Date Issued: July 18, 2018

File: ST-2017-003882

Type: Strata

Civil Resolution Tribunal

Indexed as: Hugo et al v. The Owners, Strata Plan 1601, 2018 BCCRT 346

Between:

James Francis Hugo and Edward Voroney

Applicant

And:

The Owners, Strata Plan 1601

Respondent

 

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.        The applicants, James Francis Hugo and Edward Voroney, each co-own different strata lots in the respondent strata corporation, The Owners, Strata Plan 1601 (strata).

2.        This dispute involves the strata’s authority to exclude owners from attending a strata council meeting.

3.        The applicants say the strata unlawfully banned them from attending meetings and seek orders that the strata publicly acknowledge to all strata owners that it exceeded its authority, and issue a public apology. The applicants also seek reimbursement of $225.00 for tribunal fees.

4.        The strata denies the allegations and asks that the applicants’ claims be dismissed. The strata also asks for $705.60 in dispute-related expenses to which the applicants object.

5.        The applicants are represented by James Francis Hugo. The strata is represented by a strata council member.

6.        For the reasons that follow, I order the applicants’ dispute dismissed.

JURISDICTION AND PROCEDURE

7.        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.

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.

10.     Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.  

11.     Under section 61 of the Act, the tribunal may make any order or give any direction in relation to a tribunal proceeding it thinks necessary to achieve the objects of the tribunal in accordance with its mandate. In particular, the tribunal may make such an order on its own initiative, on request by a party, or on recommendation by a case manager (also known as a tribunal facilitator). Tribunal documents incorrectly show the name of the respondent as The Owners, Strata Plan, VIS 1601, whereas, based on section 2 of the SPA, the correct legal name of the strata is The Owners, Strata Plan 1601. Given the parties operated on the basis that the correct name of the strata was as used in their documents and submissions, I have exercised my discretion under section 61 to direct the use of the strata’s correct legal name in these proceedings. Accordingly, I have amended the style of cause above.

ISSUES

12.     The issues in this dispute are:

a.    Was the strata entitled to exclude the applicants from attending its strata council meetings?

b.    Are the applicants entitled to reimbursement of $225.00 for tribunal fees?

c.    Are the respondents entitled to reimbursement of $705.60 for dispute-related legal expenses?

BACKGROUND AND EVIDENCE

13.     I have read all of the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.

14.     In a civil proceeding such as this, the applicants must prove their claims on a balance of probabilities.

15.     The strata is a large bare land strata corporation comprising 645 strata lots located in Cobble Hill, B.C. on Vancouver Island.

16.     At a November 23, 2016 strata council meeting, which Mr. Hugo attended as an observer, he says he witnessed an exchange between 2 strata employees (the Operations Manager and the Administration Manger) that he found to be inappropriate and says was likely contrary to the strata’s established policies and procedures.

17.     In a December 2, 2016 letter to the strata council president, Mr. Voroney, who did not attend the November 23, 2016 strata council meeting, expressed his concern about the employee exchange he understood occurred. It is unclear if Mr. Hugo also wrote a letter to the strata.

18.     On December 10, 2016, the council president emailed both applicants advising that the strata council determined the applicants accusations of the employee were “without merit” and, among things, that the employee the applicants felt had acted inappropriately asked to have no contact with them “until the issue was resolved to [the employee’s] satisfaction.”  The president’s email further asked the applicants “not to attend any meetings or committees where [the employee] is in attendance. This includes Council meetings.”

19.     Mr. Voroney alleges that he was not permitted to attend a December 14, 2016 strata council meeting.

20.     On January 24, 2017, in an email to Mr. Hugo, the strata council president advised, among other things, that “the restriction of your attendance, as an observer, at Council is now withdrawn.” A letter dated January 30, 2017 to Mr. Voroney from the strata council president confirms the council decision to restrict Mr. Voroney from attending council meetings was also rescinded, although an exact date was not given.

21.     By letter dated February 24, 2017, Mr. Hugo questioned the strata council’s authority to restrict his attendance at council meetings.

22.     Further correspondence was exchanged between the parties that did not resolve the issue.

23.     The June 21, 2017 strata council meeting minutes, in response to a May 20, 2017 joint letter from the applicants, included details of the events leading up to this dispute.

24.     On July 17, 2017, the applicants requested a hearing with the newly elected strata council. The hearing was held on July 27 and the minutes show the strata council supported the decisions made by the previous strata council. The strata gave its written response to the applicants through its general manager, on July 31, 2017.

25.     The Dispute Notice was issued on August 8, 2017 resulting in this adjudication.

POSITION OF THE PARTIES

26.     The applicants say the strata unfairly, and without authorization, banned them from attending strata meetings, contrary to strata bylaw 10.3.

