Date Issued: January 12, 2018

File: ST-2017-004625

Type: Strata

Civil Resolution Tribunal

Indexed as: Parnell v. The Owners, Strata Plan VR 2451, 2018 BCCRT 7

Between:

Richard Parnell

 

Applicant

And:

The Owners, Strata Plan VR 2451

Respondent

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.         The applicant Richard Parnell (owner) co-owns strata lot 48, also known as units 409 and 410, in the respondent strata corporation, The Owners, Strata Plan VR 2451 (strata). This dispute is about whether the owner should be permitted to keep security cameras and doorbells mounted in a common property hallway next to his entry doors. The owner also asks for an order that the strata amend its bylaws to expressly permit security cameras at unit door entries.

2.         The owner is self-represented and the strata is represented by a council member.

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, and 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 that there are no significant issues of credibility or other reasons that might require an oral hearing. An oral hearing was not requested.

6.         Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make one or more of the following orders:

a.     order a party to do or stop doing something;

b.     order a party to pay money;

c.      order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.        The issues in this dispute are:

a.     Do the strata’s bylaws prohibit the installation of security cameras and doorbells at unit door entries?, and in particular is that equipment an “alteration” under bylaw 7?

b.     Has the strata wrongfully ordered the owner to remove their security cameras and doorbells next to his unit entry doors? If so, should I order the strata to allow the owner to keep that equipment installed?

c.      Should I order the strata to amend its bylaws to specifically permit security cameras at unit door entries?

d.     Should I order the strata to reimburse the owner $225 for tribunal fees?

BACKGROUND

8.         I have only commented upon the evidence and submissions as necessary to give context to my reasons. The applicant bears the burden of proving his claims, on a balance of probabilities.

9.         The owner bought his strata lot in April 2016. This dispute is about surveillance cameras and doorbells that the owner in July 2016 mounted in the common hallway next to his entry doors. In July 2017, the strata asked the owner to remove that equipment. The owner started this tribunal proceeding in late August 2017, and subsequently removed the equipment and asks now for permission to re-install it.

10.      The strata is located in Whistler, BC. It is a mixed-use 4-storey complex with 50 residential units and a ground floor commercial strata lot that the strata owns and rents to a vacation rental business. The applicable zoning permits various residential uses, including short-term rental and tourist accommodations. The owners’ strata lots are primarily used as vacation or vacation rental properties. Owners have the option of renting through an agency, or, directly to the public as the owner chooses to do. The commercial strata lot tenant acts as agent for many of the strata’s owners.

11.      The strata’s relevant bylaws may be summarized as follows:

a.     Bylaw 3: An owner must not use a strata lot or the common property in a way that unreasonably interferes with the rights of others to use and enjoy property (1(c)). An owner must not cause damage, other than reasonable wear and tear, to the common property. An owner must not “erect on or fasten to” the common property any television or radio antenna or similar structure except as approved by council.

b.     Bylaw 7(1): An owner must obtain the strata’s written approval before making “an alteration to common property”.

c.      Bylaw 9: The strata must repair and maintain all common property and certain aspects of a strata lot, including door frames and sills that front common property.

EVIDENCE & ANALYSIS

Bylaws – does the surveillance equipment amount to an “alteration”?

12.      The owner provided photos of the common property hallway outside units 409 and 410. The surveillance camera is mounted to a beam or joist crossing the ceiling of the vaulted hallway. Beside each entry door is a camera doorbell that appears to be about 4” by 2”, which is affixed to the drywall area adjacent to the door frame. The entry doors and respective doorframes are recessed from the hallway, but the doorbells are visible from the hallway as one approaches the entry door. The doorbells are not unattractive, but they are clearly mounted to the common property wall. The surveillance camera is also clearly visible to anyone walking down the hallway.

13.      The crux of the issue is whether the installations amount to an “alteration” under bylaw 7. The owner submits that his installation of a security camera and doorbells in the common property hallway do not constitute any “alteration” so as to engage bylaw 7.

14.      The owner cites The Owners, Strata Plan NWS 254 v. Hall, 2016 BCSC 2363, and that an “alteration” to property is something that changes the structure, as distinct from an addition or improvement. The owner submits that using this analysis, bylaw 7 does not engage for the camera or doorbell as they are “additions”.

15.      In Hall, the issue on appeal was whether “an alteration to common property” includes “replacement”. In that case, the work involved removal and replacement of 4 windows and a patio door, which the court found did not change the common property or the strata lot. There, the court found there was not an ‘alteration’ within the meaning of the bylaws.

16.      Here, I am not persuaded that the doorbell cameras and the surveillance cameras are not ‘alterations’. First, the court in Hall adopted the following definition (my bold emphasis added):

An addition builds on or supplements what is already there. An alteration can add to or subtract from what is already there. …

17.      The doorbell cameras and surveillance camera are of an entirely different character than the common hallway ceiling joist or drywall wall. In that sense, the equipment does not “build on or supplement what is already there”. Rather, they are things that add to what is already there. Thus, I find they are “alterations” within the meaning of bylaw 7, bearing in mind the equipment is mounted to the common property ceiling and wall. As such, the owner’s surveillance equipment required the strata’s written approval, under bylaw 7.

Should the strata permit the owner to re-install his surveillance equipment?

18.      The owner says that while the camera and doorbells are visible they are not obtrusive. The owner says that the equipment therefore does not contravene bylaw 3 as it does not unreasonably interfere with others’ property use, because it is practically no different than a cell phone camera or door peephole. This argument however fails to address the fact that the owner has without approval mounted his surveillance equipment in the common property hallway. Based on the strata’s bylaws, a door peephole would require strata approval also, but a peephole is not the issue before me. Moreover, a peephole would not capture images of people using the hallway. I also cannot agree that a cell phone camera is relevant to the issue before me, given that it presumably would not be mounted to common property. As discussed below, the strata’s reasonable focus is upon the surveillance aspect of the equipment.

