Date Issued: February 9, 2018
File: ST-2016-00698 and
ST-2017-00197
Type: Strata
Civil Resolution Tribunal
Indexed as: Campbell v. The Owners, Strata Plan NW1018, 2018 BCCRT 36
Between:
Wayne J. M. Campbell
Applicant
And:
The Owners, Strata Plan NW 1018
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Maureen E. Baird |
INTRODUCTION
1. The applicant in both disputes, Wayne Campbell (owner), together with his wife, who is not a party, owns three strata lots in the respondent strata corporation, The Owners, Strata Plan NW 1018 (strata). This dispute concerns two of those strata lots, 120 (SL 120) and 171 (SL 171) (collectively the strata lots), both of which are operated by the owner as rental properties. At all material times the owner’s tenants occupied each of the strata lots.
2. The owner asks the Civil Resolution Tribunal (tribunal) to make orders that can be summarized as follows:
a. A declaration that no monies are owed to the strata in respect to the strata lots and issuance of a Form F reflecting that no monies are owed.
b. An accounting by the strata for monies collected from owners pursuant to what the owner describes as a special levy for chimneys. As a corollary, the owner seeks punitive damages for alleged misappropriation of the special levy funds.
c. A declaration that any special levies outstanding for more than two years are null and void. Further to the requested declaration, the owner seeks an order that refunds be made to any strata lot owner who paid amounts forming part of any lien after two years and an audited balance sheet for 2015 and 2016 accounting for paid and outstanding special assessment payments.
d. An order that the strata reimburse the owner for tribunal fees paid in the amount of $350.
3. The strata says that it cannot issue the requested Form F because fines have been properly levied on both strata lots. It says that the owner’s claim for damages for the alleged misappropriation of the special assessment funds for chimneys is barred by the Limitation Act. In any event, the strata says that the owner has failed to prove any misappropriation and denies that any occurred. It says that it has properly accounted for all funds relating to the special levy which was in respect of fireplaces, not chimneys.
4. The owner is self-represented. The strata is represented by an authorized strata council member.
5. I have read all of the evidence and the submissions of the parties. However, for the purpose of this decision, I address the evidence and arguments only to the extent needed to explain and give context to my decision.
6. For the reasons that follow, I dismiss each of the owner’s claims.
JURISDICTION AND PROCEDURE
7. These are the formal written reasons of the 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.
8. The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear 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.
9. 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. In this case, I asked each of the parties to provide additional evidence during the hearing to ensure to ensure that the factual context before me was complete.
10. The applicable tribunal rules are those that were in place at the time this dispute was commenced.
11. Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make order a party to do or stop doing something, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.
ISSUES
12. The issues in this dispute are:
a. Are there monies owed by the owner to the strata relating to SL 120 and/or SL 171?
b. Is the owner’s claim for damages for misappropriation of special levy funds brought out of time? In other words, has the limitation period expired? If the limitation period has not expired, has the owner proved any misappropriation by the strata?
c. Is there any limitation period affecting the strata’s ability to collect the fireplace special levy?
d. Is the strata responsible to reimburse the owner for tribunal fees that he has paid?
BACKGROUND AND EVIDENCE
13. The strata consists of 186 strata lots in 11 buildings on a large property in the lower mainland. SL 120 and SL 171 are in different buildings.
14. The strata bylaws were last amended on October 29, 2013 and filed on January 31, 2014 with the Land Title Office. It is these bylaws that are relevant to in this decision (bylaws).
15. The owner was strata manager of the strata for a number of years. His employment was terminated on March 26, 2012. The relationship between the owner and the strata council has been and continues to be difficult.
16. This case arises out of two interactions between the owner and the strata. The first is a request made by the owner in November, 2016 for a Form F (Certificate of Payment) for each of his strata lots. These forms are generally requested as part of a sale and purchase transaction. The strata issued the requested form for each of the strata lots. The forms indicated that that money was owed by the owner to the strata for both strata lots and that arrangements satisfactory to the strata had been made to pay the money. The owner says that no money was owed on either strata lot.
17. The second relates to allegations made by the owner against the strata concerning its management of a special levy assessed against owners for the purpose of fireplace remediation.
