Date Issued: September 4, 2018 File: ST-2017-004332 Type: Strata Civil Resolution Tribunal Indexed as: The Owners, Strata Plan BCS4425 v. Youlian Convenience Ltd. 2018BCCRT 496 BETWEEN: The Owners, Strata Plan BCS4425 APPLICANT AND: Youlian Convenience Ltd. RESPONDENT REASONS FOR DECISION Tribunal Member: Catherine Sullivan INTRODUCTION 1. The applicant The Owners, Strata Plan BCS 4425 (strata) seeks an order that the respondent Youlian Convenience Ltd., the owner of commercial strata lot 1 (SL1) (respondent)breached the strata bylaws when changes were made to the common 1
property without obtaining the consent of the strata or a permit from the municipality. 2. The strata seeks an order of $1,701.00 against SL1for the costs of remediating the common property and also claims outstanding fines totalling $4,549.62 for the breachof the strata bylaws. The strata is represented by a strata council member and the respondent isself-represented. 3. The respondent denies it performed renovations on the common propertyor that it drilled holes in the walls, or madeany changes to the strata building’s plumbing or wiring. It denies breaching the bylaws and says the fines are unjust. JURISDICTION AND PROCEDURE 4. 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 isto 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. 5. 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 and decide this dispute through written submissionsbecause I find that there are no significant issues of credibility or other reasons that might requirean oral hearing. 6. 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. There was extensive documentation submitted by all parties in this dispute. I have read and reviewed all the evidence submitted by the parties. I have only referenced the specific materials and documents that have assisted me to decide the issues. 2
7. The applicable tribunal rules are those that were in place at the time this dispute was commenced in August 2017. 8. Under tribunal rule 126, in resolving a dispute, the tribunal may make one or more of the following orders: a. Order a party to do or stop doing something, or b. Order a party to pay money and/or c. Order any other terms or conditions the tribunal considers appropriate. ISSUES 9. The issue in this dispute is whether the respondent performed renovations to the common property without obtaining the consent of the strata or apermit from the municipality. If the respondent improperly performed the renovation work and breached the bylaws, what are the appropriate remedies? BACKGROUND AND EVIDENCE 10. The strata is made up of a4-storybuilding located in North Vancouver, British Columbia. There are 18 residential unitson the top 3 floors and 2 commercial units located on the ground floor parking level. The respondent purchased SL 1 including 2 parking stalls from the owner developer in June 2012 shortly after the building was constructedfor the purpose of establishing a grocery store business. 11. In 2012, SL 1 was an empty space. The respondent hired an engineering company that designed and implemented a number of physical changes to create a store interior including the installation of refrigerator coolers. The respondent opened the Maplewood Market business in 2012 or 2013 after obtaining abusiness permit and license. 12. The strata is represented in this dispute by an owner who moved to the building in 2016 and has no direct knowledge of events that occurred at the strata prior to that date. 3
13. The evidence provided by the parties confirms that in 2014 the owner of the unit above SL1 complained to the strata about excessive noisefrom fans that came up through the ceiling of the respondent’s parking stall. The parking stall abuts the respondent’s commercial business. The respondent had placed 2 large compression fans on an elevated metal shelving unit that was affixed to the concrete wall in the parking stall. The fans were connected to the refrigerator coolerslocated inside the business. 14. In addition to the shelving and the compression fans inside the parking stall, there is also a hole in the concrete wall for the pipes and tubing that connect the fans to the refrigerator coolers. The respondent acknowledges installing the compressor fan unit but denies responsibility for making any of thephysical changes. The respondent says the developer installed the metal shelving and created the hole in the respondent’s parking stall wall for a possible future installation of an air conditioning or cooler unit. The respondent says the second commercial strata lot has a similar physical layout in its parking stall with a hole and an air conditioning unit mounted on ashelf bracket attached to the stall concrete wall. No photos or any other evidence was provided by either party about the physical layout or structure of the other commercial strata lot. 15. The strata says these physical alterations were not performed by the developer; that the respondent made the changes without the consent of the strata in breach of the strata bylaws and as the strata later learned, the changes required the consent of the municipality which was also not obtained. 16. In October 2014 the strata wrote to the respondent about excessive fan noise in the respondent’s parking stall area. The letter said the units above the store were disturbed by the fan noise. There was no evidence presented about how many units were affected or any description of the duration or volume of the fan noise or whether the noise was constant or intermittent. 17. The strata told the respondent to hire a contractor to inspect the units. In January 2015, two contractors attended the site and recommended that sound proofingbe 4
