Date Issued: August 27, 2024

File: ST-2022-006942

Type: Strata

Civil Resolution Tribunal

Indexed as: Woo v. The Owners, Strata Plan BCS3011, 2024 BCCRT 833

Between:

LINDA WOO

Applicant

And:

The Owners, Strata Plan BCS3011

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      This dispute is about noise complaints in a strata corporation. It is one of four linked disputes. ST-2023-007108 is another strata property dispute that involves the same parties, but it is about a different issue, so I have written a separate decision for it. SC-2023-000223 and SC-CC-2023-005175 are a claim and a counterclaim that fall within the Civil Resolution Tribunal’s (CRT) small claims jurisdiction. They involve different parties, so I have written a third decision for them.

2.      Linda Woo owns a strata lot in the strata corporation, The Owners Strata Plan BCS3011 (strata). Ms. Woo says the strata treated her significantly unfairly by breaching the Strata Property Act (SPA), and failing to enforce the strata’s bylaws in connection with noise complaints she made about the strata lot above hers. She claims $5,000 in damages, and asks that the strata be ordered to enforce its bylaws. Ms. Woo is self represented.

3.      The strata denies Ms. Woo’s claims. It says they are frivolous, vexatious, or an abuse of process, because they have already been addressed by the Human Rights Tribunal (HRT), and in previous CRT disputes. The strata also says it properly responded to Ms. Woo’s noise complaints about the strata lot above, and Ms. Woo prevented it from fully investigating them. It asks that Ms. Woo’s claims be dismissed. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

4.      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.

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. The parties in this dispute question each other’s credibility, or truthfulness. However, an oral hearing is not necessarily required where credibility is in issue.[1] Here, neither party asked for an oral hearing, and I find I am properly able to assess and weigh the significant documentary evidence and submissions before me. Considering the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

6.      CRTA section 42 says the CRT may accept as evidence information it considers relevant, necessary and appropriate, even where the information would not be admissible in court.

Preliminary issues

Dismissal request

7.      The strata asks that Ms. Woo’s claims be dismissed because they are frivolous, vexatious, and an abuse of process. Specifically, the strata says her claims have already been addressed in previous CRT decisions, and in an HRT settlement. The strata also points to a current HRT proceeding it says overlaps with the issues raised in this dispute.

8.      Under CRTA section 11(1)(b), the CRT may refuse to resolve a claim or dispute if it is an abuse of process. Abuse of process is a doctrine available to prevent the misuse of a court’s (or tribunal’s) process by litigation for an improper purpose. Here, I find the strata is arguing abuse of process because the issues are res judicata, meaning “already decided”. The strata says Ms. Woo is attempting to launch a collateral attack to reverse, vary, or nullify previous proceedings’ orders.[2]

9.      Although Ms. Woo’s earlier CRT complaints were also about whether the strata treated her significantly unfairly in connection with noise complaints, those disputes were about a different strata lot with a different occupant. The HRT complaint was about discrimination. So, I find Ms. Woo’s claims in this dispute have not already been decided, and are not a collateral attack on any previous orders.

10.   The courts have said it can be an abuse of process where a plaintiff starts more than one action against a defendant in relation to the same matter.[3] This is what the strata seems to be arguing in relation to Ms. Woo’s current HRT complaint. The strata says the HRT’s rules prohibit it from submitting Ms. Woo’s current HRT complaint in this dispute, so it is not before me. However, I find even if Ms. Woo’s current HRT complaint is based on the same facts as this CRT dispute, claims of discrimination and claims of significant unfairness can give rise to different questions because they have different tests. So, I find Ms. Woo’s claims are also not an abuse of process as they relate to her current HRT complaint.

HRT settlement agreement is a bar to this dispute

11.   Next, the strata says the HRT settlement agreement bars Ms. Woo from pursuing this dispute. The HRT settlement agreement predates this dispute, and the agreement’s release does not apply to claims arising after August 25, 2021 (more on this below). Ms. Woo’s claims here relate to noise complaints that began in July 2022. In any case, section 30 of the Human Rights Code says a party to an HRT settlement agreement can apply to the BC Supreme Court to enforce it. So, I find the CRT does not have jurisdiction to enforce the HRT settlement agreement. I decline to dismiss this dispute because of the HRT settlement agreement.

