Judicial review of a decision of the Civil Resolution Tribunal (“CRT”) in the exercise of its jurisdiction over strata property disputes

Administrative law – Decisions reviewed – Civil Resolution Tribunal – Condominiums – Strata corporations – Judicial review – Legislative compliance – Procedural requirements and fairness – Standard of review – Patent unreasonableness

Williams v. British Columbia (Civil Resolution Tribunal), [2023] B.C.J. No. 293, 2023 BCSC 239, British Columbia Supreme Court, February 17, 2023, J. Hughes J.

The petitioners sought a judicial review of a decision of the Civil Resolution Tribunal (“CRT”). The dispute arose due to multiple noise complaints coming from an adjacent strata unit. The petitioners initiated proceedings against The Owners, Strata Plan BCS 184 (the “Strata”) at the CRT. On judicial review, it was found that the CRT’s decision was patently unreasonable, and the petitioners were denied procedural fairness. The matter was remitted back to the CRT for reconsideration.

The petitioners lived in a townhouse in strata lot 29 (“SL29”), which shared a wall with strata lot 30 (“SL30”). The petitioners complained of noise from November 2019 to November 2021. The bylaws included provisions prohibiting owners or tenants of strata units from causing repetitive noise or using a strata lot for any purpose involving undue traffic or noise.

In response to the petitioner’s complaints, the Strata retained BKL Consultants Ltd. (“BKL”) to perform a weeklong noise investigation. An initial report was provided, which concluded that noise was audible from SL30, which indicated that “intrusive noise levels are very clearly audible and potentially very disturbing”. Following correspondence from the Strata’s legal counsel, BKL revised their report to remove the sentences about the intrusive noise levels. The petitioners were provided with the initial report and not the revised report. The strata sent multiple violation notices to SL30 from May to November 2021.

At the CRT, all the petitioner’s claims were dismissed. It was found that the strata properly investigated the complaints and enforced the bylaws, that SL30’s occupants did not cause unreasonable noise, and that the strata did not treat the petitioners significantly unfairly.

In reaching its decision, the CRT found that the Strata had provided the petitioners with council members’ phone numbers, and despite having this information, the petitioners did not contact council members. It relied heavily on this fact to find that the strata properly investigated the petitioners’ conduct. The CRT concluded that the noise from SL30 was not unreasonable. It relied heavily on BKL’s evidence as set out in the revised report.

At issue was whether the CRT’s conclusion that the Strata properly investigated the complaints and enforced the bylaws was patently unreasonable and whether the CRT’s conclusion that the Strata’s investigation process was fair and reasonable was patently unreasonable.

It was found that the CRT’s finding that the petitioners were provided with council members’ contact information was based on an incorrect factual finding. There was no evidence before the CRT establishing that the petitioners were provided with council’s contact information. This was material to the conclusion that the Strata properly investigated the complaints and enforced the bylaws, therefore this aspect of the decision was found to be patently unreasonable.

It was found that the decision that the Strata’s investigation was fair was also patently unreasonable. Although both the initial and revised BKL reports were before the CRT, the issue of whether revisions to the report affected the weight to be given to the evidence was not considered. The court was unable to find a rational basis to support the CRT’s conclusion that the noise emanating from SL30 would not have been so disturbing if the petitioners had simply been louder themselves.

There was no evidence to demonstrate that the Strata enforced its bylaws. As a result, it was found that the CRT’s findings that it did so was patently unreasonable.

Lastly the CRT found that the noise was not unreasonable. This was not an issue that had been put before the CRT. It was held that as a result, the petitioners were denied procedural fairness in not being able to respond to this issue.

The matter was remitted to the CRT for reconsideration.

This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Deanna C. Froese at dfroese@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.