installedto resolve the noise. Council directedthe respondent to proceed with the recommendation from one contractor for the installation of sound proofing at a cost of $1,000.00. The strata told the respondent that if the work was not done, it would install the soundproofing and charge back the cost to the respondent. It is not clear why, but neither the respondent or the strata took the step to install any soundproofing. An email in May 2015 indicates the respondent agreed that the strata could hire acontractor but the contractor was denied entry to perform the work. 18. In June 2015 the North Vancouver Fire Department made an onsite inspection of the strata and presented an inspection report about a number of fire code violations. A fire order was issued about the installation of the respondent’s fan units (which by thistime had been moved by the respondent from the shelf wall to the floor of the parking stall in an attempt to reduce the noise). 19. The fire order statedthe respondent should have obtained a permit from the district of North Vancouver prior to the installation of the fans because the work involved structural, electrical and mechanical changes. The fire order also identified a concern about the hole in the concrete wall anda possible breach of the fire wall. Thefire department took photos of the pipes and wires in the hole. The strata was required to ensure the respondent made the changes (resolve the possible breach of the fire wall, remove the homemade fan cabinet and apply for a permit before installing another fan unit) to comply with the fire code. 20. On September 16, 2015 the strata wrote a warning letter to the respondent about the noise and the installation of the fan units. The strata for the first time accused the respondent of breaching the strata bylaws regarding noise and the requirement to obtain approval before alterations are made to a strata lot or to strata common property. The letter stated the respondent had installed a homemade pump/fan unit in thecommon property parking stall without strata approval and without the approval of the municipality. The letter further stated the strata was now facing a situation where the fire department had declared the fan unit was unsafe and a fire 5
hazardand the hole in the wall was a breach of the concrete fire separation and infringed the fire code. 21. The letter told the respondent to remove the fan unit and to apply for the proper permit within 7 days. The strata stated that if the steps were not taken within the 7-daydeadline, the strata would begin fining the respondent $200 every 7 dayswhile the fan unit remainedoperational. If the respondent did not act to obtain the permit, the strata would take steps to remove the fan unit at the owner’s expense. That deadline date came and went without any resolution of the issues. 22. In the fall of 2015, correspondence exchanged by the parties indicates they were working together towards a solution. The strata met with a contractor who provided a quote to resolve the noise and the fan installation/fire hazard issues. The strata gave this informationto the respondent who signed off on the contractor’s repair work quote. 23. Unfortunately, for a number of reasons beyond the parties’ control, therepair work plan was delayed. The most significant reason for the delay was the respondent’s prudent insistence that the contractor’s work plan should be reviewed by the municipality to ensure it would meet the requirements for a permit. As it turned out, the municipality decided the contractor’s work plan would not meet the permit requirements. In order to meet the municipal noise bylaw requirements, a separate acoustic engineer report had to be prepared and an engineering shroud had to be installed. Based on the new information from the municipality, the contractor revised the quote and the cost went from $5,658.93 plus GST to $9,213.46 plus GST. The issues were not resolved in 2015. 24. In February 2016 the strata retained a law firm who sent a second deadline letter to the respondent stating the strata would be imposing fines for the violation of the noise bylaws. The letter demanded the respondent take the steps to comply with the fire ordersand again if the respondent did not act, that the strata would perform the repairs at the owner’s expense or the strata would commence legal 6
