Date Issued: September 10, 2018

File: ST-2017-005409

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan XXX 0000 v. S.J. et al, 2018 BCCRT 507

Between:

The Owners, Strata Plan XXX 0000

Applicant

And:

S.J. and M.J

RespondentS

 

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

INTRODUCTION

1.        The applicant, The Owners, Strata Plan XXX 0000 (strata), is a strata corporation existing under the Strata Property Act (SPA). The respondents, S.J. and M.J, jointly own strata lot X (SLX) in the strata.

2.        In the published version of this decision, I have anonymized the parties’ names to protect the respondents’ privacy and identity, at their request, due to submissions on the state of mental health of one of the respondents.

3.        The strata alleges the respondents have increased the risk of fire hazard and pest infestation for the strata and other building residents, contrary to the strata’s bylaws, for which the respondents have been fined. 

4.        The respondents acknowledge that M.J. (M.J) lives with clinical depression and “hoarding tendencies” but deny the strata’s other allegations and seek dismissal of the strata’s claims.

5.        The strata is represented by a strata council member. The respondents are represented by S.J..

JURISDICTION AND PROCEDURE

6.        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.

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.        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.

9.        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

10.     The issues in this dispute are:

a.    Have the respondents been properly notified of bylaw violations in accordance with section 135 of the SPA?  If so, what amount of bylaw fines must the respondents pay to the strata?

b.    Does the strata have authority to charge the extra garbage pickup costs to the respondents?  If so, what amount must the respondents pay to the strata?

c.    Are the following requested remedies appropriate?

a.     An order that the respondents to pay for an inspection of SLX and the associated limited common property (LCP) deck and permit follow up inspections by the strata?

b.     An order that the respondents install a hard-wired smoke alarm in SLX?

c.      An order that the respondents stop contravening the strata’s bylaws?

d.     An order that M.J. stop piling rocks on the common property?

e.     An order that M.J. not bring knives onto common property unless they are packaged?

d.    Should I order the respondents to reimburse the strata $225 for tribunal fees and $550 charged by their property management company to write letters to the respondents?

BACKGROUND AND EVIDENCE

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

12.     In a civil proceeding such as this, the applicant must prove their claim on a balance of probabilities.   

13.     The strata corporation is made up of a single 3-storey building of 20 strata lots located in Coquitlam, BC.

14.     Land title documents show the respondents purchased SLX in October 1992.  SLX is a ground level strata lot with access to an adjoining deck designated as LCP for SLX. 

15.     The strata’s relevant bylaws are those registered in the Land Title Office on June 2, 2017. In particular:  bylaw 6 about use of property, bylaw 10 about access to a strata lot and LCP, and bylaw 40 about cleanliness.

16.     On May 29, 2017, following enquiry by a strata council member about a possible hoarding situation, Coquitlam Fire Rescue (Coquitlam Fire) wrote the strata’s property manager providing information on its hoarding policy.  It also advised the strata that it is equally responsible for ensuring the building complies with the BC Fire Code and the City of Coquitlam bylaws, and offered its assistance to mitigate fire hazards only after the strata has made “a number of failed attempts to correct the issue”. 

17.     Also on May 29, 2017, the strata wrote to the respondents requesting immediate removal of “miscellaneous garbage items” being stored on the respondents’ deck, contrary to the strata’s bylaws in force at the time. The letter stated that fines would be assessed if the items were not removed in 14 days. No evidence of earlier communication between the strata and respondents was provided.

18.     On May 30, 2017 the strata made a formal request to Coquitlam Fire for assistance in addressing the alleged fire hazard situation in SLX.  The reasons for the strata requesting assistance were stated as “excessive clutter” in SLX and the strata’s concern the situation may cause a fire or increase the risk of a fire in SLX thereby endangering life.

19.     On June 1, 2017, Coquitlam Fire inspected SLX and issued an Inspection Report with photographs to the respondent, M.J., instructing they attend to 7 items:

a.      Remove storage from in front of the electrical panel,

b.      Shut off electrical breakers to stove and baseboard heaters ensuring a 1 meter clearance until reviewed by Coquitlam Fire,

c.      Shut off electrical and natural gas to the fireplace until there is a 1 metre clearance to combustible materials,

d.      Reinstall 2 working smoke detectors,

e.      Re-install electrical cover plates,

f.       Remove combustible materials from in front of bedroom windows, and

g.      Reduce combustible materials inside SLX and on the deck to an acceptable level as directed by Coquitlam Fire.

