22/01/2019 – Jurisdiction British Columbia
Part 69 published on 01/03/2020
Tribunal refuses to dismiss claims respecting excessive noise
In two separate claims, the claimants alleged that the strata corporation had discriminated against them (on the basis of disability) by failing to address excessive noise from the unit above, which noise allegedly caused them particular difficulty due to their disabilities.
The noise problems appeared when the occupant above installed new flooring without proper underlay (to attenuate noise). A proper underlay was a condition of the strata corporation’s approval of the new flooring installation. The claimants alleged that the strata corporation had failed to take proper steps to address this violation.
The strata corporation had “responded in various ways” to the complaints:
It told the new occupants about the complaints and asked them to mitigate noise transfer. It addressed the Weitzels’ complaints in strata meetings. It permitted the Weitzels to install sound insulation in their unit at their own cost. The Strata performed a non-professional sound test in both units whereby some Strata members made noise in the upper unit while other members listened in the Weitzels’ unit. The Strata concluded the noise heard from the upper unit was not excessive.
The tribunal held that the claims might succeed, and therefore refused to dismiss them without a hearing. The tribunal said:
Based on the materials before me, I am not persuaded that (the claimant) has no reasonable prospect of successfully establishing that (he/she) experienced an adverse impact. While the Strata says that it conducted a sound test, the evidence before me is simply that the Strata Council members’ subjective view of the noise levels differs from that of (the claimant). As the Strata did not engage a professional to conduct a sound test that included objective decibel readings, for example, I am left with two conflicting subjective views regarding the noise level that can only be determined by making findings of fact after a hearing.
…
The Strata has also not provided any evidence regarding the extent to which it inquired into or understood how noise affects (the claimant’s) condition by requesting further information from (the claimant) or (his/her) physician, for example. If the Strata had questions in this regard or required further information in order to assess (the claimant’s) request, it was incumbent on the Strata to seek out that information.
As discussed above, this complaint also concerns the Strata’s response to (the claimant’s) noise complaints after the floor installation was completed. The materials before me suggest that despite (the claimant’s) complaints, the Strata did not ask the new occupants about the installation or discover that the soundproofing underlay had not been installed for over a year. The Strata has not explained whether it took any steps to confirm that the soundproofing underlay was installed in the first place or why it did not question the new occupants about this matter much sooner.