proceedings. From February to November 2016 the issues of the noise and the fanunit and the fire orders remained unresolved between the parties. 25. The noise and fan issues were finally resolved in November 2016. On November 14, 2016 a municipal building inspector made an onsitevisit to the strata. The inspector inspected the respondent’s parking stall and noted there was now compliance with the fire order as the respondent had removed the fan condensing unit. 26. On November 15, 2016 several ownersobserved the respondent “in the act” of installing another compressor fan unit in the parking stall area (without the approval of the strata or amunicipal permit). The strata immediately contacted the municipality. A building inspector came to the site and issued a stop work order prohibiting the respondent from taking any steps regarding the fan unit without a municipal permit. 27. The stop work order against the respondent has remained in place since November 15, 2016. No action can be taken to install or connect any fan units unless the respondent obtains the written approval of the strata and obtains a municipal permit. The respondent’s fan unit and the cooler units in the store have been shut down since November 2016. The respondent discontinued flower sales and other activities in the business that required refrigeration storage. 28. There is documentation that the strata intended to issue fines on a weekly basis against the respondent’sstrata account from August 5, 2016 to November 15, 2016.There would have been 16 $200 fines for a total amount of $3,200.00. 29. The strata commenced this action in August 2017. 30. Since that date, the respondent prepared a new electrical engineering and architecture plan to relocate the fan units from the parking stall to the interior of SL 1. The strata voted and approved the proposed renovation plan. As of February 2018, the parties were waiting for a decision from the municipality about the 7
respondent’s application for a permit. Based on the materials before me, the parties have taken the steps to finally resolve thenoise and bylaw issues. POSITION OF THE PARTIES 31. The strata says the respondent breached the strata bylawsby failing to obtain strata or municipal approval prior to performing alterations to the parking stall common property. The strata seeks an order of $1,701.00 for the cost of “undoing” the renovations and returning the parking stall concrete wall to its original specification condition prior to the respondent’s alterations. The strata also seeks an order that the respondent owner pay $4,549.62 for the fines imposed for bylaw breaches. 32. The respondent denies performing any repairs that violated the strata bylaws. The respondent says the developer put the hole in the parking stall wall andattached the shelf brackets for both commercial strata lots before the building was fully completed. The respondent denies making anyelectrical or plumbing changes. It says the fines are unjust and thestrata has not provided the evidence to support them. ANALYSIS Did the respondent owner breach the strata bylaws and if so, what are the appropriate remedies? 33. For civil claims filed with the tribunal, the burden is on the applicant to prove the claim on a balance of probabilities. 34. In thematerials provided by the parties, there were references to a number of issues and conflictsbetween the parties. Correspondence over a 3-year period referenced noise issues and allegations against the respondent about smoking, parking in wheelchair designated parking stalls, U-Haul truckparking, improper use of the recycling bins, and the installation of an awning. I have placed no value on this evidence as the sole issue in this dispute as stated in the claim is whether the 8
respondent breached the bylaws by performingrenovationson common property in the parking stall without strata or municipal approval. 35. The strata was created on May 2, 2012 and the standard bylaws under the Strata Property Act (SPA) applied. The first bylaw amendments were filedby the owner developer with the Land Title Office on May 3, 2012(bylaws)but did not affect the content or application of standard bylaws 5 and 6. Bylaw 5 required an owner to obtain the written approval of the strata before altering a strata lot. Bylaw 6 required an owner to obtain the written approval of the strata before altering common property. The strata filed amended bylaws on December 7, 2017 (passed at a November 30, 2017 general meeting) that amended and replaced the standard bylaws 5 and 6. However, for the purposes of this dispute and during relevant periodof time between 2012 and August 2017, I find the standard bylaws 5 and 6 applied and an owner was required to obtain strata approval before making any alterations or renovations to a strata lot or to common property. 36. The respondent presented the drawings and plans that were prepared by engineering consultants in July 2012for the renovations to the unit. A photo dated July 22, 2013 shows the compressor fans located on a metal shelf unit attached halfway up the parking stall concrete wall. The respondent says the shelving and the hole in the wall (for the cables and wiring) were in place prior to the purchase of SL 1. 37. To decide whether the respondent owner is in breach of the bylaws requiring prior strata approval, I must first decide a number of preliminary issues. When were the changes made and second, did the respondent made the changes that resulted in the fire department order? 38. On the timing of the changes, there is photographic evidence the hole and the shelving existed in 2013. The respondent says the owner developer made the same changes to both commercial strata lots before they were sold. As previously stated, I was provided no evidence and no photos about the physical condition of the second commercial strata lot. 9