20.     The first 4 listed items were to be completed within 48 hours and the remaining 3 listed items were to be completed within 3 weeks. The photographs show a large amount of material stored in SLX, in some areas stacked almost floor to ceiling.  A copy of the report was emailed to the strata.

21.     On June 5, 2017 Coquitlam Fire completed a follow up inspection and emailed the strata stating all but 1 of the “48 hour items” has been addressed. The outstanding item was the re-installation of 1 of the 2 smoke alarms.

22.     On June 23, 2017, after the relevant bylaw amendments came into force, the strata wrote to the respondents requesting they remove “miscellaneous garbage items” from their deck alleging the stored items created a fire hazard in violation of the strata’s bylaws. 

23.     On July 10, 2017, the strata wrote to the owners stating it had not received a response to its June 23 letter and that a $50 fine had been assessed against SLX. The respondents paid the fine on July 20, 2017.

24.     Between July 4 and October 2, 2017, Coquitlam Fire attended SLX at least 11 times essentially to ensure the combustible materials were reduced to an acceptable level.  The second smoke detector was noted as installed on July 10, 2017.  Coquitlam Fire emailed the respondents and the strata after each visit to SLX and on October 2, 2017 confirmed the inspection had “passed”. 

25.     On July 11, 2017, the strata wrote to the respondents referring to Coquitlam Fire reports of June 1, and July 4, 2017 about an ”excessive amount of combustible materials stored in your strata lot that poses a fire hazard.”  The letter stated this was in violation of the strata’s bylaws and requested the respondents’ “assistance in this matter.”  The letter did not identify a deadline or advise that fines would be assessed if the stored material was not removed.

26.     Between July 10 and October 2, 2017, the strata wrote to the respondents about bylaw violations 23 times and assessed $4,100 in bylaw fines for deck storage, deck repairs, or suite odour.  Additional letters were written about bylaw violations relating to insects and mould in SLX, leaving notes on vehicles and in common property areas of the building , and moving a water hose from the car wash area in the underground parking garage to an exterior hose bibb, but no fines were assessed for those alleged bylaw infractions.

27.     On 2 occasions, August 10 and Sept 14, 2017, the strata charged the respondents $126.00 for extra garbage pickup, alleging the respondents caused the common property garbage bin to overflow, thus requiring an extra pickup.  The respondents paid the first charge on August 21, 2017 but deny responsibility for the second charge alleged in September.

28.     At the time the parties’ submissions began, the strata’s claim for outstanding fines and garbage collection chargebacks totalled $3,376.  I find the amount can be broken down as follows:

a.      $3,250 for bylaw fines (by my calculations, up to and including unpaid fines to February 9, 2018), and

b.      $126 for garbage collection chargeback on September 14, 2017.

29.     On November 23, 2017, in an email to M.J. that was copied to the strata’s property manager, Coquitlam Fire states it received “pictures showing that your smoke alarms (x2) have been disconnected and that you are keeping a pot of newspapers on your stove.” The email requested immediate re-installation of the smoke alarms and removal of the newspapers, and that photographs be provided showing evidence this had been done.  The email also instructed the strata’s property manager to “take whatever steps are available” to ensure the smoke alarms are functioning correctly, given Coquitlam Fire was informed that M.J. removed the smoke alarms as they were going off for no reason.

30.     On November 27, 2017, the strata wrote to the respondents stating Coquitlam Fire notified them that the SLX smoke alarms were again disconnected, that disconnected smoke alarms create a fire hazard that increases the strata’s insurance liability, and reminded the respondents of the indemnity bylaw allowing the strata to charge back an insurance deductible to an owner.  No mention was made of any bylaw violations or possible fines.

31.     The strata wrote to the respondents twice, in August and September 2017, advising that M.J. was witnessed leaving notes in violation of the strata’s nuisance bylaw.  The strata provided several photographs of handwritten notes, which appear to be directed to the strata council, left in various areas around the common property and in the main lobby of the building. I find it is not necessary for me to provide the details of the notes as the strata does not request any related remedies and, as earlier noted, no fines were assessed as a result of these alleged bylaw violations.      

