bylaw amendments after that, but none are relevant to this dispute. I address the relevant bylaws below.

13.   TM says in late June 2022, a new guest began regularly visiting unit 307, essentially living there. TM says that from June 2022, unit 307’s occupants included the owner, the owner’s son, and the new guest. She says they engaged in loud, aggressive behaviour that included screaming, swearing, physical and domestic violence, and threats of self-harm that she could hear in unit 207. TM also says the occupants partied late into the night, played loud music, stomped around the unit, slammed doors, flipped over furniture, and threw garbage from their balcony onto hers. She says from September 2022, the new guest’s child also became a frequent visitor to unit 307, and she could hear the guest screaming and swearing at the child in what she alleges was a verbally abusive way.

14.   Shortly after the new guest started staying in unit 307, TM began emailing noise complaints to the strata. TM emailed the strata manager on a regular and sometimes daily basis between September 2022 and July 2023 to report the noise disturbance. The strata wrote to unit 307’s owner 6 times to warn or fine him in connection with TM’s complaints.

15.   TM says the strata’s actions were ineffective, and the noise has continued. She also says she has reported the situation to the municipality’s bylaw department, the police, and child protective services (CPS), but no solution has been found. TM says the ongoing noise has interfered with her enjoyment of her strata lot, causing her to suffer a lack of productivity and “psychological and moral distress”.

16.   The strata says in addition to the 6 warnings and fines it has issued against unit 307’s owner, it has 1) met with him at least 7 times to discuss TM’s complaints and request that he refrain from making unreasonable noise, 2) discussed the complaints at multiple strata council meetings, 3) invited the parties to participate in a voluntary dispute resolution process, and 4) contacted the police and CPS. The strata says it has acted reasonably to enforce its bylaws and has made “best efforts” to resolve the situation.

The law of significant unfairness

17.   TM says the strata has treated her significantly unfairly by failing to adequately enforce its noise bylaws. The CRT has authority to make orders remedying a strata corporation’s significantly unfair act or decision under CRTA section 123(2). That provision contains similar language to SPA section 164, which allows the BC Supreme Court to make orders remedying significantly unfair acts or decisions. The legal test for significant unfairness is the same for CRT disputes and court actions (see Dolnik v. The Owners, Strata Plan LMS 1350, 2023 BCSC 113).

18.   In Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, the court confirmed the legal test for significant unfairness. Significantly unfair actions are those that are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust, or inequitable. In applying this test, the owner’s objectively reasonable expectations are a relevant factor, but are not determinative. The use of the word “significant” means that the impugned conduct must go beyond mere prejudice or trifling unfairness.

19.   Previous CRT decisions have concluded that it is significantly unfair for a strata corporation to fail to reasonably investigate and enforce its bylaws (see, for example, Chan v. The Owners, Strata Plan BCS2583, 2021 BCCRT 456 and Dhanani v. The Owners, Strata Plan NW 2265, 2021 BCCRT 282). While previous CRT decisions are not binding on me, I agree that failure to investigate and enforce bylaws may be significantly unfair. I say this, in part, because SPA section 26 requires the strata to enforce its bylaws, and so it is reasonable for owners to expect the strata to do so.

20.   The SPA does not set out any specific procedural requirements for addressing bylaw complaints. In Chorney v. Strata Plan VIS770, 2016 BCSC 148, the BC Supreme Court said that the SPA gives strata corporations discretion about how to respond to bylaw complaints, as long as they comply with principles of procedural fairness and do not act in a significantly unfair way.

21.   When a strata corporation has failed to reasonably enforce its bylaws and an owner has suffered a loss of use and enjoyment of their strata lot, the CRT may award damages to compensate for this loss, as was the case in Chan and Dhanani. I agree that damages may be an appropriate way to remedy a significantly unfair action. With that, I turn to TM’s specific allegations.

