Date Issued: July 24, 2017
File: ST-2016-00366
Type: Strata
Civil Resolution Tribunal
Indexed as: Turenne v. The Owners, Strata Plan NW1370, 2017 BCCRT 44
Between:
Robert Turenne and Laura Pingle
Applicants
And:
The Owners, Strata Plan NW1370
Respondent
| REASONS FOR DECISION |
|
| Tribunal Member: |
Shelley Lopez, Vice Chair |
Introduction
1) This is a summary decision of the Civil Resolution Tribunal (tribunal) about the request of the respondent The Owners, Strata Plan NW1370 (the strata) that the tribunal refuse to resolve this dispute on the basis that it is too complex. In addition, the strata submits that the BC Supreme Court should hear the dispute so that additional parties could be added that for jurisdictional reasons cannot be added to the tribunal dispute.
2) Only the evidence and submissions relevant to this decision are referenced below. This is not a final decision as to the substance or merits of the tribunal dispute. The applicant owners Robert Turenne and Laura Pingle (the owners) own strata lot 212 (SL212) and are represented by legal counsel Roderick Henderson. The strata is self-represented by a council member.
3) In exercising my discretion under section 11(1)(c) and (f) of the Civil Resolution Tribunal Act (Act), I have decided that the tribunal will refuse to resolve the applicants’ dispute, and that is my order. The parties are free to bring their dispute in BC Supreme Court. My reasons follow.
Issue
4) The issue in this summary decision is whether the tribunal should refuse to resolve the applicants’ dispute under section 11 of the Act, on the basis that it is too complex and impractical for the tribunal, in part given the strata’s wish to add parties that for jurisdictional reasons cannot be added in the tribunal dispute.
JURISDICTION AND PROCEDURE
5) These are formal written reasons of the tribunal. The tribunal has jurisdiction over strata property claims brought under section 3.6 of the 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. The tribunal also recognizes any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
6) Under section 10 of the Act, the tribunal must refuse to resolve a claim that it considers is not within the tribunal’s jurisdiction. A claim that involves one or more issues that are within the jurisdiction and one or more that are outside its jurisdiction, may be amended to remove those issues that are outside its jurisdiction.
7) In addition, section 11 of the Act provides that the tribunal has discretion to refuse to resolve a claim within its jurisdiction. In particular, the tribunal may refuse to resolve a claim if issues in the claim or dispute are too complex for the tribunal’s process or otherwise impractical for the tribunal to case manage or resolve. The tribunal can also refuse to resolve a strata property dispute under section 11 of the Act if the tribunal is satisfied that the BC Supreme Court would grant an order that the tribunal not resolve the claim or dispute. The tribunal may exercise its authority under section 11 of the Act at any time before the tribunal makes a final decision resolving the dispute.
BACKGROUND, EVIDENCE AND ANALYSIS
8) The substantive issue in the owners’ dispute is that the strata wants the owners to pay for the related cost of bringing the SL212 common property deck into compliance with the BC Building Code, whereas the owners want the SL212 deck repaired, at the strata’s expense, in a manner that leaves the strata lot’s exterior with the same configuration retaining both a sun room and an open deck.
9) As referenced above, the issue in this application is whether the tribunal should refuse to resolve this dispute given the strata’s submission that additional parties should be added to the dispute: a) the prior owners of SL212 (the Vs), and b) the person and/or firm the owners hired to inspect SL212 prior to their purchase of it (the inspector), who did not raise any concerns about the deck. I do not have the name of the inspector in the evidence before me, but given my conclusion below it is not presently necessary.
10) By way of general background, the owners bought SL212 from the Vs in 2003. The owners had previously owned a different strata lot in the strata complex. The Vs’ 1982, 1990 and 1995 alterations had been done with the strata council’s conditional permission as set out in certain letters exchanged with the Vs at the time (the Letters). The strata says that the Letters show that in giving its approval the strata required the Vs, among other things, to make all future owners of SL212 responsible for the maintenance and repairs associated with the SL212 deck alterations.
11) Given that they were already familiar with the strata’s financial situation, in buying SL212 the owners did not ask the strata for a Form B. The strata says had the owners done so, the Form B would have disclosed the Letters and the owners’ responsibility to repair and maintain the SL212 deck.
