A B.C. condo owner who was fined tens of thousands of dollars over hundreds of noise complaints made by his downstairs neighbour was partially successful in having the penalties overturned.
A decision in the long-running dispute was handed down by the civil resolution tribunal Wednesday, finding the process for imposing some of the fines for violating the bylaw against unreasonable noise was “significantly unfair.”
The downstairs neighbour, referred to as R.K. in the decision, complained 443 times between April 4, 2022 and Nov. 30, 2023, tribunal member Sarah Orr wrote in her decision.
“R.K. says he mostly hears hard percussive strikes coming through his primary bedroom ceiling, but he also hears tapping, scraping, dragging, and clunking noises from the same location,” the decision said, also noting R.K. first noticed the noise in 2020.
The upstairs neighbour, Alan Zenuk, initiated the dispute with the strata saying he has been fined $56,000. He sought to have all of those fines reversed, also asking to be compensated $5,000 “for loss of enjoyment of his strata lot, loss of sleep, and stress.” His dispute was with the strata, and not his neighbour. “In B.C. the common assets of a condo building are owned by a strata corporation and managed by a strata council.”
Zenuk has not paid any fines, according to the tribunal, and the strata said it was “unclear” how the condo owner arrived at the $56,000 figure. The total amount of fines imposed is never specified in the decision because as Orr notes, neither the strata nor Zenuk submitted a statement of account.
The evidence submitted did show that Zenuk was fined “at least” $42,600 between March and December of 2023 and notes a $200 fine can be imposed for each bylaw contravention.
The issue of the noise itself was the subject of a dispute last year, according to the decision. In that case, the tribunal awarded the downstairs neighbour $4,500 in damages – finding the noise constituted a nuisance.
“I find the noise the applicants experienced was sufficiently frequent, intense, and disruptive that it was a substantial and unreasonable interference in their enjoyment of their strata lot,” the 2023 decision said.
The tribunal, in this case, focused less on the noise itself and more on the process through which the owner was fined.
First, the tribunal addressed Zenuk’s claim that the investigation into the noise was unfair and the conclusion that it was coming from his unit was unreasonable.
“Mr. Zenuk’s primary argument is that he does not make the noise and he cannot hear it, so he cannot control it. He says the strata cannot say precisely what is causing the noise, so it is unfair to blame him for it,” the decision says.
Orr rejected this, saying the conclusions the strata reached were arrived at fairly and were reasonable.
On the issue of how the fines were levied, however, the tribunal largely sided with Zenuk.
In September of 2022, Zenuk had a hearing with the strata council to address the complaints received up to that date and whether any fines would be imposed as a result. In its written decision, the council told Zenuk he would be fined. However, that decision came in March of 2023 – six months after the hearing – which the decision notes far exceeds the one-week deadline mandated in the Strata Property Act. Accordingly, all the fines that preceded the hearing as well as those that were imposed while Zenuk waited to be informed of the result were ordered to be reversed.
A second hearing with the council was held in July of 2023 to address complaints received in the preceding three months. The strata informed Zenuk, in writing that he would be fined $20,200 for 101 complaints received on 93 different days – some of which fell before the hearing and some after.
But that letter was also too late, resulting in another reversal of any fines imposed as a result of the hearing or during the two-and-a-half-months it took to inform Zenuk of the hearing outcome.
Ultimately, the tribunal reversed all fines imposed for bylaw contraventions before March 22, 2023 and any imposed for contraventions between March 31 and Sept 28, 2023.
Fines incurred between March 23 and 30 of that year were found to have been valid, as were any that came after Sept. 29, 2023.
Because a detailed accounting of the fines and their respective dates was not in evidence, the actual amount of fines determined to be invalid is not provided.
