Vancouver, Galleria II: Court decides leave to appeal not required by defendants; orders appeal books prepared

                                                 Date: 19990416
Docket: CA025700
Registry: Vancouver


COURT OF APPEAL FOR BRITISH COLUMBIA




ORAL REASONS FOR JUDGMENT:


BEFORE THE HONOURABLE April 16, 1999

MR. JUSTICE HALL

IN CHAMBERS Vancouver, B.C.



BETWEEN:


THE OWNERS (STRATA PLAN VR 1720)

PLAINTIFF
(RESPONDENTS)

AND:

BART DEVELOPMENTS LTD., GALLERIA II DEVELOPMENTS LTD.
PARTNERSHIP, MOLNAR CONSTRUCTION LTD., SPACEWORKS
ARCHITECTS, PETER REESE, THADDEUS YOUNG, GORDON
SPRATT & ASSOCIATES LTD., TAMM/TACY AND ASSOCIATES
LTD., SCOTT CALVERT, SPECTRUM INDUSTRIES LTD.
(FORMERLY WESTERN WATERPROOFING & MEMBRANES LTD.),
CSA BUILDING SCIENCES LTD., CSA BUILDING SCIENCES
WESTERN LTD., RALPH JECK, MURRAY FRANK AND
CHRISTIAN SKENE


DEFENDANTS

AND:

RALPH JECK, MURRAY FRANK AND CHRISTIAN SKENE

APPELLANTS

C. Ferris appearing for the Appellants
I. Schildt appearing for the Respondents


(Application for Directions)


[1] HALL, J.A.: This is an application wherein essentially
two disparate heads of relief are sought. Firstly, the
proposed appellants, Ralph Jeck, Murray Frank and Christian
Skene, apply for a determination that leave to appeal is not
required, or alternatively if it is, that leave ought to be
granted to appeal from the Order of Mr. Justice E.R.A. Edwards
pronounced February 22, 1999 dismissing an application brought
on behalf of the named Defendants for the dismissal of an
action brought against them in negligence. As well there are
in the action possible contractual claims against a related
company.

[2] The case, without going into matters in any great detail,
engages cases such as the well known Hedley Byrne case and a
case in this court of recent vintage, Boss Developments Ltd. v.
Quality Air Maintenance Ltd. (1995), 5 B.C.L.R. (3d) 209
(C.A.). Reference should also be made to Edgeworth
Construction Ltd. v. N.D. Lea & Associates Ltd. (1993) 83
B.C.L.R. (2d) 145 (S.C.C.).

[3] Mr. Justice Edwards held that in light of the Boss case,
the argument of the defendants was not well founded, and
accordingly, he dismissed their application seeking exemption
from liability.

[4] It is not entirely easy, as I have observed to counsel in
the course of argument this morning, to draw a clear line as to
the circumstances when leave will or will not be required in
these cases. Perhaps it may be justly observed that the advent
of Rule 18A has made these questions even more difficult
because of the nature of these proceedings themselves which in
some cases do not purport to dispose of all issues. As Mr.
Schildt in his argument mentioned there are also situations
where orders have a dual quality in which it may transpire that
in certain circumstances one side will have an absolute right
of appeal depending on the disposition, and the other side may
be forced to seek leave. I make that observation in no
critical sense but simply as an observation that Rule 18A,
which is a very useful Rule, can create some uncertainty in
this class of proceeding that we are dealing with this morning.

[5] The relevant authorities that I have now had a chance to
review again in light of Mr. Schildt's argument are Stony Creek
Indian Band v. Alcan Aluminum Limited, a judgment of this court
of March 3, 1999 under Docket No. CA025273 and two other
decisions, being the case of Dow v. Briggs (1994), 98 B.C.L.R.
(2d) 372 (C.A.), and British Columbia (Minister of Forests) v.
Bugbusters Pest Management Inc. (1997), 86 B.C.A.C. 84. In the
instant case, the result of the motion was that the action
remains on foot and there remain negligence issues to be still
litigated as the case presently stands. However, had the
application been successful before Mr. Justice Edwards, the
action would then have been concluded against the individual
defendants and thus the order sought would finally have
disposed of matters as against them.