39. I find support for the respondent’s position about the timing of the renovations and whether the owner developer made the changes in the June 23, 2015 Strata Council Minutes. 40. Item #7 is a list of the fire code infringements that were identified in the fire department report issued in May 2015. Infringement number 5 states “2 refrigerationunits in underground parking breach through foundation (2 walls of fire separation), and the cabinet surrounding unit is homemade. No permit was found in FDM –COMMERCIAL UNIT HAS BEEN ADVISED –WORK IN PROGRESS. 41. Infringement number 8 states “air conditioning unit installed in parkade that breached through foundation (2 walls of fire separation). No permits found in FDM.-COMMERCIAL UNIT HAVE BEEN ADVISED –WORK IN PROGRESS. 42. In other words, almost the exact same order (and the same concern about a breach of the fire separation wall) was issued by the fire department against both commercial units in 2015. I find this evidence that both commercial units had similar physical layouts in the parking stall areas in 2015 provides some support for the respondent’s statement that the hole was made and the shelving was attached prior to the purchase of SL 1. 43. Based on my review of the evidence that was presented on this issue, I find the strata has not met the burden of proof to establish the respondent made the hole or attached the shelving. 44. Having found it more likely than not that the respondent did not make the physical changes to the concrete wall, it therefore follows that it was not the respondent who should have and failed to apply for the appropriate municipal permits either when the renovation work was performed for the hole and the shelving was installed. 45. Regardless of my findings about the date when the hole in the wall was made and who was responsible for that work, it is still necessary to decide if at any point after the date of purchasedid the respondent owner breach bylaws 5 or 6 (in the period 10
of time from 2012 to the date of this claim in 2017) of the strata bylawswhen the compressor fan unit was installed. 46. For the reasons that follow, I have found the respondent owner did breach the bylaws. I find that regardless of the history of the renovations, the respondent was required to take appropriate steps in 2014 when the issue was first raised about noise from the fan units that might have been connected to fan installation problems. The respondent essentially ignored the concerns raised by the strata other than to move the fan unit to the floor. I find the respondent was required to act in 2015, when the fire department provided the inspection results to the strata. By 2015 the respondent knew the earlier renovation work by the owner developer had been done without the proper permits and that the fan unit had been installed without the proper municipal permitand without strata approval. 47. In my view the respondent proceeded as if its participation and co-operation was optional and not essential. The fire department had issued a fire order. The respondent ignored the letters, the emails and all the deadlines set by the strata. The owner minimally co-operated to get a quote from the contractor but then backed out of the work plan when the cost of the work increased due to the additional requirements identified by the municipality. At that point the respondent stopped co-operatingand ignored the strata’s requests to resolve the issue. 48. Thefan unit issue was finally resolved in November 2016 when the municipal stop work order was issued against the respondent and the compressor fans were removedby the respondent for the fire inspection on November 14, 2016. Despite the removal, I find there was no real intention to comply with the order as the respondent was observed “in the act’ the following day trying to reconnect the fans in direct defiance of the fire order and knowing there was no approval for the reconnection from the strata and themunicipality. There was no doubt of the respondent’s intention as evidenced by the photos taken on that date showing several individuals with tools and fan equipment in the parking stall. 11
