Date Issued:  June 9, 2017

File: ST-2016-00162

Type: Strata

Civil Resolution Tribunal

Indexed as:  Thompson v. The Owners, Strata Plan BCS 1455 et al, 2017 BCCRT 27

BETWEEN :

Robert Thompson

APPLICANT

AND :

The Owners, Strata Plan BCS 1455 and A

RESPONDENTS

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

 

INTRODUCTION

 

1)        The applicant owner Robert Thompson (the owner) wants a common property parking stall (the VP stall) reinstated as one of the strata’s visitor parking stalls. The respondent strata corporation, The Owners, Strata Plan BCS 1455 (the strata), has assigned the VP stall for the exclusive use of another owner, A. The strata did so to accommodate A’s physical disability as A advised she cannot as easily use the limited common property parking stall (the LCP stall) assigned to A’s strata lot.

 

2)        After this matter was assigned to me for decision, I determined that A should be added as a respondent as this decision directly involves her. In the published version of this decision, I have anonymized A’s full name to protect her privacy, bearing in mind the circumstances of her inclusion in this proceeding and the confidentiality of her medical situation. I order the parties to keep A’s personal information confidential.

 

JURISDICTION AND PROCEDURE

 

3)        These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness. It must also recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

 

4)        The tribunal 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 tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

 

5)        The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I heard this dispute through written submissions because I find there are no significant credibility issues or other reasons that might require an oral hearing.

 

6)        This dispute raises the issue of discrimination and accommodation under the Human Rights Code (Code). Section 3.8(3) of the Act states that the tribunal does not have jurisdiction over a question of whether there is a conflict between the Code and another enactment. However, in my view, the Act permits the tribunal to consider the Code and whether a neutral enactment may have an adverse discriminatory effect.

 

7)        Further, section 3.8(2) of the Act states that the tribunal may decline jurisdiction to apply the Code, which is a discretionary provision that allows the tribunal to apply the Code. Therefore, contrary to the strata’s submission, the tribunal’s jurisdiction extends to consideration of whether or not A has a disability that requires accommodation, even though the Human Rights Tribunal (HRT) also has that jurisdiction.

 

8)        Under section 48.1 of the Act, in resolving this dispute the tribunal may make one or more of the following orders:

 

a)     order a party to do something;

 

b)     order a party to refrain from doing something;

 

c)      order a party to pay money.

 

ISSUES

 

9)        The issues in this dispute are:

 

a)     On their face, do the strata’s bylaws allow the strata to indefinitely assign A the exclusive use of the VP stall?

 

b)     Does A have a physical disability that requires accommodation by the strata?

 

c)      If the answer to b) above is yes, how should the strata accommodate A, and in particular, is A having exclusive use of the VP stall reasonable?

 

d)     Is the owner entitled to reimbursement of $125 in fees paid to the tribunal?

 

POSITION OF THE PARTIES

 

10)     The owner says the strata’s assignment of the VP stall to A is contrary to the strata’s and the City of North Vancouver’s bylaws that respectively address the use and number of required visitors’ parking spaces. The owner says the strata did not exercise due diligence in granting A the exclusive use of the VP stall in May 2016. The owner also says A’s difficulty using the LCP stall assigned to her strata lot amounts to a driving problem, which is a matter for the Motor Vehicle Branch, and that she knowingly bought her strata lot that he says included the LCP stall. Further, the owner disputes A’s mobility or walking issues are a relevant factor, given that that particular concern was not initially raised and because the walking distance between her LCP stall and the VP stall is close. In any event, the owner says under the Strata Property Act (SPA), A’s “short-term exclusive use” of common property (the VP stall) was limited to one year, expiring on May 31, 2017.

 

11)     The strata says it exercised due diligence and was reasonably satisfied that A’s evidence and accommodation request triggered the strata’s duty to accommodate under the Code, and that the VP stall was properly assigned to her. The strata further says it is entitled to indefinitely renew its permission to grant A the exclusive use of the VP stall so long as her disability requires it. A wants the strata to continue accommodating her physical disability with the exclusive use of the VP stall.

 

BACKGROUND AND EVIDENCE

 

12)     In October 2005, the strata plan was amended to designate certain parking stalls as limited common property for the exclusive use of certain strata lots, which includes A’s LCP stall.