[6] Justice Taylor in Dow v. Briggs at page 377 after
reviewing some of the earlier cases said this:

The words which I have italicized make it plain that
what was sought to be achieved was not so much a
determination under s. 6.1(2) of the Court of Appeal
Act whether appeal would be permitted at all against
a finally-determinative decision contained in a dual-
character order - although that, of course, was the
result - but rather to make it possible for the court
to decide whether the appeal against those portions
of the order which were in the nature of final
determination of issue should be heard before, rather
than after, final resolution in the trial court of
all of the remaining issues raised in the action.

I do not pretend that this explanation resolves
the matter because those cases say that a notice of
appeal from a dual-character order, where no leave is
obtained, will be a nullity, and I do not understand
how any appeal against such an order could thereafter
be brought except with benefit of an order extending
time for appeal. That, too, would have the result of
depriving the unsuccessful litigant appeal as of
right with respect to the final resolution of some of
the issues in the action. I think we must lean
against anything having that result.

[7] It seems to me that in that passage, his Lordship was
saying that in this class of case the court should not be
overly quick to deny persons a right to appeal in an unfettered
way matters that can be finally dispositive of an action.
Those remarks of course must read in light of the comments of
Madam Justice Rowles in Alcan Aluminum Limited which comments
are found at paragraph 30, page 15:

[30] Under Bugbusters, if a litigant wishes to appeal
an order made on a summary trial which finally
determines an issue but that issue does not dispose
of the action as a whole the litigant must seek leave
to appeal. As I am inclined to the same view of the
matter as Mr. Justice Esson, for the reasons he
stated in Bugbusters, I hold that leave to appeal is
required.

and at paragraph 21, page 11:

In Bugbusters, the judgment the defendant sought
leave to appeal is described by Esson J.A. as
follows, at 84:

The defendant applies for leave, if leave
is required, to appeal against a decision of a
chambers judge under Rule 18A finding against
the defendant on an issue of issue estoppel.

The action is one for damages arising out
of a very large forest fire which is alleged to
have been started by the negligence of the
defendant and to have been allowed to continue
by its negligence in carrying out its fire
fighting duties. The issue estoppel applies
only to the question whether the defendant's
negligence caused the fire. So even if there
were to be an appeal and the defendant were to
succeed on it, the action would still go to
trial on the issue whether it was negligent in
allowing the fire to continue.
[Emphasis added.]

In the present case, the issues determined by Lysyk
J., if reversed on appeal, would not dispose of the
whole of the action because the limitation defences
do not apply to the entire period for which damages
for trespass are claimed.

[8] As I analyze both Bugbusters and Alcan, it seems to me
that there remained in these cases issues that would have been
unresolved whichever way the hearing went, the result of which
was sought to be appealed from. To that extent, I think they
are distinguishable from the case at bar.

[9] Mr. Schildt has referred to certain earlier related
proceedings in the case of The Owners (Strata Plan VR 1720) v.
Bart Developments Ltd. et al, CA025700, concerning what
happened when the case went on for hearing on another matter on
March 4, 1999, the day after Alcan had been handed down. At
that time the court, of its motion, suggested that leave was
required, and in fact, leave as it happened was granted by me
subsequently. Presumably now that matter will come on for
hearing.

[10] As I read the decision of Madam Justice Humphries that was
sought to be appealed from those in that proceeding, there
remained in the case issues that had to be decided at the trial
level. To that extent it may be that what was at issue in that
case is distinguishable from what I see as the pattern or
factual setting of this case. In this case it seems to me that
the order which was sought was finally dispositive in the event
the order had been granted. But on the other side of the coin,
the order has also a finality to it in the sense that there is
a res judicata aspect to it, and I revert back to what Mr.
Justice Taylor referred to generally in his analysis in the
case of Dow v. Briggs.

