Date Issued: February 9, 2022

File: SC-2021-005832

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Helgason v. Shuswap Lake RV Resort Ltd., 2022 BCCRT 155

Between:

REGINA HELGASON

Applicant

And:

SHUSWAP LAKE RV RESORT LTD.

Respondent

REASONS FOR SUMMARY DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This is a summary decision refusing to resolve a dispute due to lack of jurisdiction.

2.      This dispute is about utilities charges and wi-fi service at a recreational vehicle (RV) resort (Resort) owned by the respondent company, Shuswap Lake RV Resort Ltd.. The applicant, Regina Helgason, is a shareholder of the respondent company and lives at the Resort.

3.      The applicant says the Resort’s developer incorrectly calculated the Resort’s common hydro charges between October 2019 and July 2020 and unfairly overcharged her. The developer is not a party to this dispute. The applicant also says the respondent refused to correct the hydro calculations and refund her for the alleged overcharges when it took over the Resort management from the developer.

4.      The applicant also says high speed Wi-Fi was promised as a Resort amenity, but she is unable to use it at her RV site. The applicant asks for orders that the respondent refund her $1,484.75 for the hydro overcharges and install a Wi-Fi “box” closer to her RV site.

5.      The respondent disputes the applicant’s claims. The respondent says the hydro charges were set by the developer, and it would be unfair to the other shareholders to give the applicant a refund. The respondent also says Wi-Fi is already available throughout the Resort, but acknowledged that the signal is better in some areas than others. The respondent says the cost of adding another “extender” to the applicant’s RV site is too expensive.

6.      The applicant is self-represented. The respondent is represented by JR, who I infer is one of the respondent’s directors.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

8.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

9.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

10.   Under section 11 of the CRTA, the CRT may refuse to resolve a claim within its jurisdiction if it would be more appropriate for another legally binding process or dispute resolution process, among other listed reasons.

11.   Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

12.   Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Late evidence

13.   The applicant submitted late evidence in this dispute, which consisted of her own hydro calculations. The respondent objected to the timing of this late evidence. However, the respondent had the opportunity to review the evidence and provide submissions on it. Consistent with the CRT’s mandate that includes flexibility, I find there is no actual prejudice in allowing this late evidence. I allow the late evidence as I find it relevant.

ISSUES

14.   The issues in this dispute are:

a.    Does the CRT have jurisdiction to resolve the applicant’s claims in this dispute? If not, should the CRT refuse to resolve this dispute or any part of it?

b.    If the CRT has jurisdiction, what amount, if any, must the respondent reimburse the applicant for the alleged hydro overcharges?

c.    If the CRT has jurisdiction, must the respondent install a Wi-Fi box closer to the applicant’s RV site?

EVIDENCE AND ANALYSIS

15.   In a civil proceeding like this one, the applicant must prove her claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant to provide context for my decision.

16.   The parties’ relationship in this dispute is complicated. As noted, the applicant owns shares in the respondent company. Along with the respondent’s other shareholders, the applicant entered into a co-ownership agreement with the respondent and the Resort’s developer that sets out the shareholders’ respective rights and obligations and provides a mechanism for the Resort’s use and management, including the granting of RV site licenses at the Resort to shareholders, and the management of the Resort’s finances. I note that the copies of the co-ownership agreement in evidence are not signed by the applicant. As noted, the Resort’s developer is not a party to this dispute.

17.   At the time of the alleged hydro overcharges, it appears that the respondent had also entered into a Resort management agreement with the developer, and the Resort management was transferred back to the respondent in or around August 2020. I note that the Resort management agreement in evidence is also unsigned. To the extent that the applicant raises any claims directly against the Resort’s developer, I have not considered them because the developer is not a named party to this dispute.

18.   The applicant says she “purchased” an RV site at the Resort in October 2018. She says that the Resort’s common costs under the co-ownership agreement included hydro charges for the Resort’s common areas. She says as a result, the hydro charges for common areas should have been billed equally to all shareholders. She says that instead, the developer allocated the common area hydro charges to shareholders based on their personal usage at their respective RV sites, which is metered separately. The applicant says this was unfair to her and other shareholders, and says the respondent should have corrected the developer’s hydro calculations and refunded her for the overcharges.

19.   Section 3.4 of the co-ownership agreement says, in part, that the respondent has the right to allocate specific common costs, in whole or in part, to a shareholder based on a determination by the respondent than a shareholder is solely or partially responsible for such costs, in which event the amount payable by the shareholder shall be adjusted accordingly. Given this provision, for the purposes of this decision I find the co-ownership agreement gives the respondent broad discretion to assign common costs unequally to individual shareholders. So, I find that the respondent allegedly allocating the hydro charges unequally between shareholders and refusing to correct the developer’s hydro calculations are not clear breaches of the co-ownership agreement.

Business Corporations Act (BCA)

20.   The applicant relies on BCA section 227 as the legal basis for her claim for a refund of hydro overcharges. In her submissions, the applicant says it is her right to take the respondent to court because the respondent has unfairly overcharged her for hydro fees between October 1, 2019 and July 28, 2020. BCA section 227 allows certain individuals to apply to court for what is commonly called an oppression remedy. This provision allow a “court” to provide relief for oppressive or unfairly prejudicial conduct in a company’s affairs. However, the CRT is not a “court” under the BCA, so the CRT has no jurisdiction to provide an oppression remedy under the BCA. CRTA section 11(1)(a) says that the CRT may refuse to resolve a claim or dispute within its jurisdiction if the claim would be more appropriate for another legally binding process. I find that the applicant’s claim for hydro overcharges would be more appropriately addressed by a court with jurisdiction to address the applicant’s BCA section 227 claim, rather than the CRT. This is because the CRT does not have jurisdiction to address the applicant’s BCA section 227 claim. Therefore, I refuse to resolve the applicant’s claim for a refund of hydro charges under CRTA section 11(1)(a)(i).

Injunctive relief

21.   As noted, the applicant also asks for an order that the respondent install a Wi-Fi “box” closer to her RV site at the Resort. An order requiring someone to do something is known in law as “injunctive relief”. Injunctive relief is outside of the CRT’s small claims jurisdiction, except where expressly permitted by CRTA section 118. Although the CRT can make an order for specific performance of an agreement relating to personal property or services under CRTA section 118(1)(c), I find the co-ownership agreement does not provide details about the specific placement of the Wi-Fi boxes at the Resort. I find I cannot make an order for specific performance of an agreement for services in this dispute. Therefore, I find there is no relevant CRT provision that permits me to grant the injunctive relief claimed and I refuse to resolve the applicant’s claim that the respondent install a Wi-Fi box under CRTA section 10.

ORDERS

22.   I refuse to resolve the applicant’s claim for a refund of hydro charges under CRTA section 11(1)(a)(i).

23.   I refuse to resolve the applicant’s claim that the respondent install a Wi-Fi box under CRTA section 10.

 

24.   In the circumstances, I direct the CRT to refund the applicant’s paid CRT fees.