49. I find the respondent’s attempt to reconnect/reinstall the fan unit was effectively an alteration to the common property parking stall and required prior strata approval. I conclude therefore that the respondent’s actions on November 15, 2016 were a direct violation of bylaw 6. The respondent was trying to “alter” the common property by reconnecting the fan unit in the parking stall without the approval of the strata as required by bylaw 6. 50. For all these reasons, I find the strata has proven its claim that the respondent breached the strata bylaws. REMEDIES 51. Because the strata was successful in establishing the respondent breached the strata bylaws, I must now consider the issue of remedies. 52. The strata seeks an order for $1,701.00 as the quoted cost from a contractor to perform remedial services to return thecommon property to the physical condition that predated the renovations. I have found that the original renovations were likely not performed by the respondent. For that reason, I find it is not necessary for me to decide the cost issue as I have concluded the respondent was not responsible for those changes. In any event, I note that even if the strata had been successful in proving this part of its claim, it provided no evidence or any information or any breakdown to explain or justify these costs. For all these reasons, I decline to award this remedy. FINES 53. The strata seeks an order for $4,549.62 for fines imposed against SL 1 for violation of the bylaws. 54. Section 135 of the SPA requires that a strata must follow a set of procedural steps before it can impose a fine. Before imposing a fine, a strata is required to show that it received a complaint, that it provided the details in writing about the complaint to the owner and lastly that it gave a reasonable opportunity to the owner to answer the complaint, including a hearing if one is requested. Previous cases have 12
confirmed a strata must follow the step by step notification process and cannot issue a fine at the same time that it notifies an owner of a complaint. 55. The strata in this case sent many letters to the respondent that provided a deadline date and the consequence if action was not taken by that date. In almost all instances, the respondent did not take the requested action and the strata failed to take further action. 56. Based on the information before me, the strata sent a letter to the respondent on September 16, 2015. On page 1, it detailed the bylaw violations. On page 2, it told the respondent owner that fines are “commencing immediately”. I find thestrata failed to meet the procedural requirement test in section 135 when it provided notice of the complaint and issued a fine in the same letter. The content of the letters sent to the respondent were also inconsistent. Some letters, but not all, provided a date by which certain actions had to be performed. None of the letters sent by the strata offered the option of a hearing to discuss acomplaint. 57. The section 135 requirementsto provide notice and also to provide a reasonable opportunity to answer acomplaint ensures that astrata follows afair process before a fine is imposed on an owner. Therequirement that an owner is provided the details of a complaint is particularly important in the circumstances of this dispute where there was evidence that during the earlier interactions in 2014 and 2015, the strata offered and provided interpreter services to the respondent. 58. In addition to the procedural problems, the strata provided no evidence to prove the total amount of the $4,549.62 fines or any breakdown about the dates or number of fines or what if any amount remains unpaid. The total fine amount seems confusing. The strata’s correspondence threatened to impose repeated weekly fine amounts of $200.00 against the respondent, which, I would have expected should have led to a multiple of $200.00 total amount. Regardless, as the strata provided no evidence about the fines, I am unableto decide whether any fine amounts are owed by the respondent. I find the strata has not proven a 13
financial basis for the fines issued for bylaw violations. I dismiss this portion of the strata’s remedy claim against the respondent owner. Reimbursement of tribunal fees and dispute-related expenses 59. The strata was successful in establishing the respondent breached bylaw 6. 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 related to the dispute resolution process. I see no reason to deviate from that general rule. I order the respondent to reimburse the strata for tribunal fees of $225.00. 60. The strata submitted an invoice claim for expenses of $11.81 related to a fee for notification of the claim. I find that amount is a reasonable expense contemplated under the tribunal filing procedures. DECISION AND ORDERS 61. I dismiss the strata’s claim for payment of fines of $4,549.62. 62. I dismiss the strata’s claim for building services work of $1,701.00. 63. Within 30 days of the date of this order, I order the respondent to reimburse the strata as follows: (a) $225.00 in reimbursement for the strata’s tribunal fees and (b) $11.81 in reimbursement for dispute-related expenses. 64. 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. 14
65. 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 theSmall Claims Act (currently $35,000). Under section 58 of the Act, the Stratacan 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. Catherine Sullivan, Tribunal Member 15
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