Bylaw and rule fines relating to the strata lots
18. It appears that from at least 2014 there have been complaints about tenants in both SL 120 and SL 171 smoking marijuana. The following are a series of letters written by the strata in response to complaints received about marijuana use by the tenants occupying the strata lots. Although it appears that there were complaints preceding February, 2016. I have set out only those which post-date the ratification of the strata rule passed by the council on February 23, 2016 prohibiting the smoking of marijuana on common and limited common property. I do not say that the list below is exhaustive of the complaints received or the fines levied in respect of these strata lots. These examples illustrate that fines have been imposed on the owner for bylaw and rule breaches.
SL 120
19. On May 4, 2016 the strata manager received a written complaint from an owner who was a neighbour of the tenant living in SL 120. The complaint was about the smell of marijuana emanating from the patio at SL 120. On May 6, 2016 the strata manager, on behalf of the strata council, sent a warning letter to the owner advising him of the complaint and that it was a violation of Bylaw 3.2 of the bylaws (the nuisance bylaw) as well as the strata rule prohibiting the smoking of marijuana on common and limited common property. I set out bylaw 3.2 because it is relevant to much that follows:
“3.2 No Owner shall or shall permit his, her or its Tenant, Occupant or Invitee to use the Premises in a way that:
(a) causes a nuisance or hazard to another Person;
(b) causes unreasonable noise;
(c) unreasonably interferes with the rights of other Persons to use and enjoy the Premises;
(d) is illegal or is injurious to the reputation of the Strata Corporation;
(e) is contrary to a purpose for which the Premises are intended, as shown expressly or by necessary implication on or by the Strata Plan;
(f) causes damage other than reasonable wear and tear to the Premises or the Common Assets; or
(g) is contrary to any statute, ordinance, By-Law or Regulation of any government, whether Federal, Provincial, Municipal, or otherwise.”
20. The May 6, 2016 letter advised the owner that the strata council considered the complaint to constitute a recurring infraction for which a fine of $200 would be applied to the owner’s account for the bylaw breach and an additional $50 fine for the rule breach. The letter offered the owner an opportunity to be heard pursuant to section 135(1)(e) of the Strata Property Act (SPA). The strata says that on May 27, 2016 the strata manager received a telephone call from the mother of the tenant of SL 120 who apologized for her daughter’s behavior and said that she had spoken to the neighbours, apologized to them and asked them to let her know if her daughter’s conduct was repeated.
21. The strata council continued to receive complaints from neighbours of SL 120 about a strong smell of marijuana from that strata lot. There were also complaints that the occupants of SL 120 were smoking marijuana on common property, including a nearby forested area. This resulted in further letters being sent to the owner on August 2, 2016 ($100 fine) and September 23, 2016 ($200 fine). In each case the owner was offered the opportunity of a hearing before the strata council.
22. On December 22, 2016, the strata send a letter to the owner in respect to SL 120 and SL 171 advising that the use of marijuana on both properties was adversely affecting the enjoyment and health of other owners and had to cease. The strata advised that if the bylaw violations did not cease that it would consider retaining a lawyer to proceed with the eviction of the tenants in these two strata lots.
23. The complaints did not stop and a further letter was issued to the owner on April 18, 2017. The strata says as at the time of its submission that the problem persisted with no action by the owner.
24. In addition to fines levied against the strata lot, a review of the owner ledger discloses outstanding amounts including interest for late payments.
SL 171
25. There were also complaints about marijuana use in SL 171 preceding the imposition of the strata prohibition against smoking marijuana. The strata brought these complaints to the attention of the owner as breaches of the nuisance bylaw, so that by the time the marijuana prohibition rule was in place he had received warnings about the use of marijuana by his tenants.
26. On April 25, 2016 the strata issued a letter notifying the owner of an ongoing complaint of marijuana smell from the patio of SL 171 in breach of Bylaw 3.2 and the rule and advising of a $200 fine for the bylaw breach and a $50 fine for the rule breach.
27. The owner says that the tenant was entitled to use marijuana for medical purposes. No proof of this was provided to the strata, nor was any such document provided by the owner to the tribunal.