 

13)     In addition, the strata has a total of 22 visitor parking spots that are common property, including the VP stall currently assigned to A for her exclusive use. Half of those visitor spots are in the main parkade entrance. The other half is one level down, which is where the VP stall is located. Based on a video provided to the tribunal, the VP stall is closer to the elevator than A’s LCP stall, by about 5 to 7 parking spaces.

 

14)     It is undisputed that on most days, more than half of the strata’s visitor parking stalls are empty, and most visitors park on the upper parking deck that is closer to the parkade entrance, rather than the lower level. However, the owner says that this lack of use cannot be counted on in the future.

 

 

15)     The strata created new consolidated bylaws on January 28, 2016. The relevant bylaws include the following provisions (my bold emphasis added):

 

a)     Bylaw 1.1: All owners must “comply strictly” with the strata’s bylaws.

 

b)     Bylaw 4.1 (e) and (f): Owners must not use common property in a way that is contrary to a purpose for which the common property is intended, as shown expressly or by necessary implication on the strata plan, or, is in contravention of any bylaw of the City.

 

c)      Bylaw 41.3: Visitor parking is for the exclusive use of guests, not residents, and is on a “first come, first serve” basis in the marked visitor parking spaces only.

 

d)     Bylaw 41.14: Residents must use only the parking space(s) specifically assigned to their strata lot. Owners must not park in the visitors parking stalls and/or common property.

 

16)     On May 6, 2016, A’s lawyer wrote to the strata’s property manager and advised that A bought her strata lot in February 2016 and “upon purchase” found the LCP stall “inaccessible based on her needs”. A’s lawyer requested that the strata accommodate her physical disability, and suggested that the strata designate an “appropriate” visitor parking space to A that allows her “proper access based on her disability” so long as she was a resident in the strata. In his letter, A’s lawyer offered to have A’s LCP stall designated as visitor parking. In this dispute, both the owner and the strata say that solution is likely too costly and impractical. A’s lawyer also suggested, in the alternative, that if there was another vacant owner’s limited common property stall that would be accessible to A, it could be assigned to A. A’s lawyer concluded his letter noting that if the issue were not resolved, A was prepared to file a complaint with the HRT based on the denial of appropriate accommodation for A’s physical disability.

 

17)     On May 19, 2016, the strata council held a hearing at which the strata says A described her disability as “restricted mobility and range of motion” and explained the impact of her disability on her ability to use the LCP stall. The council also considered the physical evidence of A’s disability, based on A’s physical presentation at the meeting.

 

18)     On May 20, 2016, the strata sent a notice to all owners and residents, asking if anyone wanted to trade their space for A’s LCP stall. The notice stated that the desired space for A must not be between 2 pillars. The strata says no one responded.

 

19)     The owner provided the tribunal with photos of notices that had been posted by other residents, advertising parking spaces for rent. However, it is unclear whether the advertised spaces would have been accessible like the VP stall.

 

20)     On June 28, 2016, the strata wrote A advising that at its June 20, 2016 council meeting, the strata council had granted permission for A to use the VP stall in order to accommodate A’s disability that “restricts” her parking in the LCP stall. The permission was granted on a permanent basis until A no longer needed the accommodation.

 

21)     In a February 2017 letter that A prepared for the tribunal at the strata’s request, prior to A being added as a party, A stated her age and that she has “very poor, degrading health”. A said she has had back surgery with renewed problems that are causing her much pain. A explained she has reduced flexibility such that she cannot use the LCP stall because it is in a “very tight corner” and she has a lot of difficulty getting in and out without hitting other cars or the adjacent concrete post.

 

22)     In her February 2017 letter, A noted that the strata has no handicapped spots for general use on the property, but there were many visitor spaces that were always empty. A stated that because of her mobility limitations she is legally designated as handicapped and has a permanent handicapped parking permit, which the owner refers to as a “Sparc” card, certified by her physician. A concluded her letter by stating that she hoped she would be able to keep the VP stall for the safety of the building, neighbouring cars, and for “ease of access for me to get in and out.”

 

23)     The strata and the owner provided the tribunal with photos and a video showing the VP stall and the LCP stall, which as noted are somewhat close to each other. The LCP stall has one pillar on the left hand side, and a parking space on the right that in the photos is occupied by a large SUV. To access the LCP stall, the driver must back into the relatively tight LCP space. The VP stall has a pillar on the right hand side, and a parking space on the left. The parties agree that the LCP stall is in fact about 9% wider than the VP stall, but it is essentially undisputed that driving a car into or out of the VP stall is easier. That said, the owner produced photos showing A’s car parked in the VP stall, with her having sometimes backed in and sometimes driving forward into the stall. The owner says this demonstrates A is able to physically manoeuver to park her vehicle.