Additional remedies

12.   In submissions, Ms. Woo asks for additional remedies not included in the Dispute Notice issued at the start of these proceedings. They include:

a.    Determining the cause of and cure for the ceiling noises as soon as possible,

b.    Performing ASTC/AIIC testing that takes less than one day, if applicable,

c.    Ending the use of motorized equipment,

d.    Enforcing smoking bylaws against the strata lot above’s owner, Lorenzo Bruno,

e.    Ordering Mr. Bruno to follow the bylaws, and

f.     Aggravated damages in an unspecified amount.

13.   The strata objects to Ms. Woo’s request for these additional remedies. The Dispute Notice’s purpose is to define the issues and provide fair notice to respondents of the claims against them. Procedural fairness requires that respondents have an adequate opportunity to respond to the claims against them and the requested remedies. I find it would be procedurally unfair for me to consider these additional remedies that Ms. Woo only raised in submissions. So, I have not considered them.

Ms. Woo’s reply submissions

14.   The strata says reply evidence is only allowed to the extent it raises relevant matters Ms. Woo could not reasonably have anticipated before the strata’s submissions. So, the strata objects to those elements of Ms. Woo’s reply submissions that could or should have been raised in her initial submissions. As noted above, the CRT may accept evidence that would not necessarily be permitted in court, which aligns with its mandate to be accessible and flexible. Given this, and since Ms. Woo is a lay litigant, I allow all her reply evidence. In any case, I find most of it is not new, except for Ms. Woo’s arguments about the fairness of this CRT process, which I address next.

CRT process

15.   Ms. Woo says this CRT process is unfair for the following reasons.

16.   First, she says the strata used a lawyer to draft its submissions without requesting legal representation. The strata does not deny this, but I find it was allowed to do so. Under the CRT rules, a party must get the CRT’s permission to have a legal representative in strata disputes. However, helpers can assist parties in the process without the CRT’s permission. Helpers may not communicate on a party’s behalf or enter into binding agreements for them. There is no evidence the strata’s lawyers did this, or otherwise attempted to act as the strata’s legal representative. Ms. Woo was also free to use a helper without seeking the CRT’s permission, or to request that she be allowed legal representation. The process was not made unfair by her not doing so.

17.   Next, Ms. Woo says the CRT allowed the strata “special privileges”, and promoted “an uneven playing field”. From her reply submissions, I find Ms. Woo is referring to the increased character count the CRT allowed the strata to respond to her submissions. Ms. Woo provided approximately 225 individual pieces of evidence, many of them multi-page documents, or audio or video recordings. I find it was reasonable to allow the strata’s request for an increased character count to permit it to fully respond to the significant volume of evidence provided. I note Ms. Woo was also allowed additional characters in her reply submissions to respond the strata’s 41 pieces of evidence. Absent evidence of any other “special privileges” afforded the strata, I find the character count increases for the strata’s submissions and Ms. Woo’s reply submissions were fair.

Anonymization

18.   Ms. Woo asks that the published version of this decision be anonymized. She cites safety concerns, saying she would be at risk of stigmatization and discrimination if her private medical and tax information were known. She also says the nature of her business requires that her name and address be kept confidential. The strata objects to Ms. Woo’s request, and says she has not provided evidence of her safety concerns. It also says it is unclear how Ms. Woo’s tax information or business interests would factor into this dispute about the strata’s handling of noise complaints, and that concerns about her medical issues are “overblown and unsubstantiated”.