32.     The strata provided photographs of boxes of knives left in the common hallway outside the respondents’ main entrance door.  It also provided 3 separate videos of M.J. on common property wielding what appears to be a knife, machete and meat cleaver.  Based on the video footage, the dates of these occurrences were December 20 and 21, 2017 and April 20, 2018 respectively. There was no correspondence exchanged between the parties about these matters.

33.     The strata provided several photographs of small piles of rocks, and alleges M.J. is creating the rock piles at various locations around the common property.  No correspondence was exchanged between the parties about the piles of rocks.

POSITION OF THE PARTIES

34.     The strata believes the respondents are hoarders, causing an ongoing fire hazard and continually violating the strata’s bylaws.

35.     The strata asks for the following orders:

a.      That the respondents pay outstanding fines and charges,

b.      That the respondents stop contravening the strata’s bylaws,

c.      That the respondents install a hard-wired smoke detector in SLX,

d.      That M.J. refrain from bringing unpackaged knives onto common property, and

e.      That M.J. stop creating piles of rocks on common property.

36.     The strata also asks for an order that the respondents pay for an inspection of SLX and its LCP deck by a company specializing in biohazard cleanup and pest or insect control.  It asks that the order include the strata’s ability to conduct follow up inspections at the respondents’ cost.

37.     As earlier noted, the respondents acknowledge that M.J. lives with clinical depression and “hoarding tendencies”. They accept claims about hoarding but deny allegations of all other bylaw infractions.

38.     The respondents seek dismissal of the strata’s claims.

ANALYSIS

Have the respondents been properly notified of bylaw violations in accordance with section 135 of the SPA?  If so, what amount of bylaw fines must the respondents pay to the strata, if any?

39.     As earlier noted, the strata’s claimed amount of bylaw fines at the outset of the tribunal decision plan was $3,250.  The strata added additional fines during the parties’ submissions. I decline to address the additional bylaw fines claimed by the strata that exceed that amount set out in the tribunal decision plan for reasons of procedural fairness.

40.     Section 135 of the SPA states a strata corporation must not impose a fine against a person for a contravention of a bylaw unless it has:

c.      Received a complaint about the contravention,

d.      Given the owner or tenant written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if requested, and

e.      Given written notice of a decision on the bylaw fine to the owner or tenant, as soon as feasible.

41.     It is established law that these procedural requirements must be strictly followed before a fine can be assessed (See Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449).

42.     The respondents submit the strata has not been clear in its expectations, saying the bylaw letters all reference the condition of the deck and odour emanating from SLX.  They say the letters did not mention the condition of SLX’s interior. I agree with the respondents to an extent.

43.     As described below, I find the strata has failed to comply with section 135 of the SPA before it assessed the majority of the bylaw fines, and did not correct tis procedural error before assessing continuing fines. 

44.     The strata’s June 23, 2017 bylaw infraction letter noted a complaint about miscellaneous garbage items being stored on the respondents’ deck and requested that the respondents “remove garbage items” from the deck as they created a fire hazard.  The letter included a photograph of the respondents’ deck. The quoted bylaws that were alleged to be violated were bylaws 6.1 (nuisance), 6.2 (causing damage to common property), 40.1 (allowing a strata lot to become unsanitary) and, 40.2 (storage of garbage in a strata lot or on common property). It was clearly stated that the complaint only related to garbage on the deck and not to the strata lot’s interior condition. I find the letter erroneously indicated that bylaw 40.1 had been violated, given the context of the complaint. 

45.     The strata’s July 18, 2017 letter referenced the June 23, 2017 letter and advised the strata had assessed a $100 fine against SLX. I find this fine was assessed in compliance with section 135 of the SPA, as it was reasonable for the respondents to determine the fine related to the original complaint about garbage on the respondents’ deck. Further, the respondents did not dispute the fine and did not request a hearing even though they were given those options.

46.     A July 31, 2017 strata letter noted a “moderate” cleanup of the deck and that some dirt and debris remained.  The strata requested a time frame from the respondents to complete the cleanup and repairs to the deck. This was the first time the strata mentioned repairs were required to the deck but the letter did not specify the nature of the repairs.  The letter also noted it had been reported an odour was coming from SLX, that the respondents were sorting through personal items in the building lobby, which created an odour, and were disposing of waste around the building.  It advised that cleanup of waste left around the building would be charged to the respondents and cited violation of the same bylaws 6.1, 6.2, 40.1 and 40.2. No fines were assessed against the respondents.