 

24)     On October 25, 2016, the strata retained a new strata property management agent. The strata provided the tribunal with a brief handwritten October 25, 2016 note from A’s physician. The strata says that around October 2016 it asked its property manager to follow up with A to obtain documentation for their files, to confirm her disability in support of her accommodation request. This occurred again in February 2017 in anticipation of the tribunal proceeding, and again only a very brief physician’s note was provided. The owner objects that the strata assigned A the VP stall many months before it received the physician’s note in October 2016. The owner says that without due diligence the strata gave A the VP stall in May 2016.

 

25)     The physician’s notes indicate that A has a chronic knee condition, a chronic pain syndrome that included back pain, and that she “receives handicapped parking”. After I ordered the addition of A as a respondent, she provided further evidence and submissions, including responses to my particular questions. She explains that her disabilities in part relate to mobility and walking, which she notes is why she was issued a disability parking permit. A states that walking even short distances can aggravate her serious lower back condition. A says that the VP stall is “somewhat closer” to the entrance and that helps “alleviate this risk”. A further says that she lacks the shoulder- checking flexibility to permit the tight maneuvers to get in and out of the LCP stall. A confirms the VP stall is open and easily accessible, and that she can safely and comfortably maneuver in and out of this stall.

 

26)     In its initial response to the dispute, the strata indicated that A’s exclusive use of the VP stall would cease if a suitable alternative stall became available. However, as noted above, the strata later decided to offer the VP stall to A long-term if not permanently.

 

27)     The owner provided an excerpt of a City of North Vancouver (City) Bylaw, 1995, No. 6700 Division IV, Bylaw 908, ‘Minimum Provision of Parking Spaces’, which states visitor parking must be calculated at the ratio of 10% of the total parking spaces required, and be held in common ownership and not assigned to any strata lot.

 

28)     The strata paid the $100 tribunal decision fee and it expressly does not seek reimbursement. Thus, the owner’s request for reimbursement is limited to $125, the fee he paid to begin the tribunal dispute process.

 

ANALYSIS

 

The strata’s parking bylaws

 

29)     It is undisputed that the combined effect of the strata’s bylaws is that visitor parking spaces are common property for the prescribed use by visitors, not owners. There is nothing in the SPA that specifically gives a strata council the ability to exempt an individual from the operation of a bylaw like bylaw 41.14 that states owners “must not park” in the visitors’ parking spaces or on common property. Further, the strata’s bylaws do not have a provision giving the council a general authority to grant bylaw exemptions based on the Code.

 

30)     Section 76 of the SPA provides that, subject to 71 of the SPA, the strata may give an owner permission to exclusively use common property that is not designated as limited common property, which permission may be given for a period of not more than one year. Section 76(3) states the strata may renew the permission, and the section does not state how many times it may do so.

 

31)     Here, the strata in part relies upon section 76 of the SPA to say it can indefinitely renew A’s permission to exclusively use the VP stall. However, section 76 is subject to 71 of the SPA, which is discussed below.

 

32)     Section 3 of the SPA requires the strata to manage and maintain common property. Section 71 of the SPA states the strata must not make a significant change in the use or appearance of common property unless:

 

(a)    The change is approved by a resolution approved by a ¾ vote at an annual or special general meeting (¾ vote), or

 

(b)    There are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage.

 

33)     There was no ¾ vote in this case and there is no suggestion that immediate change was necessary. The strata submits that the change in the VP stall, from common property available to all visitors to effective limited common property for A’s exclusive use (although without such formal designation), was not significant because the stall is still used for parking. I disagree. I consider the change to be significant because the removal of the VP stall from the pool of visitor parking spaces affects all owners (see Anthony v. Schnapp, 2016 BCSC 1839 for a non-exhaustive list of relevant factors). This conclusion is also consistent with the tribunal’s decision in Ehrne v. The Owners, Strata Plan VR 2601, 2017 CRTBC 2, at paragraphs 32 to 37.