19.   Parties in CRT proceedings are generally named, consistent with the “open court” principle, which promotes transparency of decision-making and integrity in the justice system. In previous CRT disputes that were also about noise complaints, a tribunal member declined to anonymize Ms. Woo’s name.[4] She found it unnecessary to discuss Ms. Woo’s business in any detail. She also did not include Ms. Woo’s strata lot number in the decision, which she found sufficiently addressed Ms. Woo’s safety concerns. While previous CRT decisions do not bind me, I agree with that reasoning, and I adopt it here. In addition, I find there is no need to discuss Ms. Woo’s tax situation or her medical information, so I find there is no risk of stigmatization or discrimination on those bases. I decline to anonymize this decision.

Evidence

20.   Ms. Woo submitted several pieces of late evidence that were similar in substance to much of her other evidence. The strata had the opportunity to make submissions on the late evidence, so I find no prejudice arises in admitting it. I considered both Ms. Woo’s late evidence and the strata’s submissions, but I find nothing turns on either of them.

21.   I was unable to access two pieces of Ms. Woo’s evidence. Based on their titles, one appears to be an email to a police officer about noise from the strata lot above, and one appears to be another person’s withdrawn CRT dispute. Given the numerous other similar documents in evidence to the first inaccessible piece, and the irrelevance of the second, I did not ask Ms. Woo to resubmit either of them in an accessible format.

ISSUE

22.   The remaining issue in this dispute is whether the strata treated Ms. Woo significantly unfairly regarding her noise complaints, and if so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

23.   As the applicant in this civil proceeding, Ms. Woo 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 information I find relevant to explain my decision.

Background

24.   The strata was formed in July 2008, and exists under the SPA. It consists of 285 strata lots in wood-frame buildings.

25.   The strata filed what appears to be a complete set of bylaws at the Land Title Office in December 2010, though I note the filing does not say previous bylaws were repealed and replaced. The strata later filed several bylaw amendments. I find the relevant parts of the applicable bylaws are as follows:

3(1) An owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that

(a) causes a nuisance or a hazard to another person,

(b) causes unreasonable noise,

(c) unreasonably interferes with the right of other persons to use and enjoy the common property, common assets or another strata lot (...)

32(11)(h) (later renumbered 43(1)(h)) Residents must take all necessary precautions to mitigate unreasonable noise. The quiet times are as follows: Monday to Friday, 10:00 p.m. to 7:00 a.m.; Saturday, Sunday and statutory holidays 10:00 p.m. to 9:00 a.m., in accordance with the noise bylaws of the City of (...)

26.   In July 2022, Mr. Bruno moved into the strata lot above Ms. Woo’s. Shortly after that, Ms. Woo began complaining to the strata about noise from Mr. Bruno’s strata lot, including stomping, thumping, knocking, squeaking, snapping, creaking, dragging furniture, slamming drawers and cabinets, using appliances during quiet hours, a “motorized exercise bike”, a gaming console, and high and low-frequency emissions. Ms. Woo says these noises had a significant impact on her, disrupting her sleep, health, and work.

27.   As mentioned above, Ms. Woo and the strata settled an earlier HRT complaint about noise from the strata lots above and below hers. Under the August 25, 2021 agreement, the parties agreed to the strata adjusting its process after it received a complaint from Ms. Woo. This included complaints being “investigated and a decision made promptly”, and, on request, a strata council volunteer attending Ms. Woo’s strata lot to witness alleged noise at a mutually agreed time. The parties also agreed that if noise from the two strata lots persisted without the strata imposing fines, the strata would “investigate the sound transfer between the noisy unit and Ms. Woo’s Unit” at the strata’s expense. Specifically, the parties agreed that “acoustical testing will be performed if any further noise complaints are made that cannot be resolved”.

28.   I pause here to consider the impact of a CRT consent resolution order (CRO) the strata entered into with the owner of the strata lot below Ms. Woo’s in April 2019, since the parties both refer to it in submissions. That owner filed a CRT dispute about the strata’s bylaw enforcement action against them in response to Ms. Woo’s noise complaints. The CRO included seeking Ms. Woo’s consent to noise transmission testing between her strata lot and the owner below’s strata lot. It did not bind Ms. Woo, nor did it involve the strata lot above. So, I find the CRO is not relevant to this dispute.