27.     The strata says its strata council acted in the best interests of its staff and the strata in asking the applicants not to attend meetings at which a certain employee was present. It says the strata council erred on the side of caution to ensure it was not acting contrary to “its Occupational Health and Safety Guidelines” by not placing an employee in the same room as persons “whom the employee thought were harassing or bullying” them. [emphasis in original]

ANALYSIS

Was the strata entitled to exclude the applicants from attending its strata council meetings?

28.     The applicants have expressly requested a decision on the general authority of the strata council to exclude them from strata council meetings as observers. They do not wish me to address the strata’s allegations that the applicants harassed one of the strata’s employees, which I find is the main reason the strata asked them not to attend meetings where the employee was present.

29.     The strata says it had a duty to address employee concerns of bullying or harassment and relies on section 121(1)(a) of the SPA saying that bylaw 10(3) is not enforceable to the extent it is “at odds” with another enactment, including Occupational Health and Safety Guidelines under the Workers Compensation Act (WCA).

30.     The WCA applies to the strata. I accept the strata’s position that it must address employee concerns of bullying or harassment, given such work-related stressors are covered in section 5.1 of the WCA and in other Workers Compensation Board informational material.  I agree the strata must weigh its employee concerns against its duty under the SPA to enforce its bylaws.

31.     However, based on my review of the submissions and evidence, I find that I do not need to look past strata bylaw 10(3) registered at the Land Title Office on June 22, 2015. The bylaw states that, owners may attend meetings of the strata council as an observer except those portions of meetings that deal with, among other things, “personnel issues.”  I find the term “personnel issues” includes any matter involving strata employees. I also find that a decision to exclude owners from attending portions of meetings involving personnel issues is at the strata council’s discretion.

32.     Based on emails sent to the strata council president by the affected employee on December 8, 2016, in which the employee stated the December 2, 2016 letter of Mr. Voroney “went beyond harassment” and insisted on “complete separation” from the applicants until the issue was resolved, I conclude a personnel issue existed between the employee and both applicants.

33.     I accept the strata’s submissions that, given the employee’s position and the need for their attendance at strata council meetings to provide information to the strata council to allow it to perform strata business, it was necessary to exclude the applicants from the entire meeting, rather than a portion of it.

34.     For these reasons, I conclude the strata, through its council, exercised its reasonable authority to exclude the applicants from strata council meetings while it investigated the employee’s concerns. Practically speaking, the time of the exclusion was December 10, 2016 through January 24, 2017 for Mr. Hugo and from December 10, 2016 to a time before January 30, 2017 for Mr. Voroney when the exclusion was lifted. It appears from the submissions that this period included 1 strata council meeting on December 14, 2016 at which Mr. Voroney was not permitted to attend.

35.     That the strata chose not to include its email discussions of December 9, 2016 in its December 14, 2016 strata council meeting minutes and included these discussions in its later February 2017 strata council meeting minutes is not relevant to my decision.  Neither is the fact that the strata obtained a legal opinion supporting its decision to exclude the applicants from strata council meetings after it had made its decision.

36.     I decline to address the parties’ brief submissions on section 31 of the SPA as I find this section applies only to individual strata council members and not to the strata or strata council as a whole. No individual strata council members were named parties in this dispute.

37.     Given my conclusion, I need not address the applicants’ requested remedies.

38.     I make no finding on whether the strata’s bylaw 10(3) is contrary to the WCA or its regulations, including the Occupational Health and Safety Guidelines.

Are the applicants entitled to reimbursement of tribunal fees?

39.     Under section 49 of the Act and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. Given the applicants were not successful, I find they are not entitled to reimbursement of tribunal fees. They did not claim dispute-related expenses.

Are the applicants entitled to reimbursement of dispute-related expenses?

40.     The tribunal does not generally order reimbursement of legal fees, given parties are usually self-represented under section 20 of the Act. Further, tribunal rule 132 states the tribunal will not order one party to pay another party any fees charged by a lawyer except in extraordinary cases.

41.     The strata’s dispute-related expenses are legal fees relating to a legal opinion it obtained in November 2017 during the facilitation stage of the tribunal’s dispute resolution process. It says the opinion was obtained to resolve this dispute but there is no evidence before me to suggest the applicants agreed to pay the legal fees associated with the opinion.

42.     In the circumstances, I do not find this to be an exceptional case of the strata deserving reimbursement and I decline to do so.

ORDERS

43.     I order the applicants’ dispute dismissed.

44.     I dismiss the respondent’s claim for reimbursement of legal fees.

45.     Under section 189.4 of the SPA, an owner who brings a tribunal claim against the strata corporation is not required to contribute to the expenses the strata corporation incurs in defending that claim or in any monetary order issued against it. I order that the strata ensure that no expenses incurred by it in defending the applicants’’ dispute are allocated to either of the applicant owners.

46.     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.