 

34)     Next, I turn to the owner’s argument regarding the City of North Vancouver’s bylaw. The owner submits the City’s bylaw effectively prohibits the assignment of common property to an owner. The strata’s bylaw 4.1(f) requires compliance with the City’s bylaws. While there are 155 strata lots, I do not have evidence of the total number of parking spots, unless I counted them up on the strata plan. I find I do not need that particular evidence because here there is no question of whether there is a conflict between the Code and another enactment. In other words, even if the City’s neutral bylaw were contravened as a result of the assignment of the VP stall to A, under section 4 of the Code, clearly the Code prevails if A requires accommodation in the form of having the exclusive use of the VP stall. In short, this decision does not turn on the application of the City bylaw. For the same reason, this decision does not turn on the strata’s ability to rely upon section 76.

 

35)     In summary, I find there was no appropriate basis for the strata to permanently or indefinitely assign the VP stall to A, in the absence of necessary accommodation for A’s disability under the Code. Not surprisingly, at the heart of this dispute is the question of whether A has a disability that requires accommodation by the strata, and if so what accommodation.

 

Application of the Code

 

36)     As noted in the tribunal’s decision The Owners, Strata Plan LMS 2900 v. Hardy, 2016 CRTBC 1, a number of HRT decisions have found that strata corporations provide management services to the public when they enforce bylaws for the control, management, maintenance, use and enjoyment of the strata lots, common property and common assets of the strata corporation. (See Konieczna v. Strata Plan NW 2489, 2003 BCHRT 38 and Williams v. Strata Plan LMS 768, 2003 BCHRT 165).

 

37)     Section 8 of the Code includes the prohibition that a person must not, without a “bona fide and  reasonable justification” discriminate against a person regarding any accommodation, service or facility customarily available to the public, because of a person’s physical disability. Further, a person must not deny another person these things. Section 121 of the SPA states that a bylaw is not enforceable to the extent that it contravenes the SPA or the Code.

 

38)     Though not binding on me, I find the reasoning in the above cases, and those cited below, to be persuasive. I find that section 8 of the Code applies to the strata in this case. Broadly speaking, once a request for accommodation is made, the strata must assess whether accommodation is required under the Code.

 

39)     It is undisputed that the strata’s parking bylaws are neutral on their face and that they are reasonably necessary to accomplish a legitimate purpose, namely the fair use of parking spaces by owners and their visitors. The issue here is to what extent A has a disability that causes her to be adversely affected by the parking bylaw such that she requires accommodation, and then what must the strata do to accommodate her.

 

40)     The Continuing Legal Education Society of BC’s BC Strata Property Practice Manual notes that “strata councils are obligated to be flexible in enforcing bylaws regardless of the challenges that this may create in enforcing the bylaws against others.”

 

41)     In Ross v. Strata Plan NW 608, 2007 BCHRT 80, the complaint was dismissed because the complainant owner had not established that the strata’s installation of a gate and a patio pathway was necessary to accommodate his disability (unsteadiness on his feet). The accommodation needs to be adequate, but is not necessarily only what the disabled person has requested (Shannon v. Strata Plan KAS 1613 (No. 2), 2009 BCHRT 438).

 

42)     I pause here to note the applicant owner’s argument that A chose to purchase the LCP stall when she purchased her strata lot, with the inference being the strata and the other owners should not be obliged to now accommodate A. This argument cannot succeed. First, A did not purchase the LCP stall, although she arguably has at least a beneficial interest in it. Rather, she purchased her strata lot that included use of a designated parking stall, which is the LCP stall. Quite apart from any tribunal or court order, it is possible the strata could re-designate limited common property by passing a ¾ or unanimous vote of the owners, as set out in sections 73, 74, 75, and 257 of the SPA. Second, and more importantly, that a person may have purchased something, rather than having it designated for their exclusive use, does not remove an obligation under the Code to avoid discrimination and accommodate short of undue hardship.

 

43)     I turn then to the question of whether A has a disability within the meaning of the Code, and if so, what is the appropriate accommodation.

 

Evidence of A’s disability and necessary accommodation

 

44)     Based on the evidence before me, including A’s evidence, the strata’s evidence about her appearance at a council meeting, and A’s physician’s notes, I find A has a physical disability. In particular, I find that she has reduced flexibility and suffers from chronic low back pain, as outlined by both A and her physician. I also find she has limited walking ability. My specific reasons follow.

 

45)     The Sparc website references “mobility” limitations. A’s own evidence references the permit being issued for mobility reasons. I also note that the Motor Vehicle Act Regulation, Division 38 addresses parking permits for disabled persons. In particular, section 38.01 defines “person with disabilities” as a person whose mobility is limited as a result of a permanent or temporary disability that makes it impossible or difficult to walk.

