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A civil tribunal has ordered a Whistler strata corporation to enforce its own bylaw after numerous complaints from an owner over “unreasonable” noise levels in two commercial units—but dismissed the owner’s claim for $50,000 in damages for “mental and physical issues” allegedly caused by the noise.
The lengthy dispute is between applicant Bear Moose Holdings Inc. (BMH), then-owner of two residential strata lots in the village building (BMH has since sold one of the lots); and respondents Strata Plan VR. 873, the strata corporation; Mountain Projects Ltd., owner of a commercial strata lot in the building operated as Tapley’s Pub; and corporation 1189952 B.C. Ltd. (118), owner of another commercial strata lot in the building operated as Moe Joe’s Nightclub.
Both Tapley’s and Moe Joe’s are operated by hospitality firm Gibbons Whistler.
Filed in July 2021, the dispute stems from “significant noise” from two commercial lots in the building at 4119 Golfers Way, the ruling said. The applicant, BMH, said it purchased two residential strata lots in 2017 to use as vacation rentals, and for personal use when not rented. Since then, the owner claimed the noise from commercial strata lot 1 and 2 (SL1 and SL2) has “interfered with the peaceful use and enjoyment of BMH’s strata lots” and that the strata corporation has “failed to take meaningful action to reduce the noise levels and enforce its bylaws.”
'Impossible' to verify
The strata did acknowledge “noise problems” in the building, and in its initial response to the dispute, admitted that BMH’s peaceful enjoyment of the property had been impacted by noise from SL1 and SL2. In its later submissions, however, the strata changed its positions somewhat, Civil Resolution Tribunal vice-chair Katie Campbell wrote, saying it was “impossible” to verify that SL1 and SL2 were responsible for many instances of the noise. It also said the strata council did not determine the noise from the two lots was unreasonable, given “the nature of the building, the permitted uses of the commercial strata lots, and the character of the neighbourhood,” the filing went on. “However, in the same submission, the strata admitted there were ‘obvious noise issues’ in the building.”
In dealing with the admitted noise, the strata said its approach had been to forward any complaints to the owners of Tapley’s and Moe Joe’s and “invite them to respond,” Campbell wrote, adding that the strata also claimed its council members had worked with the commercial owners to “reduce noise to a reasonable level.”
The strata also hired acoustic consultants, BKL Consultants Ltd., to install a monitoring system as well as prepare resulting reports, which it did in 2018 and again in 2022. Both BKL reports documented significant noise levels from SL1 and SL2, with the consultants noting, for instance, the speakers in SL2 as a “major concern,” generating elevated noise levels that were “very disruptive” to the residential strata lots above.
“One of the strata’s key arguments in this dispute is that at least some of the noise that BMH complains about comes from outside the building,” Campbell wrote. “I accept, based on its location, that the strata building is located in a busy area, and at times there are noisy activities outside. However, I find the BKL reports commissioned by the strata confirm high levels of noise coming from SL1 and SL2, and limited noise from outside the strata.”
BKL also recorded decibel levels in both reports, and a 2022 test found that noise in the two “receiving suites” owned by BMH were 40 dBA and 37 dBA, respectively. The World Health Organization recommends a maximum level of 30 dBA for bedrooms at night, while the Canadian Mortgage and Housing Corporation recommends a max of 35 dBA.
Claims dismissed
In its dispute application, BMH requested an order forcing the strata to establish “nighttime hours” between 10 p.m. and 8 a.m., based on Whistler’s municipal noise bylaw. The owner also asked for orders “establishing that a disturbance is considered any noise emanating from a strata lot” above 30 decibels during nighttime.
The tribunal ultimately dismissed both claims.
“These claims by BMH [are] effectively for orders amending the strata’s bylaws,” Campbell said. “It is open to a strata to adopt a bylaw setting ‘quiet hours’ or ‘nighttime hours.’ However, this has not occurred in this case.”
BMH also requested an order that Tapley’s cease operations and the playing of music on its patio during quiet hours, which was, again, dismissed, as BMH “does not have standing to claim bylaw enforcement against other strata lot owners.”
Campbell did, however, note that the owners of Tapley’s and Moe Joe’s must follow the strata’s own noise bylaw, which means “they must not permit SL1 and SL2 to be used in a way that creates noise that is a nuisance to an objectively reasonable person occupying a residential strata lot in the strata.”
BMH was seeking $50,000 in damages in part for alleged mental and physical issues due to the noise in the two strata lots, as well as the strata council’s failure to enforce the noise bylaw. BMH said its owners have experienced “shortness of temper, fatigue, increased anxiety, anger, and helplessness, and increased hypertension due to ‘noise pollution,’” the ruling read. Campbell ultimately found no standing in the damages claim, as the alleged symptoms were unproven, and BMH, as a corporation, has “no physical or mental capacity.”
