Executive Summary: Key Legal and Evidentiary Issues

• The standard of review for CRT findings of fact, law, or discretion is patent unreasonableness under s. 56.7(2)(a) of the Civil Resolution Tribunal Act.
• Petitioner bore the burden of proving substantial, non-trivial and unreasonable noise interference on a balance of probabilities, assessed from the perspective of an ordinary person.
• Objective evidence such as decibel readings, sound recordings, or supporting witness statements was required and absent to substantiate the noise complaints.
• Section 26 of the Strata Property Act requires the strata council to act reasonably when investigating alleged bylaw infractions, including noise complaints.
• Reasonableness of the timing of a strata investigation must be assessed in factual context, including disputes over unit access and the chronology of formal complaints.
• A reviewing court does not reweigh evidence, substitute its own findings of fact, or draw alternative inferences when assessing patent unreasonableness.

Facts

The petitioner, Denise Johnson, is the owner of a strata lot in Strata Plan LMS 1685. She filed four related disputes with the Civil Resolution Tribunal (CRT) against The Owners, Strata Plan LMS 1685 (the Strata), alleging failure to investigate her noise bylaw violation complaints, strata governance errors, improper fines issued to her, breach of the Strata's harassment bylaw, and significant unfairness. In a separate decision not subject to this judicial review, the CRT found the Strata's harassment bylaw was unenforceable.

The petitioner traced the onset of her flooring noise complaints to unit 305, the unit directly above hers. She alleged that the installation of vinyl plank flooring in unit 305 in October 2018, replacing wall-to-wall carpet and underlay, produced a "constant onslaught" of thumping, knocking and heavy footfalls. She said she first complained to the Strata in February 2019 as part of her defence to noise complaints made against her by the occupant of unit 305 for tapping on the ceiling with a broom handle. Fines were issued against the petitioner on April 24, 2019 and March 29, 2020, both later rescinded. She sent a five-page letter to the Strata on December 7, 2020 detailing incidents of noise, asking the Strata to enforce the noise bylaw against unit 305, and requesting "an engineering assessment of the transfer of low-frequency noise between Unit 305 and my unit as soon as possible." Further letters followed on March 8, 2021 and April 13, 2021. The Strata's lawyer responded on May 6, 2021, suggesting that the Strata had previously attempted to investigate but the petitioner had repeatedly refused to allow entry into her unit. The petitioner denied refusing access by letter dated May 17, 2021. The Strata investigated on September 14, 2021, with three strata members and the strata manager performing an informal noise transfer test in which only faint sounds were audible in the petitioner's unit when various activities were undertaken in unit 305.

The petitioner also complained of piercing, high-frequency plumbing pipe noise from unit 305, which she said occurred several times per day, increased from January to May 2020, and stopped around July 2, 2020. She first complained of plumbing noise on January 23, 2020. The Strata hired a plumber who attended on three occasions in February 2020, beginning February 6, 2020, but was unable to recreate the noise or find any abnormal noises.

The petitioner additionally complained that the occupant of unit 305 "deliberately ran, jumped, and stomped in the stairwell" next to her unit, and alleged that the Strata's permitting of residents to participate in the 7:00 pm cheer for healthcare workers during the COVID-19 pandemic constituted significantly unfair treatment.

In a decision dated January 16, 2024 (the Decision), the CRT found that the Strata had met its duties under the Strata Property Act, S.B.C. 1998, c. 43 to investigate the noise complaints and that the Strata had not treated the petitioner unfairly. The petitioner applied to the Supreme Court of British Columbia for judicial review. She represented herself, filing a 160-page affidavit (essentially a written argument with excerpts of evidence attached as exhibits), a 33-page single-spaced written argument, and 5 pages of single-spaced presentation notes. The CRT had approximately 1200 pages of materials to consider.

Legislative framework and bylaws at issue

The Strata's noise bylaw (bylaw 4.1) provides in part that a resident or visitor may not use a strata lot or common property in a way that causes a nuisance or hazard to another person, causes unreasonable noise, or unreasonably interferes with the rights of other persons to use and enjoy their strata lot or common property.

Section 26 of the Strata Property Act requires the strata council to exercise their powers and perform the duties of the strata, including bylaw enforcement. The strata council must act reasonably when carrying out its duties, and this includes a duty to investigate alleged bylaw violations, such as noise complaints.

Standard of review

The parties agreed, and Justice Lamb found, that the standard of review of a finding of fact or law or an exercise of discretion by the CRT is patent unreasonableness under s. 56.7(2)(a) of the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25. Citing Macdonald v. The Owners, EPS 522, 2024 BCCA 52, the Court explained that a patently unreasonable decision is one that is "openly, clearly, evidently unreasonable" and "almost borders on the absurd." A court on judicial review does not reweigh evidence or substitute its own findings of fact, and a decision is not patently unreasonable merely because the evidence is insufficient (Speckling v. British Columbia (Workers' Compensation Board), 2005 BCCA 80 at para. 37).