 

46)     While I acknowledge the distance between the LCP stall and the VP stall is relatively close, the undisputed evidence before me is that A has mobility issues that resulted in her being issued a handicapped parking permit. By providing the explanatory notes, which were unfortunately brief, I find her physician was of the view A required accommodation. A says the even slightly shortened walk to the elevator helps reduce the risk of increased pain with walking. While I acknowledge that walking was not the focus of the strata’s or A’s initial evidence, I find that even in May 2016 her mobility concerns were at least mentioned. Overall, I accept that A has a physical disability that impacts her walking ability and that having the use of the VP stall that is closer to the elevator is of benefit to her.

 

47)     Next, the owner submits that if A’s driving ability is impeded that is a matter for the Motor Vehicle Branch, rather than the strata. This is true, in that it is up to the Motor Vehicle Branch to determine whether A is fit to drive. At this point however,  the evidence before me is that she has a valid driver’s license. Moreover, I have no evidence before me to suggest that A’s finding it difficult to maneuver into the LCP stall is in violation of the Motor Vehicle Act.

 

48)     In addition to walking limitations, I also accept A’s undisputed evidence that she also has reduced flexibility that makes shoulder-checking difficult, particularly into the tight LCP stall. While the owner has noted A can back into the VP stall, it is undisputed that the LCP stall is more challenging to access and that it would require more in the way of shoulder-checking. I find A’s physician’s notes were provided to support her request for accommodation.

 

49)     On a balance of probabilities, I find I have sufficient evidence before me to connect A’s physical disability with her difficulties in parking her car in the LCP stall without bumping into the pillar or other cars and in walking to the elevator. In other words, I find that there is sufficient evidence to support a conclusion that A’s physical disability requires accommodation in the form of giving her the exclusive use of a more accessible stall, rather than the LCP stall.

 

50)     I turn then to the issue of whether the VP stall is the appropriate accommodation, and in particular whether providing it to A is reasonable or whether it causes the strata undue hardship. As noted above, the VP stall is a somewhat closer distance to the elevator, shortening A’s walk that she finds painful and difficult. It is easier to access as it does not require the same flexibility in shoulder-checking in order to get into or out of the space. All parties agree the lower parkade visitors’ stalls are rarely used, with the owner’s concern being that that may not always be the case. I find that future potential hardship may be a factor but it carries less weight than A’s immediate need and the strata’s present ability to easily accommodate her.

 

51)     I note the applicant owner’s argument that the strata failed to exercise due diligence in assigning the VP stall to A in May 2016, noting that the need for accommodation later changed. It may be that the strata’s precise understanding of why A needed accommodation evolved after the VP stall was assigned to her or perhaps they simply emphasized what they understood was the primary reason. However, at this point the material issue is whether A requires accommodation, and if so, how. I have found above A does require accommodation in the form of the VP stall.

 

52)     The owner further argues that the strata has not exercised due diligence in pursuing an alternative for A, rather than simply giving her the VP stall to indefinitely use. To this end, the owner cites evidence of various advertisements in the strata for parking spots for rent after the strata posted the request for a replacement parking spot for A. However, there is no evidence before me as to whether the advertisements referenced by the owner met the strata’s reasonable requirements for the replacement parking stall for A. In contrast, the strata says that no one responded to its advertisement for a suitable stall. I find the owner’s argument in this respect cannot succeed.

 

53)     In summary, I find that the strata’s neutral parking bylaws have an adverse discriminatory effect on A in that she requires accommodation by the strata in the form of a different parking stall. I find the strata reasonably accommodated her by giving her the exclusive use of the VP stall as that solution did not cause the strata undue hardship. The strata’s decision to do so did not violate the SPA, given the appropriate consideration of the Code.

 

54)     Finally, I note in her submissions A alleges that the owner is discriminating against her and by bringing this dispute is engaging in hostile conduct. I find there is no evidence to support this claim. Like the strata, the owner has maintained civility and has in no way acted inappropriately. I accept the owner legitimately has concerns about the strata’s assignment of the VP stall to A and he was entitled to bring those concerns forward for adjudication.

 

55)     As the owner was not successful in this dispute, I find he is not entitled to reimbursement of $125 that he paid in tribunal fees.

 

ORDER

 

56)     I order that the applicant’s claims are dismissed.

 

57)     I further order that any information or documents in this dispute regarding A’s identity, disability, or her request for accommodation not be disseminated in any way, due to their private and sensitive nature.