47.     In response to the strata’s July 31, 2017 letter, the respondents, on August 2, 2017, wrote to the strata stating they are proceeding with the deck cleanup “as per the Coquitlam Fire schedule” and that further cleanup would be completed by August 14, 2017.  They denied the allegations about sorting items in the building lobby and disposing of waste around the building.  The letter did not address the alleged odour coming from SLX.

48.     On August 21, 2017, the strata wrote to the respondents about the stored deck items and odour coming from SLX. It did not acknowledge the respondents’ August 2 letter or refer to disposal of waste around the building or in the lobby. The letter referenced the July 31, 2017 letter, cited the same bylaw violations, and advised a $150 fine had been assessed. 

49.     I find the $150 fine was assessed without giving the respondents an opportunity to respond to the complaints, contrary to section 135(1)(e) of the SPA.  That the respondents, in their submissions, said they preferred to deal with the allegations in writing and not a council hearing, does not release the strata from the procedural requirements set out in section 135.

50.     For this reason, I find the $150 fine is invalid. 

51.     Further letters written to the respondents assess continuing bylaw fines based on “prior correspondence” that I find includes the strata’s August 21, 2017 letter.  Given my conclusion that the fine assessed in the August 21, 2017 letter was invalid, there cannot be a continuing contravention without proper notice first being given (see Dimitrov v. Summit Square Strata Corp., 2006 BCSC 967 at paragraph 33).

52.     There is no evidence to suggest the strata corrected its non-compliance with section 135(1)(e) of the SPA before it assessed further continuing fines.  As a result, I find all fines assessed against the respondents after August 21, 2017 invalid.  I order the strata to reverse the fines and remove them from the respondents’ account.

53.     In summary, I find the strata properly notified the respondents of bylaw fines totaling $100 and order the respondents to pay the strata this amount.  I find the remaining fines assessed against the respondents of $3,150 to be invalid.

Does the strata have authority to charge the extra garbage pickup costs to the respondents?  If so, what amount must the respondents pay to the strata?

54.     The cost of an extra garbage pickup can be termed a “non-lienable” charge as it is not a charge for which the strata can file a certificate of lien under section 116 of the SPA.

55.     In order to collect a non-lienable amount the strata must have the authority to do so under a valid and enforceable bylaw or rule that creates the debt. (see Ward v. Strata Plan VIS #6115, 2011 BCCA 512)

56.     The strata does not have such a bylaw and therefore has no authority to charge the respondents for extra garbage pickups.

57.     Therefore, I find that the respondents are not required to pay the strata $126 for an extra garbage pickup as set out in the strata’s September 14, 2017 letter to the respondents.  I decline to order the respondents to pay this charge.

Are the requested remedies appropriate?

An order that the respondents pay for an inspection of SLX and the associated LCP deck and permit follow up inspections by the strata

58.     The strata says that hoarding and clutter present a wide range of hazards including bacteria, insects, fire hazards, and structural damage.  It cites these concerns as reasons for an inspection of SLX. It also says that follow up inspections of SLX should be paid for the respondents because it took several months for the respondents to clear their LCP deck of debris, and a recent Coquitlam Fire inspection report dated June 12, 2018 found similar fire code violations in SLX as were found a year earlier.

59.     The majority of the correspondence the strata issued to the respondents related to the storage of items on the LCP deck of SLX for which the strata assessed fines.  The respondents removed the items as requested.  Some of the strata’s correspondence related to deck repairs but no specific repairs were identified. Further, the strata has not requested an inspection of the respondents’ LCP deck.

60.     I accept the strata has concerns over potential fire hazards and cleanliness of SLX, and that June 18, 207 inspection report of Coquitlam Fire is concerning.  I also accept that inspections of SLX and its LCP deck may be warranted, however, I find the strata has not met the burden of proof that tribunal ordered inspections are necessary. 

61.     In particular, I find the strata’s request for the tribunal to order interior inspections of SLX and its deck is premature.  The strata has, under its bylaw 10.1, the ability to inspect SLX and its LCP deck for bylaw violations on 24 hours advance notice.  It also has the ability to remedy any bylaw infraction at the cost of an owner under section 133 of the SPA.  It has chosen not to engage either of these options.