12) The owners say the strata bears the responsibility to repair and maintain common property, which includes the SL212 deck. The owners also say that it was not until 2012 that the strata enacted bylaw 31, which for alterations essentially passes on repair and maintenance obligations to future owners. The owners say bylaw 31 should not be applied retroactively to them since they bought SL212 a decade before. The owners further say they did not make the SL212 deck alterations, they were not aware of the Letters when they bought SL212, and thus the Letters cannot bind them now. In contrast, the strata says the Letters should bind the owners, in part because the owners failed to request a Form B and because in 1998 the owners sought to alter the deck in their former strata lot and were provided with the same terms as set out in the Letters. The owners never did the deck alteration to their former strata lot.
13) In the request that is the subject of this decision, the strata argues that the Vs and the inspector should be added as parties in the owners’ claim against the strata, and thus the dispute must be heard in BC Supreme Court. In contrast, the owners say their dispute is not complex and that it is unnecessary to add the Vs or the inspector.
14) It is undisputed that under section 10 of the Act the tribunal’s jurisdiction does not permit the addition of the Vs or the inspector to this strata property dispute, for reasons that follow. First, the tribunal’s strata property jurisdiction is set out in section 3.6 of the Act, which in turn refers to the Strata Property Act (SPA) and an “owner”. Under the SPA, “owner” is defined as someone registered on title. Here, the Vs are not owners but rather are former owners, and in the circumstances before me the tribunal does not have jurisdiction over them under its strata property jurisdiction under section 3.6 of the Act. In other words, based on the evidence presently before me, the tribunal’s strata property jurisdiction does not extend to the strata’s contractual claims against former owners or potential tort claims against third parties such as the inspector. Third, after this dispute was filed, on June 1, 2017 the tribunal gained limited jurisdiction over small claims disputes, as set out in section 3.1 of the Act which would generally permit a debt or damages claim against the Vs or as against the inspector. However, the tribunal’s small claims monetary limit is $5,000 and from the parties’ submissions to date the value of the deck repairs appears to likely exceed that amount. The parties did not make submissions about the tribunal’s small claims jurisdiction. However, even if the value of the dispute was $5,000 or under, the tribunal’s small claims jurisdiction would require a separate dispute and a separate decision, given the different avenues for appeal set out in the Act. Based on the facts and submissions presently before me, I find that such a divided tribunal process would be impractical.
15) I turn then to the issue of whether the owners’ strata property dispute should proceed without the addition of either the owners’ inspector or the Vs.
16) Section 72 of the SPA states:
(1) Subject to subsection (2), the strata corporation must repair and maintain common property and common assets.
(2) The strata corporation may, by bylaw, make an owner responsible for the repair and maintenance of
(a) limited common property that the owner has a right to use, or
(b) common property other than limited common property only if identified in the regulations and subject to prescribed restrictions.
17) The SL212 deck, unlike many decks in strata corporations, is not limited common property. Rather, it is simply designated on the strata plan as common property, which is not disputed. Thus, on the face of section 72(2)(b) of the SPA, the only mechanism to permit a strata to make an owner responsible for the SL212 deck’s repair and maintenance is a bylaw and only if the common property is identified in the regulations and subject to its prescribed restrictions. There are no such regulations in effect.
18) However, based on underlying correspondence exchanged between counsel for the parties, it appears that the strata recognizes that it must repair and maintain the common property deck under section 72 of the SPA but asserts that “we are dealing with alterations to common property in this case”.
19) As noted in the Continuing Legal Education Society of BC’s BC Strata Property Practice Manual (my bold emphasis added):
Although s. 72(2)(b) contemplates that a strata corporation may delegate the responsibility to repair and maintain common property (other than limited common property), that ability is subject to the regulations. To date, no regulations have been adopted permitting a strata corporation to make such a delegation. As a result, a strata corporation cannot purport, directly or indirectly, to make an owner responsible for the repair and maintenance of common property through the bylaws. In keeping with the provisions of the Act, Standard Bylaws 8(a) and 8(b) provide that a strata corporation must repair and maintain the common assets and any common property that has not been designated as limited common property.