19.      The owner also submits that his surveillance equipment is no more of an alteration than a Christmas wreath on the entry door exterior or a lock box. As noted above, the owner notes the strata’s objection is the camera. The owner submits that in doing so the strata is attempting to interpret a bylaw to curb his rights, and is preventing him from using the best available practices to secure his property. I do not agree. I accept the strata’s reasonable approach of permitting seasonal decorations and lock boxes that are in keeping with the strata’s status as a vacation rental property. At the same time, I find it is not unreasonable for the strata to be concerned about the camera aspect of the owner’s surveillance equipment. Put another way, I cannot find the strata has unreasonably enforced the bylaws.

20.      The owner makes other arguments that he says should permit the installation of his surveillance equipment in the common property hallway. In particular, the owner submits that Canadian law permits the use of video and audio recording, even though it may unintentionally or inadvertently capture unwitting subjects. In the result, the owner submits that the strata has no need to involve itself and has no jurisdiction to rule in any complaint about the cameras. I disagree. Clearly, the Strata Property Act (SPA) and the strata’s bylaws expressly give the strata and the strata council that governance role. The owner accepts responsibility for any necessary repairs related to their installation of the doorbell or security camera.

21.  The strata submits that sections 119 and 125 of the SPA together permit the strata council to act in accordance with the bylaws. The strata says it acted within its authority under the bylaws and the SPA, when it required the applicant to remove his surveillance cameras that were attached to the common property hallway. I agree.

22.  That Canadian law may otherwise generally permit the videotaping and unwitting capture of subjects does not override the strata’s ability to govern in accordance with the SPA and its own bylaws. While the hallway may be open to the public for several hours a day, that does not mean its users should reasonably expect to be videotaped. Moreover, the strata is within its right to manage and maintain the common property and refuse the owner’s request for permission to install the equipment.

23.  In particular, the strata submits that the bylaws contain some limitations that “are intended to make the building as a whole attractive to vacation property renters”. The strata submits that the owners seek to maintain a consistent look throughout the building. As one example, owners are required to ensure that any window coverings visible from the outside of the unit are off-white, and signs and advertisements are prohibited. I understand these are common restrictions in bylaws. The strata submits that festive decorations like Christmas wreaths are put up in the building lobby during the holidays season, with the strata council’s permission on a temporary basis. Again, I find the strata has not acted unreasonably in granting permission for seasonal decorations and lock boxes but not granting such permission for surveillance equipment.

24.      The strata further submits that it is governed by the Personal Information Protection Act (PIPA) that provides strict guidelines for surveillance (see sections 1, 6, and 10). The strata submits that it must have a bylaw authorizing the installation of surveillance equipment and disclose its existence and purpose to those affected by it. There must be a written policy about the equipment’s use. The strata submits that it cannot authorize someone else, such as the owner, to do something that it could not do itself, namely install the surveillance equipment without proper notice and consent. I agree with the strata. The common property hallway is for the strata to manage and maintain, and under the SPA it is the strata council that is charged with acting in the best interest of all owners. Further, the strata is bound by PIPA. Put another way, that the owner is not bound by PIPA is irrelevant, because the camera is in a common property hallway managed by the strata, which is subject to PIPA.

25.      The strata says the owner has not provided evidence that would justify the invasive measure of surveillance cameras. While I recognize the owner’s desire to be proactive about security issues, again I find the strata’s position is not unreasonable. In the absence of a vote by the owners to permit the installation of surveillance equipment in the common property hallways, I am not prepared to direct the strata to permit the owner to do so.

26.      In reply, the owner reiterates that “preventing a person from taking photos or video is prima facie infringement of a person’s Charter rights”. The strata is not government and the Charter does not apply to it. If a statutory provision is ambiguous, as a decision-maker I may consider Charter values. However, doing so is a residual tool after all other statutory interpretation methods have been exhausted. I see no reason here to turn to consideration of Charter values.

27.      In summary, I find the owner is not entitled to an order that the strata permit the installation of his surveillance equipment in the common property hallway. I dismiss this claim.

Requested bylaw amendment

28.      The owner submits he primarily seeks an order that the equipment is permitted by the bylaws as currently written. However, the owner also asks for a simple bylaw amendment to clarify the meaning of ‘alteration’ and that this word does not include lock boxes, decorations, or security cameras.

29.      Given my conclusions above, I find that any bylaw amendment is a matter for a vote by all owners. Such a bylaw can be proposed and brought forward at a general meeting for a vote, and if a ¾ vote resolution is approved, the bylaw would pass. In these circumstances, I find it would be inappropriate for me to order the strata to take steps to amend its bylaws. I dismiss this claim.

Applicant’s expenses and tribunal fees

30.      In accordance with section 49 of the Act and tribunal rules 129 and 132, the tribunal generally does not award an unsuccessful party their fees or dispute-related expenses. I see no reason in this case to deviate from that rule. The applicant owner was unsuccessful and I dismiss his claim for tribunal fees.

DECISION AND ORDERS

31.      I order that the applicant owner’s dispute is dismissed. As provided by section 189.4(b) of the SPA, I order the strata to ensure that no part of the strata’s expenses of defending the dispute are allocated to the owner.

32.      Under section 57 of the Act, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia, a validated copy of the order attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia.