Date Issued: July 25, 2018

File: ST-2016-00349

Type: Strata

Civil Resolution Tribunal

Indexed as: L.S. v. The Owners, Strata Plan ABC XXXX, 2018 BCCRT 376

Between:

L. S.

Applicant

And:

The Owners, Strata Plan ABC XXXX

Respondent

 

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

INTRODUCTION

1.        The applicant, L.S. (owner) owns strata lot xx in the respondent strata corporation, The Owners, Strata Plan ABC XXXX (strata).

2.        In the published version of this decision, I have anonymized the parties’ names at the request of the applicant, due to the applicant’s health concerns.

3.        This dispute involves document requests, privacy issues, alleged lack of building maintenance, and financial issues.

4.        The owner seeks orders that the strata establish a privacy policy, disclose certain documents, undertake a building envelope condition assessment (BECA), and retain an accounting firm to complete a financial review and report on its finances.

5.        The owner is self-represented. The strata is represented by a strata council member.

6.        For the reasons that follow, I order the strata to

a.         prepare a written privacy policy and provide a copy of it to all of its strata lot owners not later than September 1, 2018,

b.         provide the documents listed in section 35 of the Strata Property Act (SPA) that were requested by the owner and listed in her reply submissions to this claim, to the extent the strata has not already done so, within 2 weeks of the date of this decision,

c.         ensure the engineering firm retained by the strata to prepare a BECA and depreciation report during these proceedings is provided with all building maintenance and inspection reports in its possession, and

d.         reimburse the owner $225 for fees paid relating to the owner’s claims.

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.

ISSUES

11.     The issues in this dispute are:

a.      Is the strata required to prepare a privacy policy under the Personal Information Protection Act (PIPA)?  If so, is it required to communicate the privacy policy to its strata lot owners?

b.      Is the strata required to provide the owner with documents she has requested but not received?  If so, what is the cost to the owner?

c.      Should I order the strata to have a BECA completed?  If so, should I also order the strata to provide any undisclosed and existing maintenance reports to the firm retained to complete the BECA?

d.    Should I order the strata to have a financial audit completed for its fiscal years ending October 31, 2016 and October 31, 2017?  If not, is an alternate remedy appropriate?

e.    Is the owner entitled to $225 for tribunal fees and $1,129 for dispute related expenses?

BACKGROUND AND EVIDENCE

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

13.     In a civil proceeding such as this, the applicant owner must prove her claims on a balance of probabilities.

14.     The strata was created in August 1988 comprising 23 strata lots in 1 4-storey building. The strata is located in Burnaby, B.C. and retains a licenced property manager.

15.     On July 31, 2016, the property management firm terminated its services with the strata. Up until the time of termination, the owner had ongoing communication with the strata’s property manager about concerns over the subject matter of this dispute.

16.     On August 1, 2016, the strata retained a new property management firm.

17.      In September 2016, the owner requested access to strata documents and agreed to pay a fee for copies. She says that some documents were provided in October 2016. She made a further request for documents in July 2017, after the Dispute Notice was issued, and she says the strata did not provide those documents.

18.     In a letter dated October 7, 2016, the owner requested a hearing with the strata council to discuss allegations involving strata activity that did not comply with the SPA, improper document retention, and unapproved expenses from the strata’s contingency reserve fund.

19.     The hearing was conducted at the November 28, 2016 strata council meeting at which time the owner provided a copy of the November 11, 2016 Dispute Notice that started this tribunal proceeding.

20.     The minutes of the annual general meeting (AGM) held December 14, 2017 (December 2017 AGM) show the strata passed separate ¾ vote resolutions to obtain a depreciation report and to obtain a BECA from an engineering firm. The minutes also show the owners defeated a resolution approving a “comprehensive audit of the strata’ finances from a qualified auditing company.”

21.     At its February 15, 2018 strata council meeting, the strata council considered BECA quotations from 5 engineering firms and deferred a decision pending receipt of a depreciation report quotation from the same firms.

22.     At its April 26, 2018 strata council meeting, the strata council approved a BECA quotation from an engineering firm on the basis the firm provided a discount for completing a depreciation report at the same time. I infer the same engineering firm has also been retained to complete the depreciation report.

POSITION OF THE PARTIES

23.     The owner says the strata is required to prepare a privacy policy under PIPA with respect to video cameras, FOB controls and personal information.

24.     The owner also says the strata has not provided her with strata documents she has requested and is entitled to receive under sections 35 and 36 of the SPA. She seeks an order that the strata provide the requested documents at a fee of $0.20 per copy.

25.     The owner also says there are “maintenance irregularities” in how the strata attends to common property and that it has received 3 engineering and other reports relating to the building envelope, which have not been disclosed. She seeks orders that the strata complete a BECA by a qualified professional and provide the qualified professional with any undisclosed maintenance reports.

26.     The owner also says there are “financial irregularities in the way matters are done” including bylaw compliance and enforcement issues, “misrepresentation of the legislation, regulations and bylaws”, “irregularities in meetings, voting, recording of minutes” and other matters. She seeks an order that the strata complete an audit for the fiscal years ending October 31, 2016 and October 31, 2017.

27.     Finally, the owner requests reimbursement of $225 in tribunal fees and $1,129 for dispute-related expenses.

28.     The strata agrees that it requires a privacy policy and says it is in the process of developing the required policy information.

29.     The strata says it provided documents for review as part of the request for evidence relating to this dispute and that the process involved retrieving documents and creating electronic versions but does not specifically address the owners claim under sections 35 and 36 of the SPA.

30.     As for maintenance, the strata says a depreciation report, waived in previous years, was approved by its owners at the December 2017 AGM along with a BECA from an engineering company and is now in progress.

31.     As for financial matters, the strata says at the December 2017 AGM, the owners voted not to have an audit completed and that the strata council was directed to distribute monthly financial statements to all owners.

32.     The strata makes no requests but says that some of the owner’s dispute-related expenses are invalid.

ANALYSIS

Is the strata required to prepare a privacy policy under the PIPA?  If so, is it required to communicate the privacy policy to its strata lot owners?

33.     The owner says strata is failing to meet its obligations under PIPA, as it has no privacy policy and “does not comply with PIPA when requested.” By “not complying with PIPA when requested”, I infer the owner means that the strata does not provide requested documents, such as correspondence from other owners stating privacy reasons, contrary to section 18(1)(o) of PIPA, and has not provided the owner with her personal information that is under the strata’s control, contrary to section 23 of PIPA. I will separately address the owner’s document requests under the SPA below.

34.     The strata acknowledges that it is required to comply with PIPA and that it is in the process of creating a privacy policy in accordance with PIPA. The strata does not address the owner’s PIPA request for her personal information under the strata’s control.

35.     As for the privacy policy, the owner’s requested remedy is an order that the strata produce and communicate its privacy policy to the strata’s owners. In her submissions, the owner requests the tribunal place a deadline for the strata to do this. She does not seek a remedy addressing the strata’s alleged failure to provide her with her personal information under section 23 of PIPA. I understand from her submissions that she has filed a complaint with the Office of the Information and Privacy Commissioner for BC (OIPC) for this alleged violation of PIPA and I will not address that issue here as I find it is outside the tribunal’s jurisdiction.

36.     First, I confirm the strata is an organization as defined under PIPA and it must comply with the legislation. Under section 5 of PIPA, the strata must develop and follow policies and practices necessary to ensure compliance with PIPA, develop a process to respond to complaints that may arise relating to PIPA, and make the information about its privacy policy available on request.

37.     Given section 5 of PIPA, I find the strata must prepare written policies and practices relating to compliance with and responding to complaints arising from PIPA (privacy policy). While my reading of PIPA does not require the strata to communicate its privacy policy to its owners, I find given it is not currently in compliance, it is reasonable for it to do so.

38.     For these reasons, I grant the owner’s requested relief and order the strata to prepare its written privacy policy and provide a copy of it to all of its strata lot owners not later than September 1, 2018. When preparing its privacy policy, the strata is encouraged to review the documents entitled Privacy Guidelines for Strata Corporations and Strata Agents and PIPA and Strata Corporations: Frequently Asked Questions prepared by the OIPC and available on its website.

Is the strata required to provide the owner with documents she has requested but not received?  If so, what is the cost to the owner?

39.     As earlier noted, the owner requested access to strata documents in September 2016, agreed to pay for copies and says she has not yet received all copies she has requested.

40.     In a September 7, 2016 letter to the strata’s newly appointed property manager, the owner requested access to all of the strata records, restating section 35 of the SPA as the list of records she wanted to review. The strata did not provide a reply to the owner’s letter, however, it submits that the owner reviewed documents relating to evidence for this dispute. Based on the evidence, I find the strata did not provide the owner with access to all of the documents requested by the owner.