…
The prohibition against making an owner responsible for the repair and maintenance of common property through the bylaws does not appear to extend to liabilities assumed by an owner by agreement (Taychuk v. Strata Plan LMS 744, 2002 BCSC 1638). As a result, if an owner seeks to make a change to common property, a strata corporation can enter into an agreement with that owner making the owner responsible for the repair and maintenance of the alteration (see Standard Bylaw 5(2)).
…
Standard Bylaw 6 requires an owner to obtain the permission of the strata corporation before undertaking any alteration to common property, including limited common property, or to common assets. A strata corporation is permitted to require an owner to assume in writing responsibility for any expenses relating to the alteration. In addition to addressing who has the obligation to repair and maintain any alterations, as well as the cost of same, the agreement should address who is responsible for insuring the alteration.
To ensure that future owners of the strata lot assume these and any similar obligations, a copy of any agreement relating to an alteration should be appended to an Information Certificate (Form B of the Regulation; see also §10A.37) issued in respect of the strata lot. It would be best to have a purchaser sign such an agreement, or to have alterations restored by the seller to their original condition before sale, but it is still arguable that a strata corporation could rely on an Information Certificate having been given to the prospective purchaser.
In addition, to further enforce the obligations being assumed with respect to the alteration, consideration should be given to amending Standard Bylaw 5(2)) to provide that owners are responsible for undertaking and paying for the cost of maintaining and repairing any alterations made to common property by the owner or a prior owner of the strata lot.
20) The strata’s relevant bylaws are effectively the same as the Standard Bylaws, save for bylaw 31 which was enacted a decade after the owners bought SL212. Whether a bylaw can be applied retroactively is not definitively laid out in the case law, and in the BC Strata Property Practice Manual the authors state, “Enforcement of a bylaw retroactively remains a contentious issue, with each decision likely based upon the individual facts of the case”. That said, in at least one case, involving limited common property, the court effectively passed on the repair and maintenance obligations to subsequent owners (see Elahi v. The Owners, Strata Plan VR 1023, 2011 BCSC 1665).
21) So, where does that leave the strata’s request and argument that the Vs and the inspector should be added as parties?
22) Generally, it would appear that any addition of the inspector would be only for the applicants’ benefit, and the applicant does not seek to add the inspector. However, I find I do not need to address the inspector’s inclusion in the dispute because as discussed below I find the strata should have the opportunity to ask the BC Supreme Court that the Vs be added.
23) In the present case the strata essentially submits that the owners are the author of their own misfortune in that had they requested a Form B, the Letters would have been disclosed. Broadly speaking, the strata says the Vs should be added because the Letters required the Vs to make future owners responsible for the SL212 deck’s repair and maintenance. The strata says that if the owners are successful in their claim against the strata then the Vs should be held responsible for that agreement in the Letters. While I acknowledge the owners’ argument that the Letters cannot bind them, I find that remains an open question that is best decided by the BC Supreme Court as part of an adjudication of the overall dispute.
24) I also acknowledge the owners’ argument that they chose the tribunal as a less expensive and more efficient method of resolving their dispute. However, I find that it would be impractical for the tribunal to continue to hear the dispute, given that the strata may have a valid argument with respect to at least the Vs.
25) Given my conclusion, I do not need to address the more detailed arguments that address the impact of the Letters on the owners nor do I need to make any findings of fact as to whether bylaw 31 can be applied retroactively to the applicant owners.
26) In summary, I make no findings of fact about the applicant owners’ claims or the strata’s defence and in particular whether the Vs or the inspector should be held liable. However, given the issues raised in the strata’s request, I find that the case law indicates that the strata at least has a potential argument to make and that as such that argument should be heard in BC Supreme Court. In other words, due to the practicalities of the tribunal’s limited jurisdiction, in my discretion I find that the BC Supreme Court is best situated to hear the entire dispute, which may include claims against the Vs and/or the inspector.
DECISION AND ORDER
27) As provided in section 11(1)(c) and (f) of the Act, the tribunal refuses to resolve the applicants’ dispute. The applicants are free to bring their claims in BC Supreme Court, and nothing in this decision prevents either party from asking the BC Supreme Court to join the Vs and/or the applicants’ inspector as parties.
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Shelley Lopez, Vice Chair