TM’s noise complaints and the strata’s response

22.   The strata first responded to TM’s late June and early July 2022 complaints about noise and throwing garbage and debris onto unit 207’s balcony by writing to unit 307’s owner on July 8, 2022. The letter requested that unit 307’s occupants stop throwing items onto unit 207’s balcony, in contravention of bylaw 3. Bylaw 3 prohibits an owner from using a strata lot in a way that, among other things:

3.1.1    Causes a nuisance or hazard to another person.

3.1.2    Causes unreasonable noise at any time.

3.1.3    Causes unreasonable noise from any source that can be heard inside a neighbouring strata lot past 11pm and prior to 8am each day.

3.1.4    Unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets, or another strata lot.

The strata’s letter included an invitation for unit 307’s owner to respond to the complaint, including by way of a hearing before the strata council, and warned of the potential for future action, such as the imposition of fines.

23.   TM continued to complain about noise from unit 307 in late July 2022. The strata sent unit 307’s owner another warning on July 26, this time about the noise from moving furniture, and from yelling, fighting, and swearing on unit 307’s balcony. It is undisputed that the noise continued.

24.   In September 2022, TM reported a child appeared to have moved into unit 307, and she was concerned about the child’s well-being, given the ongoing screaming and fighting she was hearing from the strata lot. Around the same time as she contacted the strata manager, TM reported her concerns to the police and CPS. On September 6 and again on September 20, the strata sent unit 307’s owner letters advising him it had imposed $50 fines.

25.   TM says after she involved the police, the noise stopped for a short period. TM requested a hearing with the strata council in August but was unable to attend either the September or October meetings at which her complaints had been scheduled for hearing. However, she submitted a written statement for consideration at the October meeting. Following the October 2022 meeting, the strata declined to take further action, given TM’s acknowledgment that the noise had stopped.

26.   However, in November, TM says the noise resumed, and she documented the occurrences in regular emails to the strata manager. In December, the strata council invited TM to engage in voluntary dispute resolution with unit 307’s owner under bylaw 29 to try and address the noise issues. Bylaw 29 provides for voluntary dispute resolution by a committee that tries to help the disputing parties end the dispute if all parties to the dispute consent. TM declined the strata council’s invitation, citing personal safety concerns. She filed her application for dispute resolution with the CRT on December 20, 2022, and the Dispute Notice was issued in January 2023.

27.   Following TM’s application for dispute resolution, the noise from unit 307 undisputedly continued. TM continued to keep records of the disturbances, periodically emailing them in bulk to the strata manager. On January 25, 2023, the strata imposed another $50 fine on unit 307 for contravening bylaw 3, and on June 3, 2023 the strata imposed a fourth $50 fine. I note the strata’s bylaws allow for a maximum fine of $200 for each bylaw contravention, as set out in the Strata Property Regulation.

Was the strata’s bylaw enforcement action significantly unfair to TM?

28.   In submissions, the strata says TM must first prove the noise complained of was unreasonable. However, I find by imposing 4 separate fines against unit 307 for contravening the strata’s noise bylaw, the strata accepts the noise was, in fact, unreasonable. While the strata manager’s responses to TM’s complaints were limited, I find they did not dispute her assertions of unreasonable noise, and there is no evidence unit 307’s owner denied its occupants made unreasonable noise. So, I find there is no real disagreement about whether the noise TM complained of was unreasonable.

29.   In addition, I accept the regular screaming, fighting, swearing, banging, and stomping as logged by TM would have been intolerable to an ordinary person, viewed objectively (St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64). I find TM’s complaints are supported by witness statements from her child, who lived with her in unit 207, and by the occupant of another strata lot, who reported being woken up on numerous occasions by arguing and swearing from unit 307’s occupants.

30.   So, I find the key question is whether, in the face of unreasonable noise, the strata reasonably enforced its noise bylaw against unit 307’s owner.

31.   I find the strata’s July 8, 2022 letter was a reasonable first step in response to TM’s initial complaint of debris being thrown onto her balcony. I also find it was reasonable for the strata to provide unit 307’s owner with a warning on July 26 about TM’s noise complaints. SPA section 129(2) says that before enforcing a bylaw, a strata corporation may give a warning or time to comply. 

32.   I also find that following the strata’s July warnings, it was reasonable for it to impose 2 $50 fines on unit 307’s owner in September 2022. TM’s written statement to the strata council at its October 2022 meeting indicated the new guest was no longer screaming at the child and stomping around the strata lot, and that “the situation has improved”. TM also noted that if or when the noise started again, she would escalate her concerns. Based on this, I find it was reasonable for the strata not to take further enforcement steps at that time.