[11] It seems to me in this case that it would be appropriate
for me to determine that this is a case in which the proposed
appellants have an appeal as of right, and accordingly, it is
not a case in which leave to appeal is required. That being
so, I am not therefore required to pass on to the question of
whether leave ought or ought not to be granted, and I simply
make the finding that this is a case in which leave is not
required.

[12] I direct that appeal books shall be filed by April 30,
1999.

"The Honourable Mr. Justice Hall"

Condo owner wins counter-claim judgment against obnoxious next door neighbour who complained about noise from piano playing

Citation:

Chiang v. Yang

Date:

19990409

1999 BCPC 0029

File No:

97-35098

 

Registry:

Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

BETWEEN:

EDWARD MAN-CHING CHIANG

CLAIMANT

 

 

AND:

JENNY YANG

DEFENDANT

 

 

 
 
 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE C.J. BRUCE

 

 

 

 

 

 

 

 

Appearing in person:

E. Chiang

Appearing in person:

J. Yang

Place of Hearing:

Vancouver, B.C.

Dates of Hearing:

March 8 and 10, 1999

Date of Judgment:

April 9, 1999

 

Introduction

[1] The Claimant’s claim is for damages arising out of the disturbance caused to him by the noise emanating from the Defendant’s residence. The Claimant says the noise caused by the Defendant’s daughter while playing the piano has deprived him of the use and enjoyment of part of his residence and has caused him mental anguish, anxiety, and loss of sleep.

[2] The Defendant denies that the piano creates a noise audible in the Claimant’s residence and claims the matter has been thoroughly investigated by the police, the strata council, and the City of Vancouver By-law enforcement department. The Defendant has also filed a counter-claim for damages arising out of the Claimant’s interference with the sale of her residence and her daughter’s piano examinations. In addition, the Defendant’s counter-claim may be characterized as an action for damages in nuisance.

FACTS

[3] The parties lived side by side as neighbors in a condominium complex located at (No.) Prince Edward Street, Vancouver, BC, from 1989 until May 1997 when the Defendant rented her unit and left the premises. The Defendant purchased her unit (106) in 1986 and the Claimant rented unit 107 from his mother who purchased the property in 1989.

[4] In or about 1992 the Defendant’s daughter, then age seven, began to take piano lessons. The Defendant also purchased a piano to enable her daughter to practice at home. The Defendant’s daughter practiced every day for one half an hour. As she progressed, however, her practice time was increased to almost one hour each day. During the week the Defendant’s daughter practiced after school and on weekends her practice times could be later in the evening; however, never beyond 8:00 p.m.

[5] The Claimant testified that he began to have problems with the noise created by the piano playing almost immediately. He testified that the sound ‘thundered’ through the thin walls of the units and disturbed his sleep to the extent that he moved his bed into the sitting room because it was farther away from the Defendant’s suite. At first the Claimant contested the noise by repeatedly banging on the walls and letting the Defendant know the piano playing disturbed him through threats, insults, and the uttering of obscenities. The Claimant had a night job until 1994 and felt that he needed quiet in the day to sleep. After 1994 the Claimant says he slept any time of the day or night because he was recovering from a stroke.

[6] The relationship between the Defendant and the Claimant became progressively worse as a consequence of the Claimant’s complaints about the piano playing. After three or four years of banging on the walls, threatening, and verbally abusing the Defendant and her daughter, the Claimant made a formal complaint to the Vancouver Health Board. The Board is responsible for enforcing the City of Vancouver Noise By-law. The By-law enforcement officers visited the Claimant’s residence and listened to the sounds emanating from the Defendant’s unit. Not satisfied that the noise level exceeded the By-law restrictions, the enforcement officers took no action. Because the Claimant asserted the Defendant’s daughter was deliberately playing softly to "fool" the By-law enforcement officers, the City sent their officers to the site on several occasions to investigate the complaints. The officers were still unable to detect an infringement of the noise By-law and refused to take action. On July 5, 1996 Claudia Kurzac, an Environmental Health Officer employed by the City of Vancouver, wrote to the Defendant advising her of the complaint by the Claimant and reciting the terms of the By-law governing the circumstances.

