Date Issued: August 23, 2018

File: ST-2017-003532

Type: Strata

Civil Resolution Tribunal

Indexed as: Choe v. The Owners, Strata Plan LMS 869, 2018 BCCRT 472

Between:

Chanston Choe

Applicant

And:

The Owners, Strata Plan LMS 869

Respondent

REASONS FOR DECISION
Tribunal Member:	John Chesko

INTRODUCTION

1.         This dispute about bylaw fines and loss of rental income raises issues about the jurisdiction of the Civil Resolution Tribunal (tribunal).   

2.         The applicant, Chanston Choe (applicant), disputes bylaw fines assessed against a number of strata lots by the respondent strata corporation, The Owners, Strata Plan LMS 869 (strata).  The applicant says the bylaw fines were improperly assessed and should be reversed.  The applicant also claims lost rent, dispute related expenses and reimbursement of tribunal fees.

3.         The strata says the applicant is not the owner of the strata lots and does not have standing to bring this dispute.  The strata also says that even if the applicant had standing to bring this dispute, the bylaw fines are valid and the dispute should be dismissed.       

4.         The applicant is self-represented.  The strata is represented by an authorized member of the strata council.

5.         For reasons set out below, I find the tribunal does not have jurisdiction to consider the claims filed by the applicant.  I must refuse to resolve this complaint.

JURISDICTION AND PROCEDURE

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 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.

7.         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.

8.         Under section 10 of the Act, the tribunal must refuse to resolve a claim that it considers is not within the jurisdiction of the tribunal.

9.         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). 

10.      Under tribunal rule 119(c), the tribunal can determine all matters within its authority relating to the tribunal decision process.

11.      The tribunal may accept 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.

12.      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, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.

 

ISSUES

13.      The issues in this dispute are:

a.      Does the tribunal have jurisdiction over this dispute?

b.      Should the bylaw fines be set aside? 

c.      Is the applicant entitled to loss of rental income? 

d.      Is the applicant entitled to expenses for legal fees ($1634.70) and reimbursement of tribunal fees ($225.00)?

BACKGROUND, EVIDENCE AND POSITION OF PARTIES

14.      While I have reviewed all the submissions and materials submitted, I will refer to the facts needed to make my decision.   

15.      The applicant submits the strata improperly assessed bylaw fines against various strata lots for short term rentals totalling $19,100.00 as follows:

•           Unit 1603 - $5,000.00 for Airbnb rentals

•           Unit 1607 - $11,600.00 for Airbnb rental fines paid

•           Unit 1304 - $2500.00 for Airbnb rental fines paid

16.      The applicant says the bylaw fines were improperly assessed and should be reversed. 

17.      The applicant also says misconduct of the strata resulted in loss of rental income and seeks the following compensation:

•           Unit 1304 - $23,200.00 for rental loss

•           Unit 804 - $16,200 for rental loss    

18.      The applicant says the strata was 'out to get him' and submits evidence of other bylaw fines and communications with strata representatives.

19.      The applicant also submits that the strata should reimburse dispute expenses for legal fees of $1634.70 and tribunal filing fees of $225.00.

20.      The strata submits the applicant is not the owner of the strata lots and therefore does not have standing to bring a dispute to the tribunal.  The strata further says that, even if the applicant had standing, the bylaw fines were properly assessed and all disputes should be dismissed. 

21.      The applicant filed for dispute resolution with the tribunal on July 24, 2017 and the tribunal issued the Dispute Notice the following day on July 25, 2017.   

ANALYSIS

DOES THE TRIBUNAL HAVE JURISDICTION OVER THIS DISPUTE? 

 

22.      The first issue to consider is whether the tribunal has jurisdiction over this dispute.  

23.      The tribunal cannot consider disputes that are not within its jurisdiction: See Act, section 10.  The tribunal only has legal jurisdiction over certain persons and disputes set out in the Act and the SPA.  A tribunal that considers a dispute that is outside its jurisdiction is doing what it is not authorized to do and makes a legal error: See Dunsmiur v New Brunswick 2008 SCC 9 (Canlii) and Alberta (Information and Privacy Commissioner) 2011 SCC 61 (Canlii).     

24.      The Strata Property Act (SPA) and the Act set out exactly who the tribunal has jurisdiction over.  The tribunal cannot decide a strata dispute from just anyone.  For strata property disputes, section 189.1 of the SPA specifically provides that a "strata corporation, owner, or tenant" can file a claim with the tribunal to resolve certain strata property disputes. 

25.      The applicant has not provided any evidence that they were a tenant of any of the strata lots, so I infer the claims relate to the time he was an owner of the strata lots as described below.

26.      Section 1 of the SPA includes a definition of 'owner' that is the person shown as the registered owner in the land title office.  This definition of 'owner' specifically applies to strata disputes at the tribunal under section 3.5 of the Act.  

27.      There is another factor to consider, as the applicant previously owned some of the strata lots, but has sold them and is no longer the registered owner.  The evidence shows the applicant sold the strata lot for unit 804 on December 15, 2016; the strata lot for unit 1304 on April 18, 2017; and the strata lot for unit 1607 on January 29, 2016.  The land title office documents indicate the applicant was never an owner of the strata lot for unit 1603.   