41.     In her reply, the owner provided a list of outstanding documents the strata has not provided that include correspondence, a video recording from the strata’s security cameras, information relating to the property manager’s review of its books and records as required by it under the Real Estate Services Act (RESA), and copies of invoices. The owner’s list also includes items I am unable to identify, such “R2_F02” that were apparently provided to all owners as well as records and documents contained in section 35 of the SPA.

42.     As the strata did not provide any submissions or evidence addressing the owner’s claim relating to outstanding documents, I accept the owner’s claim that she has not received all of the documents she has requested and agree that some of her requested documents are set out in section 35 of the SPA. However, there are also documents contained in the owner’s list that are not set out in section 35 of the SPA, and are therefore not required to be disclosed to the owner. Those include, video recordings, information of the strata’s property manager relating to RESA, and the strata’s invoices. (See Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610 about the strata’s obligation to disclose copies of invoices).

43.     Given the relatively unclear nature of the owner’s claim, I am prepared to make a general order that to the extent the strata has not provided the documents listed in section 35 of the SPA requested by the owner in her reply to this claim, it do so within 2 weeks of the date of this decision.

44.     Turning now to the cost of providing section 35 documents to the owner. I note section 36 of the SPA permits a maximum charge as set out in Strata Property Regulation (regulation) 4.2, which allows the strata to charge the owner up to $0.25 per copy.

45.     The owner says she should be charged $0.20 per copy. She relies on a schedule to the contract between the strata and its property manager that allows the property manager to charge the strata $0.20 per photocopy.

46.     I find the strata is bound by regulation 4.2 permitting a maximum copy charge of $0.25 and may charge the owner up to that amount for documents requested under sections 35 and 36 of the SPA. The copy charge set out in the property manager’s contract with the strata does not apply to the owner and does not restrict the strata from charging the maximum permitted under the SPA and its regulations.

47.     Under section 36(4) of the SPA, the strata is entitled to receive payment of the records and documents at the rate of $0.25 per copy prior to releasing the documents to the owner.

Should I order the strata to have a BECA completed?  If so, should I also order the strata to provide any undisclosed and existing maintenance reports to the firm retained to complete the BECA?

48.     The owner submits there have been repeated reports of leaks in the building, and rot and deterioration of the structure of the building that create safety risks. In support of her claim, the owner provided contractor and engineering reports relating to:  the deck of unit 403 dated 2009 and 2016, the underground parking garage dated 2007, and a cracked floor slab in unit 203 dated 2007.

49.     As earlier noted, further to its April 26, 2018 strata council meeting, the strata has retained an engineer to complete the BECA and deprecation report. As a result, I find it is unnecessary for me to order the strata have a BECA completed.

50.     I turn now to the owner’s request that I order the strata to provide undisclosed and existing maintenance reports to the firm completing the BECA. The strata does not address this aspect of the owner’s claim in its submissions.

51.     Based on my review of the reports provided, I do not find that safety risks exist. Further, it is unclear what, if any, repairs were undertaken as a result of the strata receiving the report since the date of the reports. It is also unclear if any undisclosed maintenance reports exist. I infer the owner is also unclear if other reports exist given her assertion that “Council generally withholds reports and the amount of reports is unknown”.

52.     However, I agree that any maintenance or inspection reports the strata has received should be made available to the engineering firm completing the BECA and the depreciation report. Accordingly, to the extent reports have not already been provided, I order the strata to ensure the engineering firm involved with preparing the BECA and depreciation report are provided with all maintenance and inspection reports in its possession.

Should I order the strata to have a financial audit completed for its fiscal years ending October 31, 2016 and October 31, 2017? If not, is an alternate remedy appropriate?

53.     In her submissions, the owner says the strata “does not comply with a range of mandatory legally required duties in place to protect owners and ensure fairness.”  She says that some of these breaches are fundamental to “safety and protecting owners’ investment.”  She cites sections 26, 31, 119, 164 and 165 of the SPA.

54.     Although the owner has provided a significant amount of evidence, I find the majority of information is the owner’s broad assertions that the strata or its council has acted contrary to the legislation. The owner’s evidence is largely unhelpful and not relevant.