[7] The Claimant continued in his efforts to have the By-law enforcement officers appreciate the extent to which the music had disturbed his life by continually requesting their attendance for the purpose of listening to the piano playing and raising the issue with the Defendant. On August 14, 1996 Virginia Jorgensen, an Environmental Health Officer employed by the City of Vancouver, sent a letter to the Claimant advising him they would take no further action on his complaints:

This letter confirms the inspections conducted by several environmental health officers in response to your complaints relating to noise entering your suite from piano playing next door.

As has been discussed with you several times, most recently on Monday, August 12, 1996, the sound noted coming into your unit from the piano has not been clearly audible. The intent of the City of Vancouver Noise By-law is not to prohibit people from undertaking normal everyday activities. It is not unreasonable for a child to practice playing the piano for 30 minutes during the day.

We cannot take any further action on your behalf at this time. If you are disturbed during the evening hours, you may contact the Vancouver Police Department.

[8] Undeterred by the City’s refusal to act on his complaints, the Claimant persisted in his demand that something be done. Finally, on or about October 22, 1996, the By-law enforcement officers attended at the Claimant’s residence to perform sound tests on the noise emanating from the Defendant’s unit due to the piano playing. To conduct the test, one officer played the piano in the Defendant’s unit while another officer measured the sound in the Claimant’s apartment. The test results indicated the noise from the piano was below the acceptable levels established by the By-law. The Vancouver Health Board recorded the test results in a letter to the Claimant dated November 12, 1996 from Alfred Guthrie, Noise Control Supervisor:

This is in response to your concern of continued noise problem being experienced from the playing of the piano in the above referenced suite next door to you.

I have reviewed our files and note the Department’s involvement to date. In addition, I have visited the premises on October 22, 1996, in order to review and assess the situation as it exists presently. From my observation, I have concluded the following:

1. The nature and source of the sound complained of could not be addressed under the Noise By-law, where it addresses the decibel levels for activities and quiet zones and in any case, did not reach or exceed the stated 45 dB(A) night-time level for a quiet area. (The levels recorded in your suite from the piano was [sic] 33-35 dB(A)).

2. As a result of the foregoing, the problem was looked at under a more general section which addresses the disturbance to the "peace and quiet" of the individual. This section (SEC. 4) did not provide much relief; however, since the noise from the piano was barely audible from your suite and is only played for a period of one half hour, according to the occupant of suite #107 and by your admission.

In my opinion, the problem can be best resolved by a compromise between yourself and the party occupying suite #107, Ms. Jenny Yang, or by appealing to the Strata Council of your building to come up with their own solution.

The Health Department will no longer pursue the issue unless the noise becomes louder than it is presently and is being played at unreasonable hours and for long periods.

We will be willing to respond if the noise develops to the point where it can be addressed by the By-law. At this point, we are of the opinion that it cannot.

[9] The Claimant estimates that during 1996 the By-law enforcement officers attended at the Defendant’s residence to deal with his noise complaint on at least 15 occasions.

[10] The Claimant did not enter into any discussions with the Defendant with a view to negotiating a compromise concerning the piano playing. The Claimant refused to discuss a time when it would be convenient for the Defendant’s daughter to practice. The Claimant maintained that no time was convenient because he may wish to sleep any time of the day or night. Further, the Claimant refused to advise the Defendant when he was going to rest, as he regarded such information as a private matter. The Claimant was also not satisfied with the measures taken by the Defendant to reduce the noise from the piano. At the Strata Council’s request, the Defendant had moved the piano to an outside wall away from the Claimant’s unit.

