Date Issued: July 19, 2018

File: ST-2018-000411

Type: Strata

Civil Resolution Tribunal

Indexed as: Tsai et al v. Huang, 2018 BCCRT 350

Between:

Qingyi Jinyi Tsa and Jonathan David St Jean

ApplicantS

And:

Binliang Huang

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

 

INTRODUCTION AND JURISDICTION

1.        The applicants and the respondent each occupy strata lots in the same strata corporation. The respondent is a tenant, and the respondent’s landlord is not named as a party in this dispute.

2.        The applicants say the respondent repeatedly allowed a dog to urinate on a patio above theirs, and the urine falls onto the applicants’ patio and patio furniture. The applicants seek an order that the respondent stop allowing the dog to urinate on the patio, and an order that the respondent pay for the cost of sanitizing their patio and replacing their patio furniture.

3.        I find I have jurisdiction to decide this dispute as a strata property claim under section 3.6(1)(c) of the Civil Resolution Tribunal Act (Act), as the applicants claim the respondent’s actions limit the use and enjoyment of their strata lot.

4.         This final decision of the Civil Resolution Tribunal (tribunal) has been made without the participation of the respondent, due to the respondent’s non-compliance with the tribunal’s directions as required, as discussed below.

5.         Section 36 of the Act applies if a party to a dispute fails to comply with the Act or its regulations. It also applies if a party fails to comply with tribunal rules in relation to the case management phase of the dispute, including specified time limits, or an order of the tribunal made during the case management phase. After giving notice to the non-compliant party, the case manager (facilitator) may refer the dispute to the tribunal for resolution and the tribunal may:

a.      hear the dispute in accordance with any applicable rules.

b.      make an order dismissing a claim in the dispute made by the non-compliant party, or

c.      refuse to resolve a claim made by the non-compliant party or refuse to resolve the dispute.

6.         These are the 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, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.         Under section 48.1 of the Act, in resolving this dispute the tribunal may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

8.         For the reasons that follow, I have allowed applicants’ claim.

ISSUES

 

9.         The issues in this dispute are:

a.      Should I hear the applicants’ claim without the respondent’s further participation, given the respondent’s non-compliance?

b.      Should I order the respondent to stop allowing the dog to urinate on the patio?

c.      Should I order the respondent to pay for patio sanitizing or replacement furniture, and if so in what amount?

 

EVIDENCE & ANALYSIS

Non-compliance

10.      My June 11, 2018 summary decision to hear the dispute without the respondent’s participation due to the respondent’s non-compliance was previously communicated to the parties by email through the tribunal facilitator. The details supporting that decision are set out below.

11.      The respondent has failed to participate in the case management phase, as required by sections 25 and 32 of the Act and tribunal rules 94 to 96, despite multiple attempts by the case manager to contact her asking for a reply.

12.      The respondent filed a Dispute Response acknowledging receipt of the Dispute Notice. The case manager subsequently made the following attempts to contact the respondent, with no response:

a.      March 29, 2018 email: The case manager outlined the process and the requirement that the parties follow the directions of the case manager. The requested that the respondent reply by April 5 to confirm participation in an April 25 conference call.

b.      April 17, 2018 email: The case manager reminded the respondent about the missed deadline, and said the conference call was still scheduled for April 25. The respondent was instructed to confirm receipt of the email by April 19.

c.      April 21, 2018 email: The case manager sent a follow-up warning stating the consequences of not following instructions, and directing the respondent to reply by April 23 to confirm participating in the April 25 conference call.

d.      April 25, 2018 email: The case manager sent a second warning with instructions to call in to the conference call.

e.      April 25, 2018 conference call: The applicants called in, but the respondent did not.

f.       April 25, 2018 second email: After the missed conference call, the case manager emailed the respondent again and offered translation services if necessary.

g.      April 26, 2018 telephone call: The case manager attempted to call the respondent, but heard a message stating that the number was unavailable.

h.      June 30, 2018 email: The case manager sent a final warning, stating that the respondent must respond by May 2.

13.      The case manager then referred the matter of the respondent’s non-compliance with the tribunal’s rules to me for a decision as to whether I should hear the dispute without the respondent’s participation.

Should the tribunal hear the applicants’ dispute without the respondent’s participation?

14.      As referenced above, the respondent filed a Dispute Response. The respondent has provided no explanation about the failure to communicate with the tribunal as required. I find the case manager made a reasonable number of attempts to contact the respondent. The respondent was informed at the beginning of the tribunal proceeding, and afterwards, about the requirement to actively participate in the dispute resolution process. Given that the respondent provided updated contact information on the Dispute Response form, I find it is more likely than not that the respondent knew about the case manager’s contact attempts and failed to respond.

15.      The tribunal’s rules are silent on how it should address non-compliance issues. I find that in exercising its discretion, the tribunal must consider the following factors:

a.      whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute;

b.      the stage in the facilitation process at which the non-compliance occurs;

c.      the nature and extent of the non-compliance;

d.      the relative prejudice to the parties of the tribunal’s order addressing the non-compliance; and

e.      the effect of the non-compliance on the tribunal’s resources and mandate.