28. The owner says that these letters from the strata in relation to both SL 120 and SL 171 are falsified. The strata produced each of the letters referred to above. Each was addressed to the owner at the address he used on his correspondence to the strata. Each of the letters advised of the right to a hearing under section 135 of the SPA.
29. The question also arose as to whether these letters relating to both strata lots had been delivered to the tenants involved in the alleged breaches as required by section 135 of the SPA. The strata was asked to provide copies of the warning letters addressed to the tenants. In response, the strata advised that in every instance the tenant was sent a copy of the letter addressed to the owner, in an envelope addressed to “Tenant” at the relevant strata lot. This procedure was followed because the owner did not provide the strata with a Form K for any of his tenants and so the strata was not aware of their names. This also meant that the strata could not include the name of the tenant on the letter itself.
30. The strata provided copies of minutes of meetings of council corresponding with the warning letters above. These disclose the consideration of the bylaw/rule fines set out in the warning letters. The owner says that he tried to attend three council meetings “…in the past year” and asserts that his attendance resulted in one or more council members leaving the meeting. He does not say that he was prevented from attending the council meetings at which the bylaw/rule infractions set out in the warning letters were considered by the strata.
31. The ledger for the strata lots contain references to other amounts outstanding including late payment interest. The validity of these charges are contested by the owner. In light of the order requested and the decision I have reached, I do not find it necessary to determine whether any specific charges to the strata lot accounts is valid.
The fireplace special levy.
32. In March, 2014 there was a fire in a strata lot which caused extensive damage to a number of units. Prior to this fire, the strata council had published warnings to owners that the fireplace chimneys in the suites were condemned and that fireplaces should not be used. As a result of the fire, the strata insurer took the position that it would not insure the strata unless all fireplaces were rendered inoperable and set a deadline for that to occur.
33. At a special general meeting (SGM) held on July 24, 2014, the owners approved, by ¾ vote, a $66,000 fireplace special levy to pay for the work that had to be done to render all fireplaces inoperable as required by the insurer. The method proposed by the strata council, approved by the insurers, and accepted by the owners, is described as a granite spring-based design to be installed at the opening of the fireplace and the sealing of the chimney flue with a steel plate, rendering the fireplaces inoperative.
34. The strata says that this was the only design that the insurers would approve. Strata lots were required to pay the special levy in accordance with their unit entitlement.
35. The owner paid the special levy for the strata lots. On August 15, 2014 the owner wrote to the strata alleging, amongst other allegations, “You are advised that council and Premier failed to properly disclose how much of the $66,000 special assessment was being diverted into Premier Strata Services’ coffers and into the pockets of certain council members, contrary to the requirements of the SPA”. It is in this context that I consider the owner’s misappropriation claim. That is, that monies collected by the strata were not properly accounted for. This is consistent with the relief sought of a full accounting and disgorgement of any funds that were misappropriated. There is an additional claim for punitive damages.
36. The owner, and a small number of other owners, refused to accept the method of dealing with the fireplaces that had been approved at the SGM, choosing to employ their own unauthorized method. This small group would not permit inspection of the decommissioning method they employed and acted in a hostile manner toward inspectors from the insurer, as a result of which the insurer cancelled the strata insurance.
37. For completeness, it should be stated that, in its materials, the strata provided an accounting summary for the $66,000 it collected for the fireplace special levy including, a reconciliation of cheques paid out on the project. As at June 20, 2017, $60,893.23 had been paid to the contractor and $5,144.95 remained in the bank. I understand that in response to a request from the owner made after this claim was commenced, the strata manager provided to the owner either the same or a similar full reconciliation of funds received and paid out relating to the fireplace special levy. This was not disputed by the owner. This evidence satisfies me that there was no inappropriate use of the fireplace special levy funds by the strata and also that the owner is in possession of an accounting of the special levy funds.
The limitation period
38. The owner takes the position that any special levy charge incurred or outstanding for more than two years is null and void. He asks that persons who were “forced to pay liens that were filed after the 2 year time limit for the collection of the Special [Levies]” be reimbursed by the strata.
39. It is not contested that the only special levy in this case was that for the fireplace remediation. It is also not contested that the owner paid the special levy for his strata lots.
40. No documentary evidence was presented detailing any liens registered against the owner’s strata lots for non-payment of the special levy or of anyone paying out the amounts of such a lien.