[11] Because he received no satisfaction from the Health Department, the Claimant began complaining about the noise to the Vancouver Police Department. The Claimant estimates that between the fall of 1996 and May 1997 he summoned the police at least fifty times to the Defendant’s residence. While the police attended at the Claimant’s request, they did not instruct the Defendant to discontinue the piano playing, and did not advise her that the noise was too loud. Finally, the police told the Claimant not to contact them again because there was nothing they could do to assist him. The Defendant testified that the police visits disturbed her and caused her great inconvenience. Sometimes the police came late in the evening and disrupted her daughter’s sleep.

[12] Unable to secure the assistance of the Vancouver Police Department, the Claimant requested action from the Strata Council. The minutes of the Strata Council indicate that it was satisfied with the Health Department’s tests. Because the noise was within acceptable levels, and the piano playing was not conducted late at night or for long periods, there was no reason to take action against the Defendant. Further, the Strata Council canvassed the Defendant’s other neighbours and received no complaints about excessive noise due to the piano playing. The Strata Council also wrote to the Claimant and asked him to set a time that the piano playing would not disturb him. The Claimant refused to discuss the matter and took the position that there was no convenient time.

[13] The Defendant testified that the Claimant’s constant harassment about the piano playing frightened her and her daughter. The Claimant would regularly bang on the walls and the Defendant’s door, shout obscenities at them, and threaten them with bodily harm. The Defendant says that just prior to their move in May 1997 the Claimant threatened to chop her daughter’s fingers off because she would not stop playing the piano. The Defendant says the Claimant called her a hooker and her daughter a bastard and a piece of shit. The Claimant also disrupted her bible study meetings on Sundays by yelling obscenities and calling the group an orgy. The Claimant also hovered over them when leaving the unit; he stared at them until they left. The Claimant continually embarrassed the Defendant in front of guests because of his offensive remarks and aberrant behaviour.

[14] Apart from the constant intrusions by the Claimant, the Defendant says she spent many hours with the police, By-law enforcement officers, and members of the Strata Council attempting to address this problem. Over a two-year period the Defendant says she had to take at least one week off work to deal with the Claimant’s complaints and her daughter lost valuable practice time. In regard to the latter concern, the Defendant testified that her daughter’s piano examinations had to be postponed until after their move from the unit because of the constant interference by the Claimant. The Defendant’s daughter was required to take additional private lessons ($240.00) and pay an additional examination fee of $57.00 as a consequence of the Claimant’s actions. The Claimant testified that he never thought about whether his actions were reasonable or not and was not concerned that he may have harassed the Defendant or interfered with her daughter’s piano practice.

[15] As a consequence of the Claimant’s constant interference in their lives, the Defendant decided to sell her unit and move away. In December 1996 the Defendant engaged Kathryn Watkinson, an agent with Remax Realty (Westside), to sell her home. The unit was listed at $138,000. After six months the Defendant took her unit off the market because she was unable to sell it.

[16] The Defendant claims that she was unable to sell her unit because of interference by the Claimant. The Defendant says that when prospective purchasers came to see the unit the Claimant would open his door and scream that the agent was lying and that this was not a quiet building. The Defendant testified that on February 9, 1997 she was at home when her realtor brought a woman and her daughter to view the unit. Upon leaving the unit, the Defendant says the Claimant opened his door and shouted, "this woman is a criminal, this building is not a quiet building, and anyone who buys this place and live in this place will have very bad luck." The prospective purchasers then expressed reluctance to buy a unit next door to the Claimant. The Defendant testified that the Claimant behaved in this manner on many occasions thereby frustrating the sale of her unit. Finally, the Defendant was forced to rent out her unit to a friend who could tolerate the Claimant’s conduct. To corroborate her evidence the Defendant introduced a letter dated May 14, 1997 from Ms. Watkinson:

I have listed Jenny Yang’s apartment at (No.) Prince Edward Street for sale since December 8th 1996. On several occasions her neighbour Mr. Edward Chiang has disrupted showings of the apartment to potential buyers. On December 12th 1996 Mr. Chiang yelled at me in the hallway. He called me a liar for telling the buyers it was a quiet building and proceeded to run down the strata council. Prior to being verbally abused by Mr. Chiang the buyers had expressed interest in the apartment. After the encounter they said they did not want to live beside someone like that.