55.     As for the alleged breaches of the SPA, section 26 says the strata must exercise the powers and perform the duties of the SPA, including the enforcement of bylaws. The owner has not pointed me to any specific powers, duties, or bylaws that have not been exercised, performed, or enforced. Section 31 deals with the duty of care of individual strata council members, none of whom is named respondents in this dispute. Section 119 says the strata must have bylaws and states the purpose of bylaws. I do not see how section 119 applies here. Finally, sections 164 and 165 address a court’s remedies for a strata’s significantly unfair acts, which also apply to this tribunal given the language of section 48.1 of the Act.

56.     While the owner may feel she has been treated in a significantly unfair manner, she does not set out what specific actions or threatened actions of the strata are significantly unfair.

57.     The owner also cites Mitchell v. The Owners, Strata Plan KAS 1202, 2015 BCSC 2153 in support of her claim. The owner draws a parallel of her own experiences with the experiences of the Petitioner, Mary Lou Mitchel in Mitchell but has not provided evidence to support her assertions.

58.     Overall, I find the owner has failed to provide sufficient evidence to prove her claim of “financial irregularities”. For these reasons, I decline to order the strata to arrange for a financial audit of its books and records.

59.     Additionally, it is significant that that the owners defeated a ¾ vote resolution for the strata to complete a financial review at its December 2017 AGM. The vote was 6 in favour and 12 opposed. It suggests that only a small minority of owners feel a financial review is necessary. I am reluctant to order the strata to complete a financial review given the strata owners have recently considered the matter and decided against it. Accordingly, I dismiss this claim.

60.     I turn now to alternate remedies that might be appropriate.

61.     In its submissions, the strata says a majority vote resolution under section 27(1) of the SPA was passed at the December 2017 AGM to “distribute monthly financial statements to all owners going forward.”  The owner correctly notes that such a resolution is not shown in the AGM minutes. Rather, the minutes reflect that the strata was asked to investigate the possibility of issuing monthly invoice packages to all owners and declined to do so because it was not industry practice and its property management firm was not “set up” to accommodate the request.

62.     At my request, the strata provided an explanation as to why financial statements were not distributed to owners as they say the owners instructed at the December 2017 AGM. Its response was that the “resolution pertaining to the distribution of the monthly financial statements was invalid as there was no notice provided with respect to the disclosure of invoices.”  I find this unusual given the minutes do not contain the resolution of distribution monthly financial statements as the strata claimed. Further, if the strata was instructed to distribute financial statements under section 27(1) of the SPA, there are no advance notice requirements necessary under the SPA.

63.     The owner says the minutes have several errors and that correspondence is being exchanged about the errors. She also notes the minutes have not yet been approved. Given these circumstances, and that the state of the minutes and any direction given by the owners is unclear, I decline to order an alternate remedy to the owner’s request for a financial review.

64.     The owner is free to request review or copies of financial information available under section 35 of the SPA and the strata is obligated to provide access or copies within 2 weeks of the request. The owner is encouraged to be as specific as possible in any requests for documents she may make.

65.     Further, nothing in this decision restricts the owner from seeking support from other owners to provide direction the strata at future general meetings by way of a majority vote resolution or requesting a ¾ vote resolution by way of petition to the strata under section 43 of the SPA.

Is the owner entitled to $225 for tribunal fees and $1,129 for dispute related expenses?

66.     Under section 49 of the Act and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I find the owner has been the more successful party. Accordingly, I order the strata to reimburse the owner $225 for tribunal fees.

67.     The owner claims $1,129 in dispute-related expenses but has not provided any evidence to support her claim, such as copies of the invoices. I therefore decline to order the strata to reimburse the owner for dispute-related expenses.

ORDERS

68.     I order the public version of this decision anonymize the parties’ names to protect the privacy and identity of the applicant.

69.     I order that the strata:

a.      prepare a written privacy policy as required under the provisions of  PIPA and provide a copy of it to all of its strata lot owners not later than September 1, 2018,

b.      to the extent it has not provided the documents listed in section 35 of the SPA requested by the owner and listed in her reply submissions to this claim, it do so within 2 weeks of the date of this decision. The strata is entitled to receive payment of the records and documents at the rate of up to $0.25 per copy prior to releasing the documents to the owner,

c.      within 15 days of the date of this decision, ensure the engineering firm involved with preparing the BECA and depreciation report is provided with all building maintenance and inspection reports in its possession, and

d.      within 30 days of the date of this decision, to pay the owner $225 for tribunal fees paid.

70.     The remaining owner’s claims are dismissed.

71.     The owner is entitled to post-judgement interest under the Court Order Interest Act, as applicable.

72.     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 this claim are allocated to the owner.

73.     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.

74.     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.