29.   After the HRT settlement agreement, Ms. Woo continued to complain about noise from the strata lot below. She filed CRT disputes against the strata and the strata lot owner, both of which were dismissed. Ms. Woo filed this CRT application for dispute resolution around December 2022, after the strata declined to enforce its noise bylaws against the strata lot above following her complaints.

Significant unfairness

30.   Ms. Woo says the strata’s decision not to take enforcement action against Mr. Bruno in the strata lot above is significantly unfair. She says the strata ignored most of her complaints, and failed to consistently issue warning letters, which only served to enable Mr. Bruno to continue breaching the bylaws in any case. Ms. Woo also says the strata unfairly placed the burden of proving the alleged bylaw breaches on her, focused only on unreasonable noise (bylaw 3(1)(b)), rather than on nuisance or unreasonable interference with her use and enjoyment of her strata lot (bylaws 3(1)(a) and (c)), and failed to perform proactive investigations. Finally, Ms. Woo says the strata has never raised testing with another resident in the time she has lived in her strata lot, and has a history of avoiding issuing fines.

31.   Strata corporations have 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.[5] The CRT has authority to make orders remedying a strata corporation’s significantly unfair acts or decisions under CRTA section 123(2). The legal test for significant unfairness is the same for CRT disputes and court actions.[6] The BC Court of Appeal has confirmed that significantly unfair actions or decisions are those that are burdensome, harsh, wrongful, lacking in probity and fair dealing, done in bad faith, unjust, or inequitable.[7] In applying this test, the owner’s objectively reasonable expectations are a relevant factor, but are not determinative.

32.   The CRT has consistently found that owners have an objectively reasonable expectation that a strata corporation will investigate bylaw complaints and enforce its bylaws if there has been a proven contravention. This is because SPA section 26 requires the strata to enforce its bylaws except in limited circumstances, such as if the breach is trivial.[8]

The strata’s investigation

33.   Starting July 28, 2022, the strata wrote to Mr. Bruno to warn him he had allegedly breached bylaws 3(1)(a), (b), and (c), and bylaw 32(11)(h), in response to Ms. Woo’s noise complaints. Ms. Woo made over 246 written complaints between August 2022 and September 2023, some of which included decibel readings captured on video and recordings of the alleged noise. There is no evidence the decibel readings exceed commonly accepted noise level standards, such as those set out in World Health Organization Guidelines for Community Noise. Many of the audio and video recordings in evidence transmit no noise or very faint noise, even when I used earbuds and maximized the volume. In any case, the strata issued about 42 warning letters to Mr. Bruno between July 2022 and October 2023. Despite the discrepancy in the numbers, I find the strata did not ignore Ms. Woo’s complaints, as she alleges. Many of the warning letters related to multiple complaints. I find this was a reasonable exercise of the strata’s discretion to address Ms. Woo’s many complaints in as efficient a way as possible.

34.   It is undisputed that Mr. Bruno denied the noise allegations, except that he admitted using his washing machine once during quiet hours shortly after moving in. The strata warned him of a possible fine under bylaw 3(1) and bylaw 32(11)(h).

35.   Ms. Woo and strata representatives corresponded about arranging multi-day acoustical testing by BAP Acoustics (BAP) in connection with Ms. Woo’s ongoing complaints about the strata lot below. Ms. Woo agreed to the testing under certain conditions. On August 30, 2022, the strata’s lawyer wrote to Ms. Woo to confirm acoustical testing over a three-day period from September 16 to 19, in connection with both the strata lots below and above. Given Mr. Bruno’s denials and the unreliable recordings, I find this was a reasonable, proactive approach that reflected the HRT settlement agreement. Further, I find the strata arranging acoustical testing lessened rather than increased the burden on Ms. Woo to prove the alleged bylaw breaches.