Similar incidents have occurred on several different occasions. Two times, the buyers may have been ready to write an offer but were put off by Mr. Chiang’s yelling and carrying on.

[17] The Defendant claims she incurred additional mortgage costs in carrying the unit after she moved into a new residence. Further, the market price of the unit dropped at least 5% between December 1996 and May 1997.

[18] The Claimant denies interfering with the sale of the Defendant’s unit. He says he encouraged her to move out so he would not hear the piano noise any more. The Claimant also denies harassing and threatening the Defendant. The Defendant does admit, however, that he watched the Defendant through the peephole in his door and accused the Defendant of consorting with married men in the hallway.

[19] The Defendant also called George Lee to corroborate her evidence. Mr. Lee babysat the Defendant’s daughter from 1985 onward and rented the Defendant’s unit after May 1997. Mr. Lee testified that whenever he came to the unit the Claimant would open his door and stare at him. When Mr. Lee left the unit the Claimant would also open the door and stare at him. Mr. Lee testified that on one occasion after he moved into the unit the Claimant came up to him and accused him of playing the piano in the suite. Mr. Lee invited the Claimant inside to look for a piano because there was none to be found.

[20] Finally, the Claimant introduced a report by Dr. Thomas dated June 26, 1997:

This is to certify that Mr. Edward Man Ching Chiang has been attending this medical office. He suffered from a number of medical conditions. This includes: hypertension, large anterior myocardial infarct, renal impairment, hyper-cholesterolemia, post-traumatic neurologic dysfunction of the left arm and leg, with flexion contracture of the left index finger, anxiety-depression, with insomnia. He is on a number of medications for the above medical conditions.

It would be beneficial for him to reduce mental stress, relax, and stay in a quiet, pleasant environment, in addition to regular, light exercise, and pharmacological therapy.

ARGUMENT

[21] The Claimant argues he has been seriously disturbed by the noise emanating from the Defendant’s suite over an extended period of time. Further, the Claimant says the noise has affected his health and has precluded the use of a large part of his suite. The Claimant relies upon Section 4 of the By-law passed by the City of Vancouver to regulate noise in residential areas. The Claimant says the Defendant has contravened this by-law and is therefore liable in damages for the harm caused.

[22] The Defendant says she has broken no laws in allowing her daughter to play the piano for short periods at reasonable hours. The Defendant maintains the Claimant has refused to compromise with regard to this dispute and has continually interfered with her life to the point where she was forced to leave her apartment. The Defendant says the constant threats and harassment also caused her severe emotional suffering and distress. In addition, the Claimant’s actions have caused her economic loss with regard to the market value of her suite.

DECISION

[23] The Claimant’s action potentially raises three causes of action for which a claim in damages may be made against the Defendant. First, the Claimant relies upon an alleged breach of Vancouver City By-law No. 6555 dealing with the regulation of Noise or Sound. Second, the Claimant sues for damages arising out of the intentional infliction of emotional distress or harm. Lastly, the Claimant raises a claim in nuisance with respect to the noise emanating from the Defendant’s premises.

[24] The Defendant’s counter-claim also raises a number of potential causes of action. The Defendant claims damages for the intentional infliction of emotional distress. The Defendant’s claim may also be addressed as one for nuisance. Finally, the Defendant maintains an action against the Claimant for damages arising out of the intentional infliction of economic loss.

[25] I will address each cause of action under a separate heading.

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