Quieting a Noisy Neighbour

The BC Supreme Court recently released a decision in Strata Plan VR 2000 v. Grabarczyk, dealing with the enforcement of noise bylaws. In this case, the strata corporation brought legal action against an owner, Ms. Grabarczyk, seeking an order from the Court that she be required to cease noisy behaviour, and that the strata corporation be entitled to collect fines levied for breach of the noise bylaws. The noises complained of were loud yelling, crying, stamping, jumping up and down, the back and forth movement of furniture and the washing of metal objects in the bathtub. Most of the noises occurred in the middle of the night and lasted from 15 minutes to 1/2 hour. The problems had continued over an extended period of time.

During that time, the strata corporation levied more than $22,000 in fines against Ms. Grabarczyk for breach of the strata corporation’s noise bylaw (which was the same as Bylaw 3(1) of the Standard Bylaws in the Strata Property Act). One of the provisions of the Strata Property Act for consideration by the Court was section 135(3), which states as follows:

135(1) The strata corporation must not

(a)impose a fine against a person,

(b)require a person to pay the costs of remedying a contravention, or

(c)deny a person the use of a recreational facility

for a contravention of a bylaw or rule unless the corporation has

(d)received a complaint about the contravention,

(e)given the owner or tenant the particulars of the complaint, inwriting, and a reasonable opportunity to answer the complaint,including a hearing if requested by the owner or tenant, and

(f)if the person is a tenant, given notice of the complaint to theperson’s landlord and to the owner.

(2) The strata corporation must, as soon as feasible, give notice inwriting of a decision on a matter referred to in subsection (1)(a), (b)or (c) to the persons referred to in subsection (1)(e) and (f).

(3) Once a strata corporation has complied with this section 1 inrespect of a contravention of a bylaw or rule, it may impose a fineor other penalty for a continuing contravention of that bylaw or rulewithout further compliance with this section.

The Court found that Ms. Grabarczyk had deliberately and repeatedly made loud noises that interfered with another’s use and enjoyment of property and therefore had contravened the strata corporation’s noise bylaw. This conclusion was based on the affidavits filed by the property manager and neighbouring owners affected by the noise problems. The Court relied on one neighbour’s careful documentation of extensive and repeated instances of noise emanating from Ms. Grabarczyk’s suite at hours of the day when the normal noises of living are unlikely to be heard. As a result, the Court granted the strata corporation an injunction requiring Ms. Grabarczyk to cease and desist from certain noisy behaviour in her strata lot, advising her that if she breached the injunction she could be liable for fines and/or imprisonment for contempt of court.

With respect to the fines levied by the strata corporation, the Court said that:

the real issue with respect to the fines is whether on a reading of section 135(3), they relate to a continuing contravention, thus relieving the strata corporation of complying with the provision of sections 135(1) and (2).

The strata corporation argued that the almost nightly contraventions of the noise bylaw for significant periods of time were in essence, continuing, not repeated and therefore subject to section 135(3). The Court held that, even though Ms. Grabarczyk’s actions were persistent and amounted to a campaign of noise making, treating them as “continuing” for the purposes of section 135(3), and thereby relieving the strata corporation from the need for notice and the right to be heard in circumstances where the contraventions are the product of ongoing but discrete transactions, would extend section 135(3) beyond what it was designed to encompass to include serial, but not continuing, conduct.

At the hearing, Ms. Grabarczyk also tried to argue that, because the strata corporation had taken several years to bring the court proceedings after the first threat of litigation arose, the strata corporation had lost the right to complain about the noise. The Court rejected that argument because the facts revealed that the strata corporation had continued to send Ms. Grabarczyk bylaw infraction notes during the four year period in question.

As a result of the Court’s interpretation of the phrase “continuing contravention”, the Court concluded that, apart from those fines levied where she received the particulars of the complaint in writing and had a reasonable opportunity to answer the complaint including a hearing, the strata corporation could not collect all of the series of fines imposed on Ms. Grabarczyk. The Court reduced the fines from $22,000 to $2,500, the latter figure reflecting a $50 per instance fine for those instances in which notice was sent in accordance with section 135.

So what may we take from this case? First, that the phrase “continuing contravention” in section 135(3) of the Act will be narrowly interpreted to those cases where the infraction continues without interruption (e.g. someone is renting their unit in contravention of a rental bylaw). As a result, where an infraction occurs on a repeated or serial basis (e.g. where noise problems happen almost every night but do not continue during the day), the strata corporation will be required to issue a notice for each occasion that the infraction occurred. On the positive side, with each instance treated as a discrete infraction, the strata corporation could levy a fine for each instance, assuming that the procedures set out in section 135 had been complied with. Second, this case underscores the importance of maintaining detailed records (dates, times, and particulars of the infraction) to support an application for an injunction regarding bylaw infractions, particularly where noise or other types of nuisance are involved. Finally, while the situation will not necessarily require a strata corporation to immediately attend in court to deal with a continuing or repeated bylaw infraction, a strata corporation should be careful not to be seen to condone the behaviour associated with the bylaw breach by doing nothing for an extended period while the infraction persists.

Bonnie Elster is a partner with Clark Wilson LLP. As a solicitor and a member of the firm’s Business Law Department, the primary focus of her practice is on all aspects of strata property law.