33.   However, after TM continued to complain from November 2022, I find the strata did not act reasonably.

34.   In a November 8, 2022 letter to TM, the strata asked her to maintain a log of the noise disturbances she experienced, as she had previously done. While I find this was generally a reasonable request, I also find it was reasonable only to the extent the strata intended to take meaningful action in response to reported unreasonable noise. The email evidence shows TM logged and reported detailed instances of stomping, yelling, swearing, fighting, and loud partying, including past 11pm, on many days in November and December, often several times a day and lasting for hours. It also shows one of unit 307’s occupants referred to “the [expletive] downstairs”, which TM says meant her, as the occupants were upset with her complaints, and that TM felt afraid given the nature of the noise. The strata’s response was to invite the parties to participate in voluntary dispute resolution in mid-December 2022. I find that in circumstances where TM had already advised the strata that the situation was “scary” and that she had called the police and CPS several times about physical and domestic violence and suspected child abuse, it was unreasonable of the strata to suggest voluntary dispute resolution with unit 307’s owner.

35.   After TM declined the strata’s invitation, the strata’s next step was to issue unit 307’s owner with a third fine in January 2023. There is no evidence unit 307’s owner paid any of the fines levied against him, or even acknowledged any of the strata’s written correspondence. The strata says it met with him at least 7 times, but the strata has not given any indication of what it communicated at these meetings or what the outcome was.

36.   Following the Dispute Notice issued January 27, 2023, I find the strata essentially left TM to handle the matter herself, although the email evidence shows she continued to report noise from unit 307 to the strata for the next 6 months. In addition to the recurring shouting, swearing, and fighting, TM began reporting what she described as intentional banging on the floor above her in retaliation against her police reports and police attendance at until 307. She submitted audio recordings of 2 instances of banging, which she undisputedly also provided to the strata manager in June 2023. While the strata council meeting minutes from March to May 2023 record that this CRT dispute was pending, there is no evidence the strata responded to TM, investigated these complaints, or took any further enforcement action until early June 2023.

37.   I find the fact that TM began this dispute did not discharge the strata from its obligations under SPA section 26 to enforce its bylaws. The strata’s obligation to enforce its bylaws is ongoing, and I find it was not open to it to ignore TM’s noise complaints about unit 307’s occupants simply because she had begun a CRT dispute, which is what it appears to have done. I find the strata was obliged to consider information about noise complaints that TM reported as those complaints arose.

38.   In these circumstances, I find the strata acted reasonably in enforcing its bylaws from July to September 2022, and in taking no further action in October when TM said the situation had improved. After that, however, I find the strata unreasonably invited TM and unit 307’s owner to participate in voluntary dispute resolution in December, and subsequently failed to investigate or enforce any noise complaints reported by TM between February and May 2023.

39.   While I find the strata’s invitation to participate in voluntary dispute resolution was unreasonable and ill-conceived based on the description above, I find it did not rise to the level of significant unfairness.

40.   From February 2023, however, I find the strata’s complete failure to take investigative or enforcement action in response to TM’s ongoing noise complaints was significantly unfair, particularly since the strata does not dispute unit 307’s owner started deliberately banging on TM’s ceiling around May 2023. I note the strata had much more severe enforcement options at its disposal, such as daily or near-daily $200 fines. This is because incidents of nuisance are discrete transactions when observed on different dates, not continuing contraventions (see The Owners v. Grabarczyk, 2006 BCSC 1960). So, the strata could have imposed a series of fines for repeat infractions, based on TM’s regular reporting of noise disturbance. I find the strata’s lack of action over this period was burdensome to TM, given the regularity with which the reported unreasonable noise occurred and the nature of the noise. I find it was also wrongful, given the strata’s enforcement obligations under the SPA.