16.      The non-compliance here occurred early in the facilitation process, and the respondent has provided no evidence or submissions beyond that set out in the Dispute Response form. The respondent has effectively abandoned the process after providing a response.

17.      Given the case manager’s attempts at contact and the respondent’s failure to respond despite warnings of the consequences, I find the nature and extent of the non-compliance is significant.

18.      I see no prejudice to the strata in hearing the dispute without the respondent’s participation. The prejudice to the respondent of proceeding to hear the dispute is outweighed by the circumstances of the non-compliance. If I refused to proceed to hear the dispute, the applicants would be left without access to a remedy, which would be unfair to them.

19.      Finally, the tribunal’s resources are valuable. Its mandate to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly is severely impaired if one party refuses to participate. I find that it would be wasteful for the tribunal to continue applying its resources on this dispute, such as by making further attempts to seek participation from the respondent.

20.      In weighing all of the factors, I find the applicants’ claims should be heard. In deciding to hear the applicants’ dispute I have put significant weight on the following factors:

a.      the extent of the non-compliance is significant;

b.      the applicants are not prejudiced; and

c.      the need to conserve the tribunal’s resources.

Dog Urination on Patio

21.      Having decided to hear the dispute without the respondent’s participation, I turn to the merits of the dispute.

22.      Normally in a civil claim such as this, the applicants bear the burden of proving their claims on a balance of probabilities. However, where a respondent has failed to comply with the tribunal’s directions as required, as in this case, an adverse inference may be drawn against that respondent. This means that if one party refuses to participate, it is generally assumed that the other party’s position is correct. This is similar to when a party fails to provide any response at all to the dispute and is in default and that party’s liability is assumed.

23.      The applicants say that on more than 10 occasions, the respondent’s dog’s urine dripped onto their patio and patio furniture from the respondent’s deck above. They provided a chronology outlining their attempts to resolve the problem, including contacting the strata council and having the building concierge contact the respondent numerous times. They also provided copies of correspondence confirming these attempts, including letters from the strata property manager fining the respondent for allowing dog urine to splash onto the patio below.

24.      The respondent’s Dispute Response form says the applicants’ evidence only shows that the urine problem happened 4 times, with no specific dates provided. The respondent also says that the applicants’ complaint letter was sent directly to the landlord, and the landlord did not forward some of the letters as soon as he received them, so the respondent could not confirm that the applicants’ claim descriptions were accurate.

25.      Based on this statement, the respondent does not dispute that dog urine dripped onto the applicants’ patio at least 4 times. Rather, the respondent wrote that the incidents happened because of a lack of dog training knowledge of dog, and they wished the applicants could forgive them. I find that this statement is an admission of liability. For that reason, I order that the respondent must not allow a dog to urinate on any patio.

 

 

Financial Remedies

26.      The applicants claim the cost of patio sanitizing and furniture replacement. In response, the respondent said they promised to pay for a professional housekeeping service to clean and fix the applicants’ patio and furniture. However, the respondent has not done so.

27.      The applicants provided photographs showing what appears to be a significant amount of stains on their upholstered patio furniture, the glass railings surrounding the patio, and on the patio floor, which is made up of concrete paver stones. I accept that the stains are dog urine stains from the respondent’s dog.

28.      The applicants provided a copy of a quotation from a cleaning service stating that washing down all the surfaces of the balcony would cost $275. I find that amount is reasonable in the circumstances, given the extensive amount of staining shown in the photographs. I therefore order the respondent to pay the applicants $275 for patio cleaning, plus GST, for a total of $288.75.

29.      Arguably, the patio furniture could be cleaned rather than replaced. However, given that the stains are unhygienic, the adverse inference against the respondent due to non-compliance, and the lack of contrary evidence, I find that the respondent must pay to replace the patio furniture.

30.      The applicants provided a copy of an original receipt showing that in April 2016 they paid $1,359.99 for their patio furniture, not including taxes. They also provided a website page showing a similar furniture set priced at $2,849.99.

31.      The applicants did not provide evidence showing that they have actually replaced the patio furniture. Given that they bought the furniture for $1,359.99 2 years ago, I do not accept that it will necessarily cost $2,849.99 to replace it. However, I find that the applicants are entitled to the original purchase cost plus taxes, for a total of $1,523.18.

32.      The applicants are not entitled to pre-judgment interest, as they have not yet paid for cleaning or new furniture. They are entitled to post-judgment interest under the Court Order Interest Act (COIA).

33.      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. As the applicants were successful in this dispute, I order that the respondent pay them $225 as reimbursement of tribunal fees.

 

ORDERS

34.      I order that the respondent must not allow a dog to urinate on any patio in the strata.

35.      I also order that within 30 days of this decision, the respondent must pay the applicants a total of $2,036.93, broken down as:

a.      $288.75 for patio cleaning,

b.      $1,523.18 for replacement patio furniture, and

c.      $225 in tribunal fees.

36.      The applicants are also entitled to post-judgment interest under the COIA.

37.      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.

38.      Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia. However, the principal amount or the value of the personal property must be within the Provincial Court of British Columbia’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the Act, the Applicant can enforce this final decision by filing in the Provincial 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 Provincial Court of British Columbia.