36.   However, testing did not take place as scheduled. Over a series of emails between Ms. Woo and the strata’s lawyer, it became evident Ms. Woo remained unconvinced that three-day testing, which would require her to vacate her strata lot, was necessary, or would work for her. The strata’s lawyer explained that BAP had recommended three-day testing to fulfil its obligation to investigate the alleged bylaw breaches. A strata corporation is entitled to rely on professional advice, which is what the strata sought to do.[9] The strata also confirmed it would reimburse Ms. Woo up to $1,200 for a hotel. I find in these circumstances, the strata acted fairly in trying to arrange acoustical testing. Yet, Ms. Woo was dissatisfied with various aspects of the logistics, and the testing was ultimately cancelled.

37.   Both Mr. Bruno and Ms. Woo had strata council hearings council on September 12, 2022. After the hearings, the strata decided based on the evidence available, including a noise survey of neighbouring units, Mr. Bruno’s denial that he caused excessive noise, and the (arguably) ordinary nature of the reported noise, it could not conclude there were obvious bylaw violations. The strata also confirmed it could not complete its investigation of Ms. Woo’s complaints in accordance with the HRT settlement without the multi-day acoustical testing recommended by BAP.

38.   In late December 2022 and early January 2023, Ms. Woo made further noise complaints about the strata lot above. The strata manager offered to attend Ms. Woo’s unit with a strata council member to witness the alleged noises. Ms. Woo suggested Mr. Bruno’s flooring be checked first, but the strata declined. In Madani, a tribunal member found it was reasonable for a strata corporation to want an objective assessment of the noise first.[10] I agree. Ms. Woo has provided no evidence to rebut that position. Further, owners are not entitled to dictate a strata corporation’s investigation process.[11] Given all this, I find the strata’s proposed approach was fair.

39.   In any case, on March 8, 2023, the parties agreed to try and replicate the noises complained of by having strata council members attend both Ms. Woo’s and Mr. Bruno’s strata lots at the same time. The evidence shows the strata council members were “unable to verify (Ms. Woo’s) noise complaints, namely the degree and severity of the alleged noise.” The strata resolved to attempt acoustical testing again.

40.   Ms. Woo, the strata manager, and the strata’s lawyer exchanged emails about testing. Ms. Woo again expressed her dissatisfaction with BAP-recommended three-day testing. Given Ms. Woo’s reluctance to participate in the longer testing, the strata’s lawyer advised that the strata council had agreed to six-hour testing. Ms. Woo was in favour of the time frame, but continued to resist the testing method. She insisted that whatever the level of sound transmission determined by the BAP’s “monitoring” test, bylaws 3(1)(a) and (c) were about the noise’s impact on her, which required different testing, specifically ASTC/AIIC testing. Ms. Woo described ASTC/AIIC testing as measuring airborne and structural borne sound transmissions between strata lots, as well as building performance. In contrast, the BAP testing was designed to monitor noise in Ms. Woo’s strata lot and compare the measurements (level, duration, time of day, and number of events) to a norm. Again, the BAP testing did not go ahead.

41.   I find this was an unreasonable position for Ms. Woo to take. Bylaws 3(1)(a), (b), and (c) each require assessment using an objective standard. Contrary to what Ms. Woo says, it is not whether she subjectively found the noise a nuisance, or an unreasonable interference. The question is whether a reasonable person would find the noise complained of a nuisance, excessive, or an unreasonable interference with their use and enjoyment of property.[12] Professional sound testing is a way to measure whether noise meets the objective standard, and guards against those with abnormal sensitivity or unreasonable expectations.[13] Ms. Woo provided no evidence that ASTC/AIIC testing was required, or that BAP’s proposed testing was insufficient. Given this, and since the strata agreed to shorten the testing window to accommodate her, I find the strata did not act significantly unfairly towards Ms. Woo on this occasion.

42.   In October 2023, after the CRT dismissed Ms. Woo’s previous disputes with the strata and the owner of the strata lot below, Ms. Woo again agreed to acoustical testing. When the strata attempted to arrange testing with BAP however, BAP advised that it no longer offered the service, and that other providers it would typically recommend had also stopped offering it. Despite contacting BAP’s recommended providers, the strata was unsuccessful in finding one willing and able to undertake the acoustical testing until February 2024. On February 15, RWDI sent the strata a quote for testing. The strata finalized its submissions for this dispute on February 19, so it did not provide further information on the testing or its investigation. I note that in SC-2023-000223, Ms. Woo says testing was scheduled for May 16, 2024, and went ahead. Since evidence of what happened after that is not before me, I am unable to consider whether the strata treated Ms. Woo significantly unfairly regarding this testing.