28.      The issue of whether the tribunal has jurisdiction over disputes by former owners has been considered in other decisions of the tribunal.  While I am not bound by previous decisions of the tribunal, I find them useful to consider.  The status of 'owner' has been found to be 'fundamental to the jurisdiction of the tribunal': See YRN Holdings v The Owners, Strata Plan LMS 2241, 2017 BCCRT 41 (Canlii) at paragraph 18.  Previous decisions have held the tribunal has jurisdiction over disputes filed when the owner was an owner as defined under the SPA when the Dispute Notice was issued.  For example in 542456 BC Ltd v Section 2 of the Owners, Strata Plan VIS 5030 et al, 2018 BCCRT 84 the tribunal found it had jurisdiction to consider a dispute filed by a former owner so long as the dispute was filed by the owner when they were still an owner.  As stated in that decision, "what matters is that when the original Dispute Notice was filed the applicant was an owner as defined in the SPA."  Also see Somers v The Owners, Strata Plan VIS 1601, 2017 BCCRT 28, where it was held the tribunal did not have jurisdiction to consider a dispute by a former owner who was not an owner when the dispute was filed.     

29.      I find the same rule applies to this dispute.  I find the tribunal has jurisdiction and may consider disputes filed by a former owner, so long as the owner was still an owner when the dispute was filed.  What matters is whether the owner was an owner as defined under the SPA and the Act when the Dispute Notice was filed. 

30.      Applying the ruIe set out above to the facts of this case, I find the tribunal does not have jurisdiction over this dispute.  I find the applicant is not one of the persons that the tribunal has jurisdiction over to consider strata disputes under the Act and the SPA. 

31.      Based on the evidence, and in particular the land title office documents showing the registered owner of the strata lots, I find the applicant is not an owner for purposes of the SPA and the Act for the strata lot for unit 1603.  I accept the strata's evidence the applicant has not owned unit 1603.  I find the tribunal has no jurisdiction to consider the applicant's dispute about strata lot unit 1603.  

32.      What about the applicant's disputes concerning the other strata lots for units 804, 1304 and 1607?    

33.      Applying the rule set out above, I find the applicant was not an owner at the time the Dispute Notice was filed and the tribunal does not have jurisdiction to hear the disputes concerning the strata lots for the other units, namely 804, 1304 and 1607. 

34.      The evidence of the ownership and sale of the various strata lots is consistent with the whole of the evidence.  I accept the evidence from the strata including the land title office and sales documents as proof of ownership.  I find the evidence shows the applicant sold unit 804 on December 15, 2016; the applicant sold unit 1304 on April 18, 2017; and finally, the applicant sold unit 1607 on January 29, 2016.  The applicant was not an owner when the application for dispute resolution was filed on July 24, 2017 and the Dispute Notice issued the following day on July 25, 2017.   

35.      While not bound by previous decisions, I find the facts in this dispute similar to those in Somers v The Owners, Strata Plan VIS 1601, 2017 BCCRT 28 where the tribunal also found it did not have jurisdiction.

36.      Reinforcing my decision, I further note and accept as a fact that some of the bylaw fines disputed by the applicant include bylaw fines that were assessed after the applicant was no longer a registered owner.  I would reach the same conclusion if the applicant was a tenant, which I have found he is not.   

37.      In sum, I find the tribunal does not have jurisdiction to consider the claims filed by the applicant, as the applicant is not a 'strata corporation, owner or tenant' as required under section 189.1 of the SPA and section 3.5 of the Act. 

SHOULD THE BYLAW FINES BE SET ASIDE 

38.      Having found the tribunal does not have jurisdiction, I must decline to address the bylaw fines.

IS THE APPLICANT ENTITLED TO LOSS OF RENTAL INCOME?

39.      Similarly, I decline to address whether the applicant is entitled to loss of rental income claimed. 

IS THE APPPLICANT ENTITLED TO EXPENSES AND REIMBURSEMENT OF TRIBUNAL FEES?

40.      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 expenses.

41.      As the tribunal has no jurisdiction, I must decline to address whether the applicant is entitled to reimbursement of the claimed legal expenses. 

42.      However, there is a difference between the claim for legal expenses against the other party and the tribunal fees paid to the tribunal.  I direct the tribunal to refund the $225 tribunal fees paid by the applicant.  I note other decisions of the tribunal have also refunded tribunal fees when the tribunal has declined to resolve the claim: See McCracken et al v Harbourview Autohaus Ltd et al 2018 BCCRT 295. 

 

DECISIONS AND ORDERS

43.      For the reasons set out above, I find the tribunal does not have jurisdiction to accept this request for resolution of this strata property dispute.

44.      Accordingly, I find the tribunal must refuse to resolve this dispute pursuant to section 10 of the Act and I so order. 

45.      I also direct the tribunal to refund the $225 tribunal fees paid by the applicant.

46.      In finding I have no jurisdiction, I have not made any determination on the merit, or lack of merit, of the applicant's claims.