62.     I find there were only 2 letters issued by the strata to the respondents about the interior of SLX. 

63.     The first, on July 11, 2017, when the strata requested the respondents reduce the amount of combustible material inside SLX alleging the amount of material posed a fire hazard and was in violation of the strata’s bylaws about nuisance, use of property, and cleanliness. There was no subsequent correspondence issued by the strata following up on this letter as the strata appears to have relied on the Coquitlam Fire inspections of SLX.

64.     The second, on November 27, 2017, when the strata stated Coquitlam Fire had informed it the smoke alarms were again disconnected and it reminded the respondents of their responsibility to indemnify the strata in the case of fire. There was no request made by the strata for the respondents to comply with any bylaws or even to reinstall the smoke alarms.   

65.     In a February 26, 2018 letter to the strata, the respondents stated they had inspected their deck and could not see any damage.  They suggested the strata could inspect the deck at its cost by climbing over the railing but that they did not want the strata to invade their privacy.  I infer that the respondents meant that they would not offer access through SLX to inspect the deck.  However, the respondents should be aware of strata’s ability to inspect the deck and interior of SLX for bylaw compliance under bylaw 10.1.

66.     I find the strata should exercise the options it has available to it to inspect for alleged bylaw infractions and remedy bylaw violations found, before seeking the tribunal’s assistance. 

67.     For these reasons, I decline to order the respondents to pay for an inspection of SLX and the associated LCP deck.

68.     Although there is no evidence before me confirming M.J.’s state of mental health, I encourage the strata to work with the respondents as objectively as possible given the respondents’ submissions on M.J.’s mental health. 

An order that the respondents install a hard-wired smoke alarm in SLX

69.     The strata submits that a hard-wired smoke alarm would not be able to be removed by the respondents as they did with their original smoke alarms on at least 2 occasions.  The strata has not provided any evidence supporting its assertion that a hard-wired smoke alarm would not be able to be removed. 

70.     The respondents say the smoke alarms were disconnected because they were defective and kept “going off for no reason.”  They also say the smoke alarms have been replaced and will remain connected.

71.     For these reasons, I decline to issue the requested order.

An order that the respondents stop contravening the strata’s bylaws

72.     The strata has had limited success in establishing its bylaws have been contravened by the respondents.  Further, the respondents say that they have no difficulty in obeying the bylaws and have done so since removing the debris form their deck. I do not find the requested order appropriate in these circumstances. 

73.     As such, I decline to issue the requested order.

An order that M.J. stop piling rocks on the common property

74.     The strata did not provide any evidence to support its claim that M.J.is making rock piles on common property, which the respondents deny.  A photograph of a bucket of rocks on the respondents’ deck does not prove the strata’s claim.

75.     Therefore, I decline to issue the requested order.

An order that M.J. not bring knives onto common property unless they are packaged

76.     The strata did not provide sufficient evidence to support its claim that M.J. only be permitted to bring packaged knives on to common property or that M.J.’s actions, including those shown in the 3 videos, are contrary to the SPA, or the strata’s bylaws. 

77.     The respondents say that M.J. has formal training in various martial arts disciplines, including Hapkido, which they say consists of armed and unarmed combat.  They say the box of knives photographed in the common hallway was in the process of being moved to storage. 

78.     As for the videos, they say that M.J. did not intend to appear dangerous or threatening and understands the strata’s statements in this regard.  The respondents say M.J. will refrain from similar actions in future.

79.     For these reasons, I decline to issue the requested order.

Should I order the respondents to reimburse the strata $225 for tribunal fees and $550 charged by their property management company to write letters to the respondents?

80.     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. I see no reason in this case to deviate from the general rule. I find the respondents were the most successful party but did not pay tribunal fees or claim dispute-related expenses.  I therefore make no order for payment of fees and expenses.

DECISION AND ORDERS

81.     I order that, within 14 days of the date of this decision:

a.     The respondents pay to the strata $100 relating to the bylaw fine associated with the strata’s July 18, 2017 letter.

b.     The strata reverse all remaining bylaw fines associated with clearing the respondents SLX LCP deck, repairing the deck or odours coming from SLX, and remove the fines from the respondents account,

c.     The strata reverse the outstanding $126 charge for an extra garbage pickup and remove the charge from the respondents account.

82.     The remaining applicant’s claims are dismissed.

83.     I further order the public version of this decision anonymize all parties to protect the privacy and identity of one of the respondents.

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

85.     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. 

86.     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.