43.   Based on the above and the evidence before me, I find the strata did not treat Ms. Woo significantly unfairly. To be clear, I have only considered the period from July 2022 to February 15, 2024. I find during this time the strata actively tried to investigate Ms. Woo’s complaints in the face of continual resistance. The strata arranged acoustical testing and a site visit to determine the reasonableness of the alleged noise, and whether there had been any bylaw breaches. In spring 2023, when Ms. Woo objected to BAP-recommended multi-day testing, the strata agreed to shorter six-hour testing, which Ms. Woo was still unhappy with. Renewed efforts to carry out testing were scheduled for late spring 2024, and the results remain to be seen.

44.   Finally, Ms. Woo has not pointed to any examples, or provided evidence that the strata has never raised testing with another resident. Even if she had, I would not necessarily find that was significantly unfair. This is because Ms. Woo agreed to acoustical testing in the HRT settlement agreement. As for the strata’s alleged history of avoiding issuing fines, Ms. Woo has also not provided any support for that assertion.

45.   I dismiss Ms. Woo’s claims.

CRT FEES AND DISPUTE-RELATED EXPENSES

46.   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. Ms. Woo was unsuccessful, so I dismiss her claim for CRT fees and dispute-related expenses.

47.   The strata did not pay CRT fees, but claims $3,000 in dispute-related expenses for legal fees. The strata provided a letter from its lawyers in support of its claim for legal fees. The strata relies on the CRT’s decision in Lam as the basis for the CRT to accept the letter instead of invoices because its lawyer says the invoices are privileged.[14] Here, the letter indicates fees totalling $13,208.50 to February 16, 2024. It is unclear whether this total includes legal fees charged before this CRT proceeding, and if so, what the breakdown is between pre-CRT legal fees, and dispute-related legal fees. That is, the strata does not explain its claim for $3,000. So, I find the letter does not assist the strata.

48.   Even if it did, CRT rule 9.5(3) says the CRT will not order one party to pay another party’s legal fees in a strata property dispute unless there are extraordinary circumstances. CRT rule 9.5(4) says in determining whether a party must pay legal fees, the CRT may consider 1) the dispute’s complexity, 2) the degree of the representative’s involvement, 3) whether a party of representative’s conduct caused unnecessary delay or expense, and 4) any other appropriate factors. I find there are no extraordinary circumstances for the following reasons.

49.   First, the strata says the hundreds or thousands of pages of evidence Ms. Woo submitted, along with the hours of audio and video recording greatly increased the dispute’s complexity. While the documentary evidence was voluminous and took time to review, I find it was not particularly difficult to understand. Much of it was similar in substance, and the recordings simply needed to be listened to for alleged noise. There were no technical expert reports to consider, or to weigh against each other. On balance, I am satisfied the evidence on its own did not make this dispute complex.

50.   Second, the strata says Ms. Woo attempted to amend her claim at the 11^th hour, which caused unnecessary delay. The strata does not explain how this attempt unnecessarily delayed the dispute, or resulted in additional legal expense. So, I find Ms. Woo’s conduct did not create extraordinary circumstances.

51.   Third, the strata relies on bylaw 48(3). That bylaw allows the strata to recover reasonable legal fees from a person who files a CRT dispute against it, if the strata is successful in its defence. However, bylaw 48 was filed in the Land Title Office on December 1, 2023, after Ms. Woo submitted her application for dispute resolution. Since it postdates the application for dispute resolution, I find bylaw 48 does not apply.

52.   I dismiss the strata’s claim for dispute-related expenses for legal fees.

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

ORDER

54.   I dismiss Ms. Woo’s claims, the strata’s claim for dispute-related expenses, and this dispute.