Flooring noise complaint

The CRT found that the petitioner had failed to provide objective evidence to prove a substantial, non-trivial and unreasonable noise level from unit 305 assessed from the perspective of an ordinary person. The petitioner submitted a noise log setting out the time and nature of noises she heard but did not provide decibel readouts or witness statements. The CRT noted that her inability to provide sound recordings, because the noises were intermittent, suggested they did not meet the threshold of unreasonable interference. The informal noise transfer test in September 2021 disclosed only faint sounds, and the CRT concluded that the Strata did not act unreasonably by refusing the petitioner's request to hire an engineer to perform sound transfer testing.

Justice Lamb held that the petitioner had failed to prove the CRT's dismissal of her floor noise complaint was patently unreasonable. As in Gichuru v York, 2013 BCCA 203, the petitioner's testimony failed to establish that the flooring noise would be intolerable to the ordinary occupant. The petitioner's request that the court reweigh the evidence was outside the function of judicial review. Citing Sager v Boudreau, 2017 BCSC 837 at paras. 41-42, the Court observed that "inconsistent decisions of a tribunal [do] not make a tribunal's decision patently unreasonable."

On the timing of the investigation, Justice Lamb noted the context: the flooring noise complaint first arose in February 2019 as part of the petitioner's defence to noise complaints made against her by the occupant of unit 305; the next written request to investigate unit 305 was sent on December 7, 2020; and there were differing accounts about her willingness to provide access to her unit. In that context, the CRT's conclusion that the investigation was carried out in a reasonably timely manner was not openly, clearly, evidently unreasonable.

Plumbing noise complaint

The CRT dismissed the plumbing noise complaint. It accepted that the Strata hired a plumber who was unable to recreate the noise or find abnormalities during three visits in February 2020. The CRT found that recordings of the plumbing noise failed to establish it was significantly loud, unreasonable, or physically damaging, and explained why it rejected hearsay evidence from the petitioner that contradicted the plumber's written reports. Expert evidence supporting the petitioner's theory regarding the source of the plumbing noise and why it stopped was absent. The CRT placed limited weight on a description of the noise from the petitioner's witness on the basis that the witness's letter was primarily advocacy in favour of the petitioner.

The petitioner had sought damages of $21,500 or $45,000 for tinnitus she alleged had been caused by the plumbing noise. She argued the CRT erred by requiring her to prove the plumbing noise caused her tinnitus. Justice Lamb held this alleged error was moot given the CRT's finding that the petitioner had failed to prove the occurrence of plumbing noise, and that in any event the CRT was correct in placing the onus on her to prove causation. The Court also confirmed there was no unreasonable delay in investigation, as the petitioner first complained on January 23, 2020 and the plumber first attended on February 6, 2020.

Stairwell noise complaint

The CRT dismissed the stairwell noise complaint. While complaints from two other residents about the occupant of unit 305's "heavy footfalls" supported a finding that the petitioner had likely heard stairwell noises, the CRT accepted these noises "would necessarily have been brief and intermittent" and that "some level of noise is expected in a residential building." There was no objective evidence regarding the volume of the alleged noise. Justice Lamb held the CRT's conclusion that brief and intermittent noise would not unreasonably interfere with another resident's use and enjoyment of their property did not border on the absurd, and reweighing the evidence was not the court's role.

Significant unfairness

The CRT dismissed the petitioner's allegation that the Strata treated her significantly unfairly. Three of the four instances of alleged unfair treatment formed the underpinnings of her noise complaints, which were dismissed on the merits. The fourth instance concerned the Strata permitting residents to participate in the 7:00 pm cheer for healthcare workers during the COVID-19 pandemic. The CRT found the petitioner's expectation that the Strata would forbid this was not objectively reasonable, noting the cheers occurred once per day for a predictable and finite period, did not breach bylaw 4.1, and were not organized to target or harass the petitioner. The CRT also observed that the petitioner had not explained why she could not wear hearing protection during that fixed period. Justice Lamb held the finding was not patently unreasonable as there was some evidence to support it.

Outcome

Justice Lamb concluded that the petitioner had failed to establish that the Decision was patently unreasonable. The petition was dismissed with costs to the respondent. The successful party is The Owners, Strata Plan LMS 1685. The total amount of costs ordered in favour of the successful party cannot be determined from the decision itself, as no specific quantum was set out in the reasons for judgment.