Remedy

41.   In the Dispute Notice, TM claims $3,500 for time she says she spent calling the police, CPS, and the municipality’s bylaw department, psychological and moral distress, loss of productivity, and lack of any response to her allegations of child abuse. The documentary evidence also shows TM was concerned about the impact the noise was having on her ability to sleep, perform her job in health care, and overall well-being. Based on the totality of the evidence, I find TM’s request for damages is primarily to compensate her for intangible losses, such as a decrease in her quality of life and the loss of the use and enjoyment of her strata lot. I find this is an appropriate basis on which to award damages. 

42.   As noted above, in submissions, TM says $3,500 is not enough based on the continuing noise. She asks the CRT to “set amount please”. In a recent CRT dispute, Foxcroft v. Arora, 2023 BCCRT 489, a vice chair noted that the CRT requires parties to claim a specific monetary figure to successfully file their application for dispute resolution, and that the figure may change from the time the applicant files their application to the time the dispute is adjudicated. The vice chair accepted a higher figure for lost income than the figure the applicant indicated in her Dispute Notice, because there was evidence from the applicant’s employer to support the higher amount. The vice chair also pointed to the nature of personal injury claims, which can fluctuate based on factors such as duration and degree of the injury.

43.   While I appreciate that the noise in this dispute carried on after TM filed her application for dispute resolution, unlike the applicant in Foxcroft, TM has not provided any indication of the increased amount she seeks. I find it would be procedurally unfair for me to consider awarding an amount above $3,500 in circumstances where the strata has had no notice of a specific increase or the opportunity to respond. So, I decline to do so. I note that given my decision below, nothing turns on this in any event.

44.   In previous CRT decisions, tribunal members have awarded damages where strata corporations have failed to enforce noise bylaws in the face of ordinary living noise, including walking, running, yelling, stomping, banging, and moving heavy objects on the floor (see, for example, Ahn v. The Owners, Strata Plan LMS 4634, 2023 BCCRT 258, Rahman v. The Owners, Strata Plan NW183, 2021 BCCRT 1226, Tran v. The Owners, Strata Plan VIS 6828, 2021 BCCRT 28, Moojelsky v. The Owners, Strata Plan K 323 et al, 2019 BCCRT 698, and Torok v. Amstutz et al, 2019 BCCRT 386). I find these decisions provide a useful starting point from which to assess the amount of damages. The damages awarded in those decisions ranged from $1,000 for thudding and running noise over 5 months in Rahman, to $4,000 for loud floor creaking noise over 20 months in Torok.

45.   Here, I find that while some of the noise from unit 307 fell into the category of ordinary living noise, much of it went far beyond that. I find the combination of screaming and swearing, and the fact that it was often aimed at a child, was likely far more disturbing and harmful to TM than stomping or running. Similarly, I find the sounds of fighting, domestic violence, and threats of self-harm are liable to be extremely intrusive and upsetting. Overall, I find exposure to unreasonable noise of this nature was likely more detrimental to TM and her use and enjoyment of her strata lot than ordinary living noise that was unreasonably loud.

46.   In addition, I find that in the 4 months between February and May 2023, the strata effectively refused to take any further investigative or enforcement action despite TM keeping a regular and detailed log of the near-daily noise. While the strata levied a fourth $50 fine against unit 307’s owner in June 2023, this came after months of unanswered complaints. Given the nature, duration, and frequency of the noise between February and May 2023, I find an award of $2,500 is warranted. I order the strata to pay TM this amount. I note that nothing in this decision prevents TM from making future noise complaints or relieves the strata from its duty to investigate future noise complaints.

CRT FEES, EXPENSES AND INTEREST

47.   Under section 49 of the CRTA, 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. Therefore, I order the strata to reimburse TM $225 for CRT fees. TM did not claim any dispute-related expenses.

48.   The Court Order Interest Act (COIA) applies to the CRT. I find TM is entitled to prejudgment interest on the $2,500 damages award from February 1, 2022 to the date of this decision. This equals $120.88.

49.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against TM.

ORDERS

50.   I order that within 30 days of the date of this order, the strata pay TM a total of $2,845.88, broken down as follows:

a.    $2,500 in damages,

b.    $120.88 in prejudgment interest under the COIA, and

c.    $225 in CRT fees.

51.   TM is also entitled to post judgment interest under the COIA.

52.   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.