DISCUSSION AND ANALYSIS
Are there any monies owed by the owner to the strata relating to SL 120 and/or SL 171
41. The question to be determined is whether there are any valid charges assessed against the owner’s strata lots. I find, on the evidence, that there are valid charges for bylaw and rule infractions recorded against the accounts of both SL 120 and SL 171.
42. While it would have been prudent for the strata to better document the fact that the bylaw/rule infraction warning letters described above were delivered to the tenants of the owner, I accept that the letters were delivered in the manner described by the strata, that is, by the delivery of a copy of the letter to the owner to the tenant at the respective strata lot. This is confirmed, in part, by the telephone call received by the strata manager from the mother of one of the tenants of SL 120 shortly after the delivery of the May 6, 2016 letter from the strata. Although the owner says that the letters were not delivered, and in some cases refers to conversations with his tenants to that effect, he has produced no document or other evidence from any of the tenants that proves this assertion. The owner agrees that the tenant in SL 171 was smoking marijuana and produced no document to support his claim that there was a medical entitlement to do so that would override the strata bylaw. The owner did submit an unsigned, undated letter addressed “To whom it may concern” from Lisa Pain. The letter does not state that she was the tenant of the owner, or in which strata lot. I infer from the submissions of the owner that this is the tenant of SL 120 at the time of the May 6, 2016 bylaw infraction letter. I am not prepared to accept this unsigned letter as evidence of the facts in it. In any event, this document does not say that she did not receive a copy of the May 6, 2016 letter from the strata.
43. I accept the evidence of the strata that the owner did not provide it with a Form K for any of his tenants. In this way, by his own actions, the owner impeded the ability of the strata to deal with the tenants by name. On the evidence before me, I accept that the strata did send copies of the notice of bylaw/rule infraction letters to both the owner and the respective tenants in compliance with s. 135 of the SPA. The strata then considered and imposed the fines at meetings of the strata council. I therefore find that the fines for the bylaw/rule infractions relating to those letters set out above are all valid and properly included in the account of each of the strata lots.
44. Having made this finding, I do not need to consider the validity of other fines. The owner seeks a declaration that no fines are owing to the strata in respect of the strata lots, and, for the reason above, that declaration is refused. The existence of valid charges also results in the owner’s request that the strata be compelled to issue a Form F stating that no money is owing to the strata for both of the strata lots, being dismissed.
Is there a limitation period that prevents the owner from claiming damages from the strata for alleged misappropriation of special levy funds paid to the strata?
45. On August 15, 2014 when the owner wrote the letter, section 6(1) of the Limitation Act provided as follows:
“Basic limitation period
6 (1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the date on which the claim is discovered.”
46. There is no documentary evidence showing that between August, 2014 and the commencement of this claim that the owner took any steps in furtherance of his claim, such as asking the strata council to produce an accounting which was either denied or not accurate.
47. In all of the circumstances, I find that the owner’s claim in respect of the fireplace special levy has been brought too late. This claim had to be made within 2 years of the owner becoming aware of the claim. The owner has not provided any factual or legal basis for me to extend the general limitation period set out in the Limitation Act.
48. The owner’s claim for an accounting, disgorgement of any monies misappropriated, and punitive damages is therefore dismissed as being barred by operation of the Limitation Act.
Is there any limitation period affecting the strata’s ability to collect the fireplace special levy?
49. It is not contested that the owner paid the special levy. I have found that there was no wrongdoing proved against the strata relating to the special levy for fireplace remediation. Therefore, I find that there is no basis for the declaration sought by the owner, and that request is dismissed.
50. Further, there is no factual basis provided for the owner’s request for an order for reimbursement of persons who are not a party to this claim, and that request of the owner is also dismissed.
Is the strata responsible to reimburse the owner for tribunal fees that he has paid?
51. The tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. In this dispute, the respondent was the successful party and I make no award for reimbursement of tribunal fees paid. The applicant did not make a claim for dispute-related expenses, and none are awarded.
DECISION AND ORDERS
52. I order that the applicant’s claims are dismissed.
53. 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 which is 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.
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Maureen E. Baird, Tribunal Member |