This was just sent out to Ascent. Attention Stephen Lamb. Please read fine print at bottom. Nuisance - the One Size Fits All Bylaw 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 causes a nuisance or hazard to another person causes unreasonable noise 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. Those Are By Laws, which Your Agency, and Strata Council have forfeited Rights to Enforce. Now Below These Are The Laws, I Follow, and these Laws Over Rule any and Al Strata Property Act By Laws, These Laws as I have Forwarded to you and have patiently Directly and Indirectly Explained and lead you to Understand apply to ALL Citizens of Canada, within Canada, and Outside Of Canada. 83.01 - Interpretation Definitions 83.01 (1) The following definitions apply in this Part. “Canadian” « Canadien » “Canadian” means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a body corporate incorporated and continued under the laws of Canada or a province. “entity” « entité » “entity” means a person, group, trust, partnership or fund or an unincorporated association or organization. “listed entity” « entité inscrite » “listed entity” means an entity on a list established by the Governor in Council under section 83.05. “terrorist activity” « activité terroriste » “terrorist activity” means (a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences: (i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970, (ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971, (iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973, (iv) the offences referred to in subsection 7(3.1) that implement the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979, (v) the offences referred to in subsection 7(3.4) or (3.6) that implement the Convention on the Physical Protection of Nuclear Material, done at Vienna and New York on March 3, 1980, (vi) the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988, (vii) the offences referred to in subsection 7(2.1) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988, (viii) the offences referred to in subsection 7(2.1) or (2.2) that implement the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988, (ix) the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997, and (x) the offences referred to in subsection 7(3.73) that implement the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999, or (b) an act or omission, in or outside Canada, (i) that is committed (A) in whole or in part for a political, religious or ideological purpose, objective or cause, and (B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and (ii) that intentionally (A) causes death or serious bodily harm to a person by the use of violence, (B) endangers a person’s life, (C) causes a serious risk to the health or safety of the public or any segment of the public, (D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or (E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C), and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law. “terrorist group” « groupe terroriste » “terrorist group” means (a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or (b) a listed entity, and includes an association of such entities. For greater certainty (1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition “terrorist activity” in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph. (1.2) For greater certainty, a suicide bombing is an act that comes within paragraph (a) or (b) of the definition "terrorist activity" in subsection (1) if it satisfies the criteria of that paragraph. Facilitation (2) For the purposes of this Part, facilitation shall be construed in accordance with subsection 83.19(2). 83.02. Providing or collecting property for certain activities 83.02 Every one who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out (a) an act or omission that constitutes an offence referred to in subparagraphs (a)(i) to (ix) of the definition of “terrorist activity” in subsection 83.01(1), or (b) any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act, is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years. 83.03. Providing, making available, etc., property or services for terrorist purposes 83.03 Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services (a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or (b) knowing that, in whole or part, they will be used by or will benefit a terrorist group, is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years. 83.04. Using or possessing property for terrorist purposes 83.04 Every one who (a) uses property, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, or (b) possesses property intending that it be used or knowing that it will be used, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, is guilty of an indictable offense and is liable to imprisonment for a term of not more than 10 years. You Have A Great Day Now Ya Hear! Sincerely Philip J. Neveu RENTER OCCUPANT, Lot 24 3200 Westwood.
Posted on: Tue, 20 Aug 2013 16:24:44 +0000
Recently Viewed Topics
© 2015