Nuisance—The One Size Fits All Bylaw

By Veronica Franco (profile link below)

Often, when a Council receives a complaint about an issue that is not directly addressed in the bylaws, the council members feel powerless to do anything about it. The common belief is that, unless there is a specific bylaw addressing the conduct, the behaviour is not prohibited. However, a bylaw that prohibits nuisance will often cover off a wide variety of behaviours. For example, the Standard Bylaws to the Strata Property Act, S.B.C. 1998, c. 43 include Bylaw 3(1), which provides, in part, as follows:

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 hazard to another person
(b) causes unreasonable noise
(c) unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot

This bylaw can be used to deal with a wide variety of situations. For example, loud noise, smoking or bad odours would all fall under this bylaw. Yet often, Councils will not take any steps to respond to a complaint of an owner in these situations without a noise, smoking or bad odour-specific bylaw. However, section 26 of the Act requires that a Council enforce the bylaws. Where someone causes a nuisance, Council must enforce the bylaws by taking steps to deal with the nuisance. It is not simply an issue between neighbours

The difficulty faced by Councils is how to determine whether the behaviour being complained of is in fact a nuisance. Nuisance is defined as an unreasonable interference with the use and enjoyment of land. It does not matter whether the interference results from intentional, negligent or non-faulty conduct. The leading authority on nuisance is the BC Court of Appeal decision Royal Anne Hotel Co. Ltd. v. Ashcroft et al. In that decision, the Court of Appeal said that the test for nuisance is whether the use of the land interfered with the use and enjoyment of the complainant’s land and whether that interference was unreasonable. Where there is actual physical damage, it is easy to decide that the interference is unreasonable. However, it is more difficult where the interference offends as a result of smells, noise, vibration or other intangible causes.

To determine whether the interference is unreasonable, all of the relevant circumstances must be considered. For example, noise that would be considered a nuisance in a quiet suburban neighbourhood may be reasonable in a busy downtown location. Other factors to be taken into account include the nature of the act complained of, the nature of the injury suffered, the frequency of the occurrence, and its duration. The interference must be substantial and serious to result in a finding of nuisance. The standard is not of the overly sensitive person, but rather the standard of an ordinary reasonable person.

There are numerous behaviours that could result in a finding of nuisance. For example, cigar smoke has been held to be a nuisance. In Raith v. Coles, a 1984 decision of the BC Supreme Court, an elderly couple complained of continuous and pervasive cigar smoke. Prior to going to Court, the couple did everything they could to resolve the problem. They tried talking to their neighbour, installing fans, and keeping their windows and doors shut. However, the cigar smoke continued to affect them. The couple provided medical evidence that the cigar smoke had a significant impact on their health. In these circumstances, the Court held that the couple were not unreasonable in their objections to the nuisance created by the cigar smoke. This was not a simple dislike of the smell—there was concern based on medical grounds. Although the Court recognized that people are expected to put up with some inconvenience, the cigar smoke had been harmful, and so was found to be a nuisance.

Similarly, noise and smell can also result in a finding of nuisance. Where an owner, tenant or occupant complains of behaviour that could be characterized as a nuisance, the Council must investigate and determine whether a nuisance exists. In the course of its investigation, the Council must be mindful of the fact that a determination of nuisance involves the balancing of the rights of competing owners, tenants or occupants. A good example where Council was successful in balancing the competing owners’ interests is the case of The Owners, Strata Plan LMS 4555 v. Chan. In that case, an owner complained of very noisy piano playing. The Council investigated and determined that the noise was excessive. However, the noisy piano playing persisted despite attempts by Council to deal with the owner to find a way to minimize the noise. The Strata Corporation was left with no choice but to initiate Court proceedings. During the course of those proceedings, the owner installed sleepers under the piano to dampen the noise. The Strata Corporation hired a sound engineer to test the effectiveness of the sleepers. The sound engineer found that, while the noise had not been eliminated, it had been reduced to a reasonable level. At the end of the day, the piano playing could continue and the neighbouring owner would be able to enjoy their strata lot without any significant noise interference.

The issue of noise often comes up after carpeting is replaced with hardwood floors in a strata lot. This can be a very sensitive issue since the installation of hardwood floors, even if installed to the highest of standards, will often result in increased noise. The question is whether that noise is unreasonable. When faced with such a noise complaint, the Council must investigate. That investigation should lead the Council to the affected strata lots to listen for themselves. It is often very useful to involve the owner of the strata lot from where the noise is originating. If the noise is unreasonable, and that owner hears just how loud it really is, you might find that owner willing to participate in finding a solution. Sometimes the solution can be as simple as putting down area rugs, using soft-soled shoes inside the strata lot, or restricting certain activities to specific times. Where possible, the Council should work with all parties to find the most appropriate solution.

While strata councils are generally reluctant to get involved in these “difficult to solve” nuisance type of complaints, they can sometimes be instead overzealous regarding enforcement, and forget that they must balance the respective rights of owners. A good example of where the enforcement of rules went too far is demonstrated in the decision of Chauhan v. Norkham Seniors Housing Cooperative Association. While this 2004 decision of BC Human Rights Tribunal involves a co-op, it is equally applicable to a condominium setting. In that case, the co-op received a complaint about cooking odours. The tenant admitted that she cooked her traditional ethnic foods, but suggested that the problem might be with her exhaust fan. The tenant also attempted to compromise by agreeing to cook her traditional ethnic cuisine only on specific days and times. The cooperative, for the most part, did very little to investigate the fan issue and instead threatened to evict the tenant unless she promised to stop cooking her traditional ethnic cuisine. As a result of the impasse, the tenant brought a Complaint to the Human Rights Tribunal. The Tribunal agreed with the tenant that the Cooperative had discriminated against her on the basis of race and ethnicity. The Tribunal held that the Cooperative should have taken further steps to investigate the fan issue and made more of a concerted effort to try to reach a compromise that balanced the competing interests of the tenants. This case underscores the need for the Council to be proactive not only in the investigation of a nuisance complaint, but also in reaching a compromise.

When an owner complains of a behaviour that is not specifically dealt with in the bylaws, the Council must consider whether such behaviour can be classified as a nuisance. When the behaviour might be a nuisance, the Council must investigate it in order to determine whether it really is a nuisance. That investigation may involve hiring an expert or going to the “scene”. Once the Council determines that the behaviour is a nuisance, the Council must also be involved in trying to find a solution in reaching a solution that minimizes the impact of the behaviour while not completely restricting the rights of others for the sake of the complainant. The Council must remember to maintain a balanced approach and be proactive in trying to resolve the situation.

Veronica Franco is a Condo Specialist with Clark Wilson LLP in Vancouver